Khan, Application for Reconsderation by, [2025] PBRA 120 (02 June 2025) [2025] PBRA 120

PBRA
Khan, Application for Reconsderation by, [2025] PBRA 120 (02 June 2025)
[2025] PBRA 120 · 2025-03-30
[1]This is an application by Khan (the Applicant) for reconsideration of a decision dated 30 March 2025 not to direct his release. The decision was made by a panel on the papers.[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.[3]I have considered the application on the papers. These are the decision, the dossier (consisting of 669 numbered pages), and the application for reconsideration. Background[4]On 17 March 2006, the Applicant received a life sentence following conviction after trial for murder. The tariff was set at 17 years (less time spent on remand). It expired in September 2022.[5]The Applicant was 26 years old at the time of sentencing and is now 45 years old. Request for Reconsideration[6]The application for reconsideration has been submitted by solicitors on behalf of the Applicant. It argues that the decision was irrational. No substantive submissions were made regarding procedural unfairness or error of law, although the application does comment that the decision was also " unfair" to the Applicant.[7]The application is supplemented by written arguments to which reference will be made in the Discussion section below. Current Parole Review[8]The Applicant's case was referred to the Parole Board by the Secretary of State (the Respondent) in August 2024 to consider whether or not it would be appropriate to direct his release. If release was not directed the Board was invited to advise the Respondent whether the Applicant should be transferred to open conditions. It is only the release decision that is subject to reconsideration. This is the Applicant's third parole review.[9]The case was reviewed by a single member Member Case Assessment panel (MCA panel) on 30 March 2025. The panel did not direct the Applicant's release.[10]This decision was made under rule 19(1)(b) and, by operation of rule 19(6) was a provisional decision. Rule 20(1) permits a prisoner who has received a provisional negative decision on the papers to apply in writing for his case to be determined by a panel at an oral hearing. Rule 20(2) provides that any such application must be served within 28 days of receipt of the provisional decision.[11]With no such submissions having been received, the provisional decision of the MCA panel became final on 27 April 2025 and is therefore subject to reconsideration. The Relevant Law[12]The Parole Board will direct release if it is no longer necessary for the protection of the public that the prisoner should be confined. Parole Board Rules 2019 (as amended)[13]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)).[14]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)).[15]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 . Procedural unfairness[16]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.[17]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.[18]The overriding objective is to ensure that the Applicant's case was dealt with justly. Irrationality[19]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 (CA) 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.[20]In R(DSD and others) v Parole Board [2018] EWHC 694 (Admin) the Divisional Court applied this test to Parole Board hearings in these words (at [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 ."
[21]In R(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 the Divisional Court in R(Secretary of State for Justice) v Parole Board [2022] EWHC 1282 (Admin).[22]As was made clear by Saini J in Wells, 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.[23]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.[24]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. The reply on behalf of the Respondent[25]The Respondent has advised that no representations will be submitted in response to this application. Discussion[26]This application for reconsideration is made on the ground that the paper (MCA) decision not to direct release was made prematurely and was therefore irrational (and also unfair).[27]The Applicant's last parole review took place in August 2023. The panel was informed of an ongoing police investigation into historical allegations involving child sexual exploitation, as well as sexual and violent offending. Police service witnesses attended the hearing to provide an update. They confirmed that multiple complainants were involved, with one individual who had initially declined to proceed now wishing to pursue her complaint, requiring a further interview. An additional suspect also remained to be traced and interviewed. The panel was advised that the case file was being prepared for submission to the CPS, which was expected to take until the end of 2023, with a further anticipated six-month period for the CPS to make a decision.[28]The panel concluded that the investigation timescale fell outside the scope of the deferral and adjournment policy. After consulting with his legal representative and hearing the police evidence, the Applicant instructed that the review should proceed without further evidence. He fully understood that, in light of the ongoing investigation, the panel would not direct release or recommend open conditions. The review concluded accordingly.[29]At the time of the current review, it appears that the investigation remained ongoing. The Community Offender Manager (COM) report of September 2024 noted that, following liaison with the police, the file was nearly ready for submission for final checks before being passed to the CPS. Due to the size of the file, this process was expected to take a few weeks. Once received, the CPS would allocate the case to a suitable team and lawyer, with charging decisions anticipated to take a further 4–6 months.[30]In a further update in March 2025, the COM confirmed, following liaison with the police, that the case had been with the CPS since October 2024. Due to its size and complexity, it had been referred to a specialist team for a charging decision. Police were still awaiting a response from the CPS, with no clear timescale provided. The police noted that less complex cases had typically taken 9–12 months for charging decisions. Additionally, there remained one further victim who had yet to be interviewed.[31]Written representations on the Applicant's behalf emphasised that police had repeatedly provided timelines for the investigation and CPS decision which have not been met, despite the investigation appearing to have begun five years ago. While acknowledging the historic nature of the allegations and the involvement of other individuals, it was argued that the delays to date were unjustified.[32]It was argued that, if the Applicant were not a serving prisoner, he would have been released under investigation without conditions. It was submitted that any necessary risk could be safely managed in the community through licence conditions. The Applicant was said to have cooperated fully with police and to have maintained positive and compliant behaviour in custody. As such, any further adjournment of the MCA process was opposed, and it was requested that the case be listed for an oral hearing in the interests of fairness.[33]The MCA panel concluded the review on the papers with a negative decision. In doing so, it noted as follows:
" The only change since [the last parole review], so far as the current review is concerned, is that the police investigation appears to be further advanced and the case is now with the CPS for a charging decision, although no timescale can be provided. The current panel therefore finds itself in the same position as the last panel in that it cannot explore the outstanding allegations, as would be required in accordance with the Parole Board Guidance on Allegations, following the Pearce judgement. It cannot, therefore, at this time consider potentially relevant evidence in its risk assessment and cannot be satisfied that the test for release is met or that a direction for open conditions is appropriate." "
The panel has considered the legal representations that this case should be referred for an oral hearing. Parole Board Guidance is that an adjournment would not normally be appropriate where a criminal investigation outcome is awaited and is unlikely to be received within four months. This case has been with the CPS since October 2024. The most recent update...indicates that a less serious case would likely take 9 to 12 months for a charging decision. If [the Applicant] is charged, the next Parole Board review would have to await the outcome of the criminal proceedings. This panel can see no good reason for disapplying the Parole Board Guidance on adjournments. The outcome of the outstanding criminal investigation is likely to take at least six months, and probably longer."[34]Submissions on behalf of the Applicant note that police interviews relating to the historic allegations (which predate his index offence) did not begin until July 2022, despite the Applicant being removed from open conditions in 2021 based on an assertion that interviews were imminent. His previous parole review in 2023 concluded on the papers because the police investigation was still ongoing at that time. It is submitted that circumstances have materially changed since then, with the police investigation now complete and the case having been with the CPS since October 2024. Given the nature of the case, based primarily on complainants' statements and interview records, it was argued that it was reasonable to expect a CPS charging decision within six months. The submissions concluded that the MCA decision to end the review with a negative outcome was premature, irrational, and unfair to the Applicant, who now seeks the opportunity to present his case at an oral hearing.[35]It is well established, following Osborn v Parole Board [2013] UKSC 61 (as applied in R (Somers) v Parole Board [2023] EWHC 167 (Admin)), that fairness requires an oral hearing where the Board cannot otherwise fairly assess risk, or where an assessment of the prisoner's insight and credibility is central to the assessment. A presumption in favour of an oral hearing arises in the case of post-tariff lifers, particularly where there are disputed or unexplored matters which may significantly affect the outcome.[36]That said, it is surprising that the Applicant did not seek an oral hearing during the 28 day window following the provisional decision not to direct his release. This would have been the appropriate time to air the Osborn arguments set out in the application for reconsideration. Of course, there could be many reasons why this was not done, and I draw no adverse inferences from the fact the Applicant did not raise the matter then.[37]The central question in this case is essentially whether the panel should have concluded when it did or press on towards an oral hearing in the hope that the CPS matters would be clearer by then.[38]The duty of the Parole Board under Article 5(4) of the European Convention on Human Rights is to provide a speedy review of the prisoner's detention. Reviews must be delayed as little as possible. If postponing a review is unavoidable, most cases should be progressed through adjournment rather than deferral. This is because an adjournment keeps the case with the panel who have knowledge of it, avoids duplication of work and is a more efficient way of working. However, Parole Board guidance gives examples of when an adjournment or deferral at MCA stage would not normally be appropriate, including when the prisoner is subject to a police investigation or criminal proceeding and the outcome is still awaited and is unlikely to be received within four months. The guidance reflects both the Board's duty to avoid unnecessary delay under Article 5(4) ECHR and the practical limitations on managing indefinite uncertainty in parole reviews.[39]Where the development appears relevant to risk it is more appropriate to conclude the case on the papers to avoid lengthy delays to the prisoner's review. PPCS will have the option to re-refer the case if there is a significant change in circumstances (including the conclusion of outstanding charges).[40]While it is unfortunate that the Applicant remains in closed conditions beyond his tariff expiry date, that position is not attributable to any failure or omission on the part of the MCA panel. The reasons for delay in the investigation and charging decision have been clearly articulated by the police and relate to the scale and complexity of the case, the number of alleged victims, and the requirement for specialist review by the CPS. These are matters plainly beyond the control of the Board or the Applicant.[41]It is correct that the criminal investigation has moved forward since the last review. However, as the panel explicitly recognised, it has not concluded. One further complainant remains to be interviewed, and no charging decision has been issued. The fact that a case has been with the CPS for several months does not of itself mean that a decision is imminent. The evidence before the panel was that less serious cases have typically taken 9–12 months and that no specific timescale could be provided in this instance. Against that backdrop, the panel's conclusion that it remained unable to explore the allegations or fully assess risk was justified. The panel was entitled to determine that the current risk management plan could not be assessed as robust when the full risk picture was unknown.[42]The panel also considered whether to direct an oral hearing but concluded that it would not be appropriate at this stage, applying the Board's guidance on adjournment and the need to avoid premature or speculative proceedings. The reconsideration application now advances arguments rooted in fairness and Osborn , but I find that the MCA panel's decision not to direct an oral hearing (which inexorably led to no direction for release) was rational, procedurally correct, and consistent with established principles.[43]In summary, the decision not to direct the Applicant's release was made with full awareness of the Applicant's progress, the passage of time since his tariff expiry, and the protracted nature of the ongoing investigation. The panel correctly identified the constraints imposed by the outstanding allegations and the Board's own published guidance. It was entitled to conclude that a safe assessment of risk could not be undertaken without resolution of the matters still under consideration by the CPS (and also to conclude that there was no concrete timeframe within which those matters might be resolved). Decision[44]For the reasons set out above, I am satisfied that the panel's decision not to direct release was rational. It cannot be said to have been outside the range of reasonable responses open to the panel in the circumstances of this case. The application for reconsideration must therefore be refused. Stefan Fafinski 02 June 2025