Naylor, Application for Reconsideration [2025] PBRA 128 (17 June 2025) [2025] PBRA 128
PBRA
Naylor, Application for Reconsideration [2025] PBRA 128 (17 June 2025)
[2025] PBRA 128 · 2025-06-02
[1]This is an application by Naylor (the Applicant) for reconsideration of a decision of an oral hearing panel dated the 2 June 2025. The decision of the panel was 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 consisting of 763 pages, the decision of the oral hearing panel, the representations by the Applicant’s legal adviser and the representations by the Respondent. Request for Reconsideration[4]The application for reconsideration is dated 4 June 2025.[5]The grounds for seeking a reconsideration are set out below. The application for reconsideration was in a narrative form. I have set out the grounds as I believe them to be from the narrative submitted by the Applicant’s legal adviser. Background[6]The Applicant is serving a sentence of imprisonment for public protection. The Applicant was sentenced in 2006. His tariff expired in 2008. He was first released from custody in April 2022. He was recalled in December 2022. The index offences were robbery, grievous bodily harm with intent, and vehicle interference. The robbery offence was committed with a group of males who are equipped with machetes and a knuckle duster. The robbery was committed in a private home whilst the occupants including a woman and child were still at home. The Applicant indicated that he was under the influence of cocaine and ecstasy at the time of the offence. The grievous bodily harm matter occurred later. The victim was a 16 year old. The Applicant suggested that the 16 year old had stolen his (the Applicant’s) bicycle. The Applicant demanded money from the 16 year old then stabbed him in the stomach. The Applicant reported that he had used drugs prior to committing this offence. There was also an offence of assault occasioning actual bodily harm when the Applicant bit the cheek of a stranger on public transport following a disagreement. The Applicant was aged 18 at the time of sentence. He was 36 at the time of the oral hearing panel’s decision. Current parole review[7]The referral from the Secretary of State (the Respondent) requested the Parole Board to consider whether the Applicant should be directed for release. If not directed for release the Respondent requested the Parole Board to consider whether a recommendation to be made in relation to the transfer to an open prison. The referral also requested consideration of the potential for a termination of the Applicant’s licence.[8]The oral hearing panel comprised of an independent Parole Board panel chair, an independent additional Parole Board member, and a psychologist member of the Parole Board. Evidence was given at the hearing by a prison offender manager (POM) a prison commissioned psychologist, and a community offender manager (COM. The Applicant gave evidence himself and was legally represented. The Relevant Law[9]The panel correctly sets out in its decision letter dated 2 June 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)[10]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)).[11]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)).[12]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[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[19]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.[20]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.[21]The overriding objective is to ensure that the Applicant’s case was dealt with justly. Error of law[22]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.[23]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[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. " Reconsideration as a discretionary remedy[26]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[27]The Respondent offered no representations. Discussion Ground 1[28]It is submitted on behalf of the Applicant that the panel acted unfairly in failing to adjourn at the conclusion of the oral hearing in order to allow the Applicant a further period of time to demonstrate positive behaviour. Discussion[29]The background to this submission is that the Applicant, as noted above, is subject to an indeterminate sentence for public protection. The Applicant is some years beyond tariff. The Applicant was released in 2022 and was recalled later in the year. The recall occurred in circumstances where there were allegations of hostile and negative behaviour towards a partner. The Applicant had also failed to engage with services in relation to his emotional and other difficulties when in the community. He had failed to attend appointments with his probation officer. His probation officer took the view that the Applicant, whilst in the community, had displayed increasingly paranoid and erratic behaviours. The Applicant also lost contact with his probation officer and was unlawfully at large following a recall being implemented. The Applicant was unlawfully at large for a period of 6 months.[30]Following recall, the Applicant’s behaviour in prison had been concerning. There had been a number of proven adjudications relating to threatening behaviour and disobeying orders.[31]A Parole Board hearing was initially scheduled for December 2024. However, upon the application of the Applicant’s solicitors, that hearing was adjourned to enable the Applicant to engage with a course of therapeutic work. The Applicant engaged with this work and undertook 10 sessions. A report indicated that the Applicant had made good progress with the therapeutic work and had begun to understand the reasons for his negative behaviour.[32]Although some progress was made with the intervention work, the panel noted that the Applicant had also been the subject of further adjudications following the adjournment for the work to be undertaken. The adjudications were in relation to abusive and disrespectful behaviour towards staff. There were also outstanding adjudications relating to fighting. In addition to the adjudications there were negative entries also relating to insulting members of staff.