Koroma, Application for Reconsideration by, [2025] PBRA 151 (25 July 2025) [2025] PBRA 151

PBRA

Koroma, Application for Reconsideration by, [2025] PBRA 151 (25 July 2025)

[2025] PBRA 151 · 2007-12-17

[1]This is an application by Koroma ('the Applicant') for reconsideration of a decision of a panel of the Parole Board ('the Board').

[2]The Applicant is serving a sentence of imprisonment for public protection ('IPP') which was imposed on 17 December 2007 for an offence of aggravated burglary. The circumstances of that offence will be discussed below.

[3]The Applicant has been released on licence twice during this sentence but recalled to prison twice, most recently on 18 March 2024. Again, the circumstances will be discussed below.

[4]The Applicant's case has been referred to the Board by the Secretary of State for Justice ('the Respondent') to make decisions as to(a) whether he should be released from prison and

(b) whether his IPP licence should be terminated or, if not, varied.

[5]The case was directed to an oral hearing which took place on 13 June 2025. The panel of the Board which conducted the hearing decided that the Applicant should be released from prison but that his IPP licence should remain in force with certain conditions attached to it.

[6]The Applicant's solicitors have now applied on his behalf for reconsideration of the panel's decision relating to the IPP licence. The Application for Reconsideration

[7]Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2024) provides that in eligible cases applications for reconsideration of panel decisions may be made either by the prisoner or by the Respondent.

[8]Rule 28(2) specifies the types of cases which are eligible for reconsideration. They include(a) cases, like the Applicant's, where the prisoner is serving an IPP sentence, and

(b) cases, again like the Applicant's, where an application has been made for the termination or variation of an IPP licence.

[9]A reconsideration application may be made on the ground(a) that the panel's decision contained an error of law and/or

(b) that it was irrational and/or

[10]In this case the application for reconsideration of the decision not to direct the termination of the IPP licence has been made on the grounds of irrationality and procedural unfairness. No error of law is suggested.

[11]The application was made within the time limit for applications of this kind and is therefore eligible for reconsideration.

[12]I am one of the members of the Board who are authorised (as 'Reconsideration Assessment Panels') to make decisions on reconsideration applications, and this case has been allocated to me.

[13]The documents which have been provided to me and which I have considered for the purposes of this application are:(a) the dossier of papers provided by the Respondent for the Board's review of the Applicant's case: the dossier now runs to 457 numbered pages and includes a copy of the panel's decision;

(b) the representations made by the Applicant's solicitor in support of this application for reconsideration; and

(c) an e-mail from the Public Protection Casework Section of the Ministry of Justice ("PPCS") stating on behalf of the Respondent that she does not wish to make any representations in response to this application. Background and history of the case

[14]The Applicant is now aged 40. He was born in Sierra Leone but has lived in the UK for many years. During that time he has been before the courts on four occasions.

[15]His first conviction was in 2007 when he was given a conditional discharge for possession of cannabis.

[16]Later that year he received the IPP sentence for aggravated burglary. He and two others went to the flat of a person from whom he had previously bought cannabis. They were wearing balaclavas and entered the flat by force. There were two people in the flat, a man and a woman. One of the accomplices was carrying a knife and had what appeared to be a firearm in the waistband of his trousers: he held the woman in a bedroom against her will and when the man went to help her he was stabbed in the leg. The Applicant and the other accomplice searched the flat for cannabis (apparently unsuccessfully) but stole an X-Box game and £800 in cash before all three left the premises.

[17]In the following year the Applicant received a consecutive determinate 30 month sentence for trying to persuade the male victim of the aggravated burglary to withdraw his complaint by offering him money.

[18]The Applicant did well in prison. In August 2011 he was transferred to an open prison and in October of that year his tariff expired. He continued to do well in the open prison and in December 2012 he was released on licence on the direction of the Board. The first recall

[19]The Applicant remained in the community on licence for more than six years, again apparently doing well. However his licence was revoked in June 2019 as a result of his arrest for producing and supplying cannabis. The circumstances were that prior to his initial sentence in 2007 an associate had lent him a large sum of money to buy a car. His arrest and imprisonment meant that he was unable to repay the loan at that time. In late 2018 he bumped into his former associate, who wanted his money back. The Applicant did not have enough money so he agreed to the lender's proposition that instead of the money he should act as a 'gardener' for the cultivation of cannabis.

