McGarry, Application for Reconsideration [2025] PBRA 125 (17 June 2025) [2025] PBRA 125

PBRA
McGarry, Application for Reconsideration [2025] PBRA 125 (17 June 2025)
[2025] PBRA 125 · 2015-02-03
[1]This is an application by McGarry (‘the Applicant’) for reconsideration of a decision of a panel of the Parole Board (‘the Board’).[2]The Applicant is now known under another name (AC). He is serving a sentence of life imprisonment which was imposed on 3 February 2015. The circumstances of the offence for which he is serving that sentence will be discussed below.[3]His case has been referred by the Secretary of State for Justice (‘the Respondent’) to the Parole Board (‘the Board’) to decide whether he should be released on licence and, if not, to advise the Respondent about his suitability for a move to an open prison.[4]On 12 May 2025, after an oral hearing, a panel of the Board decided against his release on licence and against recommending a move to an open prison.[5]The Applicant’s solicitor has made an application on the Applicant’s behalf for reconsideration of the decision not to release the Applicant on licence; as will be explained below, the decision not to recommend a move to an open prison is not susceptible to reconsideration. Request for Reconsideration[6]Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2024) provides that applications for reconsideration of panel decisions may be made, either by the prisoner or by the Secretary of State for Justice, in eligible cases.[7]Rule 28(2) specifies the types of cases in which reconsideration applications may be made. They include cases, like the Applicant’s, where the prisoner is serving an extended determinate sentence.[8]A reconsideration application may be made on the ground:(a) that the panel’s decision contained an error of law and/or(b) that it was irrational and/or(c) that it was procedurally unfair.[9]In this case an application for reconsideration has been made on the ground of procedural unfairness.[10]The application was made within the time limit for applications of this kind and is therefore eligible for reconsideration.[11]I am one of the members of the Board who are authorised (as ‘Reconsideration Assessment Panels’) to make decisions on reconsideration applications, and this case has been allocated to me.[12]The documents which have been provided to me and which I have considered for the purposes of this application are:(a) the dossier of papers provided by the Respondent for the Board’s review of the Applicant’s case: the dossier now runs to page 505 and includes a copy of the panel’s decision;(b) the representations made by the Applicant’s solicitor in support of this application for reconsideration; and(c) an e-mail from the Public Protection Casework Section of the Ministry of Justice (‘PPCS’) stating that the Respondent does not wish to make any representations in response to this application. Background and history of the case[13]The Applicant is now aged 50. He was involved in a serious accident at the age of 16 after which he was hospitalised for several months. He was left with significant neuro-psychological difficulties. It is recorded that he has difficulties in the areas of(a) cognitive flexibility,(b) interpersonal attunement,(c) perspective taking,(d) identifying and solving social problems,(e) impaired self-monitoring and judgement, and(f) rigidity of thinking.[14]In terms of his intellectual functioning he is assessed as functioning in the low average general ability range but, if he performs tasks that suit his skills, he is capable of functioning at a high level (this is demonstrated in his educational and employment achievements and his graduation as an architectural technician). He does however have difficulties in the following areas:(a) slow processing speed(b) mild difficulties in finding the right words(c) difficulty understanding other people’s speech if there is background noise, or if the speaker is softly spoken(d) a stutter(e) a lack of intonation(f) problems with pronunciation and(g) a loss of hearing in the left ear.[15]These various difficulties have particularly manifested themselves in intimate and other personal relationships and appear to have contributed to his committing a number of criminal offences.[16]His first intimate relationship began in 1992 at the age of 17. It only lasted a few months before his partner ended it, saying that he had been controlling. He found it difficult to accept the separation and sought psychiatric help.[17]His second intimate relationship began in 1998 at the age of 23. It lasted for about six years during which he and his partner had two children. Again he found it difficult to handle the break-up of the relationship and sought mental health support.[18]His third intimate relationship began in 2004 at the age of 29, not long after the break-up of his previous one. He married his partner (H). The relationship lasted for about eight years during which time he and H had three children. H was later to describe his behaviour in the relationship as controlling and abusive.[19]In 2010 the Applicant committed his first offences (which were not relationship- related). In a road rage incident he assaulted another motorist and used racial abuse against her. He received a community sentence which he completed.[20]The Applicant and H separated in March 2012 and, as before, he did not handle the break-up well.[21]In May 2012 there were several police call-outs when the Applicant was verbally aggressive towards H. He was alleged to have committed two assaults against her on 1 June 2012. He denied the assaults but admitted having breached a non-molestation order which had been made in favour of H. On 9 July 2012 he received a conditional discharge for that offence.[22]On 24 July 2012 he committed the first of his very serious offences. He drove his burning car into the house where he had lived with H and which was now occupied by H and their children. He said that he had been intending to kill himself but did not do so.