Haddock, Application for Reconsideration by, [2025] PBRA 134 (27 June 2025) [2025] PBRA 134

PBRA
Haddock, Application for Reconsideration by, [2025] PBRA 134 (27 June 2025)
[2025] PBRA 134 · 2014-06-04
[1]This is an application by Haddock ('the Applicant') for reconsideration of a decision of a panel of the Parole Board ('the Board').[2]The Applicant is serving an extended determinate sentence ('EDS') which was imposed on 4 June 2014 for a serious offence of violence. The circumstances of that offence ('the index offence') will be discussed below.[3]The EDS comprises a custodial term of 12 years and a licence extension period of 4 years. The Applicant became eligible for early release on licence on 28 January 2022. In 2022 and 2023 his case was referred by the Secretary of State for Justice ('the Respondent') to decide whether to direct his early release but on each occasion panels of the Board decided against it.[4]The case has now been referred again to the Board for a further review. If the Board does not direct early release on this review the Applicant will be automatically released on licence in January 2026. His sentence will not expire in January 2030.[5]On 31 January 2025 the case was directed by a MCA member to proceed to an oral hearing to be conducted by a three member panel including a psychologist member of the Board. A date (14 August 2025) was fixed for the hearing.[6]However, on 2 June 2025 a decision was made by the Panel Chair to decide the case on the papers. The decision was against early release.[7]The Applicant's solicitor has made an application on the Applicant's behalf for reconsideration of the Panel Chair's decision. Request for Reconsideration[8]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.[9]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.[10]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.[11]In this case the application for reconsideration has been made on the grounds of irrationality and procedural unfairness. No error of law is alleged.[12]The application was made within the time limit for applications of this kind and is therefore eligible for reconsideration.[13]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.[14]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 364 and includes a copy of the Panel Chair'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[15]The Applicant is now aged 56. He grew up in Northern Ireland where he accumulated a good many convictions for violence and one for arson. There is now some conflict as to whether he was an active member of the Ulster Defence Force ('UDF') (see below). He was himself shot on one occasion, receiving serious injuries.[16]After serving his last sentence in Northern Ireland he moved to England, and whilst here he committed the index offence (causing grievous bodily harm with intent), The victim and the Applicant had known each other in Northern Ireland. There was a suspicion, which the Applicant strongly denied, that he had been responsible for a burglary at a public house run by the victim. The Applicant confronted the victim outside the public house and slashed his face with a knife. The victim required 24 stitches and was left with significant external and internal scarring.[17]The Applicant's custodial behaviour during his current sentence has been good. The principal reason for the previous decisions in 2022 and 2023 was that he still needed to undertake and complete some core risk reduction work. A programme was identified by psychologists but the Applicant was unwilling to be moved to a prison where that programme was run.[18]This resulted in something of an impasse. For some time during this review of the case an 'Identity Matters' programme was considered but it was ultimately decided that although the Applicant met the criteria for that programme it was thought that other options might be more suitable. By March 2025 the following proposal was being put forward and agreed by the Applicant:
'[Psychological Services] have agreed to provide a bespoke psychological intervention to [the Applicant], and he has stated that this is something he would be interested in engaging with. [Psychological Services] have allocated this to a Registered Forensic Psychologist with a proposed start date in March 2025. The aims of this intervention would be to provide an opportunity for [the Applicant] to discuss his life and the relationships which have most influenced him and explore and address his offending that has included the use of violence because of his affiliation with a particular group. It is [PPCS's] view that a [Psychological Risk Assessment] would be most valuable following on from this work, and a period of consolation [sic], to assess the impact on the previously identified outstanding needs.'
