Kahchairah, Application for Reconsideration by, [2025] PBRA 117 (03 June 2025) [2025] PBRA 117

PBRA
Kahchairah, Application for Reconsideration by, [2025] PBRA 117 (03 June 2025)
[2025] PBRA 117 · 2025-04-15
[1]This is an application by Kahchairah (the Applicant) for reconsideration of a decision of an oral hearing panel, made on the 15 April 2025, not to direct 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(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 dossier, the decision of the oral hearing panel, the representations by the Applicants legal adviser for reconsideration and the response by the Secretary of State (the Respondent). Request for Reconsideration[4]The application for reconsideration is dated 12 May 2025.[5]The grounds for seeking a reconsideration are set out below. The application for reconsideration was in a narrative form. Individual grounds were not cited. I have adapted the narrative application in the form of the grounds set out below. Background[6]The index offence was murder. The Applicant is serving a sentence of life imprisonment with a minimum term of 13 years (less any time spent on remand) the Applicant was aged 33 at the time of sentence. The Applicant was 59 at the time of the oral hearing. The victim of the murder was a long-term partner of the Applicant. The Applicant had taken alcohol and drugs and, together with two others, attacked the partner. The partner was punched and kicked and stamped upon, and died from her injuries. At the time of the offence the victim was four months pregnant. This was the ninth review of the Applicant's sentence. Current parole review[7]The panel members consisted of an independent chair, a judicial member of the Parole Board and a psychologist member of the Parole Board. The panel hearing took place on 2 April 2025. The panel considered a dossier, together with oral evidence from a Prison Offender Manager a Community Offender Manager and a prison commissioned psychologist. The Applicant gave evidence and was legally represented. The Relevant Law[8]The panel correctly sets out in its decision letter dated 15 April 2025 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)[9]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)).[10]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)).[11]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[12]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.[13]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. "[14]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 ).[15]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.[16]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.[17]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[18]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.[19]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.[20]The overriding objective is to ensure that the Applicant's case was dealt with justly. Error of law[21]An administrative decision is unlawful under the broad heading of illegality if the panel: a) misinterprets a legal instrument relevant to the function being performed; b) has no legal authority to make the decision; c) fails to fulfil a legal duty; d) exercises discretionary power for an extraneous purpose; e) takes into account irrelevant considerations or fails to take account of relevant considerations; and/or f) improperly delegates decision-making power.[22]The task in evaluating whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring the duty or power upon the panel. The instrument will normally be the Parole Board Rules, but it may also be an enunciated policy, or some other common law power. Other[23]In the cases of Osborn v Parole Board [2013] UKSC 61 , the Supreme Court comprehensively reviewed the basis on which the Parole Board should consider applications for an oral hearing. Their conclusions are set out at paragraph 2 of the judgment. The Supreme Court did not decide that there should always be an oral hearing but said there should be if fairness to the prisoner requires one. The Supreme Court indicated that an oral hearing is likely to be necessary where the Board is in any doubt whether to direct one; they should be ordered where there is a dispute on the facts; where the panel needs to see and hear from the prisoner in order to properly assess risk and where it is necessary in order to allow the prisoner to properly put his case. When deciding whether to direct an oral hearing the Board should take into account the prisoner's legitimate interest in being able to participate in a decision with important implications for him. It is not necessary that there should be a realistic prospect of progression for an oral hearing to be directed.[24]The test to be applied when considering the question of transfer to open conditions is the subject of a well-established line of authorities going back to R (Hill) v Parole Board [2011] EWHC 809 (Admin) and including R (Rowe) v Parole Board [2013] EWHC 3838 (Admin) , R (Hutt) v Parole Board [2018] EWHC 1041 (Admin) . The test for transfer to open conditions is different from the test for release on licence and the two decisions must be approached separately and the correct test applied in each case. The panel must identify the factors which have led it to make its decision. The four factors the panel must take into account when applying the test are:(a) the progress of the prisoner in addressing and reducing their risk;(b) the likeliness of the prisoner to comply with conditions of temporary release(c) the likeliness of the prisoner absconding; and(d) the benefit the prisoner is likely to derive from open conditions.[25]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. "
