Hayles, Application for Reconsideration [2025] PBRA 138 (08 July 2025) [2025] PBRA 138

PBRA

Hayles, Application for Reconsideration [2025] PBRA 138 (08 July 2025)

[2025] PBRA 138 · 2025-06-02

[1]This is an application by Hayles (the Applicant) for reconsideration of a decision of an oral hearing panel dated the 2 June 2025 the panel’s decision 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

[3]I have considered the application on the papers. These are the dossier consisting of 465 pages, the decision of the oral hearing panel, the application for reconsideration drafted by the Applicants legal adviser, and the response by the Secretary of State (the Respondent). Request for Reconsideration

[4]The application for reconsideration is dated 12 June 2025.

[5]The grounds for seeking a reconsideration are set out below. Background

[6]The index offences in this case were conspiracy to commit robbery, and the possession of an imitation firearm. The offences were described by the sentencing judge as planned robberies which were ruthlessly executed. The Applicant, with others, committed robberies at post offices and bookmakers premises. Staff were threatened with an imitation firearm. The Applicant was aged 26 at the time of sentence and is now aged 36. The Applicant was sentenced to an extended sentence consisting of nine years custody and a four year extension period. The Applicant was released automatically in March 2024 and recalled four months later in July 2024. Current parole review

[7]The referral from the Respondent requested that the oral hearing panel consider whether the Applicant should be directed for release. The oral hearing panel consisted of an independent chair and a further independent member. Evidence was received at the oral hearing from a Prison Offender Manager (POM) and a Community Offender Manager (COM) the Applicant was legally represented at the hearing. The Applicant gave evidence at the hearing. The Relevant Law

[8]The panel correctly sets out in its decision letter dated 2 June 2025 the test for release. Parole Board Rules 2019 (as amended)

[9]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)).

[10]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)).

[11]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

[12]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.

[13]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. ”

[14]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).

[15]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.

[16]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.

[17]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

[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;

(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.

[20]The overriding objective is to ensure that the Applicant’s case was dealt with justly. Error of law

[21]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.

[22]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

[23]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

[24]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.

[25]The Respondent offered no representations. Grounds and Discussion Ground

[26]The Applicant’s legal adviser in this case argues that the panel acted irrationally in concluding that the Applicant’s risk could not be safely managed in the community and that he required further intense work in connection with the management of violence. It is submitted on behalf of the Applicant that the Applicant would not qualify, in custody, for any such intervention and therefore the decision was irrational. Discussion

[27]As indicated above, the index offences relating to this application were robberies of post offices and bookmakers premises. The Applicant, with others, was recorded as having been involved in the pointing of a gun at a heavily pregnant member of post office staff and acting as if it were ready to be fired. At a second robbery, a female was chased, and told she would be shot if the police were called. Robberies were planned and ruthlessly executed according to the sentencing judge.

[28]Prior to the index offence the Applicant had an extensive history of offending. He was first sentenced when aged 14 for the offence of assault occasioning actual bodily harm. In 2009 there were convictions recorded against the Applicant for four robberies and three offences of possessing an imitation firearm.

[29]The Parole Board panel noted in their decision that the Applicant, following the sentence for the index offence, had been adjudicated (in prison) for fighting, assaults on staff, threats and damage to property. There were a number of general concerns about prison behaviour prior to his initial release.

[30]The Applicant, during his early prison sentence, had begun a thinking skills programme (TSP) but was deselected. He had also begun a behavioural course relating to violence (a course called RESOLVE). This course was not completed because the Applicant had to be moved from a prison because of his behaviour. Also during his initial prison sentence he was convicted of ABH for punching a prison officer (in 2021).

[31]The Applicant was released automatically from prison in 2024. The Applicant was living in accommodation upon the direction of the probation service. During this time on licence a concern arose because the Applicant was seen to be selling home-cooked food from his home address and thereby having contact with children. This was a breach of his licence conditions. Although the Applicant argued (at the oral hearing) that children were not in contact with him, the panel assessed the evidence of these allegations and concluded that, on the balance of probabilities, children were present in the Applicant’s home. As a result of these breaches of his licence conditions he was recalled.

