Hackett, Application for Reconsideration [2025] PBRA 141 (09 July 2025) [2025] PBRA 141

PBRA
Hackett, Application for Reconsideration [2025] PBRA 141 (09 July 2025)
[2025] PBRA 141 · 2025-06-08
[1]This is an application by Hackett (the Applicant) for reconsideration of a decision of an oral hearing dated 27 May 2025 not to direct 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 Decision Letter (DL) · A handwritten letter from the Applicant dated 8 June 2025 · Reconsideration Representations signed by the Applicant’s solicitor and dated 16 June 2025 · The dossier, which consists of 425 numbered pages, ending with the DL Request for Reconsideration[4]The grounds for seeking a reconsideration are:(1) In the Applicant’s letter, that the DL does not reflect what occurred and was discussed at the oral hearing, and that there are things stated in the dossier which he feels to be untrue or exaggerated. He had not met the new interim Community Offender Manager (COM) who gave evidence, yet she had raised his risk assessment from medium to high a few days before the hearing. Before his recall he had only met his then COM twice. She had been off sick for 12 months, and he had told the COM who was supervising him about the relationship (with KG) that was a part of the reason for his recall. He had received permission to enter for work purposes the Exclusion Zone (EZ) set out in his licence conditions. He has an explanation for the large number of phone calls to KG from prison. His COM and Prison Offender Manager (POM) should have acted sooner to get him moved to a prison where he could undertake an accredited course. The dossier also asserts, incorrectly, that the Applicant refused to engage with the Mental Health Team after his recall. The DL does not mention his evidence about his previous relationship, where there were no problems.(2) In the solicitor’s Representations, the ground argued is irrationality, expressed as “ the panel’s decision represents an irrational departure from the correct application of the codified public protection test, as well as from the evidence presented. ” The detailed grounds are set out in terms such as “ our client instructs that ”, “[the Applicant] submits ”, “[the Applicant] believes ”, “ In this case, according to [the Applicant] the panel’s decision …”. The grounds can, however, be summarised as submitting that the panel did not properly apply the Codified Public Protection Test, in that it focused on matters relevant to management rather than risk. Background[5]The Applicant was 27 years old in 1998, when he received a life sentence for murdering his partner’s 14-month-old child, with concurrent sentences for ill-treating the baby. His tariff expired in August 2012. A panel of the Parole Board directed the Applicant’s release on licence in February 2014. He committed two minor offences, irrelevant to risk save insofar as they might indicate difficulty in compliance in the community, which did not lead to recall, before he was recalled in May 2014 for the reasons explained below.[6]On 31 March 2024 police stopped the Applicant at Lancaster Services, driving a car registered to KG, who was in the passenger seat. A PNC check disclosed his status as a life prisoner on licence. It seems the police suspected that the Applicant was in breach of the EZ licence condition, and checked. In the event the Applicant was recalled for two breaches of his licence: he had not disclosed his relationship with KG, and he had frequently entered the EZ. Current parole review[7]The referral letter is dated 30 April 2024. Hearings in November 2024 and February 2025 were adjourned, because the police were investigating matters which ultimately came to nothing and to which the panel attached no weight.[8]The oral hearing took place remotely on 22 May 2025. The panel consisted of three independent members of the Parole Board. The POM, a police witness, a psychologist instructed on behalf of the Applicant and the COM gave evidence, as did the Applicant. The COM who would be taking over the Applicant’s case also attended. The Applicant was represented throughout. The panel considered a written Victim Statement. There were then 398 pages in the dossier. The Relevant Law[9]The panel correctly sets out in its decision letter dated the test for release. Parole Board Rules 2019 (as amended)[10]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)). This decision is in respect of a sentence type eligible for reconsideration. Irrationality[11]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.[12]In R(DSD and others) -v- the Parole Board [2018] EWHC 694 (Admin) ( Worboys ) 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. ”[13]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).[14]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.[15]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.[16]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 overriding objective is to ensure that the Applicant’s case was dealt with justly.[18]It is possible to argue that mistakes in findings of fact made by a decision maker result in the final decision being irrational, but the mistake of fact must be fundamental. The case of E v Secretary of State for the Home Department [2004] QB 1044 sets out the preconditions for such a conclusion:
“ there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter; the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable; the appellant (or his advisors) must not have been responsible for the mistake; and the mistake must have played a material (though not necessarily decisive) part in the tribunal's reasoning.”
