Stacey, Application for Reconsideration [2025] PBRA 142 (16 July 2025) [2025] PBRA 142

PBRA
Stacey, Application for Reconsideration [2025] PBRA 142 (16 July 2025)
[2025] PBRA 142 · 2025-06-17
[1]This is an application by Stacey (the Applicant) for reconsideration of a decision of an oral hearing panel (OHP) dated the 17 June 2025 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(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 dossier consisting of 958 pages, the oral hearing decision by the panel, the application for reconsideration drafted by the Applicant's legal adviser and the response from the Secretary of State (the Respondent). Request for Reconsideration[4]The application for reconsideration is dated 25 of June 2025.[5]The grounds for seeking a reconsideration are set out below. Background[6]The index offence in this case is false imprisonment. The Applicant was sentenced to imprisonment for public protection (IPP) on 1 July 2009. The minimum term set by the judge was four years, the Applicant was 44 years old at the time of sentence. The Applicant was 60 years old at the time of the oral hearing decision. The Applicant approached a female who was thought to be a sex worker. He took the victim in a vehicle to a secluded area and pinned the victim down holding her forcibly around the neck to the point of suffocation. The victim managed to escape although was pursued. The Applicant had taken alcohol and was also convicted of driving his vehicle with excess alcohol. This was the fifth consideration by a Parole Board panel of the Applicant's case. Current parole review[7]The referral from the the Respondent requested the Parole Board to consider whether the Applicant should be released. As noted below the review began in October 2023 but was deferred due to the illness of a panel member. There was a scheduled hearing in February 2024 where evidence was heard. Eventually the panel hearing that case could not agree and therefore the matter was rescheduled to be heard before a three-member panel. Further directions and information was sought by the three-member panel. There was also a delay relating to the absence of a professional witness. The hearing eventually took place on 2 June 2025 and was recorded by the panel as having been concluded on that date. The decision letter itself indicated the date of the hearing as 18 June 2024 (a date when evidence was taken) and the date of the decision as being 17 June 2025.[8]The hearing was conducted by a three-member panel of the Parole Board consisting of a judicial member, a psychologist member and an independent member. Evidence was given at the hearing by a Prison Offender Manager (POM), a Community Offender Manager (COM), a consultant neuropsychiatrist, and a prison instructed psychologist. The Applicant also gave evidence and was legally represented. The Relevant Law[9]The panel correctly sets out in its decision letter dated 17 June 2025 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)).[11]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)). 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;(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.[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 made representations. The Respondent explained the process relating to follow on support for prisoners and the matters which had been indicated by the COM in evidence at the oral hearing. Ground[26]The legal adviser, acting for the Applicant in this case, applies for reconsideration substantively on the grounds that the panel failed, in their decision, to explain fully why the Applicant did not meet the test for release. This is particularly reinforced (in the view of the Applicant's legal adviser) by the fact that the consensus of professional opinion was that the Applicant's risk could be safely managed in the community. In essence the application by the Applicant's legal adviser is that pursuant to the case of ( Wells ) noted above, the panel failed to explain clearly its reasons for the decision and/or those stated reasons were not sufficient to justify the panel's conclusions. Discussion[27]As noted above the Applicant in this case is serving a sentence of imprisonment for public protection. He was sentenced in 2009 with a minimum period of four years. His tariff expired in 2013. He is therefore substantially over tariff.[28]The Applicant's index offending was serious. He had a history of violence which included robberies and the infliction of grievous bodily harm with intent. Of particular concern was the fact that the offending was frequently directed towards women. The index offence of false imprisonment involved the Applicant taking the victim to a remote spot and holding her forcibly around the neck to the point of suffocation, the victim was said to be a sex worker and had been approached by the Applicant in that context. The Applicant denied the eventual conviction by the jury of false imprisonment, however the panel were obliged to accept the conviction as recorded.[29]Despite the nature of the offending, the current OHP noted that the Applicant repeatedly denied committing sexually orientated offences. He agreed, however, that he had, in the past, targeted women in his offending. He told the panel that it was his consumption of alcohol and drugs at the time that led to him not only offending but subsequently having little recollection of his offending.[30]The Applicant had, in prison, completed various medium level interventions in relation to thinking skills and managing emotions. He had been unsuitable for more intensive behavioural work because of his denial of the index offending. He had also completed one-to-one work with a psychologist. The OHP did not suggest that any further core risk reduction work was indicated.[31]In 2021 a panel of the Parole Board recommended the Applicant's transfer to an open prison. He was transferred in February 2022.[32]The OHP identified various relevant risk factors - these included an interest in sexual violence with physical and psychological coercion; being aggressive and prepared to use violence towards others; inappropriate relationship management; negative lifestyle and associates; poor emotional wellbeing and poor self worth. Also identified were poor thinking skills; alcohol and drug misuse; and a lack of victim empathy.[33]By the time of the oral hearing the Applicant had been at an open prison for a period of approximately two and a half years. He had attended appointments with key workers at the open prison and undertaken some work in relation to managing emotions and preparing for resettlement through an organisation called PERS (Pathways Enhanced Resettlement Services).[34]The Applicant had also undertaken temporary leave in the community. Most of the leave had been by way of day releases, however he had spent some time overnight, at an Approved Premises (AP), as part of the temporary leave arrangements.[35]There had been no concerns about negative behaviour in the open prison. There had been no concerns about the Applicant's behaviour when on temporary leave.[36]At the hearing evidence was given by a POM. A prison commissioned psychologist, a COM and a consultant neuropsychologist (who gave evidence specifically about a particular diagnosed medical condition).[37]As noted above, the consensus of opinion of all the professionals, was that the Applicant's risk could be safely managed in the community. The risk management plan involved living initially in an AP. Thereafter the Applicant would be assisted by the probation service to find suitable accommodation. The Applicant had undertaken a local authority care assessment which indicated that he would need support in the community because of his medical condition.