King, Application for Reconsideration [2025] PBRA 148 (21 July 2025) [2025] PBRA 148

PBRA
King, Application for Reconsideration [2025] PBRA 148 (21 July 2025)
[2025] PBRA 148 · 2025-05-06
[1]This is an application by King (the Applicant) for reconsideration of a decision of an Oral Hearing Panel dated the 6 May 2025, which declined to accede to his application for release or a transfer to the open estate.[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 a dossier containing 864 pages, the written decision of the panel, and the application for reconsideration. Request for Reconsideration[4]The application for reconsideration is dated the 27 June 2025.[5]The grounds for seeking a reconsideration are as follows: that the decision was both irrational and, it is contended, unlawful. I note that the application principally focusses on the issue of irrationality and does not seek to explain why the decision is said to be unlawful, although reference is made to the case of Gill which outlines the seven pathways to reduce offending. This case is referred to in the closing submissions of the Applicant. However, the citation of the case appears to support the principal submission that the panel’s decision was “irrational.” There is no other support for the submission that the decision was “unlawful.”[6]The application for reconsideration undertakes an examination of some of the paragraphs of the panel decision. The application seeks to suggest, by referring to a number of conclusions in the written decision, that the views expressed in support of the panel’s conclusions, were irrational. Background[7]The Applicant is now aged 50. On the 13 December 2007, when he was 33 years old, he received a life sentence for 3 separate offences of rape of young women. The offences took place in 2006/7. The women appear to have been strangers to the Applicant, and the first and third victim were sex workers, the last of whom was struck by the butt of a gun. The sentencing judge decided that in addition to the life sentence he imposed the offences warranted a determinate term of imprisonment of 16 years to reflect the gravity of the offending. The minimum term the Applicant was expected to serve before his case became eligible for parole was 7 years and 282 days. His tariff expiry date was the 21 September 2015. He has now served 17 years and 10 months. He has never been released and remains a Category A prisoner.[8]The Applicant maintains his innocence and contends that the sexual contact with the young women was consensual. Current parole review[9]On the 4 July 2023 the Applicant’s case was referred to the Parole Board and it was heard by a panel of the Board on the 6 May 2025. The decision was issued on the 6 June 2025. It was the fourth review of the Applicant’s case.[10]The panel was in possession of a dossier containing 821 pages which was subsequently supplemented by written submissions in a 22-page document lodged by the Applicant’s representatives on the 12 May 2025, within the time directed by the panel.[11]The panel heard evidence from the prisoner offender manager (POM), the community offender manager (COM) and two psychologists, a prison psychologist and a psychologist instructed on behalf of the Applicant. By the date of the hearing the psychologists had prepared and lodged two documents which set out their areas of agreement and disagreement. Broadly speaking they were in agreement. Where there was a “discussion” without complete agreement the panel properly indicated that having heard the evidence of both psychologists they preferred the evidence of the prison psychologist. The Relevant Law[12]The panel correctly sets out in its decision letter 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 in Barclay [2019] PBRA 6 . Irrationality[16]The power of the courts, including the Parole Board (see below), 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) the judge sets 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 Mr. Justice Saini in the later case 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 held to be binding on Saini J. Thus, I must ask myself whether the decision of the panel was so unreasonable that no reasonable authority could have come to it.[20]It follows from these 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, it is a settled principle that the panel is not bound to accept their assessment. However, where the panel assesses the evidence of expert witnesses whose views diverge the panel must make clear in its reasons why it is agreeing or disagreeing with the assessment of the witnesses.[22]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. Procedural unfairness[23]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.[24]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.[25]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."[26]Omitting to put information before a panel is not a ground for procedural unfairness, as has been confirmed in the decision on the previous reconsideration application in Williams [2019] PBRA 7 . This is the case even where the information, had it been before the panel, would have been capable of altering its decision, or prompting the panel to take other steps such as putting the case off for an oral hearing where the new information and its effect on any risk assessment could be examined. This is because procedural unfairness under the Rules relates to the making of the decision by the Parole Board, and when making the decision the panel considered all the evidence that was before them. There was nothing to indicate that further evidence was available or necessary, and so there was nothing to indicate that there was any procedural unfairness.[27]The Applicant has not averred in his application that there is in this case “procedural unfairness” but it is suggested that the panel did not properly record the reasons for their findings and/or conclusions, so, for the avoidance of doubt, I have considered whether there has been any procedural unfairness. Error of law[28]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.[29]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.[30]In his application the Applicant has not identified any particular error of law and although it is suggested that the decision is in some way “unlawful” no representations have been lodged in support of that proposition.[31]Thus, I have concluded that the only tenable arguments that can be advanced in this case are “irrationality and/or “procedural unfairness.”[32]Finally, 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.[33]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.[34]It is axiomatic that, when reconsidering a case, the overriding objective is to ensure that the Applicant’s case was dealt with justly. The reply on behalf of the Secretary of State (the Respondent)[35]The Respondent in writing has declined to submit any representations in response to the Applicant’s application. Discussion[36]The application seeks to address the issues discussed in the decision letter and submits that many of the conclusions of the panel are irrational.[37]The decision letter commences in paragraphs 1.1 to 1.8 with a review of the previous decision of the Parole Board.[38]The Applicant makes criticism that some of the information which has been drawn from and repeated from the decision letter of the last panel which reviewed the Applicant’s case, is incorrect. If there is any foundation for this criticism, I would have expected the matter to have been challenged at the recent oral hearing and the summary of a previous panel’s view corrected. I would also have expected any complaint of the sort now made by the Applicant to have been addressed to the previous panel, after the previous hearing. I therefore do not accept the submission made on behalf of the Applicant regarding these matters that it is either irrational or procedurally irregular.[39]I have not listened to a recording of the hearing. However, the application for reconsideration makes a number of assertions, in many paragraphs of the application, which appear to be based upon information lodged by the Applicant and submitted by his legal representative as criticism of the panel’s decision. The application suggests that the Applicant has provided comments on the decision letter and the written submissions are prefaced by the words:
“[The Applicant] instructs….”