[26]Omitting to put information before a panel is not a ground for procedural unfairness, as has been confirmed in the decision on the previous reconsideration application in Williams [2019] PBRA 7 . This is the case even where the information, had it been before the panel, would have been capable of altering its decision, or prompting the panel to take other steps such as putting the case off for an oral hearing where the new information and its effect on any risk assessment could be examined. This is because procedural unfairness under the Rules relates to the making of the decision by the Parole Board, and when making the decision the panel considered all the evidence that was before them. There was nothing to indicate that further evidence was available or necessary, and so there was nothing to indicate that there was any procedural unfairness. Reconsideration as a discretionary remedy[27]Reconsideration is a discretionary remedy. That means that, even if an error of law, irrationality, or procedural unfairness is established, the Reconsideration Member considering the case is not obliged to direct reconsideration of the panel's decision. The Reconsideration Member can decline to make such a direction having taken into account the particular circumstances of the case, the potential for a different decision to be reached by a new panel, and any delay caused by a grant of reconsideration. That discretion must of course be exercised in a way which is fair to both parties. The reply on behalf of the Secretary of State[28]The Respondent offered no reply. Grounds and Discussion Ground 1[29]It is argued, on behalf of the Applicant, that he would be likely to benefit from various aspects of healthcare support and continuity of care in the community. It is argued that the Respondent does not appear to be adhering to the policy requirements in these areas. Discussion[30]The Parole Board are an adjudicating body. A Parole Board is not in a position to make a judgement upon any obligations falling upon the Respondent in relation to care either in custody or in the community. For that reason, I am not persuaded that there is evidence of a procedural irregularity in this aspect of the application. Ground 2[31]It is argued that the Applicant has significantly reduced his underlying risk factors, and that if the Applicant's care needs were addressed, he could be safely managed in the community. Discussion[32]The panel's decision sets out the reasons why they concluded that the Applicants risk (in the community) could not be managed at the time of the review. The panel took account of the fact that the Applicant was significantly over his tariff date and that he had spent some time on a specialist unit and had had therapeutic interventions. The basis of the decision of the panel was that the panel, and all professional witnesses, determined that the Applicant lacked full insight into his risks. It was suggested within the decision, that further core risk reduction work would be likely to be required before the Applicant was in a position to demonstrate that his risk could be safely managed. The view of the panel was that, in the light of the index offence and the Applicant's history, the Applicant's risk was both of generalised violence, and of intimate partner violence. The panel also took the view that the risk could escalate quickly.[33]The panel had the advantage of an extensive dossier of reports and other material and had the advantage of seeing and hearing the Applicant as well as the witnesses. Where there is a conflict of opinion it is for the panel to assess which opinion they preferred. Provided the reasons given are soundly based on evidence, as well as rational and reasonable, and not so outrageous in the sense expressed above, it would be inappropriate to direct the decision be reconsidered unless it is manifestly obvious that there are compelling reasons for interfering with the decision of the panel. In this case the panel and professional witnesses took the view that the Applicant's risk could not be safely managed in the community. The reasoning was fully set out in the decision. I am not persuaded that their decision could be considered to be irrational. Ground 3[34]It is submitted on behalf of the Applicant that the Parole Board panel were obliged to consider all documentation and information that is relevant to the assessment of risk. It is submitted that the panel failed to obtain information about a potential traumatic brain injury suffered by the Applicant and about the long-term implications of the Applicant being in a coma for a lengthy period of time. It is also argued that the Applicant's community-based medical records should have been secured to address this issue. Discussion[35]The position of a Parole Board panel is that it is obliged to consider the evidence presented by the parties, namely the Respondent and the prisoner. Whilst the panel may commission reports to assist with its decision making, the Parole Board panel is not in a position to actively engage in case preparation for either the Respondent or a prisoner. The Parole Board panel is obliged to make its decision based upon the evidence presented at the particular hearing. It is commonly the case that there may be material which could have been included within the dossier, however as noted above, the position of the Parole Board is to make a decision based upon the evidence presented at the hearing. I am not therefore persuaded that the Parole Board acted procedurally unfairly in not securing further information as suggested in this ground. It is also of note that no application was made by the