[19]At that stage the oral hearing of the case had, as mentioned above, been scheduled to take place on 14 August 2025. In response to a Panel Chair Direction, the following timetable was provided by the prison:
'Before further directions are made, the panel chair requires an indication of when this work will be completed as it will then be necessary to direct a further PRA/ERG assessment ahead of any hearing taking place. It may be that achieving an effective hearing on the current scheduled date in August 2025 is unrealistic... '
If no sessions are cancelled/moved, then I am looking at finishing the [bespoke] intervention w/c 16th June with [the Applicant]. The final report would be disclosed and available by Close of Play on 4th July. 'With this anticipated timeline the deadline required to complete ERG would be mid-October 2025, which would also allow a little flexibility if there were any cancelled sessions/disruptions from the bespoke intervention work.'[20]A PRA (Psychological Risk Assessment) would be directed at assessing the Applicant's general risk of violent reoffending and ERG22 (Extremism Risk Guidance assessment) would be directed at understanding his risk of sectarian violence. It seems to have been envisaged that the two forms of assessment might be carried out by different psychologists though both can be carried out at the same time by a psychologist qualified in both forms.[21]It was clear that the oral hearing could not take place in August 2025 and on 9 May 2025 the Panel Chair invited representations from the parties as to whether the hearing should be adjourned or concluded on the papers.[22]On 16 May 2025 the Applicant's solicitor requested that the hearing should be adjourned. PPCS made no representations on that issue.[23]PPCS did however provide some documentation concerning the Applicant's activities in Northern Ireland. This documentation was in the public domain and reference will be made to it in the discussion section of this decision. The Board had directed the production of police records concerning the Applicant's past in Northern Ireland but there had been understandable difficulty in obtaining those. PPCS requested that if the hearing was to be adjourned the time limit for them should be extended.[24]The Panel Chair decided, in his decision of 2 June 2025, that the case should be concluded on the papers, so it was unnecessary to obtain the directed police records from Northern Ireland. The reasons given by the Panel Chair for his decision were as follows: Under 'Analysis of Change' '[The Applicant's] custodial conduct remains good and there are no concerns. He has retained enhanced IEP status for many years. 'He has agreed that he needs to complete a bespoke psychological intervention as identified by prison psychological service and there are plans for that to be undertaken during the Spring/Summer of 2025. 'Following this work and any period of consolidation a further psychological assessment will be undertaken to assess the impact of the work and his current risk levels, his understanding of his risks and triggers to offending and any protective factors that are in place. 'Unfortunately, this planned work, which [the Applicant] has agreed to, and subsequent assessments will take him virtually to his automatic release date in January 2025 [sic] and the ability to hold an effective oral hearing is unlikely. 'Current assessments indicate that he presents with a low probability of violent or general offending but if it were to occur there is a high risk that serious harm would be caused to the public. These assessments seem fair but his assessment of likelihood of further extremist offending will be re-assessed after the planned intervention and until such time as that has happened and been reviewed, the panel consider his risk of causing further serious harm would be more than minimal in the community.' Under 'Conclusion' '[The Applicant] has a significant history of violent offending and has a background of involvement in serious Sectarian violence in Northern Ireland. 'He is assessed to still need further core risk reduction work in custody and he has agreed to do the work. 'However, for the reasons explained above, there will not be time for him to complete the intervention and be further assessed, as his automatic release date is likely to occur before an effective oral hearing could be arranged. Therefore, despite his application to adjourn the review, this is not thought to be viable, and in any event, it is against the policy of the Parole Board to adjourn a review for the completion of core risk reduction work, or for more than 4 months and the review is therefore concluded on the papers. 'As the codified public protection test has no temporal element, the panel needs to consider future risk and determine whether release would cause a more than minimal risk of serious harm to the public whether before or after the date when [the Applicant] would be automatically released. In doing so, the panel has borne in mind that there must be a causal link between his continued detention and the prevention or reduction of risk. On the evidence available to it, the panel has assessed that he continues to present with a risk of extremist offending, which could result in more than a minimal risk of causing serious harm. It determines that the risk could be prevented or reduced by his continuing detention because there are planned interventions due to take place. 'Had there been time to do so, an oral hearing would have more closely examined his risk, but the timescales do not allow for this and with the public protection taking precedence, the panel have concluded that it is not satisfied, that it is no longer necessary, for the public protection that [the Applicant] remains confined in prison and therefore no direction as to release has been given .' The Relevant Law The test for release on licence[25]Under the Codified Public Protection test the Panel Chair could only direct the Applicant's release on licence if he was satisfied that the Applicant's continued confinement in prison was no longer necessary for the protection of the public, and he could only be so satisfied if he considered that if [the Applicant] 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[26]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.[27]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 grounds of irrationality and procedural unfairness.[28]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 (Rule 25(1)) or(iii) an oral hearing panel which makes the decision on the papers (as in this case) (Rule 21(7)).[29]As noted above the application in this case was made by the Applicant's solicitor on his behalf. The arguments deployed by the legal representative in support of the application will be discussed below. The definition of irrationality[30]The power of the courts to interfere with a decision of a competent public authority on the ground of irrationality was defined in Associated Provincial Houses Ltd -v- Wednesbury Corporation 1948 1 KB 223 by Lord Greene as follows:
"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 Parole Board is a public authority for that purpose, and the Wednesbury test therefore applies to applications to the High Court for judicial review of a panel's decision. It also applies to applications to Reconsideration Panels of the Board for reconsideration of a panel's decision on the ground of irrationality.[31]In R (DSD and others) -v- the Parole Board 2018 EWHC 694 (Admin) ('the Worboys case') a Divisional Court applied this test to Parole Board decisions in these words:
" 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 ."
