Hardaker, Application for Reconsideration [2025] PBRA 105 (16 May 2025) [2025] PBRA 105

PBRA

Hardaker, Application for Reconsideration [2025] PBRA 105 (16 May 2025)

[2025] PBRA 105 · 2025-04-02

[1]This is an application by Hardaker (‘the Applicant’) for reconsideration of a decision of a panel of the Parole Board (‘the Board’) who decided on 2 April 2025 not to direct his release on licence or to recommend his transfer to an open prison.

[2]The Applicant is serving a sentence of imprisonment for public protection (‘IPP’) for an offence of robbery (‘the index offence’). His minimum term (‘tariff’) was set at 2 years. He has been released on licence three times but recalled to prison each time. His most recent recall was on 17 February 2023. The circumstances of that recall will be discussed below, as will the details of the index offence. The application for reconsideration

[3]Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2024) provides that applications for reconsideration of panel decisions may be made, either by the prisoner or by the Secretary of State for Justice, in eligible cases.

[4]Rule 28(2) specifies the types of cases in which reconsideration applications may be made. They include cases, like the Applicant’s, where the prisoner is serving an indeterminate sentence.

[5]A reconsideration application may be made on the ground:(a) that the panel’s decision contained an error of law and/or

(b) that it was irrational and/or

[6]In this case an application for reconsideration has been made on the ground of irrationality. There is no suggestion of any procedural unfairness or any error of law.

[7]The application has been made within the prescribed time limit and is thus eligible for reconsideration.

[8]I am one of the members of the Board who are authorised (as ‘Reconsideration Assessment Panels’) to make decisions on reconsideration applications, and this case has been allocated to me. I have not found it necessary to receive any oral evidence and I have considered the application on the papers.

[9]The documents which have been provided to me and which I have considered for the purposes of this application are:(a) the dossier of papers, now running to page 870 and including a copy of the panel’s decision, which was provided by the Secretary of State for the Applicant’s hearing;

(b) the representations made by the Applicant’s solicitor in support of this application;

(d) an e-mail from the Public Protection Casework Section of the Ministry of Justice (“PPCS”) stating that the Secretary of State (‘the Respondent’) does not wish to make any representations in response to this application. Background and history of the case

[10]The Applicant is now aged 57. He had a traumatic childhood and suffers from post traumatic stress disorder. He has for many years had a serious drug problem. He has accumulated a substantial number of criminal convictions culminating in the IPP sentence. His drug problem has contributed to much of his offending.

[11]The index offence occurred in December 2005. The Applicant and another man went to a supermarket to shoplift goods which they could sell to purchase drugs. The Applicant snatched a woman’s handbag which contained her bank card. The offence was caught on CCTV and he pleaded guilty, asking the court to take into consideration a large number of other thefts.

[12]He was sentenced in October 2006, and in prison he completed the appropriate risk reduction programmes including the Thinking Skills Programme (‘TSP’).

[13]He was first released on licence in November 2016 but was recalled a few weeks later for poor behaviour and failing to reside as directed. He was re-released on the direction of the Board in October 2017.

[14]His next recall was in July 2018 as a result of being arrested for two dwelling-house burglaries and associated frauds. For those offences he received a 44-month sentence to run concurrently with his IPP sentence.

[15]His third release on licence was on 24 October 2022. His case had been considered by a panel of the Board at an oral hearing. That panel had been satisfied that the test for release on licence was met and that the Applicant’s risk to the public would be manageable on licence in the community. Regrettably that was not the case. He was recalled in February 2023 as a result of repeated drug use, failing to notify probation of a developing relationship with a female drug user (ZD) and other concerns.

[16]In March 2023 the Applicant’s case was, as usual, referred by the Respondent to the Parole Board to decide whether he should be re-released on licence. In due course it was directed that the case should proceed to an oral hearing with a panel of three independent members, one of whom chaired the panel.

[17]On 26 June 2024 the hearing commenced. It was conducted by video link. The Applicant was legally represented. The dossier at that stage contained 665 numbered pages. The panel took oral evidence from the Applicant, his Prison Offender Manager (‘POM’), his Community Offender Manager (‘COM’) and a psychologist instructed by his solicitors. Re-release on licence was recommended by all three professional witnesses.