[23]He was charged with arson with intent to endanger life and breach of the non-molestation order, and was remanded in custody. On 1 February 2013, having pleaded guilty to both offences, he received an extended determinate sentence (‘EDS’) with a custodial term of 8 years and an extended licence period of 3 years.[24]In August 2013 the allegations of assaulting H on 1 June 2012 were the subject of a trial in the Magistrates Court. He was found guilty and received a short sentence to run concurrently with his EDS sentence.[25]Whilst in prison the Applicant remained obsessed by the break-up of his relationship with H. In February 2013 he asked two fellow prisoners to arrange for someone to break the windows of H’s house; when that was reported to the prison authorities he was moved to another prison where he asked another prisoner to arrange for the house next to H’s to be burned down.[26]He was charged with three offences of encouraging others to assist in the commission of offences. He contested the charges but was convicted by the jury. On 3 February 2015 he received the life sentence which he is now serving. His minimum term (‘tariff’) was set at 6 years.[27]He continues to deny these offences, but as he is aware the Board is obliged by law to assess his risks on the assumption that the jury’s verdicts were correct: it has no authority or resources to re-investigate a case.[28]His custodial behaviour was poor to begin with but improved after a time and by 2019 he had successfully completed several risk reduction programmes. In December 2020 a panel of the Board conducted an oral hearing to decide whether to direct his release on licence on the expiry of his tariff and, if not, to advise the Respondent about his suitability for a transfer to an open prison.[29]The panel which conducted that hearing recognised and took account of the Applicant’s neuro-psychological difficulties. His then Prison Offender Manager (‘POM’) expressed the view that he did not present to the best of his ability at the hearing. She felt that his anxiety had interfered with his ability to reflect. He presented as a bit defensive and she noticed elements of egocentricity, anxiety and being needy in his evidence. She did not think that he had expressed himself well to the panel.[30]Having considered all the evidence presented to them the panel decided against the Applicant’s release on licence but recommended to the Respondent that he should be moved to an open prison. The Respondent accepted the panel’s recommendation and on 18 May 2021 the Applicant was moved to an open prison.[31]There was a further oral hearing in October 2023 to determine whether the Applicant met the test for release on licence and, if not, whether he remained suitable to remain in an open prison. His behaviour in the open prison had not been without its problems but he had been permitted to have a few temporary releases on licence (‘ROTLs’). The 2023 panel summarised the problems as follows: ‘His custodial conduct continued to be inconsistent with reports of him being argumentative with staff, getting into conflicts with other prisoners (mainly during work) and not following instructions. In December 2022 he received a proven adjudication after being late back from a ROTL …In January 2023 a further adjudication followed after an altercation with another prisoner whilst he was working in which [the Applicant] picked up a mop bucket and threw water over the other prisoner…. ‘[32]The 2023 panel, like the 2020 one, recognised the Applicant’s difficulties. They permitted him to lead on the questioning of the witnesses. That seemed to go quite well. The panel’s decision was that he should not be released on licence but they recommended that he was suitable to remain in the open prison.[33]The current review of the Applicant’s case commenced in April 2024. Shortly before that he had been removed by the prison authorities from the open prison and returned to a closed prison. There had been an altercation between the Applicant and another prisoner which resulted in some violence. Each man alleged that the other had started it. The Applicant has always insisted that he was the victim.[34]At the hearing, which took place on 30 April 2025 after some considerable delay, the Applicant was represented by his solicitor. The panel comprised an independent chair, a psychiatrist member and another independent member. The dossier contained 486 numbered pages. The panel was certainly fully aware of the Applicant’s neuro-psychological difficulties.[35]Oral evidence was taken by the panel from the POM, the Applicant, a prison psychologist and the Applicant’s Community Offender Manager (‘COM’). All of these professional witnesses agreed that the Applicant did not meet the test for release on licence but they were all of the view that he did meet the test for a return to open conditions, and saw this as the best route for his reintegration with the community.[36]The solicitor was concerned by what she regarded as inappropriate questioning of the Applicant by the psychiatrist member of the panel, which she believed prevented him from doing himself justice and ‘giving best evidence’.[37]At this point I will simply record the following passage at the start of the panel’s decision letter:
‘During the questioning of [the Applicant], the legal representative asked to speak with her client. Following a brief adjournment, [the solicitor] informed the panel that [the Applicant] was struggling with the lines of questioning regarding his past offending and index offence, which she considered were well documented in the dossier. [The solicitor] also asked that a lunch break be taken so that [the Applicant] could compose himself, this was agreed. Following the break, [the Applicant] confirmed that he was able to continue, and at the end of the hearing he thanked the panel for their time and understanding.’