[32]Subsequent to recall, the Applicant was found to have been involved in a relationship, which had not been disclosed to his probation officer, which was again a breach of his licence conditions.

[33]Following his recall to prison, the Applicant undertook TSP which was reported to have been undertaken appropriately and the Applicant received positive feedback. The Applicant himself told the oral hearing panel that he had gained from undertaking this programme.

[34]Although reports of the Applicant’s behaviour in prison, from his POM, were generally positive, there were also negative reports from the security department of the prison. The reports were not detailed, but were rated as “ high ” in reliability, which implied they may have come through reports by members of staff.

[35]The Applicant told the oral hearing panel that he had changed his thinking and that, if released, he intended to behave differently in the future.

[36]The panel took account of the risk management plan, which was described by the panel as being “ robust ”. However, it was also described as being dependent upon external controls, because the Applicant, as evidenced by his behaviour when on licence, had not shown internal controls sufficient to manage himself safely in the community.

[37]The panel acknowledged that since his recall to prison the Applicant had made efforts to improve behaviour, and show some remorse for the effects of his offending in the past. He had undertaken some work to understand his past behaviour.

[38]Despite these positive concerns, the panel took account of the fact that, during the entirety of his sentence there had been concerning behaviour and there had been a criminal conviction for a further violent offence towards a prison officer. Also taken into account was the fact that the Applicant had only been in the community for a period of four months, before he was recalled for breaches of his licence conditions.

[39]The panel also took account of the fact that the POM and the COM were of the opinion that the Applicants risk could be managed in the community.

[40]Despite these positive indications, the panel’s conclusion was that there was insufficient evidence to demonstrate that the Applicant was able to manage his propensity to violence when in the community. The Applicant had not undertaken any specific violence related programmes either initially or following his recall. The Applicant had a poor record for violent behaviour, and as noted above, even in custody, was convicted of violence towards a prison officer.

[41]As noted above, the panel were not obliged to follow the recommendations of professional witnesses, the panel were required to apply their own views to the evidence presented at the hearing and were not bound to follow any professional recommendations. However, the panel were obliged to ensure that they explained the reason why they had not followed the recommendations of the professional witnesses and their reasoning was required to be credible.

[42]In this case it is clear that the panel’s view was that there was insufficient evidence that the Applicant was able to demonstrate an ability to manage his propensity to violence. That propensity was evidenced by the index offences and by the Applicant’s behaviour subsequently in prison. The Applicant also paid scant regard to licence conditions, and therefore the external management of the Applicant’s risk was a clear factor in this case. The panel, in my determination, therefore, explained the reason for rejecting the views of the professional witnesses namely their concern that the Applicant had not undertaken any high-intensity work in connection with violence and had been recalled in circumstances where he had failed to comply with licence conditions.

[43]It is further argued on behalf of the Applicant that the prison service would not be able to offer the Applicant any particularly relevant behavioural work, and therefore the decision to continue with the Applicant’s detention was irrational, as the Applicant would not be able to undertake any intense behavioural work in connection with violence.

[44]The panel’s role in responding to the referral by the Respondent in this case was to apply the codified public protection test. That test is aimed entirely at the issue of risk to the public. The availability or otherwise of appropriate intervention work, to assist in managing risk, is entirely a matter for the prison service and the probation service. The panel’s role in this case was to make an assessment of risk, as they saw it, at the time of the hearing. The panel therefore would not be adhering to the required test, if they were to direct release, in circumstances where the Applicants risk to the public remained, but release was directed because of the absence of behavioural work.

[45]In all the circumstances therefore, I have concluded that the decision of the panel does not amount to irrationality in the sense set out above and I therefore do not direct reconsideration. Decision

[46]For the reasons I have given, I do not consider that the decision was irrational and accordingly the application for reconsideration is refused. HH Stephen Dawson 08 July 2025