“if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere”
“ the issue is whether the release decision was so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it .”
“ to test the decision maker’s ultimate conclusion against the evidence before it and to ask whether the conclusion can (with due deference and with regard to the panel’s expertise) be safely justified on the basis of that evidence, particularly in a context where anxious scrutiny needs to be applied ”
‘[The Applicant] is serving an extended determinate sentence and therefore the [Respondent’s] referral in this matter included only the issue of [his] re-release. The statutory test for release is that ‘the Parole Board must not give a direction [for release] unless the Parole Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined…’ ‘The presumption in favour of release as set out in the case of R v Sim [2004] applies to this review. [The Applicant] is serving the ‘extension period’ part of his extended sentence. Parole Board guidance notes that ‘panels are required to reverse the test, applying a presumption in favour of release. In such cases, the panel should direct release unless positively satisfied that continued detention is necessary for the protection of the public’. ‘A panel should consider whether release would cause a more than minimal risk of serious harm to the public (R v King [2017], R v Johnson [2022], R v Dich and Murphy [2023] and others). ‘[The Applicant’s] hearing was adjourned on the day of oral hearing because he did not attend, having been kept on his wing due to suspected drug use. The panel chair issued directions for the results of the drug test that was anticipated, for (a) a statement from the nurse who assessed [the Applicant] on the day, for (b) entries on the NOMIS system, (c) for an updated security report and (d) for representations to be submitted. Having received new evidence, including the result of the drug test completed on the day of the hearing and representations, the chair indicated that consideration would be given to the possibility of concluding the review on the papers under rule 21Parole Board Rules 2019 (as amended 2023). ‘The rules provide that: Rule 21.—(1) Subject to the provisions of this rule, where … a panel have directed that a case should be determined at an oral hearing under rule 19(1)(c) or 20(5), a panel chair or duty member may direct that the case should be decided on the papers if an oral hearing is no longer necessary— (a) in the interests of justice; (b) to effectively manage the case; or (c) for such other reason as the panel chair or duty member considers appropriate, including where further evidence is received by the Board. The Board must notify the parties where it is considering making a direction to conclude on the papers and allow a period for representations. ‘That notification was given by the Panel Chair in directions issued on20 June 2024 and provided an opportunity for either party to provide further representations on the issue of a conclusion of the review without a further hearing. Further representations on behalf of [the Applicant] were received; no representations were received from [the Respondent]. The panel considered the dossier of 1303 pages including representations on behalf of [the Applicant]. ‘There were four sets of written representations in all in the dossier. The first, in June 2023, at the start of this review, sought an oral hearing if [the Applicant] were not to be released on the papers. The single member considering the case at that stage adjourned consideration of the decision for further information, as the dossier had concluded with information that [the Applicant] was being assessed for a secure psychiatric unit or for transfer for treatment at [a special unit in a prison]. ‘A second set of submissions was filed, in August 2023, indicating that [the Applicant] continued to seek release and requesting an oral hearing if [he] were not released on the papers. ‘The case was listed for hearing in April 2024 and was adjourned on the day, as noted above, due to the prison assessment that [the Applicant] was under the influence. Further submissions were filed following the adjournment of the hearing in response to directions and the latest representations were submitted in response to the June directions regarding possible conclusion on the papers. These submissions sought relisting of a hearing and objected to conclusion on the papers. ‘The panel concluded, by way of a decision dated21 August 2024 , that it was appropriate to conclude the case without an oral hearing and on the papers alone. Having done so, this letter now concludes the review with a no release decision. ‘In coming to a decision to conclude the case on the papers without further oral hearing and not to release [the Applicant] the panel considered: - the new evidence received after the date of the listed hearing, as well as the totality of the evidence previously compiled in the dossier; - the representations received on behalf of [the Applicant] (noting that the Secretary of State for Justice had not submitted representations); - the Parole Board Rules and Parole Board guidance; - the guidance of the courts, in particular the guidance on holding oral hearings provided by the Supreme Court in the 2013 case of Osborn, Booth and Reilly[2013] UKSC 61 . ‘The panel chair also considered in some detail the case of R (Garmson) vs Parole Board[2024] EWHC 1106 (Admin) , upon which [the Applicant] relied heavily in his representations. The panel chair took into account the range of court authorities relevant to the issues in the case and not listed here. ‘Representations were made on behalf of [the Applicant] that it would be unfair and, indeed, unlawful to conclude the case on the papers, without an oral hearing. The judgment in Osborn was relied on to highlight the wide range of circumstances in which fairness requires a hearing, including where there is factual dispute or the need for oral mitigation, where