Turner, Application for Reconsideration [2025] PBRA 139 (10 July 2025) [2025] PBRA 139
PBRA
Turner, Application for Reconsideration [2025] PBRA 139 (10 July 2025)
[2025] PBRA 139 · 2025-05-15
[1]This is an application by Turner (the Applicant) for reconsideration of a decision of an oral hearing panel dated 15 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 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 oral hearing decision of 19 May 2025, the dossier consisting of 422 pages and the application for reconsideration. Request for Reconsideration[4]The application for reconsideration is dated 2 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]The 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 9 October 2009 for an offence of robbery. His tariff was set at 5 years and expired on 9 October 2014.[7]The Applicant was released on 13 September 2023 after a Parole Board hearing and recalled in March 2024.[8]The Applicant was 29 years old at the time of sentencing and is now 44 years old. Current parole review[9]The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) in April 2024 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 Secretary of State whether the Applicant should be transferred to open conditions. 10.The case proceeded to an oral hearing via videoconference on 15 May 2025. The panel consisted of two independent members. It heard oral evidence from the Applicant together with his Prison Offender Manager (POM) and Community Offender Manager (COM). The Applicant was legally represented throughout the hearing. The Respondent was not represented by an advocate. The Relevant Law[11]The panel correctly sets out in its decision letter dated 19 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)[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)). Decisions concerning the termination, amendment, or dismissal of an IPP licence are also eligible for reconsideration (rule 31(6) or rule 31(6A)).[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)).][14][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 15.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. 16.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. ” 17.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). 18.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. 19.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. 20.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. The reply on behalf of the Secretary of State 24.The Respondent has submitted no representations in response to this application. Discussion 25.The application submits that the panel did not apply the correct test. It is submitted that the evidence did not give rise to a conclusion not to direct release and that the conclusion was in contrast to the evidence presented by the professionals. The application takes issue with matters on which the panel has attached weight and submits that the panel has not properly analysed the evidence in the light of the test for release. The application submits that the decision which is in complete contradiction to that of the professionals, was irrational and procedurally unfair. 26.I have carefully considered this very detailed decision letter and am satisfied that the legal test was correctly set out and the evidence fairly and logically analysed and applied. 27.Panels of the Parole Board are not obliged to adopt the opinions and recommendations of professional witnesses. It is their responsibility to make their own risk assessments and to evaluate the likely effectiveness of any risk management plan proposed. They must make up their own minds on the totality of the evidence that they hear, including any evidence from the Applicant. They would be failing in their duty to protect the public from serious harm if they failed to do just that. 28.In this case, the Applicant’s POM and COM were both supporting release. The panel disagreed. It was perfectly entitled to do so. The decision letter sets out comprehensive reasons for doing so, in particular giving detailed reasons why it did not agree with the POM and COM where there was disagreement. These reasons are soundly based on evidence as well as being rational and reasonable. 29.Finally, it is argued that if the evidence had been considered properly the decision would have been one of release. I am entirely satisfied that the panel did consider the evidence properly. The fact that, having done so, it reached a different conclusion to the Applicant and his legal representative, is not a reason for me to interfere with it. 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 10 July 2025