[38]The suggested follow-on arrangements in relation to accommodation were generic, in the sense that the COM indicated that the Applicant would be eligible to apply for local authority accommodation, and would also be eligible for short-term (56 days) housing provided through arrangements with the probation service.[39]The oral hearing had been adjourned for lengthy periods of time. The oral hearing had initially been listed in October 2023 and was completed in June 2025. There had been various adjournments between those dates. Also, between those dates, the Applicant's COM had changed (a new officer took over responsibility from March 2025). By the time of the final hearing a second COM had been responsible for the Applicant's case for a period of three months. A risk management plan had been drafted, which included substantial additional licence conditions and supervision by his COM.[40]The panel considered the Applicant's case, including the risk management plan. The panel considered that the risk management plan was not sufficiently robust to manage the Applicant's risk. The concerns of the panel were that there were no identified accommodation arrangements, beyond a short stay in an AP. The panel was also concerned about the fact that there had been a recent change in COM, and took the view that the relationship with the COM should be evidenced by a more " solid relationship ". Post Tariff IPP prisoners[41]It is relevant to consider the current Parole Board guidance in relation to the approach to prisoners in the position of the Applicant.[42]The guidance is set out in a document entitled - Imprisonment for Public Protection Member Guidance February 2025 (V1.2) paragraph 5 of the guidance indicates the following (numbering retained from guidance):
" 5.13 It is worth remembering that in the case of Osborn -v- Parole Board [2013] UKSC 61 where the Supreme Court gave guidance as to how the Board should take into account that a prisoner serving an indeterminate sentence was over tariff. At para 2 (6) in a summary of its findings the Court said : "
When dealing with cases concerning post-tariff indeterminate sentence prisoners, it should scrutinise ever more anxiously whether the level of risk is unacceptable, the longer the time the prisoner has spent in prison following the expiry of his tariff. " 5.14 At para 83 of the judgment the Court said that this was not new guidance and had been said more than once. The Supreme Court relied on two decisions of the Court of Appeal as having said the same thing. Simler J re-affirmed this as the correct position in her judgment in Hall -v- Parole Board [2015] EWHC 252 (Admin) . She said at para 38:
"The requirement of ever more anxious scrutiny as time goes on, is a requirement to look more carefully and more closely at the level of risk posed by the prisoner, the longer the detention lasts, and does not involve any lowering of the threshold for release the longer the detention lasts."
[43]I have therefore approached this application on the basis of the above guidance. The panel were obliged to apply the consolidated public protection test, which is relevant to all referrals by the Respondent. I am satisfied that the panel cited the test appropriately, and indicated that they had applied the test. However, the test is more nuanced in the case of a post tariff indeterminate prisoner. It is particularly so where the period of time when the prisoner has been post tariff is lengthy. The decision cited above set out the views of the Supreme Court in relation to such cases.[44]In my determination the panel, in this case, were entitled to voice concerns about the absence of identified and settled move-on accommodation and the fact that the COM had had a few months to build a relationship.[45]However, this is a case where there was no clear evidence that the Applicant would have created difficulties in terms of accommodation. He had undertaken a care assessment and was likely to be eligible for some support to secure accommodation. He had spent time both in an open prison, with more relaxed accommodation arrangements, and also in an AP. In neither of those accommodation arrangements were concerns expressed about the Applicant's risk or behaviour in terms of accommodation. In an ideal world prisoners would be offered suitable long-term accommodation, before release, to enable a more detailed analysis of the assessment of risk to take place. However, in current circumstances, panels are obliged to apply the appropriate test, taking account realistically of the practical position relating to accommodation. There are often cases where, accommodation is an overwhelming and fundamental feature of a risk management plan and may therefore require clear long-term arrangements. This is not necessarily the case in every referral.[46]Equally, although the panel were anxious to ensure that a solid relationship was built with the Applicant and his COM. There appeared to be no evidence, cited by the panel, that the Applicant had specific issues relating to the building of relationships with professionals. He apparently had a good relationship with his former COM and had built a reasonable relationship with the current appointed COM.[47]It is well settled law that panels of the Parole Board are not obliged to adopt the opinions and recommendations of professional witnesses. It is the responsibility of the panel 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 (while also protecting the prisoner from unnecessary incarceration) if they failed to do just that. As was observed by the divisional Court in DSD they have the expertise to do it.[48]However, as noted above, where a panel makes a decision contrary to the opinions and recommendations of professional witnesses it is important that they should explain clearly the reasons and those reasons should be sufficient to justify its conclusions. In the case of a post tariff IPP prisoner an additional requirement is to demonstrate that " anxious scrutiny" has been applied to the decision and to demonstrate that a careful analysis of the risk posed has been undertaken as set out in the cases cited above.[49]Whilst respecting the expertise of individual panels, I have concluded in this case that the panel's decision does not demonstrate how it applied the necessity for anxious scrutiny and careful analysis of risk which is required to be made in the case of post IPP prisoners such as the Applicant. There were relatively strong arguments for a release decision. The factors cited by the panel were likely to affect many prisoner's at the release stage of sentence. The panel's decision did not, in my determination, indicate ccompelling reasons in this case why the arguments by professionals were rejected. The panel made no mention of the need for anxious scrutiny in their decision. For that reason I determine that the decision was irrational in the legal sense set out above and direct reconsideration. Decision[50]Granted - Accordingly, whilst I do not find there to have been a procedural irregularity, I do consider, applying the test as defined in case law, the decision to be irrational. I do so solely for the reasons set out above. The application for reconsideration is therefore granted and the case should be reviewed by a fresh panel by way of an oral hearing. HH Stephen Dawson 16 July 2025