[18]At the conclusion of the hearing the panel decided that they needed further information in order to make a fully informed decision, and they therefore adjourned the hearing with a view to making a decision on the papers. For various reasons the panel later decided that another oral hearing was necessary. That hearing did not take place until 31 March 2025. By that time the dossier ran to page 839.

[19]As a result of developments which had occurred since the adjournment, the POM and the COM no longer supported the Applicant’s re-release on licence. The psychologist still supported it. After considering all the evidence the panel decided not to direct re-release. The panel also decided not to recommend a move to an open prison (which had not been requested by the Applicant and was not recommended by the professional witnesses). The Relevant Law The test for release or re-release on licence

[20]The test for release or re-release on licence is whether the panel is satisfied that the Applicant’s continued confinement in prison is no longer necessary for the protection of the public. The panel cannot be so satisfied unless it considers that, if the prisoner were to be no longer confined in prison, there will be no more than a minimal risk of his committing a further offence of a kind which might result in serious harm to somebody. The rules relating to reconsideration of decisions

[21]Under Rule 28(1) of the Parole Board Rules 2019 (as amended in 2024) a decision is eligible for reconsideration if (but only if) it is a decision that the prisoner is or is not suitable for release on licence. The grounds on which an application may be made are as set out above (error of law, irrationality or procedural unfairness). As noted above the application in this case is made on the ground of irrationality. A decision not to recommend a move to an open prison is not eligible for reconsideration.

[22]A decision that a prisoner is or is not suitable for release on licence is eligible for reconsideration whether it is made by:(i) A paper panel (Rule 19(1)(a) or (b)) or

(ii) An oral hearing panel after an oral hearing, as in this case (Rule 25(1)) or

(iii) An oral hearing panel which makes the decision on the papers (Rule 21(7)). Definition of irrationality

[23]The power of the courts to interfere with a decision of a competent public authority on the ground of irrationality was defined in Associated Provincial Houses Ltd -v- Wednesbury Corporation 1948 1 KB 223 by Lord Greene as follows:

“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 Parole Board is a public authority for that purpose, and the Wednesbury test therefore applies to applications to the High Court for judicial review of a panel’s decision. It also applies to applications to Reconsideration Panels of the Board for reconsideration of a panel’s decision on the ground of irrationality.

[24]In R (DSD and others) -v- the Parole Board

2018 EWHC 694

(Admin) (‘the Worboys case’) a Divisional Court applied this test to Parole Board decisions in these words:

“ 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 .”

The same test of course applies to “ no release” decisions.

[25]In R (on the application of Wells) -v- Parole Board

2019 EWHC 2710

(Admin) Mr Justice Saini set out what he described as a more nuanced approach in modern public law. This approach is “ 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 ”. This formulation of the test was adopted by a Divisional Court in the case of R (on the application of the Secretary of State for Justice) -v- the Parole Board

2022 EWHC 1282

(Admin).

[26]As was made clear by Mr Justice Saini, this is not a different test from the Wednesbury test. The interpretation of (and application of) the Wednesbury test in parole hearings (as explained in the Wednesbury and DSD cases) was of course binding on Mr Justice Saini. It is similarly binding on Reconsideration Panels.

[27]It follows from these principles that in considering an application for reconsideration a Reconsideration Panel cannot substitute its own view of the evidence for that of the panel who heard the witnesses and were able to assess their reliability. The Reconsideration Panel will only direct reconsideration on the ground of irrationality if the Wednesbury test is satisfied. The request for reconsideration in this case

[28]The application in this case was made on 14 April 2025. It was made by the Applicant’s solicitors who attached the letter about the death of the Applicant’s sister. The arguments deployed by the solicitors in support of the application will be discussed below. Discussion

[29]I need first to summarise the reasons given by the panel in their decision letter for their conclusion that the Applicant did not meet the test for re-release on licence. I then need to consider the solicitor’s representations to see whether they have identified any flaws or omissions in the panel’s reasoning rendering their decision irrational within the Wednesbury test.

[30]The panel’s decision letter is exceptionally long and detailed (it runs to 31 pages). The panel, as was appropriate, focussed on the evidence about the Applicant’s most recent time on licence and his time in custody after his latest recall. The Applicant’s time on licence

[31]Two topics which the panel needed to examine in detail concerning this period were the Applicant’s return to the use of illicit drugs and his involvement with women and in particular his relationship with ZD.

