Hamilton, Application for Reconsideration [2025] PBRA 108 (20 May 2025) [2025] PBRA 108

PBRA

Hamilton, Application for Reconsideration [2025] PBRA 108 (20 May 2025)

[2025] PBRA 108 · 2025-04-02

[1]This is an application by Hamilton (the Applicant) for reconsideration of a decision of the Parole Board at an oral hearing on 2 April 2025 not to direct his release.

[2]Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2024) (the Parole Board Rules) provides that applications for reconsideration may be made in eligible cases (as set out in rule 28(2)) either on the basis(a) that the decision contains an error of law,

(b) that it is irrational and/or

[3]I have considered the application on the papers. The papers comprise:a. The dossier now comprising 611 pages including the Decision Letter (DL) the subject of this application.

b. The Grounds (undated) submitted on behalf of the Applicant in support of the application. No representations have been submitted by the Secretary of State for Justice (the Respondent) in respect of the application. Background

[4]The Applicant is now 40 years old. In November 2007 he was sentenced to an indeterminate sentence for public protection comprising a custodial term of 4 years and 263 days for an offence of wounding with intent to cause grievous bodily harm contrary to Section 18 of the Offences Against the Person Act 1861. In August 2014 he was released on licence but recalled to prison 6 weeks later. In October 2015 he was again released on licence. He was again recalled to prison in September 2018. In November 2022 a Parole Board panel declined to direct his release. In October 2024 a Parole Board panel sat to hear his case but the case was adjourned. A fresh panel consisting of the previously appointed Chair and two new members heard the case on 2 April 2025. Request for Reconsideration

[5]The grounds for seeking a reconsideration of the case submitted by the Applicant’s legal representative are lengthy and somewhat repetitive. I set them out in summary below: Paragraphs 3-5 submit that in general the decision was both irrational and procedurally unfair. Paragraphs 6-9 refer to allegations which if true would significantly affect a panel’s assessment of the risk of serious harm posed by the Applicant if released and sets out relevant passages from the Supreme Court judgment in R (Pearce) v Parole Board and another

