Brabrooke, Application for Reconsideration by, [2025] PBRA 135 (02 July 2025) [2025] PBRA 135

PBRA
Brabrooke, Application for Reconsideration by, [2025] PBRA 135 (02 July 2025)
[2025] PBRA 135 · 2025-05-21
[1]This is an application by Brabrooke (the Applicant) for reconsideration of a decision dated 21 May 2025 not to direct his release. The decision was made by a panel following an oral hearing.[2]Rule 28(1) of the Parole Board Rules 2019 (as amended) (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.[3]I have considered the application on the papers. These are the decision, the dossier (consisting of 1374 numbered pages), and the application for reconsideration. I have also had access to an audio recording of the hearing. Background[4]On 27 July 1988, the Applicant received a sentence for life imprisonment following conviction for murder. He entered the home of a 59 year old female stranger with the intention of raping her and stabbed her repeatedly during a struggle. His tariff expired in October 2002.[5]He received a further determinate 30 month sentence in December 2018 for absconding from lawful custody (open conditions), now served.[6]The Applicant was 26 years old at the time of sentencing and is now 63 years old. Request for Reconsideration[7]The application for reconsideration is dated 10 June 2025 and has been drafted by solicitors on behalf of the Applicant. It submits that the decision was irrational and procedurally unfair. No submissions were made regarding error of law.[8]The submissions are supplemented by written arguments to which reference will be made in the Discussion section below. Current Parole Review[9]The Applicant's case was referred to the Parole Board by the Secretary of State (the Respondent) to consider whether it would be appropriate to direct his release. This is the Applicant's eleventh parole review.[10]After a series of adjournments, the case proceeded to an oral hearing on 14 May 2025, before a three-member panel, including a psychologist specialist chair. The panel took oral evidence from the Applicant, the Prison Offender Manager (POM), the Community Offender Manager (COM) a forensic psychologist in training from HMPPS, a registered forensic psychologist commissioned by the Applicant and a therapist from the Healthy Sex Programme (HSP). The Applicant was legally represented throughout the hearing.[11]In the professional opinions of the POM and both psychologists, the Applicant was suitable for release. The COM differed, taking the view that the Applicant needed to remain in closed conditions to undertake what she saw as core risk reduction work regarding trauma, sexual preoccupation, and sexual deviance and attitudes.[12]The panel did not direct release because it was not satisfied that the Applicant could be safely managed in the community. Although it accepted that he had completed core risk reduction work and had shown some evidence of change, the panel placed particular weight on concerns about his historical lack of openness in open conditions and his fragile relationship with his COM. The panel also commented on the Applicant's " emotional and resentful" presentation towards the end of the hearing, when discussing his concerns about the COM's oral evidence to the panel. It considered that this undermined the panel's confidence in the Applicant's motivation and ability to work transparently with professionals if released.[13]In preferring the evidence of the COM over that of the psychologists and POM, the panel noted that the COM's concerns were well-reasoned, consistent with the full evidential picture, and grounded in a clear understanding of the Applicant's risks. The COM's view that risk would not be safely managed without stronger evidence of sustained openness and emotional stability was supported by the Applicant's previous failures in open conditions, his reluctance to engage with Medication to Manage Sexual Arousal (MMSA), and his reliance on external controls. Accordingly, the panel concluded that the risk of serious harm remained more than minimal and consequently made no direction for release. The Relevant Law[14]The Parole Board will direct release if it is no longer necessary for the protection of the public that the prisoner should be confined. Parole Board Rules 2019 (as amended)[15]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)).[16]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)).[17]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 . Procedural unfairness[18]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.[19]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; and/or(e) the panel was not impartial.[20]The overriding objective is to ensure that the Applicant's case was dealt with justly. Irrationality[21]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 (CA) 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.[22]In R(DSD and others) v Parole Board [2018] EWHC 694 (Admin) the Divisional Court applied this test to Parole Board hearings in these words (at [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 ."