[32]The Applicant had managed to remain abstinent from drugs for a substantial period before his father sadly died shortly after his release on licence in October 2022. His father’s death clearly triggered a return to the use of drugs. The panel summarised the evidence on that topic as follows:

“By 24 November 2022 there were numerous instances of him testing positive for cannabis and he had missed an appointment with Turning Point, the drug support agency, and a Licence Compliance Letter was sent to him. On 29 December 2022 he was sent a further similar letter having tested positive for cocaine. On 8 February 2023, following a positive test for cocaine on 25 January 2023, he was given a Decision not to Recall Letter advising him that any further positive Class A drug tests would lead to recall. “Thereafter, on 17 February he failed to attend his Turning Point appointment stating that he was unwell with Covid. He was asked to provide proof of his positive test but failed to do so. He was seen by his police IOM [Integrated Offender Management] officer on the same day running along the road … with another male. In addition, on the same day probation received confirmation of a further positive drug test for cocaine, the sample having been obtained from [the Applicant] on 15 February 2023. “The COM … confirmed to the panel that due to [the Applicant] previously challenging the positive drug tests in the community the previous COM had sent both tests for further analysis. This confirmed the positive tests, with one revealing a ‘low reading’ for cocaine and one revealing a ‘medium reading’. She was satisfied that, with the additional expense of the further analysis, the tests are accurate. “Probation concluded that [the Applicant] was being evasive and that his engagement was superficial. Class A drug misuse being a significant risk factor for him, action was taken to recall him to custody at that time.”

[33]Following his recall, as recorded by the panel, the Applicant’s COM visited him in custody on 6 March 2023 and described the Applicant as strongly challenging the legality of his recall and vehemently denying using cocaine in either January or February 2023. He asserted that the tests may have shown as positive because he had kissed his partner (ZD). At this point it is convenient to examine the evidence, as recorded by the panel, about the Applicant’s involvement with ZD and other women.

[34]The evidence was as follows:

“It is apparent from probation reports in the dossier that during his time in the community [the Applicant] was regularly talking to adult females on dating sites. It is reported that, whilst he was open about this contact, in the view of probation he appeared to seek and crave this female attention. Whilst it is not specifically detailed within the Recall Report, it is apparent from [a later report] that probation had concerns whilst [the Applicant] was in the community about him spending much of his time on his phone and not giving a full account at times as to where he was spending his time. “There were suspicions [by probation] that [the Applicant] was in a relationship from early January 2023. After much encouragement from his COM over a period of time, [the Applicant] is reported to have confirmed that he had met a female but that it was not serious and was not an intimate relationship. “It later became known to probation that [the Applicant] was in fact in a relationship with a female (ZD), which he had not disclosed. This came to the attention of probation when ZD’s support worker contacted the police with concerns regarding ZD’s vulnerabilities, ZD having informed her support worker that [the Applicant] was her boyfriend. “[The Applicant] is reported to have accepted his regular use of cannabis in the community. He also informed his COM at that stage that ZD had told him previously that she did not have any current or previous issues with drugs, but that she had since told him she has current issues with crack cocaine and that could explain his positive drug tests if it was in her saliva.”

[35]The evidence about ZD which was given by the Applicant at the June 2024 hearing was as follows:

“[The Applicant] told the panel that he met her in December 2022 and that their relationship developed in January 2023. She was living in a homeless hostel near where his son lived. He told the panel that he was aware she used to smoke crack cocaine but she did not do so in front of him and never offered him any. He later clarified in his evidence that he had seen ZD in possession of crack cocaine in January 2023 and he was aware that she used cocaine ‘every now and again’, but he reiterated that she did not use it in his presence. “[The Applicant] confirmed that he had not told probation about his relationship with ZD, his reason being that he liked her but as she was a drug user he was concerned that probation would ask him to end the relationship. He confirmed … that the relationship was ongoing and that ZD was currently clean of drugs. She was recently before the Criminal Courts for an offence of shop theft and made the subject of a Drug Rehabilitation Order [‘DRO’]. He confirmed that ZD has successfully completed her DRO and intends to remain clean of drugs.”

[36]The Applicant accepted that he had breached one of his licence conditions by forming a relationship with ZD without disclosing it to probation. The panel noted that he had told the 2022 panel that he would not rush into a relationship and would talk to his COM about it but that would appear not to have been the case.