[40]In my judgement this appears to be an attempt to introduce fresh evidence. This is unhelpful. The application does not clarify whether what is now asserted was in fact discussed in the hearing. If it was in fact part of the oral hearing, then greater weight could be placed on the reasons provided in the application for reconsideration. As there is no compelling evidence that it was before the panel and the written submission suggests it was not, then I am not prepared to rely upon the submission that there was any irrationality or procedural irregularity.[41]I note that the panel mentioned in the “ Any Other Relevant Information ” section that they were “ adopting the analysis of the previous panel ” but this was recorded without further comment. It is always wise to ensure that the reported facts as recorded by the previous panel are correct and nothing needs to be added or corrected. Also, I should say that it is wise to record in the decision letter that firstly, where appropriate, no exception was taken to the previous panel’s conclusion on a particular issue, for example the established risk factors, and, secondly, that there is no reason to change a summary of a previous panel. This is particularly so where, as here, the summary includes a review of the prisoner’s risk factors.[42]The decision letter of the panel expressly goes on to deal with matters since the previous review of the Applicant’s case in 2022 and summarises the evidence they heard. The decision reviews the levels of risk and makes careful findings of facts regarding the protective factors, in particular reviewing the problems associated with the Applicant’s health.[43]Particular criticism is directed at paragraph 1.7 of the decision letter with the suggestion that: “[the Applicant] strongly refutes the necessity and applicability of the risk factors contained within this paragraph ” (sic). However, reading the decision as a whole it is clear that the panel has addressed the Applicant’s level of risk as against his risk factors and overall come to a proper conclusion.[44]In all the circumstances I take the view that the criticism of the opening paragraphs of the decision letter: paragraphs 1.6, 1.7, 1.8 and 1.9, is without foundation.[45]The application for reconsideration thereafter criticises the conclusions of the panel by referring to some individual paragraphs.[46]The panel were reviewing an application by a Category A prisoner who is seeking release. There was little or no support for the application by the prisoner. The panel concluded that they were not going to release him or recommend that he be transferred to conditions of lesser security. Towards the end of the decision letter they did review the risk management plan, including the licence conditions, but in the light of the conclusion they had arrived at, sensibly the reasons were not in great detail.[47]The decision letter reviews the evidence of the POM, and, later, the Applicant’s prison behaviour, and, in more detail, the evidence of the psychologists. The letter goes on to review the Applicant’s conduct and his medical condition (he has been diagnosed with cancer which was said to be likely to return within 5 years). The letter reviews in less detail the evidence of the COM, as the decision of the panel is not to release. The levels of risk are reviewed, and the psychologist’s view of risk is added.[48]I note that the Applicant makes particular criticism of the panel’s consideration of the Applicant’s personality traits and the views of the psychologists and the COM. It is unfortunate that the evidence was not examined more closely in the decision letter but it is clear that there is evidence within the dossier to support the finding of “personality traits”, the IPDE report, for example, and the panel did examine carefully in the light of the findings by the professional witnesses what might be provided for the Applicant, for example, the Westgate Unit.[49]As I have noted the application for reconsideration criticises a number of paragraphs of the decision letter, on occasions indicating that the Applicant has issued instructions to his representative suggesting that he disagrees with the information set out in the decision letter. He also seeks to add information to be considered by me, for example, that he now is open to the possibility of chemical castration. This is something which does not appear to have been canvassed in the hearing, nor in the documentation.[50]If these conclusions are correct there are pieces of evidence which the Applicant now wishes to be placed before me which he now asserts are important. He also asserts that they were not referred to by the panel in their decision. If the panel were not made aware of the material it is hardly surprising the panel did not review the information in its decision.[51]An application for Reconsideration is not to be regarded as an opportunity to put fresh material before the Board. If it is relevant to the application to be made at the oral hearing it should have been put before the panel at first instance.[52]The evidence before the panel clearly does not support the application for release and the panel made that clear. The panel summarised the totality of the evidence which indicates that there is still core risk reduction work to be undertaken.[53]I accept that in their decision letter the panel did not fully refer to all the evidence that was placed before them. This not unusual. There is no need to detail every piece of evidence. However, an appropriate summary must be provided, and the conclusion should review the past and guide the future. This the decision letter does.[54]The panel has somewhat summarily rejected any comments recorded by the Applicant during the hearing, but that does not lead to a conclusion that a decision should be considered irrational or procedurally irregular.[55]The panel directed that written submissions should be lodged and the Applicant’s representatives complied with the direction, yet the decision letter made no mention of the arguments within those submissions which was unfortunate, to say the least, but not, in my judgement, a ground for the conclusion that the panel’s conduct and/or decision was procedurally irregular or irrational, provided that, taken as a whole the decision letter traverses the necessary evidence to arrive at a reasoned judgement.[56]Whilst the decision letter lacks a good deal of information and might be described as commendable for its brevity it does not provide a complete view of the totality of the evidence. That said a decision letter cannot be said to be irrational or procedurally irregular simply because it does not refer to every piece of information.[57]In the circumstances, although the letter is in some respects lacking in detail which otherwise might have been included it cannot be said that, when taken as a whole, the decision of the panel was irrational, nor can it be said to be procedurally irregular. Decision[58]For the reasons I have given, I do not consider that the decision was “irrational” and/or “procedurally irregular.” Moreover, there is no suggestion that the decision was in any respect “unlawful.” Accordingly, the application for reconsideration is refused. His Honour Nick Coleman 21 July 2025