Windsor, Application for Reconsideration [2025] PBRA 121 (06 June 2025) [2025] PBRA 121

PBRA
Windsor, Application for Reconsideration [2025] PBRA 121 (06 June 2025)
[2025] PBRA 121 · 2025-04-17
[1]This is an application by Windsor (the Applicant) for reconsideration of a decision (the Decision) of a panel (the Panel) of the Parole Board (the Board) dated 17 April 2025 not to direct his release. The decision was made following a review conducted by way of an oral hearing on 11 April 2025.[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 within the prescribed time limit.[3]I have considered the application on the papers. These are: the application with written representations submitted 6 May 2025; the 17 April 2025 decision; written closing submissions for the 11 April 2025 hearing; the Parole Board decision dated 1 May 2024; the case dossier of 380 pages; law reports in respect of decided cases relied on in support of the application; and an email from the Public Protection Casework Section (PPCS) of HM Prison and Probation Service dated 21 May 2025 on behalf of the Secretary of State (the Respondent). I have also listened to the audio recording of the 11 April 2025 hearing. Request for Reconsideration[4]The grounds for seeking a reconsideration are as follows:(i) The Decision resulted from procedural unfairness as the legal representative was prevented from properly probing the evidence of the Community Offender Manager (COM) and inadequate reasons for the decision were provided.(ii) There was an error of law by the Panel: failing to comply with the statutory duty to give adequate and appropriate reasons for the decision, violating the principle of Stare Decisis; directly contradicting previous Board Decisions; and incorrectly applying or interpreting the ' codified test for release .' Background[5]On 12 December 2016, having been found guilty of robbery, the Applicant received an extended sentence of imprisonment. At a subsequent hearing on 10 January 2017, the sentencing judge varied the original custodial element to reflect arithmetically the principles she had originally expressed. The custodial element is accordingly 67 months followed by an extended licence period of 36 months.[6]The Applicant's Parole Eligibility Date was 26 September 2023 and his Conditional Release Date was 12 July 2024. The Sentence Expiry Date is May 2031.[7]The index offence was committed on 13 October 2015 when the Applicant and another male entered a convenience store, the Applicant armed with a knife and his accomplice wielding a hammer. They demanded cash from the till and made off with approximately £515.[8]The Applicant was aged 35 when sentenced and had numerous previous convictions. They included convictions for burglary, theft by shoplifting, theft from the person, theft from motor vehicles, theft of motor vehicles, handling stolen goods, being carried in a stolen vehicle, driving whilst disqualified, failing to surrender to custody, assault occasioning actual bodily harm, criminal damage, inflicting grievous bodily harm, affray, perverting the course of justice, possession of Class B drugs, obstructing police, battery, obtaining goods by deception, money laundering, dangerous driving, and robbery. Some offences were committed whilst the Applicant was on bail.[9]The most recent convictions were for 5 offences of burglary, one of attempted burglary, five for stealing motor vehicles and four for robbery. They resulted in sentences on 21 January 2011 of concurrent terms of imprisonment totalling 10 years. The robberies had been at commercial premises and typically involved an accomplice and weapons. The Applicant was released automatically at the halfway point of the 10 year term and the index robbery offences were committed when the Applicant was in the community on licence.[10]The Applicant committed further offences while in custody serving the current sentence. On 6 April 2017, he was sentenced to 21 days imprisonment for possession of Spice. The following year, on 17 April 2018, he was sentenced to 52 months imprisonment, consecutive to the index sentence, for bringing a List A article into a prison. On 10 September 2019, the Applicant was sentenced to five concurrent terms of 18 months imprisonment for possessing prohibited electronic communication articles in prison, those concurrent sentences to be consecutive to the current terms.[11]The Applicant had been recalled under an earlier sentence in October 2015 after he had absconded when on licence and had remained unlawfully at large for approximately 7 weeks.[12]Following an oral hearing on 20 March 2024, a panel of the Board directed the Applicant's early release under the current extended sentence, and he was accordingly released on licence on 12 July 2024. His licence was revoked on 20 July 2024 for breaching the conditions to be of good behaviour and not behave in a way which undermines the purpose of the licence period, to reside permanently at an address approved by his supervising officer, namely at designated Probation Approved Premises (A/P), and to confine himself to that address during designated curfew hours.