[37]The panel had to decide whether the Applicant’s recall was appropriate. They concluded as follows:

“On all the evidence available to it, the panel has found that the recall was appropriate. This is because there was clear evidence available to probation that [the Applicant] had class A drugs in his system (which he had previously been warned about), had failed to attend his Turning Point appointment and, despite asserting that he had Covid and therefore could not attend the appointment, was seen out with a friend. Class A drug misuse is a significant risk factor for [the Applicant]. “In addition, probation’s concerns that he was not being open and honest about a relationship appear to have formed a part of their general concerns regarding his evasiveness, albeit the detail of the specific relationship was not known until later.” [The panel then correctly applied the law relating to allegations as established by the Supreme Court in the case of Pearce 2023 UKSC 13 . They stated:] “Having heard [the Applicant’s] account of events in the community the panel did not consider him to be an accurate historian and it was clear to the panel that his accounts have varied over time… “In relation to [the Applicant’s] assertion that the drug tests may be faulty the panel noted the further analysis undertaken at expense by probation and did not accept this as a likely explanation. In relation to his assertion that he may have tested positive due to saliva transfer from his partner, the panel did not consider this account to be credible on the balance of probabilities and, particularly in relation to the February test (medium reading), the panel was satisfied he had knowingly used cocaine. “The panel also carefully considered [the Applicant’s] oral evidence regarding the reasons for his failure to attend Turning Point and the reasons he was seen out with an associate. Again, on balance, the panel did not consider his evidence to be credible. The panel found it difficult to accept his assertion that he could not attend the appointment due to having Covid, when alongside this he was asserting that he could visit a friend, run for a bus and go wherever their intended destination was. The panel was satisfied on balance that he chose not to attend the appointment and was aware that his drug test would return a positive result for cocaine.”

The Applicant’s time in custody between his recall in February 2023 and the June 2024 hearing

[38]The Applicant admitted, in his personal representations to the Board, that due to boredom he had used NPS (‘spice’) in custody every four to six weeks from February to December 2023. The POM confirmed to the panel in her oral evidence at the June 2024 hearing that the Applicant had provided a number of positive Mandatory Drug Tests (‘MDTs’) up to December 2023 and had accepted the results. There had been no evidence of violence or the use of aggression since recall. She confirmed that, whilst the Applicant could become irate and ‘throw his arms around’ if he did not agree with something, he generally engaged well with staff and there were no significant issues.

[39]The POM also told the panel that the Applicant had completed significant work with the substance misuse team and had been attending Narcotics Anonymous every two weeks for the six months from December 2023 up to the June hearing. The Applicant himself told the panel that he had remained free from illicit drugs since December 2023, and a mandatory drug test in January 2024 provided a negative result which appeared to confirm that to be the case.

[40]However, in February and April 2024 the Applicant was suspected by wing staff to be ‘under the influence’ and the POM said that she had seen him on one of those occasions and noticed that his eyes were red. She applied for more tests to be undertaken but that was not actioned by the authorities.

[41]The Applicant told the panel at the June 2024 hearing that his intention was now to remain completely free from drugs (including cannabis) as he recognised the impact it could have on his mental health. He told the panel that he also recognised that, if he wanted to stay out of prison, he must not test positive for any substances.

[42]As noted above, at the June 2024 hearing re-release on licence was supported by all the professional witnesses (the POM, the COM and the psychologist). The COM agreed, however, that she had not (as had been directed) made any contact with ZD to assess her relationship with the Applicant. That was one of the reasons for adjourning the case for more information to be obtained. The Applicant’s time in custody between the two hearings

[43]The Applicant had told the panel in the June 2024 hearing that he was still in a relationship with ZD, and among the directions issued by the panel after that hearing was a direction that the COM should contact ZD and assess the relationship between her and the Applicant.

