Greenwood, Application for Reconsideration by, [2025] PBRA 136 (03 July 2025) [2025] PBRA 136
PBRA
Greenwood, Application for Reconsideration by, [2025] PBRA 136 (03 July 2025)
[2025] PBRA 136 · 2025-05-02
[1]This is an application by Greenwood (the Applicant) for reconsideration of a decision of an oral hearing panel dated 2 May 2025 not to direct his 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 oral hearing decision of 2 May 2025, the dossier consisting of 602 pages and the application for reconsideration. Request for Reconsideration[4]The application for reconsideration is dated 6 June 2025. It has been drafted by legal representatives on behalf of the Applicant. It submits that the decision is irrational and procedurally unfair.[5]This submission is supplemented by written arguments to which reference will be made in the Discussion section below. Background[6]The Applicant received a sentence of imprisonment for public protection on 14 February 2011 following conviction for an offence of kidnap and two offences of attempted kidnap of young girls. His tariff was set at 5 years 121 days and expired on 15 June 2016.[7]The Applicant was released on 6 April 2020 after a Parole Board hearing and recalled in June 2023.[8]The Applicant was 47 years old at the time of sentencing and is now 61 years old. Current parole review[9]The Applicant's case was referred to the Parole Board by the Secretary of State (the Respondent) in July 2023 to consider whether or not it would be appropriate to direct his release. If the Board did not consider it appropriate to direct release, it was invited to advise the Respondent whether the Applicant should be transferred to open conditions. 10.The case proceeded to an oral hearing via videoconference on 1 May 2025. The panel consisted of three independent members. It heard oral evidence from the Applicant together with his Prison Offender Manager (POM), Community Offender Manager (COM) and a prison appointed psychologist. The Applicant was legally represented throughout the hearing. The Respondent was not represented by an advocate. 11.The panel did not direct the Applicant's release nor make a recommendation for open conditions. The Relevant Law 12.The panel correctly sets out in its decision letter dated 2 May 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)[13]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)).[14]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)).[15]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 16.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. 17.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. " 18.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). 19.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. 20.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. 21.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[22]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.[23]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.[24]The overriding objective is to ensure that the Applicant's case was dealt with justly. The reply on behalf of the Secretary of State 25.The Respondent has submitted no representations in response to this application. Discussion 26.Irrationality: The Applicant raises two issues under this ground. He submits under the ground of irrationality that his denial of the new offence was a conclusive factor in the panel's decision. He further submits that the conclusion that he undertake offending behaviour work of Executive Building Choices Programme which is only offered at limited establishments and the failure to consider the community option of Building Choices without proper consideration or adjournment or deferral amounted to irrationality. 27.The panel noted the Applicant's denial of the further offence for which he had been convicted after trial and sentenced. The grounds of application appear to complain about the COM's consideration of the matter, rather than the panel. Nevertheless I have carefully considered the panel's assessment of the further offence. The Applicant gave evidence before the panel of the details of that matter. The panel's conclusion that the Applicant's evidence on that matter " indicated a lack of empathy, poor insight into his risks and a level of complacency and misunderstanding that did not adequately reflect the serious nature of his offending history " was a conclusion that cannot be faulted in any respect and certainly could not be described as irrational. It was only one of the factors that the panel considered in coming to its decision but was not a conclusive factor. 28.The submissions in respect of the availability of the further work to be done are aimed in part at the COM. The submission that the panel should have adjourned or deferred the case for further enquiries was not raised at the hearing and certainly was not necessary. The panel's conclusion that the Applicant needed to complete further offence focused, risk reduction work was not an irrational conclusion. The application's questions regarding the details of the work were questions that could and should have been raised at the hearing. The unsupported claim in the application of the availability of the course and the Applicant's access to it were matters to be raised of the professionals at the hearing. Having considered the dossier myself I have noted the COM has noted the Applicant's reluctance to engage in group work and regarding the availability of the course the COM states in the Part C report " [ The Applicant] will also be required to comply with the Building Choices programmes, this is due to commence in prison over the forthcoming months and would help increase desistance and reaffirm any previous learning ". This would appear to be contrary to the unsourced and supported claim in the application. The fact that the Applicant appears now to have various concerns does not provide him with a claim of irrationality or unfairness in respect of the decision. There is no merit in this ground. 29.Procedural unfairness: The same submissions are raised under the heading of procedural unfairness. There is equally no merit under this heading. The Applicant was represented in respect of his case. He and his representative had access to the dossier and were aware of the position of the COM and the psychologist. The panel did not need to adjourn for further information; the professionals attending the hearing could provide answers. There was no procedural unfairness in the panel's consideration of the case. The Applicant is seeking to re-argue and to raise fresh matters to support his case for reconsideration. The panel notes the Applicant's " lack of engagement in offence-focused work " and as the further work suggested by the professionals is available only in closed conditions there was no requirement for the panel to consider community alternatives when it did not consider he was ready for release. There is no basis for the ground of procedural unfairness. 30.The Applicant's submission that the panel consideration of his failure or inability to complete a programme makes him unsuitable for release, misses the focus of the panel's concerns which is the question of risk. The Applicant does not challenge the conclusions about the risk he poses. Those risks cannot be managed in the community as he denies the recall incident and lacks engagement with offence focussed work. The panel also noted that he lacked insight into his risks, his offending was unpredictable and there are no clear warning signs of escalation. The panel carefully considered the evidence and its reasoned conclusion was clear and fair. Decision 31.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 03 July 2025