[38]The panel’s decision, after considering all the evidence, was that the Applicant did not meet the test for release on licence and did not meet the test for a return to open conditions. The Relevant Law The test for release on licence[39]Under the Codified Public Protection test the panel could only direct the Applicant’s release on licence if they were satisfied that his continued confinement in prison was no longer necessary for the protection of the public, and they could only be so satisfied if they considered that (if the prisoner were to be no longer confined in prison) there would be no more than a minimal risk of his committing a further offence so serious that it might result in serious harm to somebody else. The rules relating to reconsideration of decisions[40]Under Rule 28(1) of the Parole Board Rules 2019 (as amended in 2024) a decision is eligible for reconsideration if (but only if) it is a decision that the prisoner is or is not suitable for release on licence. A decision not to recommend a move to an open prison is not eligible for reconsideration.[41]The grounds on which an application may be made are as set out above (error of law, irrationality or procedural unfairness). As noted above the application in this case is made on the ground of procedural unfairness.[42]A decision that a prisoner is or is not suitable for release on licence is eligible for reconsideration whether it is made by:(i) a paper panel (Rule 19(1)(a) or (b)) or(ii) an oral hearing panel after an oral hearing, as in this case (Rule 25(1)) or(iii) an oral hearing panel which makes the decision on the papers (Rule 21(7)).[43]As noted above the application in this case was made by the Applicant’s legal representative on his behalf. The arguments deployed by the legal representative in support of the application will be discussed below. The definition of procedural unfairness[44]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.[45]Examples of procedural unfairness which may be a ground for quashing a panel’s decision on this ground are where:(a) express procedures laid down by law were not followed in the making of the relevant decision; or(b) the party was not given a fair hearing;(c) the party was not properly informed of the case against them;(d) the party was 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.[46]These are not the only possible grounds for a finding of procedural unfairness but they are the ones most commonly alleged. The overriding objective is to ensure that the Applicant’s case was dealt with justly. The request for reconsideration[47]The sole ground advanced by the Applicant’s solicitor is that there was procedural unfairness in that the Applicant was not given a fair hearing and was prevented from putting his case to his best advantage by the manner of the psychiatrist member’s questioning of him.[48]The solicitor very sensibly suggested that I should listen to the recording of the hearing in order to see whether there was indeed procedural unfairness. I have now been provided with the recording and have listened to the whole of the Applicant’s evidence including the intervention by his solicitor requesting a break. The reply on behalf of the Secretary of State[49]The Respondent has offered no representations in respect of this application. Discussion[50]A very clear picture of the Applicant’s personality and presentation emerges from listening to the recording. He was able to give answers, sometimes rather long and rambling, to almost all the panel’s questions. He was polite throughout. At many points he relied on his mental health problems as explanations for his offending or his behaviour on occasions in prison. He maintained his positions on the arson offence and the allegations made by other prisoners about his attempts to get them to damage the house where H was living.[51]He maintained that setting fire to the house was not intended to harm anybody except himself: he said that he understood the children were away and H would be able to escape through the back of the house. He maintained that the other prisoners had made up their allegations against him.[52]Different members have different voices and different questioning styles. The psychologist’s voice and questioning were polite but firm. He quite properly asked the Applicant various questions about his offending. The Applicant answered most of the questions fully and sometimes in his usual rather rambling style. He did have difficulty in answering some of the questions, especially those which led to his solicitor asking for a break. After the break the Panel Chair asked him how he was feeling and he said: ‘Much better’.[53]I am afraid that after very careful consideration I am not persuaded that the psychologist member’s questioning was in any way unfair. It was his responsibility to question the Applicant about various matters including his offences and his current level of insight into them. He did so in a careful and appropriate way.