Rice, Application for Reconsideration by, [2025] PBRA 112 (23 May 2025) [2025] PBRA 112

PBRA
Rice, Application for Reconsideration by, [2025] PBRA 112 (23 May 2025)
[2025] PBRA 112 · 2025-04-25
[1]This is an application by Rice (the Applicant) for reconsideration of a decision of an oral hearing panel dated the 25 April 2025 not to direct release and not to recommend transfer to open conditions.[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(c) that it is procedurally unfair. This is an eligible case, and the application was made in time.[3]I have considered the application on the papers. These are the oral hearing decision, the dossier consisting of 423 pages and the application for reconsideration. Request for Reconsideration[4]The application for reconsideration is dated 01 May 2025. It has been drafted by legal representatives on behalf of the Applicant. It submits that the decision is procedurally unfair and irrational.[5]The grounds for seeking a reconsideration are a challenge to the Applicant's recall, a submission that his engagement and compliance were not given greater weight, that the panel's risk assessment was irrational and that in the light of the professional support available to him the decision was not balanced or fully considered. Background[6]On 6 July 2009 the Applicant received a sentence of detention for public protection following his guilty plea to robbery. He was also sentenced on the same occasion to one year imprisonment for having a bladed article. His tariff was set at 2 years and expired in January 2011.[7]The Applicant was 18 years old at the time of sentencing and is now 34 years old. Current parole review[8]The Applicant's case was referred to the Parole Board by the Secretary of State (the Respondent) to consider whether or not it would be appropriate to direct his release. If the Board did not consider it appropriate to direct release, it was invited to advise the Secretary of State whether the Applicant should be transferred to open conditions. If the Applicant was being considered for release from an IPP/DPP sentence after being recalled, and not also serving a life sentence, and initial release from the IPP/DPP sentence was more than 3 years ago (or 2 years ago for those serving a DPP sentence), the Board was also asked to consider whether or not it would be appropriate to release them unconditionally under section 31A of the Crime (Sentences) Act 1997.[9]The case proceeded to an oral hearing via video-conference on 17 April 2025. The panel consisted of two independent members. It heard oral evidence from the Applicant, together with his prison offender manager (POM), community offender manager (COM) and a senior probation officer. The Applicant was legally represented throughout the hearing. The Respondent was not represented by an advocate. The Relevant Law[10]The panel correctly sets out in its decision letter dated 25 April 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)[11]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)).[12]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)). Irrationality 13.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. 14.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. " 15.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). 16.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. 17.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. 18.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 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. 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; (e) the panel did not properly record the reasons for any findings or conclusion; and/or (f) the panel was not impartial. The overriding objective is to ensure that the Applicant's case was dealt with justly. The reply on behalf of the Secretary of State 22.The Respondent has submitted no representations n response to this application. Discussion Procedural Unfairness 23.The application challenges the procedural fairness of the recall which was not based on a criminal conviction. The application also submits that the Applicant's compliance and positive conduct should have been given greater weight by the panel. 24.As the panel noted, the allegations leading to recall were very serious allegations and the decision to recall, based on the evidence available at the time was appropriate. There was no procedural unfairness or irrationality in that conclusion. The Applicant's supervising manager could not be expected to wait for a charging decision, prosecution and conviction before considering the question of recall. In its consideration of the recall the panel noted that the allegations had not resulted in any further police action and had placed little weight on them in their consideration of the evidence. It is clear from the decision that the panel carefully considered the evidence including the Applicant's positive conduct. 25.The question of weight to be attached to evidence was a matter for the panel and there is no evidence of procedural unfairness or irrationality in their assessment of the evidence or the weight placed on it. The Applicant's submissions simply amount to a disagreement with the panel's analysis and do not identify any unfairness or impropriety. This ground therefore fails. Irrationality 26.The application submits that "the substantial evidence" of the Applicant's progress, risk mitigation and professional support for release suggests that the refusal decision was not balanced or fully considered. The application sets out the evidence in support of the Applicant's submissions, submitting that a thorough and fair review on the case was not undertaken to ensure justice and that the Applicant's risk could be managed in the community. 27.There was substantial evidence in the dossier and in the oral evidence all of which was considered by the panel. The grounds amount to an attempt to re-argue matters already fully and properly considered by the panel, relying only on evidence positive to the Applicant. The panel's role is not to support just those that support the Applicant's case. The panel is obliged to consider all the evidence and reach its own conclusions on the basis of the evidence presented and considered. The panel did that, it considered all the evidence, both negative and positive, carefully weighed and assessed it and reached conclusions which were balanced, fair, logical and rational. 28.The Applicant may disagree with the decision, but disagreement is not enough to establish irrationality in law. The legal test sets a high bar which this case does not meet. Accordingly, this ground fails. Decision 29.For the reasons I have given, I do not consider that the decision was irrational or unfair and accordingly the application for reconsideration is refused. Barbara Mensah 23 May 2025