[13]The Applicant's mental health was reported to have deteriorated with paranoid thoughts and erratic behaviour, and he also failed a drug test. He failed to return to the A/P on 20 July 2024 as required by the curfew, having telephoned staff to say he was up a tree, had cut off his EMS tag and intended to harm himself. The Applicant remained unlawfully at large for just under three weeks before being arrested and returned to custody. Current parole review[14]In September 2024, the Respondent referred the Applicant's case to the Board to consider whether to direct his release. It was not asked to advise about his suitability for open conditions.[15]The review was conducted by the Panel, comprising two independent members, at an oral hearing on 11 April 2025 by way of video-link. The Applicant, then aged 43, attended and was represented by his legal representative. There was no attendance by or on behalf of the Respondent.[16]The case dossier of 355 pages included written reports by the Applicant's Community Offender Manager (COM), by the Prison Security Department and by the Prison Mental Health Team. Oral evidence was given by the COM, by the Applicant's Prison Offender Manager (POM) and by the Applicant himself. Closing written submissions were subsequently provided by the Applicant's legal representative dated 14 April 2025.[17]By the time of the hearing, the Applicant had provided negative drug test results, had reduced his methadone script, was taking Mirtazapine to reduce his anxiety and was residing on a drug free wing. He was working as a substance abuse mentor and engaging with education. The POM described the Applicant's behaviour as positive. There had been no adjudications and the only negative behavioural entry on his record was for being late back to his cell on one occasion. No offending behaviour programmes, or other work was available to him as he had twice previously completed the Thinking Skills Programme (TSP), and his level of risk was not considered high enough to repeat it.[18]The report from the Mental Health Team dated 6 February 2025 confirmed that the Applicant was compliant with his anti-depressant medication and had been discharged from its supervision.[19]According to the 12 February 2025 OASys report, the Applicant's static risk factors place him in the group of offenders whose risk of offending generally is medium. When applying dynamic factors, the likelihood of both violent and non-violent reoffending was assessed as medium. The risk of serious recidivism (RSR) based on dynamic or changing factors was assessed over a two year period as medium at 3.67%.[20]The risk of serious harm to a known adult and to the general public in the event of any reoffending in the community was assessed as high. To children it was assessed as medium and to staff, including probation staff it was assessed as low.[21]The Risk Management Plan (RMP) proposed by the COM provided for release in the first instance to Probation A/P. At the hearing the COM expressed a preference for a Psychologically Informed Planned Environment (PIPE) A/P but was unable to confirm that a place was available. There would be licence conditions considered by the COM to be both proportionate and necessary to manage the Applicant's risks. These included conditions to wear alcohol and GPS tags. Additional requirements suggested at the hearing for the Applicant to engage with both drug and alcohol and mental health services and to undertake further offending behaviour work such as the Building Choices Programme in the community were agreed by the COM.[22]At the hearing, the POM expressed the view that the Applicant's risk would not be imminent on release and that warning signs of any increase would become apparent. He supported release. The COM expressed varying views. The Relevant Law[23]The Panel correctly sets out in its decision dated 17 April 2025 the test for release. Parole Board Rules 2019 (as amended)[24]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)).[25]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[26]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.[27]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. "[28]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).[29]As was made clear by Saini J this is not a different test from the Wednesbury test. The interpretation of and application of the Wednesbury test in Parole hearings as explained in DSD was binding on Saini J.[30]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.[31]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. Error of law 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. 36.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[37]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.[38]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. "