[44]The outcome of that direction was recorded in the panel’s decision letter as follows:

“Following the adjournment the panel received an updated report from the COM. Unfortunately, the COM advised in that updated report that despite making a number of attempts to contact ZD between 10 and 17 July 2024 she had not been successful. In addition, the COM had not been successful in making contact with ZD’s support worker. “The COM had however had contact with ZD’s previous COM, who had confirmed that ZD had received a Community Order in April 2023, with a Drug Rehabilitation Requirement (‘DRR’), for offences of common assault and battery. This is at odds with [the Applicant’s] oral evidence to the panel, during which he had informed the panel that the DRR had been for an offence of shop theft. ZD’s previous COM had also informed the COM that ZD’s Class A drug misuse was still prevalent during the Community Order, but it did reduce whilst she was engaging with the mandatory DRR. “The COM had no information regarding ZD’s current use of illicit drugs, but it is apparent that she completed the court order successfully and is no longer subject to the order or probation supervision. “One concern ZD’s previous COM did raise was that as of April 2024 ZD was continuing to engage with a number of individuals who are known to the criminal justice system and there was concern that she can be easily influenced by these individuals.”

[45]During the adjournment period the panel received a report from the POM detailing some alleged adverse developments since the hearing in June. In summary those developments were:(a) the Applicant had been suspected of being ‘under the influence’ on 8 July 2024

(b) he was unable or unwilling to provide a specimen of urine for a MDT on 17 July 2024 (despite being given three cups of water and nearly three hours to comply); and

(c) it was alleged that he had attempted to take a sample of urine with him to an MDT on 18 July 2024, and he then refused to attend the MDT suite. As a result of these developments the POM understandably raised concerns regarding the Applicant’s openness and honesty and his compliance with staff, and she was concerned that his risk might become unmanageable in the community.

[46]The panel sought the views of the COM about the alleged adverse developments. The COM’s response was, inter alia, that provided the Applicant fully complied with the risk management plan and his licence conditions his risk could be managed in the community. The panel expressed their concern that that response did not actually address what they saw as the main issues (the Applicant’s willingness and ability to comply and his likely engagement with professionals in the community).

[47]It was thought that in view of the developments the Applicant would benefit from a repeat of the TSP which he had completed earlier in his sentence. He was offered a place on the programme but refused it.

[48]On 21 July 2025 the Applicant submitted a complaint form to the prison. In the form he classified himself as a ‘political prisoner’ as he was serving an IPP sentence which has been deemed unlawful, and he referred to his recall as having been ‘unfounded and illegal’. He had, of course, previously accepted that the recall was justified.

[49]The panel invited the Applicant’s solicitor’s representations about the situation. Having considered those representations as well as the information from the prison the panel concluded that it was no longer appropriate to conclude the review on the papers and that it was necessary to reconvene the oral hearing. That decision was issued on 15 August 2024.

[50]A positive development following that decision was that the Applicant changed his mind about undertaking the TSP. He completed it in November 2024. His participation was reported to have been positive. Another positive development was that he engaged on a 1:1 basis with the substance misuse team.

[51]Whilst there were those positive developments, there were also negative ones. Those included(a) ongoing and regular substance misuse (mainly spice but also ketamine)

(b) a refusal to attend for a MDT

(d) three proven adjudications in November 2024 for possession of an iPhone, a USB cable and wireless headphones

(e) an appearance in a video posted on social media and

(f) an incident a week or so prior to the oral hearing when a dentist refused to treat him because he was ‘under the influence’.

[52]At the March 2025 hearing the Applicant accepted the truth of most of these allegations. He confirmed that he had regularly used spice since the June 2024 hearing, the most recent occasion having been in the week prior to the hearing. He explained that he had been frustrated with his IPP sentence and all the delays with the current review and, with eight dealers on his wing, he was frequently offered drugs. As regards his possession of the iPhone and accessories, he said that travellers had put him under pressure to hold them for them. As regards the video he said that he had agreed to do it for ‘a couple of vapes ’ and accepted that he had not thought through the consequences.

[53]The panel were particularly concerned about the evidence of poor decision making and thinking skills since the Applicant’s completion of the TSP.

[54]The Applicant was reported to have ended his relationship with ZD. He said that she had not wanted to engage with the COM and he was also concerned that she had kept some of his money. He told the panel at the March hearing that he realised that she was not the right person for him and they no longer had any contact with each other.

[55]Whilst the COM had supported release at the time of the June 2024 oral hearing and the POM had tentatively supported release at that time, during their oral evidence at the March 2025 hearing they both confirmed that their opinions had changed, linked to the Applicant’s lack of compliance in custody in the intervening period, and they were both of the view that he should remain in closed conditions. They were both satisfied that his risk of serious harm would not be imminent upon release, but were concerned that his custodial behaviour indicated that [the Applicant] would continue to use illicit drugs in the community. In their view this was directly linked to his risk of serious harm as he would not have the funds to support his use and would potentially reoffend for financial gain (reflecting his behaviour in the past). They were not confident that he would be open and honest with professionals, making risk escalation harder to identify.