a hearing is needed to assess the prisoner’s risk, particularly where an assessment is based on a prisoner’s characteristics and to test the views of those who oppose release. ‘That judgment also highlighted the principles that: holding oral hearings can avoid a sense of injustice arising from a prisoner not being able to participate in the decision-making process and the general ‘public good’ principle that decision-makers should hear from those whose lives they affect. Representations also highlight the principle, confirmed in other more recent cases, that Parole Board decisions as to whether an oral hearing should be held should not be overly focused on the likely outcome or result, i.e. whether the application is likely to succeed at hearing or not, but should focus on fairness and take into account the range of purposes that a hearing may fulfil. ‘It was argued on behalf of [the Applicant] that he cannot reduce his risk further, that he wanted to apply for release and that he meets the test. It was said that he wanted to challenge the witnesses’ evidence and to present his own evidence. It was said that he disputes the risk assessments. ‘The case of R v Garmson is cited as authority for the proposition that it would be unlawful to conclude an oral hearing on the papers without hearing live evidence. The argument that a legitimate expectation of a hearing had been created by the MCA decision to direct an oral hearing was also advanced. ‘The argument that a decision at MCA to hold an oral hearing creates a legitimate expectation and should deter the Board from later making a decision to conclude on the papers, was dismissed in the case of R v Garmson . This panel did not put any substantial weight on that argument. It cannot be right that, having decided to direct a case to oral hearing, it is never permissible to later decide not to hold a hearing but instead to conclude the case on the papers. That specific scenario is one that r 21 Parole Board Rules provides for and it must, therefore, be permissible in a range of circumstances. ‘The decision at MCA to direct the case to an oral hearing takes into account a wide range of matters, including those articulated by Lord Reed in Osborn , and fairness is at the core of the decision-making process. ‘One aspect of fairness may be the prisoner’s legitimate right to be concerned in the decision-making process that affects his sentence and his life. All prisoners have the right to be concerned in their case, but that does not equate to a rule that all prisoners are entitled to an oral hearing. That is not envisaged by the judgment in Osborn nor in the Parole Board rules or guidance. ‘There is clear provision for a review being concluded on the papers without an oral hearing being directed, as well as a decision being made to conclude on the papers after an initial decision to hold an oral hearing. Prisoners may engage in the process in a range of ways. They may express their views, make representations and make requests and their legitimate interest in their case does not always require giving live evidence at an oral hearing. ‘The specific case of indeterminate prisoners, particularly post-tariff life and IPP sentenced prisoners, has concerned the courts in a number of cases. Some of the relevant cases are quoted in the representations, and the judicial comment that there is ‘tantamount to a presumption’ in favour of an oral hearing for such prisoners, is quoted. ‘[The Applicant’s] case can be distinguished from these cases; he is not an over-tariff indeterminate sentenced prisoner. He is serving an extended determinate sentence, on which he has been recalled from the community, and he has a sentence end date in March 2025. He has also had two reviews since the recall. This panel is fully aware of the requirement for the ‘ever anxious scrutiny’ to be paid to the cases of over-tariff indeterminate sentenced prisoners; those injunctions do not apply to [the Applicant], though of course the principle of fairness does equally apply to his case. ‘Parole Board guidance on when a hearing should be directed focuses in part on whether a decision can be made on the papers, i.e. whether there is sufficient evidence available to make the appropriate risk assessment, or whether a hearing is required to be able to explore risk, the proposed plans and to inform a decision. Some factors highlighted in that guidance are: the period of liberty at stake; whether the prisoner has had an oral hearing previously or recently; whether there have been any significant changes and whether there are disputed facts which are relevant to risk and can only be explored properly with oral evidence, again highlighting the central part that fairness plays in the decision. ‘An oral hearing in [the Applicant’s] case was justified at the time of the direction to hearing; there was uncertainty over the pathway for progression, with assessments of outstanding intervention, but [the Applicant] was relatively engaged with the regime and those supervising him and - despite some instability of behaviour - he was exhibiting some motivation to engage and an exploration of evidence at a hearing was deemed to be valuable. ‘The [present] panel considered that there were a number of reasons why fairness did not require that a fresh hearing be convened and that conclusion on the papers is fair. [The Applicant] was afforded the opportunity to engage with the Parole Board and the review process, to attend a hearing and give live evidence. He chose to use substances on the morning of the hearing and found himself not permitted by the prison to attend - an outcome which would not have unfairly surprised [the Applicant]. It would, of course, have been inappropriate for him to attend the hearing under the influence, even had he been permitted by staff to leave the wing. He could not have properly provided evidence or engaged in the process. ‘This incidence of substance misuse has been proven by drug testing but is one in a very