Bailey, Application for Reconsideration [2025] PBRA 130 (23 June 2025) [2025] PBRA 130
PBRA
Bailey, Application for Reconsideration [2025] PBRA 130 (23 June 2025)
[2025] PBRA 130 · 2025-04-02
[1]This is an application by Bailey (the Applicant) for reconsideration of a decision of a paper panel dated 2 April 2025 not to direct his release.[2]Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2022) (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 paper decision, the dossier consisting of 228 pages and the application for reconsideration. Request for Reconsideration[4]The application for reconsideration is dated 3 June 2025. It has been drafted by legal representatives on behalf of the Applicant. It submits that the decision was procedurally unfair and was irrational.[5]The written arguments supplementing the decision are referred to in the Discussion section below. Background[6]The Applicant received an extended sentence of 5 years for wounding with intent to cause grievous bodily harm on 17 March 2022. The sentence comprised 4 years custody with an extended licence period of a year. He also received a concurrent sentence for possession of an offensive weapon. The sentence expiry date is in June 2026.[7]The Applicant was 21 years old at the time of sentencing and is now 24 years old. Current parole review[8]The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) to consider whether or not it would be appropriate to direct his release.[9]The panel did not find any reasons for an oral hearing and noted that there had been no submissions requesting an oral hearing. No further submissions were received from the Applicant or his representative and the case was concluded on the papers. 10.The panel did not direct the Applicant’s release. The Relevant Law[11]The panel correctly sets out in its decision letter dated 2 April 2025 the test for release. Parole Board Rules 2019 (as amended)[12]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)).[13]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 14.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. 15.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. ” 16.In R(on the application of Wells) -v- Parole Board 2019 EWHC 2710 (Admin) 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). 17.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. 18.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. 19.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. 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. The reply on behalf of the Secretary of State 24.The Respondent has submitted no representations in response to this application. Discussion 25.The Applicant submits that the panel did not consider or follow the risk management plans and licence conditions and did not consider the Applicant’s own account. The Applicant submits that he should have been given an opportunity to address the panel on the outstanding police investigation which had resulted in no further action being taken. The Applicant takes issue with the panel’s consideration of his health and mental health concerns. The Applicant argues that the decision is flawed in refusing to hold an oral hearing. He submits that there are material disputes and gaps in the evidence which he should have been given an opportunity to address in an oral hearing. 26.Following the panel decision the Applicant appealed the decision requesting an oral hearing. A Duty Member concluded that an oral hearing was not required and the MCA decision was not unfair. 27.The panel concluded that there was no reason for an oral hearing and having carefully considered the case I agree with that conclusion. As the panel also noted there had not been any request for an oral hearing. The panel considered the risk management plan and the proposed licence conditions, noted the Applicant’s previous failure to comply on licence and concluded that the Applicant’s risk could not be managed in the community. 28.There is no evidence that the panel attached any weight to the allegation. The decision was thoroughly and fairly considered. There is no irrationality in the conclusion. 29.There was no procedural irregularity or unfairness in the panel concluding the case on the papers. The panel correctly reminded itself of the principles in Osborn, Booth & Reilly [2013] UKSC 61 . There was no reason for an oral hearing and, importantly, one was not requested by the Applicant at that stage. The panel did not need to see and hear from the Applicant to resolve any factual issue or to assess risk. Contrary to the Applicant’s claim, the case was not a complex one. The Applicant’s subsequent application for an oral hearing was refused with detailed reasons by a Duty Member. This application repeats the application and does not raise any valid reason for departing from the reasons given by the original panel or the Duty Member. The application does not disclose any procedural unfairness but rather seeks to have an opportunity, which had not previously been requested, to have the case reconsidered. This application therefore fails. Decision 30.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. Barbara Mensah 23 June 2025