[56]The psychologist completed an addendum report in January 2025 and her assessment remained generally unchanged. She remained of the view that the Applicant’s risk could be managed in the community, but emphasised that this would be dependent on the level of management by professionals being very much ‘above average’ and would need to include(a) relapse prevention support more regularly than weekly,

(b) support if he entered a relationship,

(d) plans for productive activity very soon after release. He would also require stable accommodation.

[57]The psychologist expressed some concerns about the Applicant choosing to make risky decisions (such as ongoing spice misuse in custody) but in her assessment his internal controls are always likely to be limited due to his personality style and functioning and she considered that there would always need to be a higher reliance on external risk management strategies and regular consolidation work regarding previous learning. She recognised that the Applicant might be recalled to custody for substance misuse but considered there would be warning signs of risk escalation which could be acted upon, subject to the provision of the higher level of support that she identified as necessary. The panel’s conclusions

[58]The panel’s conclusions were as follows:

“The panel carefully considered the contents of the dossier and all the oral evidence taken across the two hearings when making its assessment of the current evidence of progress and the current level of risk that [the Applicant] poses. “The panel had particular concerns regarding [the Applicant’s] inability to remain abstinent from illicit drugs during the adjournment period between the two hearings. He has used spice on a regular basis despite having the motivation of knowing he was awaiting the panel’s decision on the papers; and thereafter, since a reconvened hearing was set, he has continued to misuse drugs. “Whilst the panel accepted [the Applicant’s] assertions that he hopes to remain drug free in the community, or limit his use to cannabis, the panel concluded that his assertions in that regard are not currently realistic given his choices in custody and his use of illicit drugs as a maladaptive coping strategy. “The panel was also concerned about the lack of evidence of [the Applicant] applying any skills learnt from TSP. Whilst he was able to explain to the panel the ‘decision chain’ and the option to change a decision at any time along that chain, immediately following completion of that programme he agreed to hold items for other prisoners (on his account due to pressure put upon him). “This reflects accounts he has given in the past and does not evidence improved thinking skills. His account of his previous abscond from open conditions was that he had been under pressure to hold a phone and drugs for another resident. His account of his 2018 offending on licence (which included night time dwelling burglaries with the occupants present) was that he felt compelled to commit the offences due to threats regarding his drug debt. The panel concluded that, assuming his accounts are accurate, he is particularly vulnerable to poor decision making (which can include violent and acquisitive offending) when feeling under pressure from others. “[The Applicant’s] decision to appear in a video posted on tik-tok also evidenced poor consequential thinking skills and it concerned the panel that at this stage in his sentence he appears to have given no thought to the potential consequences (for him and others) but was purely focussed on gaining vapes. “[The Applicant’s] regular drug misuse in custody and the evidence of other poor decision making despite completion of TSP led the panel to conclude that he is unlikely to remain abstinent from illicit drugs in the community. The panel agreed with witnesses that drug misuse, and the linked need to fund that misuse, is a significant risk factor for him, particularly as he has used illicit drugs as a maladaptive coping strategy for many years. The panel was unable to identify any alternative coping strategies that [the Applicant] has been able to develop and use effectively at this stage. “Taking account of all the evidence before it, the panel agreed that [the Applicant] poses at least a medium/moderate risk of violent offending (which may be in the context of acquisitive offending) and that, if misusing drugs, that behaviour is likely to be of moderate to high imminence in the community….. “The panel carefully considered the likely effectiveness of the proposed Risk Management Plan [‘RMP’] in managing the Applicant’s risks and protecting the public from serious harm. The panel recognised that the proposed RMP is robust regarding the external monitoring and controls that are envisaged. However, the panel was unable to conclude on balance that [the Applicant] has evidenced development of the necessary internal risk management skills to complement those external controls. “Whilst the panel accepted [the psychologist’s] evidence that [the Applicant’s] personality style is such that there is always likely to be a reliance on external controls when managing risk, the panel could not be satisfied that those external controls would be effective without [the Applicant] developing his internal controls further. It was apparent to the panel from the reports regarding his conduct and from [the Applicant’s] oral evidence that, whilst he can reflect after the event and regret his decisions, he generally continues to evidence a lack of ability to apply consequential thinking at an early stage. “Drug misuse is a significant risk factor for [the Applicant] and the COM, who did not support release, was of the view that, if released at this stage, [the Applicant] would likely be recalled within a short period for drug misuse and possible acquisitive offending (including burglary) to fund his drug misuse. “The panel therefore carefully considered whether the proposed RMP, or any workable RMP, would in fact be effective, as recall action would be taken prior to serious harm being caused. The panel reminded itself in that regard that [the Applicant] has not used any violence throughout his sentence, including when [under the influence]. The panel concluded however that [the Applicant’s] poor thinking skills impact upon his willingness to be open and honest in the community and the panel was concerned that risk could escalate undetected even if [the Applicant] is subject to drug testing. He was not open with professionals about the threat he felt under before committing the 2018 offences on licence and, despite telling the 2022 panel that he would take things slowly regarding relationships and would discuss with his COM, he thereafter following release engaged in a relationship with ZD who was a class A drug user, without informing his COM. “As detailed above regarding the panel’s assessment of [the Applicant’s] account of his recall circumstances, the panel did not consider him to be a reliable historian and the panel was not satisfied that he will be open and honest during supervision sessions and other interactions with professionals…. “The panel carefully considered whether it could be satisfied that there is no more than a minimal risk, were he no longer confined, that [the Applicant] would commit a further offence the commission of which would cause serious harm. In making its assessment the panel carefully considered the contents of the dossier and the oral evidence taken at the hearing, together with [the solicitor’s] closing submissions, during which he highlighted the lack of any violence for two decades, the robust nature of the RMP, the frustrations [the Applicant] has faced with his IPP sentence and the current motivation he has with the potential for licence termination in the future. “The panel also took account of the nature and seriousness of the index offence and [the Applicant’s] previous and subsequent offending together with his conduct during his sentence. “As detailed above, the panel was not satisfied that recent treatment (TSP) has evidenced a reduction in risk and on the contrary [the Applicant] has continued to misuse drugs and evidence poor thinking skills since completion of that work. “For the reasons outlined above the panel had concerns that there is a real risk that [the Applicant] will fail to comply with one or more licence conditions and will not be open and honest with professionals. “The panel was not satisfied that he will be able to remain abstinent from drugs and noted his lack of motivation, or inability, to remain drug free in custody. Drug misuse is a maladaptive coping strategy for [the Applicant] and until he is able to develop alternative coping strategies the panel was of the view that the risk of reoffending to fund his substance misuse, which could include the use of violence, is such that the public would not be appropriately protected from serious harm. “The panel therefore concluded that it could not be satisfied that it is no longer necessary for the protection of the public that [the Applicant] be confined and the panel makes no direction for release.”