[39]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[40]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[41]By an email message dated 21 May 2025 PPCS confirmed on behalf of the Respondent that she had no representations to make. Discussion[42]The Applicant has conceded that the recall was justified, and no issue has arisen on that score.[43]It is submitted on the Applicant's behalf that the Decision resulted from procedural unfairness as follows. a) The legal representative was prevented from properly probing the evidence of the COM which was alleged to have been contradictory and confusing at times. Although the COM stated, in response to a direct question, that the Applicant did not meet the codified test for release, she indicated at other times that with some simple additional licence conditions he could be managed, and his continued detention was no longer necessary. It is submitted that when the legal representative sought to probe this issue further, she was prevented from asking further questions and was told by the Chair that the Panel did not have to follow the opinion of the COM and would make its own decision.[44]The legal representative argues that, as a result, the Applicant was prevented from having his case adequately presented.[45]I have listened to the audio recording of the hearing. The COM's recommendations varied throughout the hearing. At the point when the legal representative asked her " In terms of lack of imminency, do you think you can manage him with these licence conditions", the Panel Chair interjected to say, "W e are going round in circles". She had already said that there was little time left for the hearing. The Chair reminded the legal representative that the COM had made her recommendation, but she also acknowledged that this was changeable.[46]I have concluded that the legal representative was placed under pressure to limit her questioning in a crucial area of risk management and that this was procedurally unfair. b) Inadequate reasons have been given for the Panel's decision. The Parole Board Rules 2019 as amended in 2024 specifically provide at paragraph 25(6)(b) that a decision of a panel must include reasons for that decision. A number of legal authorities are quoted which make it clear that in any case considered by a court or tribunal sufficient reasons must be clearly expressed to explain any decision made. In particular the case of South Buckinghamshire District Council v Porter (No 2) [2002] 1 WLR 1953 confirms that reasons must be intelligible and accurate.[47]Whilst accepting that the short length of the decision document at 3 pages may not in itself indicate that the reasons are inadequate, the legal representative draws attention to the section "Analysis of the Manageability of Risk" , this comprises one paragraph which reads as follows:
" The COM considered that the Building Choices Programme could be undertaken on release. He would preferably be released to a PIPE Approved Premises. He would be expected to engage with drug and alcohol services, to wear an alcohol tag and a GPS tag and to engage with mental health services. However, her ultimate opinion was that [the Applicant] did not currently meet the codified test for release."
[48]It is submitted that the reasoning expressed does not adequately analyse the manageability of the Applicant's risk but simply summarises the COM's evidence and repeats "her ultimate opinion that [the Applicant] did not currently meet the codified test for release." It is argued that the COM's evidence was in fact more in line with the view that it is no longer necessary for the Applicant to remain in custody. At the same time the decision makes no reference to the opinion of the POM who expressly supported release.[49]I have concluded that the reasons provided do not adequately explain the Panel's conclusions.[50]It is further submitted that the Decision contains errors of law as follows. a) Failure of the statutory duty to give adequate and appropriate reasons as required by Rule 25(6)(b).[51]Examples quoted are: not applying the OASys risk of harm scores to the issue of whether it is necessary for the Applicant to remain in custody; failing to explain the reason why the RMP was not considered adequate as required under the codified public protection test; and failure to refer to the substantive content of the closing representations which themselves made reference to each section of the test.[52]It is also submitted that the assertion that the COM ultimately felt that the Applicant did not meet the codified test for release was an over simplification of her evidence. Having listened to the recording of the hearing, I accept that this is the case. She clearly expressed many factors which would justify release.[53]No reference is made to the Applicant's oral evidence and therefore no reasons can be discerned as to why the Panel concluded that it did "not have confidence that he had changed his long-standing attitudes regarding drugs, thinking skills and offending for financial gain".[54]In its conclusion, the Panel referred to the fact that the Applicant had not completed any further accredited offending behaviour work despite the fact that the POM confirmed there was no core risk reduction work available to him in custody.