[2023] UKSC 13

. The grounds point out the relevance of such allegations to the decision made by the panel in this case and submit that the reliance placed on them was not justified in the Applicant’s case. (This is really the core ground behind this application). Paragraph 10 refers to the written submissions sent in on behalf of the Applicant prior to the issue of the DL. Paragraphs 11-15 refer to the panel’s attempts to clarify the intelligence before the hearing (a previous hearing had been adjourned on the day of the hearing for that reason), and to the fact that as well as the usual witnesses at such hearings evidence was heard from the Security Governor (SG) and the Head of Public Protection. Paragraph 16 points to a wealth of evidence supporting the Applicant’s “ achievements and positive conduct ” given to the hearing. Paragraphs 17-42 concern the information obtained since the Applicant’s recall and the attempts by professionals to evaluate it. Paragraph 17 alleges that in spite of the adjournment and the additional evidence called following the adjournment “ no evidence has been received to substantiate any claims ”. Paragraph 18 complains that although the DL (at paragraph 2.52) claims to have explored, “ entry by entry ” the “ pattern ” of high-level drug dealing in custody it did not in spite of apparently acceding to the Applicant’s request to do so. However, the ground concedes that it would not in fact have been practically possible to do so. Paragraphs 19-20 set out a passage within the DL concerning information dating from 17 May 2023 and the “ grading ” of that information as high and point out that in fact the information had been re-graded as low following a complaint from the Applicant and a reply from the Head of Security in September 2024. Paragraphs 21-23 submit that if there had been a concern that the Applicant had influence over, or was able to manipulate, members of the staff at the prison that would have been apparent and would have been mentioned to the SG. It had not been and therefore “ there is a reasonable presumption that there had been no concerns around corruption in regards to [the Applicant]”. Paragraphs 24-25 concern the SG’s evidence concerning the Applicant’s “ intelligence footprint ” and quotes from a note of his evidence at the hearing. Paragraph 26 quotes the opinion of the psychologist as to a reported incident of violence in May 2024 in spite of the “ high ” grading which it had attracted. Paragraph 27 reads “ It was confirmed cell spins have been undertaken (4 security led cell spins) - nothing has ever been found.” Paragraphs 28-33 assert that there was no convincing evidence before the panel that the Applicant exercised undue influence over either fellow prisoners or members of staff. Paragraph 34 reads “ [the Applicant] has no control over security or intelligence received from others, there are a number of reasons why this could keep happening, it could be a previous reputation, it could simply be malicious those in trusted roles can often be subject to security.” Paragraph 35 simply disputes the accuracy of the police intelligence on the basis that if there was anything in it the police would have investigated it and, if there was anything in it following such investigation, action would have been taken by way of charge(s) and prosecution. Paragraphs 36-38 concern a particular piece of information contained in a “ gist ” which alleged the Applicant’s involvement in a plan to injure another prisoner and relies on the fact that a previous Parole Board panel had placed no weight on the information. Paragraph 39 alleges that there are “ individuals who hold a grudge ” against the Applicant and that in spite of this the last “ police intelligence ” dates from 2023 and is an indication that there are no current police concerns. Paragraph 40 refers to the absence of “ call monitoring ” evidence. Paragraph 41 refers to an older piece of intelligence concerning the Applicant’s allegedly “ trying to take keys and staff members’ uniform ” and points to the fact that since that intelligence he has been transferred to a lower security prison. Paragraph 42 contends that any concerns there may be about assaulting fellow prisoners or taking them hostage can be traced to things he said but did not mean when trying to ensure he was placed in a single occupancy cell. Paragraph 43 simply points out that the panel’s decision placed more weight on the “ large amount ” of security information than the Community Offender Manager (COM) or the psychologist witness. Paragraphs 44-49 point to the opinions expressed by professional witnesses (the COM and the psychologist) as to the Applicant’s suitability for release both at the hearing and previously. Paragraphs 50-52 criticise the panel’s decision not to direct release on the bases that: - The Applicant has completed work since his last recall which was enough to persuade the psychologist witness of his suitability for release. - The Risk Management Plan (RMP) proposed is more robust than that imposed at the time of his last release on licence. Paragraphs 53-54 complain that the COM’s evidence that “ sophisticated non-compliance ” with a Risk Management Plan would be more easily detected as the result of the additional licence conditions now proposed was not given appropriate weight. Paragraphs 55-56 refer to the panel’s finding at paragraph 2.57 of the difficulty encountered by the Applicant at the hearing when asked about the learning he had derived from courses he had completed and points out that he “spoke about the learning he had taken from the 1-1 work he had completed around his identity, about grievous (sic- presumably “ grievance ”) thinking how he used to manage this and what he would do differently in the future.” Paragraphs 57-64 highlight the difficulty faced by the Applicant when trying to deal with information or allegations which have not been proved and which he denies and to his “ past which he cannot change ”. They point to the fact that throughout recent months he has been an “ enhanced ” prisoner and to the fact that he has done everything available to prove this is no longer the person he once was and submit that it would be wrong to deny him his liberty on the basis of “ unsubstantiated intelligence ”. Paragraph 65 submits that the hearing was procedurally unfair because – “(a) express procedures laid down by law were not followed in the making of the relevant decision; (b) they were not given a fair hearing; (c) they were not properly informed of the case against them; (d) they were prevented from putting their case properly; and/or (e) the panel was not impartial.” Paragraph 66-67 allege “For all the aforementioned reasons we submit that this case has satisfied these guidelines. There is a concern that evidence was heard on many of the issues in the decision (as confirmed above) but these have not been taken into account. It is also concerning that evidence given at the hearing has been ignored. Given liberty is at stake you would expect the standard of reasons to be greater.” Paragraph 68 submits that the decision was irrational because of the robustness of the RMP, the fact that any increase in risk would became apparent before any individual person was put at risk, and the fact that the Applicant’s behaviour in prison indicates that there have been no recent signs that the risk he poses has increased. Paragraphs 69-70 refer the reader to the cases of R(on the application of Wells) -v- Parole Board

2019 EWHC 2710

(Admin) and Associated Provincial Houses Ltd -v-Wednesbury Corporation 1948 1 KB 223 and the dictum of Lord Greene:

“ 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 ”

. Paragraphs 71-75 are set out in full below:

“71.We submit that the panel attached manifestly too much weight to our clients past and not enough to the evidence of the changes which have been made since and the evidence of the professionals supporting this. 72. We submit the decision not to direct [the Applicant’s] release was irrational. 73. We submit to unjust reliance was placed on unsubstantiated intelligence. 74. Despite all the evidence to suggest [the Applicant’s] positive progress, and evidence submitted to discount security it is clear the panel only put weight on any limited evidence heard that substantiated their concerns and discounted the numerous positives that was heard. 75. We ask the reviewing member to find that the reasons for rejecting the recommendations of the professionals insufficient, that too much weight was placed on [the Applicant’s] past and security and not enough on his progression and that the decision be quashed and an oral hearing granted to a fresh panel so our application for release can be adequately considered . ”

Current parole review

[6]As set out above, following the Applicant’s most recent recall and a negative decision by a previous Parole Board panel in 2022 his case was referred to the Parole Board by the Respondent on 21 August 2023. The case was listed before a 3-member panel in October 2024 and adjourned to 2 April 2025. Relevant Law

[7]The panel correctly sets out in its decision letter the test for release and the issues to be addressed in making a recommendation to the Secretary of State for a progressive move to open conditions. Parole Board Rules 2019 (as amended)

[8]Rule 28(1) of the Parole Board Rules provides the types of decision which are eligible for reconsideration. Decisions concerning whether the prisoner is or is not suitable for release on licence are eligible for reconsideration whether made by a paper panel (rule 19(1)(a) or (b)) or by an oral hearing panel after an oral hearing (rule 25(1)) or by an oral hearing panel which makes the decision on the papers (rule 21(7)). Decisions concerning the termination, amendment, or dismissal of an IPP licence are also eligible for reconsideration (rule 31(6) or rule 31(6A)).

[9]Rule 28(2) of the Parole Board Rules provides the sentence types which are eligible for reconsideration. These are indeterminate sentences (rule 28(2)(a)), extended sentences (rule 28(2)(b)), certain types of determinate sentence subject to initial release by the Parole Board (rule 28(2)(c)) and serious terrorism sentences (rule 28(2)(d)).

[10]A decision to recommend or not to recommend a move to open conditions is not eligible for reconsideration under rule 28. This has been confirmed by the decision on the previous reconsideration application in Barclay

[2019] PBRA 6

. Irrationality

[11]The power of the courts to interfere with a decision of a competent tribunal on the ground of irrationality was defined in Associated Provincial Houses ltd -v- Wednesbury Corporation 1948 1 KB 223 by Lord Greene in these words “ 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 same test applies to a reconsideration panel when determining an application on the basis of irrationality.

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

2018 EWHC 694

(Admin) a Divisional Court applied this test to parole board hearings in these words at para 116 “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. ”

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

2019 EWHC 2710

(Admin) Saini J set out what he described as a more nuanced approach in modern public law which was “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 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) .

[14]As was made clear by Saini J this is not a different test to the Wednesbury test. The interpretation of and application of the Wednesbury test in Parole hearings as explained in DSD was binding on Saini J.

[15]It follows from those principles that in considering an application for reconsideration the reconsideration panel will not substitute its view of the evidence for that of the panel who heard the witnesses.

[16]Further while the views of the professional witnesses must be properly considered by a panel deciding on release, the panel is not bound to accept their assessment. The panel must however make clear in its reasons why it is disagreeing with the assessment of the witnesses. Procedural unfairness

[17]Procedural unfairness means that there was some procedural impropriety or unfairness resulting in the proceedings being fundamentally flawed and therefore, producing a manifestly unfair, flawed, or unjust result. These issues (which focus on how the decision was made) are entirely separate to the issue of irrationality which focusses on the actual decision.

[18]In summary an Applicant seeking to complain of procedural unfairness under rule 28 must satisfy me that either:(a) express procedures laid down by law were not followed in the making of the relevant decision;

(b) they were not given a fair hearing;

(d) they were prevented from putting their case properly;

(e) the panel did not properly record the reasons for any findings or conclusion; and/or

(f) the panel was not impartial.

[19]The overriding objective is to ensure that the Applicant’s case was dealt with justly. Other

[20]It is possible to argue that mistakes in findings of fact made by a decision maker result in the final decision being irrational, but the mistake of fact must be fundamental. The case of E v Secretary of State for the Home Department

[2004] QB 1044

sets out the preconditions for such a conclusion:

“ there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter; the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable; the appellant (or his advisors) must not have been responsible for the mistake; and the mistake must have played a material (though not necessarily decisive) part in the tribunal's reasoning .”

