“He had spoken to his COM and informed them that he would not be attending an appointment as he was drinking alcohol (5 pints and 1 short), in a public house”
“When reviewing the case, the Panel has found there to be sufficient information available within the dossier to make an informed decision about risk”
“Lord Reed further held that in assessing whether procedural fairness required an oral hearing, a court must determine for itself whether a fair procedure was followed and he drew particular attention to the need to avoid a sense of injustice in a prisoner, derived from the lack of opportunity to contribute: "This aspect of fairness in decision-making has practical consequences of the kind to which Lord Hoffmann referred. Courts have recognised what Lord Phillips of Worth Matravers described as "the feelings of resentment that will be aroused if a party to legal proceedings is placed in a position where it is impossible for him to influence the result" Secretary of State for the Home Department v AF (No 3)[2009] UKHL 28 ;[2010] 2 AC 269 , para 63 In the present context, research has established the importance attached by prisoners to a process of risk assessment which provides for their contribution to the process (see Attrill and Liell, "Offenders' Views on Risk Assessment", in Who to Release? Parole, Fairness and Criminal Justice (2007), ed Padfield).”
“…In my judgement no good reason has been put forward by the Parole Board for not holding a hearing in the Claimant's case. The Decision has focused on the outcome and in doing so has failed to address the central fundamental question outlined in Osborn , namely whether fairness called for an oral hearing, and has failed to consider which elements of the Claimant's case might or might not call for an oral hearing, by reference to the guidance give in Osborn.”
“A more nuanced approach in modern public law 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” . 12. This is not a different test to the Wednesbury reasonableness test. In the Wells case Saini J emphasised at paragraph 33 that “this approach is simply another way of applying” the Wednesbury irrationality test. 13. What is clearly established by all the authorities is that it is not for the reconsideration member deciding an irrationality challenge on a reconsideration - or a judge dealing with a judicial review in the High Court - to substitute his or her view for that of the panel who had the opportunity to see the witnesses and evaluate all of the evidence. It is only if a reconsideration member considering the application decides that the decision of the panel did not come within the range of reasonable conclusions that could be reached on all of the evidence, that he or she should allow the application. 14. Panels of the Board are wholly independent and are not obliged to adopt the opinions or recommendations of professional witnesses. The panel’s duty is clear and it is to make its own risk assessment and to evaluate the likely effectiveness of any proposed risk management plan. That will require a panel to test and assess the evidence and decide what evidence they accept and what evidence they reject. 15. Once that stage is reached, following the guidance provided by such cases as Wells a panel should explain its reasons whether or not they are going to follow or depart from the recommendation of professional witnesses. 16. The giving of reasons by a decision maker is “one of the fundamentals of good administration” (Breen v Amalgamated Engineering Union[1971] 2 QB 175 ). When reasons are provided, they may indicate that a decision maker has made an error or failed to take a relevant factor into account. As I understand the principles of public law engaged in deciding this application, an absence of reasons does not automatically give rise to an inference that the decision maker has no good reason for the decision. Neither is it necessary for every factor to be dealt with explicitly for the reasoning to be legally adequate in public law. 17. The way in which a panel fulfils its duty to give reasons will vary depending on the facts and circumstances in any particular case. For example, if a panel is intending to reject the unanimous evidence of professional witnesses then detailed reasons will be required. In Wells at paragraph 40 Saini J said: “The duty to give reasons is heightened when the decision maker is faced with expert evidence which the panel appears, implicitly at least, to be rejecting”. 18. When considering whether this decision is irrational, I keep in mind that it is the decision of the panel who are expert at assessing risk. As I have already observed, it is extremely important that I do not substitute my judgment for theirs. My function is to decide whether the panel in this case erred in law or reached a decision that was ‘Wednesbury unreasonable’ and/or procedurally unfair in some respect. Procedural unfairness 19. 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. 20. 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; (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. 21. The overriding objective is to ensure that the Applicant’s case was dealt with justly. Other 22. 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.”