The legal representative’s submissions

[59]These submissions are as follows. I will comment on each in turn. The panel rejected a body of professional opinion, including from the psychologist), who expressly supported release. The psychologist’s evidence was predicated on detailed community safeguards which were not shown to be unworkable or deficient in [the Applicant’s] view. The panel’s refusal to accept these plans as sufficient was not accompanied by a proper evidential or logical rebuttal of the safeguards, rendering the departure from expert consensus irrational.

[60]This rather overlooks the fact that two of the three professionals, having initially supported re-release on licence, changed their recommendations in the light of the developments which had occurred between the two hearings. The psychologist’s recommendation was indeed predicated on detailed community safeguards. As will have been seen above, the panel did provide an ‘evidential and logical rebuttal’ of the effectiveness of those safeguards. I cannot accept there was any irrationality (within the Wednesbury test) in that rebuttal. This was a difficult case in which views could and did reasonably differ. The panel applied an overly precautionary approach to the test for release centred on potential relapse into drug use, without correlating that to actual risk of serious harm.

[61]I cannot accept that the panel’s approach was ‘overly precautionary’. It was in line with the test explained in paragraph 20 above: in order to direct re-release on licence the panel would have had to be satisfied that there was no more than a minimal risk of the Applicant committing a further offence of a kind which might result in serious harm to somebody. Again, views could reasonably differ about that and the panel’s view was certainly not Wednesbury unreasonable. When applying the test for release the panel failed to appropriately measure the evidence that the Applicant has not committed an act of direct violence in nearly 20 years, including during two previous periods in the community, and has never committed violence whilst intoxicated in custody (facts which were central to the proportionality of continued detention).