long list of occasions (both prior to and after the hearing) when [the Applicant] has been found under the influence and, indeed, on occasion unresponsive. Not only his substance misuse, but his aggressive behaviour, have resulted in him not being offered the opportunity to transfer to the [special unit] to undertake work that could address his risk and personality difficulties. ‘The ongoing substance misuse has seen him reduced to the basic IEP level for extended periods of time. Substance misuse is a clear risk factor for [the Applicant], linked directly to his risk of reoffending, the use of violence and to problems with his management. He is also reported to have exhibited non-engagement, aggressive and dismissive behaviour and exhibited disregard for the regime in not complying with orders. ‘None of the professionals currently assess that [the Applicant] meets the test for release and all express concern about his behaviour and lack of engagement as it directly impacts his manageability in the community. There is no support for the view that he ’cannot reduce his risk further’ and that he meets the release test, as [the Applicant] advances through his representatives. The panel is enjoined to consider risk reduction as a wider task than simply engaging in offence focused work. The panel agrees that risk reduction can be demonstrated in a range of ways and that it is not determined simply by completion of programmes or interventions. ‘In [the Applicant’s] case, work on understanding his personality has been proposed as one way in which he could reduce his risks. The panel has fully considered all aspects of the evidence that could indicate risk reduction, including the views of those who work with [the Applicant], his reported comments, the representations made on his behalf and his behaviour as reported over a substantial period. It is clear to this panel that [the Applicant] has core risk reduction work to undertake. ‘It was submitted on behalf of [the Applicant] that he wished to challenge the views of others, to challenge the risk assessment and give his own evidence. It is argued that an oral hearing is the only way that this can be achieved and that it would be unfair to deny him that opportunity. ‘The panel noted that [the Applicant] has not provided any evidence or submissions about his substance misuse, the reasons for it, or anything other than bald denials of his behaviour in the past. His representatives have submitted four sets of representations, yet [the Applicant] makes no comment in that regard. In the two sets of submissions since the adjourned hearing he does not refer to the positive drug test or acknowledge the seriousness of the situation of choosing to use drugs on the day of the hearing, nor the ongoing substance misuse despite the work he has previously undertaken to address that risk. ‘He merely continues to argue that he wants the platform of a hearing. He had previously expressed a willingness to engage in [the special unit] to address his risk, but his behaviour precluded that option. His behaviour has not improved since that option was closed to him. His [sic] states that he is manageable in the community and yet is currently disengaged and there is no information to suggest that he recognises the importance of his self-management in custody and the importance of engagement and motivation to continue to address risk. ‘[The Applicant] states via his representatives that he wishes to challenge the evidence and risk assessment. He does not articulate in any way what that challenge would be and what aspect of the risk assessment he does not agree with. ‘Representations highlight the OASys assessments of [the Applicant’s] likelihood of reconviction in favour of him meeting the release test. According to the actuarial scores, [the Applicant] falls into the band of prisoners with a ‘medium’ likelihood of proven reoffending in terms of general and violent offending using the OGRS-3, OGP, OVP and RSR tools. He is currently assessed as posing a high risk of harm to the public and a medium risk to children, known adults and staff in the community and a medium risk to prisoners and staff in custody. ‘The high risk assessment is described as ‘there are identifiable indicators of risk of serious harm. The potential event could happen at any time and the impact would be serious’ and the medium risk of serious harm indicates that ‘there is the potential to cause serious harm the offender is unlikely to do so unless there is a change in circumstances, for example, failure to take medication, loss of accommodation, relationship breakdown, drug or alcohol misuse’. ‘Those assessments clearly suggest that [the Applicant’s] substance misuse and other behaviour would be key to whether he was manageable in the community and it is not clear what he wishes to challenge there. The most recent psychological risk assessment provides an assessment that takes into account recent custodial behaviour and puts his current dynamic risk as higher than the existing OASys assessments; indeed the psychologist who assessed him concluded that risk would be imminent on release. ‘Undoubtedly, [the Applicant] would take issue with that as such an assessment would make release unlikely, however, specifics are not indicated. [The Applicant] may wish to argue that a move to [the special unit] is no longer necessary and that he wished to show he was working on his relapse prevention plan, his release plan and his wider risks to argue that he meets the test for release. However, his behaviour has deteriorated and continues to be poor; he has not engaged in a meaningful way with the substance misuse team in recent times and continues to use drugs and to show a lack of motivation to demonstrate that he is manageable. ‘On his behalf it is said that his ‘engagement with his sentence plan has been completed the best he can and his position in terms of risk reduction is therefore highly unusual and he has done everything he can to reduce his risk’