[55]There was no reference in the Decision to the decline in the Applicant's mental health which the COM told the Panel had contributed to his lapse and breach of licence conditions. The Panel failed to refer to the fact that the alcohol tag which he cut off had been attached unlawfully thus contributing to his anxiety. Nothing in the Decision addressed the issue of whether or not the Applicant has developed any insight into his mental health difficulties prior to release which the COM considered to be the trigger for his behaviour in breaching the licence conditions.[56]The Decision failed to address the evidence of both the COM and POM that whilst the Applicant did not have full insight into his mental health difficulties prior to the events which triggered the recall, he had developed this subsequently. There is no reference to this in the decision. The Panel simply concluded that it did not have the confidence that he had changed his longstanding attitudes regarding drugs, thinking skills and offending for financial gain. It provided no reasons for that conclusion.[57]Evidence was provided to the Panel of the extensive engagement the Applicant had since recall with Substance Misuse Services and with the programmes and workbooks. The latter included managing worry and emotional awareness. However, this is not referred to in the decision apart from the fact that he was working as a substance misuse mentor. The work undertaken was not evaluated.[58]I have concluded in all the circumstances that the Panel failed to provide adequate conclusions in respect of these important topics. b) Violation of Stare Decisis or Legal Certainty[59]It is also submitted that the over-reliance by the Panel on the Applicant's previous offending history offends the principle of stare decisis and directly contradicts the decision of the last panel. The latter proposition overstates the position. Any panel is entitled to take into account a prisoner's offending history. The fact that the previous panel decided that the Applicant then met the test for release does not negate the need for any further evaluation of risk in the light of circumstances surrounding a recall.[60]I do not consider that the argument in respect of Stare Decisis is made out. c) Error in the application of the Public Protection Test.[61]The codified public protection test imposed by virtue of S.59 of the Victims and Prisoners Act 2024 includes the following: When making a public protection decision about a prisoner, the following matters must be taken into account by the decision maker-(a) the nature and seriousness of the offence in respect of which the relevant sentence was imposed;(b) the nature and seriousness of any other events for which the prisoner has at any time been convicted;(c) the conduct of the prisoner while serving the relevant sentence whether or not specified in schedule 18B to the Criminal Justice Act 2003 if no longer confined; (e) the risk that, if released on licence, the prisoner would fail to comply with one or more licence conditions; (f) any evidence of the effectiveness in reducing the risk the prisoner poses to the public of any treatment, educational training the prisoner has received or participated in while serving the relevant sentence; (g) any submissions made by or on behalf of the prisoner or the Secretary of State (whether or not on a matter mentioned above).[62]It is submitted that too much reliance was placed by the Panel on the nature and seriousness of the index offences and the Applicant's previous offending, including his acknowledged offending whilst previously in prison. No reference was made to the evidence of his substantial efforts to engage and resolve his issues and the fact that he had not returned to old associates, hard drug misuse or any offending behaviour. There was no specific examination of the risk of further offending resulting in serious harm rather than a recitation of the OASys scores and an acceptance that they proved an accurate reflection of the level of risk.[63]It is argued that there is little or no evidence that the Panel considered these factors in reaching its conclusion about the risk of reoffending. These issues were specifically raised in the legal submissions but were not referred to in the decision.[64]I have concluded that, although the Panel stated that it had taken into account the codified test for release and has reached a specific conclusion, it has not provided sufficient reasons as to how the various aspects of the test were applied and how that conclusion was reached. Decision[65]Accordingly, whilst I do not find the Decision to have been irrational, I have found there to have been procedural irregularities. I do consider, applying the test as defined in case law, that the decision not to direct the Applicant's release was procedurally unfair. I have also concluded that there have been errors of law in the failure by the Panel to give adequate reasons. I have reached these conclusions solely on the grounds set out above. The application for reconsideration is therefore granted and the case should be reviewed by a fresh panel by way of an oral hearing. HH Judge Graham White 06 June 2025