[54]The fact that previous panels had explored the same matters did not absolve the present panel from conducting the same exercise. Some questions on the same topics had been asked by the member who questioned the Applicant first, but it was quite appropriate for the psychiatrist to ask further questions from his perspective. That is one of the benefits of a two or three member panel. Decision[55]It follows from the above that I cannot find that the ground advanced by the solicitor is made out.[56]Even if I had found that there had been any procedural unfairness, I would have had difficulty in directing reconsideration. That is because my remit is limited to deciding whether the test for reconsideration of the panel’s decision not to direct the Applicant’s release on licence is met. I have no authority to make any decision about the appropriateness or otherwise of the panel’s decision not to recommend that the Applicant should be transferred back to the open prison.[57]Reconsideration is a discretionary remedy and it will not be directed if there was some procedural unfairness but the panel’s decision on the issue in question (i.e. whether to direct the prisoner’s release on licence) would have been exactly the same if that procedural unfairness had not occurred.[58]In this case the panel’s decision not to direct the Applicant’s release on licence was always going to be the same. All three professional witnesses, for sound reasons, were of the opinion that the Applicant is not yet ready for release on licence. Before he could be ready for release on licence he would need to complete without problems a number of further ROTLs from an open prison.[59]The panel set out very clearly the reasons why they agreed with the professional witnesses that the Applicant did not meet the test for release. Those reasons were as follows:
‘[The Applicant’s] previous offence involved serious offending and caused serious harm. His index offence demonstrated a continuation of this risk in a planned and considered manner. He has previous convictions that demonstrate his risk of using aggression and violence and evidence of past failure to comply with court orders. ‘[The Applicant’s] custodial behaviour has been broadly positive as he is willing to follow rules he understands and to engage with professionals. However, his rigidity in thinking can lead to conflict with others regarding rules and procedures, particularly when he considers he is in the right. The programmes undertaken by [the Applicant] in custody have not reduced his risk to the public because he demonstrates limited insight into his own risk and does not consistently demonstrate the ability to manage his emotions and personality traits, which may of course be impacted by his ND [neuro disability]. ‘The panel considered that [the Applicant] presented a risk of poor compliance with a period on licence because of his lack of insight into his risk and rigid thinking. ‘The panel considers that [the Applicant] presents a high risk of reoffending because he has yet to demonstrate full understanding of the areas that places him at risk of further offending. The panel also concludes that [the Applicant] presents a high risk of serious harm to children, known adults, and the public because his preparedness to use aggression and violence to resolve situations, or to further his own aims, places others at risk of physical or psychological harm. ‘The panel took into account the legal representative’s closing submissions, and carefully considered the potential of [the Applicant] being released into the community and not re-offending, deciding that unless he addresses his thinking skills, further work in the community was unlikely to succeed and the risk of offending would remain. The risk of offending and harm [the Applicant] presents is not manageable within the plan, given his level of risk. Therefore, the panel does not direct release.’
[60]None of this reasoning can possibly be challenged as being irrational or open to challenge, and the solicitor correctly does not suggest that it could.[61]As I have said it is not within my remit to make any finding about the panel’s decision not to recommend a move back to an open prison. The reason for that is that the decision whether to move a prisoner to an open prison rests entirely with the Respondent and if a prisoner wishes to argue that the Respondent should do so he needs to argue his case to the Respondent and not to a Reconsideration Panel. It is unusual but not unheard of for the Respondent to disagree with an adverse recommendation by a panel of the Board and to move a prisoner to an open prison despite the panel’s recommendation.[62]It is not for me to say anything about the merits or otherwise of a request by the Applicant and his solicitor to the Respondent to override the advice of the panel, but I imagine that the Respondent will wish to consult the HMPPS officials (the prison psychologist, the POM and the COM) who did, after all, recommend that the Applicant should be returned to the open prison. They are also in a better position than me to assess his evidence at the hearing and to compare it with his normal presentation.[63]For the reasons I have given, I do not consider that anything in this hearing was procedurally unfair and accordingly I must refuse this application for reconsideration of the panel’s decision. Jeremy Roberts 17 June 2025