See also R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions

[2003] AC 295

, which said that in order to establish that there was a demonstrable mistake of fact in the decision of the panel, an Applicant will have to provide “ objectively verifiable evidence ” of what is asserted to be the true picture.

[21]In Oyston

[2000] PLR 45

, at paragraph 47 Lord Bingham said: “ It seems to me generally desirable that the Board should identify in broad terms the matters judged by the Board as pointing towards and against a continuing risk of offending and the Board's reasons for striking the balance that it does. Needless to say, the letter should summarise the considerations which have in fact led to the final decision. It would be wrong to prescribe any standard form of Decision Letter and it would be wrong to require elaborate or impeccable standards of draftsmanship ." The reply on behalf of the Secretary of State

[22]The Respondent has offered no representations in respect of this application. Discussion

[23]Although Paragraphs 3-5 allege procedural irregularity in the way in which the hearing was conducted I have seen no specific allegation or submission within the grounds quoted and summarised above concerning the procedure at, before, or since the hearing. I have therefore focused on the question of whether the decision can be characterised as “ irrational ”.

[24]As is so often the case the panel was faced with a combination of factors, some of which were positive and others negative. The Applicant has an extensive criminal record. Including the conviction for the index offence he has been convicted since the age of 16 of (among other offences) offences of witness intimidation, robbery, assault occasioning actual bodily harm (on 3 occasions), possession of an offensive weapon, attempting to pervert the course of justice, and escape from lawful custody. During the course of the current sentence he has, as set out above, been released on licence twice and recalled to prison. There was information which the panel were entitled to consider as to his ‘status’ within the prison, and a person with whom the Applicant had quarrelled was seriously attacked to the extent that a charge of attempted murder was considered against the Applicant, who had fled abroad after the incident in breach of his licence conditions, until the victim of the attack withdrew his co-operation with the investigation.

[25]On the other hand, since his recall: a) The Applicant had achieved and maintained “ enhanced ” status . b) Information which had originally been graded as reliable had had its reliability rating reduced. c) Two of the professional witnesses (the psychologist and the POM) who were entitled to express an opinion were, albeit with some reservations, in favour of a direction for release.

[26]I have considered the DL against the complaints levelled against it.

[27]As to Paragraphs 3-5. I have found no sign of a procedural irregularity and none is set out clearly in the grounds. As far as the claim of irrationality is concerned I will deal with the claims individually as they occur in the grounds and “in the round” in my conclusion.

[28]Paragraphs 6-9. These, which form the effective ‘core’ of the application contain a general submission that the way in which the DL dealt with the pieces of “ intelligence ” which were put before it was, both generally and in respect of particular pieces of intelligence, irrational. These played a significant part in the hearing and, unusually, the panel heard from the SG at the prison and the Head of the Public Protection Unit as well as from a psychologist, and the relevant Prison Offender Manager (POM) and COM. I have studied the terms of the DL and conclude, to the contrary, that the DL dealt with them in a balanced way, in particular noting the “ downgrading ” of certain pieces of intelligence following the Applicant’s complaints. In reaching this conclusion I have studied the terms of the DL, in particular the careful summary of the evidence given by each witness at paragraphs 2.1-2.71.

[29]Paragraph 10. The DL refers to its “ careful consideration ” of the representations supplied by the legal representative.

[30]Paragraphs 11-16 are not in themselves grounds of appeal. The positive steps taken by the Applicant since his recall, and in particular since the last parole hearing were recorded in the DL at 2.40, 2.41, 2.56-2.57.