The same test of course applies to " no release" decisions.[32]In R (on the application of Wells) -v- Parole Board 2019 EWHC 2710 (Admin) Mr Justice Saini set out what he described as a more nuanced approach in modern public law. This approach is " 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 formulation of the 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) .[33]As was made clear by Mr Justice Saini, 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 the Wednesbury and DSD cases) was of course binding on Mr Justice Saini. It is similarly binding on Reconsideration Panels.[34]It follows from these principles that in considering an application for reconsideration a Reconsideration Panel cannot substitute its own view of the evidence for that of the panel who heard the witnesses and were able to assess their reliability. The Reconsideration Panel will only direct reconsideration on the ground of irrationality if the Wednesbury test is satisfied. The definition of procedural unfairness[35]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.[36]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.[37]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[38]In his representations of 10 June 2025 the Applicant's solicitor advances two grounds for reconsideration of the Panel Chair's decision.[39]His first ground is that the decision is irrational because the Applicant does not accept that the 'open source material' produced in his case represented an accurate record of his involvement or alleged criminality with serious sectarian violence in Norther Ireland, as referenced in the paper decision.[40]His second ground is that the decision is procedurally unfair because the Applicant instructs his solicitor that he is currently undertaking and engaging with the bespoke psychological intervention work as identified by the prison psychological service and that work will be completed in approximately five more sessions and will not therefore take the time indicated in the decision. The reply on behalf of the Secretary of State[41]As noted above the Respondent has offered no representations in respect of this application. Discussion: (Ground 1)[42]It was entirely appropriate for the Panel Chair to record the Applicant's risk factors and protective factors as identified by probation and previous panels.[43]The Applicant's risk factors were recorded as ' use of weapons, attitudes towards politics in Northern Ireland including affiliation with a paramilitary group or loyalty to opposing groups, anti-social peers, boredom, grievance thinking, need to assert dominance, lack of family support, unmanaged PTSD due to 2006 shooting, substance misuse and poor conflict resolution/problem solving skills. The attitudes around political and ideological attitudes were considered a main dynamic risk factor by a previous COM [community offender manager]'.[44]The Applicant's protective factors were recorded as follows:
'Protective factors were identified by the last panel as family support, skills learnt from [a risk reduction programme directed at the Applicant's use of violence] and the desire to live an offence free life. The last panel also concluded that residence in England was a protective factor however the dossier currently states that [the Applicant] has applied for repatriation to Northern Ireland and is currently awaiting the results. A move to Northern Ireland at this stage without [the Applicant] having addressed his risk factors in relation to extremism could be argued as being an active risk factor given his history with loyalist involvement until he moved to England.'
[45]There was ample evidence in the dossier to support the view that, whatever the precise details, the Applicant had been involved in sectarian violence in Northern Ireland. The Applicant acknowledged that he still had to undertake and complete 'core risk reduction work' and that work was plainly designed to address sectarian violence as well as other risk factors. It was thus recognised that in addition to the other factors likely to be considered in the PRA there would also need to be an ERG assessment designed to assist in the understanding of the Applicant's risk of future sectarian violence.[46]The 'open source material' which PPCS added to the dossier afforded compelling evidence (including the Applicant's own Wikipedia entry) that he had been in a senior position in the UDF.[47]The bespoke psychological intervention is no doubt providing the Applicant with the opportunity to present his own account of his involvement in sectarian violence, but the Panel Chair was fully entitled on the evidence available to him to regard it as significant and needing to be addressed.[48]In any event even if the true picture was not as depicted in the 'open source material', that would not afford any real ground for reconsideration of the Panel Chair's decision. That decision was based on the likelihood that the Applicant's automatic release date would come before a number of stages had been reached. Those stages would be, in my estimation,(a) the completion of the bespoke intervention,(b) any period of consolidation of the Applicant's learning from that intervention,(c) completion of the PRA and ERG,(d) the reports of the other professional witnesses providing their assessments of the Applicant's risks having regard to the PRA and ERG,(e) the oral hearing itself,(f) the drafting and issuing of the panel's decision, and(g) the expiry of the time limit for a reconsideration application by the Applicant or the Respondent (or, if such an application was made within that time limit, the decision on that application).[49]I am satisfied that the Panel Chair's assessment of the situation was entirely rational and correct. Even if there was any inaccuracy in any of the 'open source material' it would not have affected that assessment. All of the above stages would still have needed to have taken place.[50]In fact the above timetable of events would in all probability have had to be significantly extended if there was to be an adjournment of the case as requested by the Applicant's solicitor. The panel would then have needed to investigate the whole disputed issue of the Applicant's involvement in the UVF. It is likely that in order to investigate that issue properly the panel would have needed to agree to PPCS's request for an extension of time for obtaining the relevant information from the police in Northern Ireland.[51]For these reasons I cannot uphold Ground 1. There was no irrationality in the Panel Chair's decision. Discussion: Ground 2[52]It may very well be that the bespoke psychological intervention will be completed somewhat sooner than anticipated. However I doubt whether that would make a significant difference to the rest of the sequence of events outlined above.[53]In any event a subsequent change of events could not, I am afraid, afford any ground for reconsideration of the Panel Chair's decision. That is because the Panel Chair was required to make his decision on the basis of the facts presented in the evidence available to him, which is what he did. Although a decision by a panel which is favourable to the prisoner can be set aside if new information has come to light, there is no corresponding provision for a decision which is unfavourable to the prisoner to be set aside on that ground. Decision[54]For the above reasons I cannot uphold either of the grounds advanced by the Applicant's solicitor and I must therefore dismiss this application for reconsideration. Jeremy Roberts 27 June 2025