Applicant to secure any further information, prior to the hearing itself, for that reason I do not find that the panel acted with procedural unfairness in reaching its decision based upon the evidence presented at the hearing. Ground 4[36]It is submitted that the Applicant was not given sufficient time to obtain a neuropsychology report or to obtain an updated report from the Applicant's commissioned psychologist relating to neuropsychology difficulties. Discussion[37]It is noted in the panel decision that the psychologist instructed by the Applicant was not able to attend the oral hearing as she had been given insufficient notice. The panel addressed this matter. The panel were told by the Applicant's legal adviser that the Applicant was not seeking an adjournment either to secure the attendance of the psychologist instructed by the Applicant or to obtain an updated neuropsychological report or any other report. Cases in which a party to the Parole Board are legally represented are highly unlikely to generate a successful appeal if there was no challenge made to the alleged irregularity by the Applicant at the time of the hearing. It is well understood that Applicants are reluctant to adjourn cases because of delay, however it is for the Applicant and his legal adviser to make an appropriate application before the outset of a final hearing. In the circumstances therefore I am not persuaded that there could be argued to be a procedural irregularity in circumstances where no application was made to adjourn by the Applicant. Ground 5[38]It is submitted on behalf of the Applicant, that a Risk Management Plan (RMP) had not been fully developed thereby preventing the Parole Board panel from assessing whether the Applicant's risk could be managed in the community. Discussion[39]The panel decision in this case extensively analysed the proposed RMP at paragraph 3.13- 3.17. At paragraph 3.20 the panel made an assessment of the RMP and concluded that it was insufficient to protect the public. The main basis of their decision was that there was a lack of evidence that the Applicant had the skills and internal controls necessary to manage his risk. It was therefore noted that the RMP would rely heavily upon external measures. This would be further undermined by the fact that the panel took the view that the Applicant was capable of subverting rules when it suited him to do so. The panel therefore took account of the draft RMP, but concluded that, despite the plan, the Applicant's risk could not be safely managed in the community. It is clear therefore that the panel considered a RMP but concluded that it was not sufficient to manage the Applicant's risk. I am not therefore persuaded that this is evidence of an irrational decision or was procedurally irregular. Ground 6[40]It is submitted on behalf of the Applicant that it was not reasonable for the Parole Board to revoke an earlier decision to request that an updated assessment of the Applicant's cognitive abilities be undertaken. Discussion[41]This issue arises in circumstances where, at an earlier date of the review, the Parole Board had directed that an existing cognitive assessment be updated. A psychologist instructed by the prison had considered the direction and indicated that there had been a cognitive assessment in 2016. The Applicant's cognitive level was noted at that time. It was also accepted (following the assessment) that the Applicant may need adaptions to (behavioural) programmes and treatments to take account of his cognitive needs. There had also been further assessments relating specifically to the Applicant's ability to undertake behavioural programs. The view of the psychologist, therefore, was that the Applicant's cognitive functioning was well understood and that a further assessment would not provide any new information. There had also been a lengthy psychological risk assessment undertaken. The reporting psychologist had not detected issues with cognitive functioning. The panel chair had concluded that (on reflection), as cognitive functioning is a relatively static issue, the panel would be unlikely to be assisted by a further assessment. The panel were well aware of the position relating to this issue and the decision regarding risk was not directly associated with cognitive functioning, I am not therefore persuaded that this matter was directly relevant to the decision of the panel relating to future risk in the community. I am also not persuaded that the panel acted irrationally in proceeding without a further cognitive assessment as suggested by this ground. Ground 7[42]It is submitted on behalf of the Applicant that the impact of the Parole Board's " policies and decisions " has a detrimental effect on people who share protected characteristics and failed to promote equality and good relations. Discussion[43]As noted by the Applicant's legal adviser, a Parole Board panel is a court-like body. The panel were obliged to ensure fairness to both parties. The panel were obliged to ensure that the Applicant was able to present his case fully and fairly. The Applicant was legally advised at the hearing and was able to give evidence and present his case. I am not persuaded that there is evidence within the decision of the Parole Board panel failing to meet any duties relating to protected characteristics. Again, therefore I am not persuaded that there is evidence of procedural irregularity or irrationality under this ground. Decision[44]For the reasons I have given, I do not consider that the decision was irrational or procedurally unfair and accordingly the application for reconsideration is refused. HH Stephen Dawson 03 June 2025