[31]Paragraphs 17-42 concern the core of the appeal and an important part of the decision-making process in the case concerning the “ information ” generated within the prison system at the time of and since his last recall. Clearly that information required, and received, much consideration. No suggestion was made that the various pieces of information emanated from a single source or different sources with a motive to prejudice the Applicant either within the prison system or in connexion with his possible release or transfer to open conditions. And while the Applicant’s persistence had resulted in the downgrading of the ‘reliability grading’ of a number of the pieces of information, the panel was entitled, as it did, to come to its own conclusion as to the weight of individual allegations and of the combination of them on the Applicant’s risk of serious harm if he were to be released. It is correct to say as set out in paragraphs 19-20 that the panel failed to record the “ downgrading ” of a particular piece of information from “ high ”, however the document evidencing this is not in the dossier and seems to have been submitted on the Applicant’s behalf in connexion with his appeal. Its explanation of its reasons at paragraphs 4.2-4.10 of the DL is clear and logical. In particular of course the panel, like a jury or bench of magistrates at a criminal trial, was also entitled to come to its own conclusion on the credibility of the Applicant who gave evidence at the hearing. And as is clear from the authorities cited above, and by the Applicant in his application, the mere fact that another panel faced with similar evidence may have come to a different conclusion in a particular either as to release or to suitability for transfer to open conditions cannot by itself render a decision irrational.

[32]Paragraph 42 refers to references in the dossier and the DL to “ hostage-taking ”. This topic was explored in the DL at paragraphs 2.32, 2.38, 2.52 2.56, of the DL. There is no suggestion in the DL that this possibility played any part in its decision and at 2.32 the DL records the evidence of the SG that “ there was nothing to suggest that he had taken anyone hostage ….”

[33]Paragraphs 43-49. These, in various ways suggest that (paragraph 48) “it seems somewhat unfair that the panel should choose to prefer evidence of two professionals who wasn’t able to provide recommendation, who had the least knowledge of the case and least involvement as opposed to the psychologist and COM.” It is important to stress once again that a parole hearing involves not only reading and considering the written evidence within a dossier but by evaluating the oral evidence given by the professionals, and, if he or she chooses to give evidence, the offender. The period of time over which a particular witness has, or has not, supported release is of limited relevance.

[34]Paragraphs 50-54. These revolve around the fact that a Risk Management Plan (RMP) had been devised in order to try to ensure that any sign that the risk of serious harm posed by the Applicant was increasing, including “ sophisticated non-compliance ” would be picked up in time for his recall to be effected before the risk became a reality. However the DL clearly and logically explained in its “ Conclusion ” why it concluded that even an RMP as comprehensive as the one proposed would not in its view be sufficient to manage the risk posed by the Applicant. In addition, the DL did consider the work done by the Applicant since his recall, at paragraphs 2.3, 2.7, 2.13, 2.56-2.57 and 2.71.

[35]Paragraphs 55-56. These are simply summaries of evidence rather than grounds of appeal.

[36]Paragraphs 57-61 and 63-64. These refer back to the intelligence which occupied a considerable part of the hearing and which has been discussed above. While it is of course true to say that such evidence is problematic for the professionals, the panel and the offender it is clear from the authorities cited above that it has to be addressed with particular care. It is by no means an unusual feature of Parole Board cases. Ultimately it is for the Board to assess it and apply the public protection test to it. I have seen no sign within the DL that this panel did not apply the proper consideration to the intelligence, assisted as it was by the witnesses it had asked to assist it, and thus no sign of “ irrationality ” in the way it dealt with it either during the hearing or in the DL.

[37]Paragraph 62 is not a ground of appeal concerning either procedural irregularity or irrationality.

[38]The same can be said of paragraphs 65-68 which the terms of which seem likely to owe more to the Applicant than to his legal representative.

[39]Paragraphs 69-71 draw attention to the Wednesbury and Wells cases referred to at paragraphs 11 and 13 above and elsewhere, and submit that too much emphasis has been placed on the Applicant’s past behaviour and not enough on recent changes in his behaviour and attitudes. Clearly there was such evidence, but it was a matter for the panel, in particular, as has already been said, having listened to the Applicant give evidence in person, to form its own view. It is only if the decision was “ irrational ” in the terms of the cases set out above that reconsideration will be ordered.

[40]Paragraphs 72-4 are mere repetitions of earlier grounds.

[41]Paragraph 75 is a helpful summary of the application and the reasons for it. As will be clear from the previous paragraphs I have come to the conclusion that the decision was not “ irrational ”. Its conclusions are clearly and logically set out in Section 4 of the DL based on the evidence given by the professionals and the Applicant, acknowledging that its decision conflicted with the “ opinion of some of the professional witnesses ”. Decision

[42]The application is therefore refused. Sir David Calvert-Smith 20 May 2025