[23]In R(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 the Divisional Court in R(Secretary of State for Justice) v Parole Board [2022] EWHC 1282 (Admin).[24]As was made clear by Saini J in Wells, 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.[25]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.[26]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. The reply on behalf of the Respondent[27]The Respondent has advised that no representations will be submitted in response to this application. Discussion[28]The Applicant seeks reconsideration on two grounds: a) The panel placed too much weight on the evidence heard from the Applicant at the very end of the hearing; and b) The panel should not have concluded that the Applicant needed to evidence skills of risk management in a less supportive environment based on the fact he had not been prescribed or was taking MMSA.[29]In relation to the Applicant's evidence, it is argued that the Applicant was considered and calm in his comments and was merely answering the question of whether he had anything to add. The Applicant is said to have told the panel he was feeling emotional, but it is argued that his emotions were not out of control. Moreover, it is argued that if the panel had concerns about the Applicant's presentation, particularly in light of the fractious relationship between him and his COM, it should have questioned him (and/or the other witnesses further). Finally, it is argued that it was unfair for the panel to consider the possibility that the Applicant's earlier evidence may have been rehearsed.[30]I have listened to the recording of the hearing in its entirety, paying particularly careful attention to the section at the end of the recording when the Applicant is given the opportunity to address the panel after all the evidence had been given (as required by rule 24(9)).[31]The Applicant was clear that he needed to use his skills to " deal with his emotions" but he needed to " disagree with things I feel very unhappy about that I've just heard from the last witness " (the COM), although he had been " very happy" with the evidence of the other witnesses. He said he felt " disappointed and quite let down" by the COM who " seems to want to not listen to the risk assessments done by the other people...and their recommendations" . He listed a number of what he saw as " contradictions" in the COM's evidence, and at the outset he emphasised he wanted to build a professional relationship with the COM. After around eight minutes of expressing his views, the Panel Chair intervened and invited the Applicant to re-focus his remaining comments on matters he particularly wanted the panel to take into account when reaching its decision. He addressed the panel for a further two minutes or so.[32]I would characterise the Applicant's presentation during this exchange as being clearly frustrated at some of the evidence he had heard, but would not go so far as to say his emotions were out of control or manifestly inappropriate or disrespectful.[33]The Applicant was legally represented and rightfully given the opportunity to speak at the conclusion of the hearing. He chose to make comments in response to what he had heard. The panel was entitled to form impressions of his demeanour and presentation, particularly if it considered that this gave rise to concerns reflecting long-standing issues in his case, including grievance thinking and difficulty with challenge. There is no evidence that the panel prevented him from making his case, nor that any procedural rule was breached. While the panel could perhaps have explored those concerns in greater depth, the absence of further questioning did not, in my view, render the hearing so flawed as to amount to public law procedural unfairness.[34]As to the second ground, the panel considered extensive professional evidence, including the support for release expressed by both psychologists and the POM. It gave clear reasons for preferring the evidence of the COM, whose assessment was rooted in detailed knowledge of the case and concerns about risk manageability in the community. The panel acknowledged that MMSA could not be compelled and did not treat it as a precondition for release. Rather, it identified the Applicant's continued reluctance to engage with MMSA as one part of a wider concern about whether he had fully internalised the learning from HSP. The panel's conclusion that further testing was needed outside the supportive environment of the Progression Regime was open to it and was not unreasonable.[35]The threshold for irrationality is high. It must be shown that no sensible panel, properly directing itself, could have reached the decision it did. That threshold is not met here. The panel reached a careful, reasoned conclusion on a complex and finely balanced case. It applied the codified public protection test and gave cogent reasons for its decision. While another panel might have reached a different conclusion, this panel's decision was neither procedurally unfair nor irrational. Decision[36]For the reasons I have given, I consider that the decision was neither irrational nor procedurally unfair and accordingly the application for reconsideration is refused. Stefan Fafinski 02 July 2025