[33]At the oral hearing the Applicant’s COM and POM gave evidence. Neither were able to support a direction for release as they felt that the Applicant was in the early phase of managing his negative behaviour. A prison commissioned psychologist took a different view, the psychologist cautiously suggested that the Applicant’s risk could be managed, but would be dependent upon a substantial amount of support in the community.[34]It is also noted in the oral hearing panel’s decision that during the course of the oral hearing the Applicant’s legal adviser asked the panel to consider adjourning the oral hearing for a period of time to enable the Applicant to demonstrate a period of settled behaviour and to therefore conclude the hearing at a future date based upon whether the Applicant had demonstrated such behaviour. The panel had indicated that they would review the application to adjourn at the conclusion of the hearing. The application to adjourn was repeated in the submissions by the Applicant’s legal adviser at the conclusion of the panel hearing.[35]In the event the panel declined to adjourn the matter. The panel considered the adjournment application, however the panel had noted that the risk management plan that was proposed in the Applicant’s case, though robust, would not be sufficient to manage the Applicant’s risk in the community. The basis of the panel’s decision was an assessment of the Applicant’s behaviour in the community, his poor problem solving and poor consequential thinking. This was coupled with the concerns about the Applicant’s conduct since his recall indicating deficits in his ability to manage his emotions. The panel took the view that even with the intervention of a psychologically informed probation hostel and psychological intervention in the community, the warning signs of increasing risk to the public would be unlikely to be detected and serious harm could occur. The panel also noted the fact that the Applicant’s compliance remained an issue both in terms of the Applicant’s period of being unlawfully at large, before recall, and in terms of the behaviour the Applicant demonstrated towards staff whilst in custody since his recall. The panel therefore made their assessment on the basis of the evidence available to them at the oral hearing as they were required to do pursuant to the Respondent’s referral.[36]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.[37]As noted above, the position of a Parole Board panel in relation to referrals from the Respondent is that the panel are obliged to consider risk at the time of the referral. The panel is not entitled or required to become involved in sentence planning or assessments in the future. The suggested adjournment would have amounted to engaging in aspects of behavioural assessment and sentence planning beyond the remit of a Parole Board panel.[38]The Applicant’s legal adviser also indicates concerns about any delay which might occur if the Applicant were subject to a further review in the future. Again, the timing of subsequent reviews is a matter for the Respondent.[39]In the circumstances therefore I am not persuaded that the decision of the panel not to adjourn the matter for a further period of testing behaviour could amount to procedural unfairness or irrationality within the meaning set out above. Ground 2[40]It is submitted on behalf of the Applicant that the fact that he had not been admitted to psychological pathways, which may be available in the community, and to a psychologically informed probation hostel was the responsibility of others, and accordingly the Applicant should not suffer further delay because of these omissions on the part of the probation service or others. Discussion[41]A Parole Board panel has a specific remit in relation to referrals by the Respondent. A Parole Board panel is not in a position to direct the provision of probation interventions or services. The panel is a decision-making body and is required to assess the evidence presented by the parties.[42]It is also of note that in this case, although the Applicant had been diagnosed with a personality issue, and may have benefited from a specialist hostel and other interventions, it is clear from the decision of the panel, that the decision did not turn specifically upon the absence of a specialist probation hostel or specialist psychological intervention in the community. The decision was based upon a number of factors as set out above. Accordingly, I am not persuaded that this ground amounts to a procedural irregularity in the sense set out above. Ground 3[43]It is submitted that the decision of the oral hearing panel will have the effect of subjecting the Applicant to a further three-year period in custody and that effective measures could have been in place to allow for his release at an earlier date. Discussion[44]As indicated above the decisions relating to the timing of referrals is entirely a matter for the Respondent not for the Parole Board. The Parole Board’s requirements are to respond to any referral and to apply the public protection test. In this case as indicated above the panel considered the evidence at the hearing and concluded that the public protection test for release had not been met and therefore concluded their hearing. Any further hearings or referrals would be entirely a matter for the Respondent. I am not persuaded that the panel’s decision was irrational, the panel were obliged to look at the potential risk of the Applicant at the time of the hearing and to make an assessment of risk. The panel made that determination and set out the reasons for declining to direct release. I am not persuaded that this ground amounts to an irrational decision or procedural unfairness. Decision[45]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 17 June 2025