Reilly, Application for Reconsideration [2025] PBRA 149 (21 July 2025) [2025] PBRA 149

PBRA
Reilly, Application for Reconsideration [2025] PBRA 149 (21 July 2025)
[2025] PBRA 149 · 2025-06-18
[1]This is an application by Reilly (the Applicant) for reconsideration of a decision of a panel of the Parole Board (‘the panel’) following an oral hearing dated the 18 June 2025 not to his direct release.[2]Rule 28(1) of the Parole Board Rules 2019 (as amended in 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. the personal (undated) representations from the Applicant; andb. the dossier in the case, extending to 386 pages, the last part of which is the panel’s decision of 18 June 2025. Request for Reconsideration[4]In his application, the Applicant argues that the decision not to direct his release is unfair. He says that he has ‘ changed for the better…’ and that he no longer poses a risk to the public. The Applicant notes the progress and efforts he has made in bringing about change to his life. He also notes that there was support for his release at the oral hearing. Background[5]On 27 January 2022, the Applicant received an extended determinate sentence following his conviction for false imprisonment and three offences of assault by beating of an emergency worker (‘the index offences’). Offences of kidnap and making threats to kill were left to lie on file.[6]The victim owed money to the Applicant. The Applicant entered his home through a window, made threats with a knife and demanded repayment. The victim was unable to source money to repay the debt and was taken by the Applicant to two addresses, and further threats were made. Eventually the victim managed to escape and call the police. The victim believed that he was going to be stabbed. The Applicant was under the influence of alcohol when he committed the index offences. He was on licence at the time, having been released from custody ten days before committing the index offences. During his arrest, the Applicant spat at a police officer and kicked a paramedic twice in the stomach.[7]The Applicant’s sentence meant that he would be automatically released under the law in September 2026 and would remain on licence in the community until September 2029. However, he could be considered for an earlier release by the Parole Board after 15 December 2024. As such the Applicant’s case was referred by the Secretary of State for the Parole Board to consider whether his release could be directed. This led to an oral hearing on 4 June 2025 and the panel’s decision of 18 June 2025 not to direct the Applicant’s release. This was the Parole Board’s first review of the Applicant’s case.[8]The panel heard evidence from the Applicant, his Community Offender Manager (COM), Prisoner Offender Manager, the prison’s Head of Security, and a prison psychologist.[9]The panel noted the Applicant’s long history of offending and considered his risk factors to include his way of life, choice of friends, his misuse of alcohol and drugs, a preference for offending to earn money over legitimate employment, and attitudes of entitlement. The panel also noted impulsivity, a lack of finances, and an inability to solve problems pro-socially.[10]During his custodial sentence, behaviour concerns had been reported, including the Applicant’s use of violence and alcohol. Later, the Applicant’s behaviour improved and by January 2024 he had completed an accredited offending behaviour programme to address his use of violence. The Applicant then worked with his Prison Offender Manager (POM) to consolidate his learning, and he also engaged with substance misuse services in custody.[11]However, further concerns were then raised about the Applicant’s behaviour which led to the prison deciding not to allow him to progress to an open prison. It was alleged that he had been involved in illicit drug trading, which the Applicant denied and said that he was trading vape capsules with other prisoners. The Applicant was moved to another closed prison to disrupt his behaviour, and no more concerns were raised. The Applicant told the panel that he had a ‘ little business’ on the wing in prison where he would lend vape capsules to prisoners, expecting double in return. He described this as prison culture. The panel considered his account to be minimising his behaviour and his actions in custody to be offence paralleling. The panel was concerned that this behaviour had emerged despite completion of offence focussed work.[12]At the oral hearing, the POM and prison psychologist supported the Applicant’s release. Although there had been concerns raised about the Applicant’s custodial behaviour, these witnesses had noted that little of issue had been raised since the later prison transfer. The COM supported release, although she told the panel that she had reservations about this. She attached a lot of weight to the reports of the Applicant’s custodial behaviour and noted that the Applicant committed the index offences only ten days after his last release from custody.[13]The panel declined to direct release and stated in its decision:
‘ … On the evidence available to it, the panel has assessed that there remains a risk of further offending that will cause serious harm, similar to [the Applicant’s] serious offending to date. It determines that whilst he has engaged in risk reduction work, following this he was engaging in behaviour that escalated his risk. [the Applicant] was unable to make pro-social choices and reverted to ‘Old Me’ behaviours of seeking some kind of advantage to meet his needs. The panel was not persuaded he has embedded the learning or has sufficient internal controls to make decisions that will ensure the safety of the public before his own needs. [the Applicant] is currently in the process of developing his ‘New Me’ identity and needs to demonstrate that he is able to sustain good behaviour over a considerable period of time particularly when the length of his offending history and behaviour that has caused harm or has the potential to cause harm is taken into account … … [the Applicant] will need to show that his period of stability at [his current prison] can continue, whilst embedding his new identity which will in turn develop and strengthen his internal controls, all of which will go some way to supporting his self-management skills in the community’
. The Relevant Law[14]The panel correctly sets out in its decision letter dated 18 June 2025 the test for release. Parole Board Rules 2019 (as amended)[15]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)).[16]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[17]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.[18]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. ”[19]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).[20]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.[21]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.[22]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. Error of law[26]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.[27]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[28]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[29]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)[30]On 14 July 2025, the Respondent confirmed by email that she would not be making any representations. Discussion[31]The Applicant’s submission is that he disagrees with the panel’s decision not to direct his release. This is not an eligible ground for reconsideration. He may disagree however, the panel was required to make its own independent assessment of risk, and it concluded that his release could not be directed.[32]The Applicant also points out that the witnesses at the oral hearing supported his release. This could be a ground for reconsideration if, in going against those recommendations, the panel did not explain its reasoning. Having reviewed the panel’s written decision with care, I am satisfied that the panel explained at great length as to why the Applicant did not meet the test for release despite the recommendations of the witnesses. Decision[33]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. Robert McKeon 21 July 2025