[62]As will have been seen above the panel took those facts into account. The problem was that, as the panel found to be the case, there was a substantial risk that the Applicant would revert to undisclosed drug use in the community, and if he did there was a risk that he might resort to the use of violence (as he had done during the index offence). While the applicant admitted to substance misuse and faced adjudications, the panel failed to give balanced weight to: · His successful completion of the accredited programme; · A full and candid engagement in oral evidence, including acknowledgment of previous failings; · Sustained engagement with substance abuse agencies; · The temporary and context-specific nature of many reported difficulties (e.g. unresolved trauma, delays in hearing); · The fact that all professional witnesses at earlier stages (including the psychologist and the COM) supported release, or had done so prior to post-hearing developments; · The potential for “over-treatment” of him if he were to be required to complete further therapy (see a report in 2022 by another psychologist). The panel’s selective focus amounted to a distorted analysis that failed to weigh the totality of relevant evidence.

[63]I cannot agree that the panel were guilty of a ‘selective focus’ or a ‘distorted analysis’. On the contrary their analysis was full, balanced and detailed. As the panel pointed out, the Applicant’s apparently successful completion of TSP did not prevent him from poor thinking; the panel found him to be a ‘poor historian’ (a finding which was not challenged); and his engagement with substance abuse agencies did not prevent him from continued substance abuse.

[64]The solicitor validly points out the difficulties which the Applicant faced in the period between the two hearings. However, he is likely to face further difficulties if he is released into the community, and unless he can improve his internal controls he is likely to find himself recalled yet again. The panel were not expecting the Applicant to undertake another accredited programme. They did however make the following suggestion:

“Future sentence planning is not a matter for the panel. However, [the psychologist] was of the view that if he remains in custody [the Applicant] would benefit from further risk reduction work being delivered by a professional with whom [he] has built trust and can engage with openly. The panel considered that it would likely be beneficial if there was a joined up work with any ongoing trauma therapy [the Applicant] undertakes, mindful that his substance misuse in custody is in part reported to relate to his difficulties coping with childhood flashbacks.”

Insufficient weight was attached to the termination of the Applicant’s relationship with ZD.

[65]The panel was aware that that particular relationship had been terminated. However, there was clearly a significant risk that (as had happened on his last release on licence) the Applicant would embark quickly on a new relationship (possibly another unsuitable one) without disclosing it to probation. In assessing the Applicant’s risk of serious harm insufficient weight was attached to the fact that in nearly 20 years there has been no act of direct violence, and the Applicant’s recent difficulties are not proportionate to continuing his incarceration. His record in the lead-up to this hearing was in no way perfect, but the key question is whether his risk can be managed in the community, with of course the provision of recall being the all-important available factor to address any significant warning signs, which would be apparent in the Applicant’s case. “Our client feels the panel failed to adequately address this central submission. In his view, it did not appropriately consider why a structured, recall-responsive community plan — which had worked previously and was reinforced by PIPE AP and multi-agency monitoring — was insufficient in the current case. “The Board’s conclusion that the public would not be adequately protected is unsupported by any tangible evidence of imminent violence, nor by any coherent analysis of how the risk of relapse (or poor decision-making) equates to serious harm, rather than manageable non-compliance triggering recall.”

[66]The panel were certainly well aware of the absence of any act of direct violence in nearly 20 years and clearly took that factor into account. However, if the Applicant were to be released on licence and to have reverted to the misuse of drugs (especially Class A drugs) a risk of future violence would certainly arise. The solicitor (and the psychologist) appear to have placed a good deal of reliance on the view that any increase in risk would be spotted and the Applicant would be recalled to prison before any serious harm to the public could occur. The panel took a different view which was certainly not Wednesbury unreasonable. There is much to be said for not treating recall as a means of protecting the public. The safer means (which is also in the long term interests of the prisoner) is to equip him with the necessary skills to avoid recall . Decision

[67]For the reasons which I hope I have explained so that the Applicant will understand them clearly I am afraid that I am obliged to refuse this application. As I have said this is a difficult case and views could certainly differ as to whether the test for re-release is met. I have however reminded myself of the Wednesbury test and I cannot find that the panel’s decision was in any way irrational. Jeremy Roberts 16 May 2025