See also R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] AC 295 , which said that in order to establish that there was a demonstrable mistake of fact in the decision of the panel, an Applicant will have to provide “ objectively verifiable evidence ” of what is asserted to be the true picture.[19]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. "[20]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 (the Respondent)[21]The Respondent has chosen not to respond to this application. Discussion[22]In his evidence the Applicant was “ vague and inconsistent ” about his relationship with KG, who had told the police that the Applicant was her partner and that they had been together for 4 years. The Applicant accepted that he had slept with her. He said he had told previous COMs about the relationship, first when they went on a date, and again at some point after June 2023.[23]The Applicant accepted that he had breached the exclusion zone from when his father became ill in 2022. He said he had given himself permission and had justified breaching the EZ. He went into the EZ to perform odd jobs for his parents and going out to lunch with them. The COM gave evidence that he had asked several times for permission to enter the EZ but his requests were rejected and would only be granted under exceptional circumstances. The COM did not think he would comply with the conditions of his licence, and thought there was a lack of internal controls. There was a lack of information about KG. Overall, the COM commented on a lack of openness. It is this which caused the assessment of risk to be elevated. The POM considered that the Applicant had internalised previous offending behaviour work but it was arguable that he had failed to implement it.[24]As to the allegation of excessive calls to KG from prison (for example, 661 calls from February to May), the Applicant had the opportunity to advance to the panel the explanation he now gives for the very large number of calls he made to her. That issue was, in any event, not central to the panel’s decision.[25]The panel specifically considered the question of elevation of assessment of risk from medium to high, and considered it warranted. The most relevant area of risk is to KG and any future partner, and to the children or grandchildren of any partner. This is based on the index offence, and on evidence of domestic violence related to previous partners. The panel did not accept that the Applicant was unaware, as he claimed he was, of when he should disclose a relationship.[26]Bearing in mind those findings, the panel’s conclusion that future risk management would be entirely reliant on external controls was justified. The panel went on to conclude that warning signs of increased risk may not be identified and acted upon. Therefore there would be imminence to the risk. The panel concluded that the Applicant poses more than a minimal risk of causing serious harm were he not confined. This was a conclusion to which the panel was entitled to come on the evidence, and demonstrates that the panel applied the Codified Public Protection Test correctly.[27]The panel could not identify any substantive protective factors, but, very properly, noted that the Applicant had spent 10 years in the community before recall. His conduct since recall has been without incident. The panel, looking at the evidence overall, considered that there is a low likelihood of compliance with the Risk Management Plan.[28]The panel concluded that it is more likely than not that the Applicant deliberately concealed his relationship with KG. On the evidence, that was a conclusion to which it was entitled to come. The panel also concluded, on strong evidence, that the Applicant deliberately breached his exclusion zone on multiple occasions. His risk of serious harm is high and potentially imminent.[29]The matters raised in the Applicant’s letter do not amount to grounds on which reconsideration could be granted.[30]The individual matters raised in the solicitor’s Representations amount to a disagreement with the weight the panel attached to various aspects of the evidence. The Representations list potential protective factors, all of which are considered in the DL. The Risk Management Plan may be robust, but the panel assessed, on the evidence, that the Applicant was unlikely to be compliant with it, and in any event it relies on external controls. The fact that the Applicant disagrees with the decision is not a ground for granting reconsideration.[31]The overall conclusion to which the panel came, after considering all the evidence and applying as it did the Codified Public Protection Test, cannot be described as irrational within the definition discussed above. Decision[32]For the reasons I have given, I do not consider that the decision was irrational and accordingly the application for reconsideration is refused. Patrick Thomas 9 July 2025