[20]He pleaded guilty at the Magistrates Court and received a conditional discharge which must have reflected the court's view of the unusual circumstances and his limited part in the unlawful enterprise. In August 2020 a panel of the Board directed his re-release on licence. The second recall

[21]The Applicant again appeared to be doing well in the community but on 17 December 2022 an incident occurred which ultimately led to his second recall.

[22]The only available evidence of that incident is that of the Applicant's which there is no reason to doubt. According to the Applicant he and his partner (Ms X) went out to celebrate his birthday at a club where they met a number of other people including a woman (Ms Y) who he had known for many years. The Applicant was drinking but moderately as he was driving his car and did not want to exceed the limit.

[23]Ms X was pregnant with their baby and left the party early as she was tired. The Applicant remained there. Ms Y had had a lot to drink and she and her boyfriend became involved in a fight. The Applicant arranged a taxi Ms Y and her boyfriend and others to get home, but apparently they remained in the vicinity of the club.

[24]The Applicant later received text messages from Ms Y asking him to go to her address, which he did. After some conversation with Ms Y he fell asleep and later woke up with her next to him. He then left the address. He subsequently received a phone call from Ms Y alleging that he had sexually assaulted her.

[25]Ms Y contacted the police and made allegations against the Applicant of three sexual offences including rape. Some months later the Applicant was questioned by the police about those allegations. He denied them and gave a full account of what had actually happened. It is now known that Ms Y was examined following her complaint and that a man's DNA was found on her body. It was not from the Applicant. Ms Y explained the DNA to the police by saying that she had had sex with her boyfriend after they had left the party.

[26]Probation were informed of Ms Y's allegations but in the light of his strong denials the Applicant was not recalled to prison at that time. Much later, on 18 March 2024, probation were informed by the police that he had belatedly been charged with the three offences, as a result of which his licence was revoked and he was returned to prison. Subsequent events

[27]Following the Applicant's recall the Respondent referred his case to the Board to decide whether to direct his re-release on licence. On 25 June 2024 a panel of the Board decided on the papers not to direct the Applicant's re-release. This was not surprising given that he was awaiting trial on serious charges.

[28]On 2 August 2024 a request was submitted by the Applicant's Community Offender Manager ('COM') to the Respondent to consider termination of the Applicant's IPP licence. She had previously been inclined to support termination but since he was now awaiting trial on serious charges she could not at that stage support it.

[29]On 11 September 2024 the Applicant was unanimously acquitted by the jury (after a retirement of only 36 minutes) on all three charges.

[30]On 19 September 2024 the Applicant's case was referred by the Respondent to decide whether his IPP licence should be terminated ('the Termination Review'). The referral was in the following terms:

'This case is hereby referred to the Parole Board by the Secretary of State under Section 31A of the Crime (Sentences) Act 1997 to consider whether or not it would be appropriate to terminate the licence. '

Should the Board not agree to termination of the licence then they are also asked under sections 31 and 32 of the Crime (Sentences) Act 1997 to consider whether or not it would be appropriate to add/amend/vary any conditions contained within the licence. Please note suspension of supervision should not be considered.' [ My underlining].

[31]It appears that on or around 28 October 2024 the Respondent referred the case again to the Board to decide whether to direct the Applicant's re-release on licence (the 'GPP review'). That referral note is not in the dossier.

[32]The reason for that is that at some stage an undated note from PPCS to the Board informed the Board that the GPP review and the Termination Review had been combined and the referral had been amended. The amended referral note, dated 13 January 2025, was placed in the dossier in place of the original GPP one. It was mainly concerned with the GPP review. Its only reference to possible licence termination was the following paragraph:

'If the prisoner is being considered for release from an IPP/DPP sentence after being recalled under section 32, are not also serving a life sentence, and initial release from that IPP/DPP sentence was more than 3 years ago (or 2 years ago for those serving a DPP sentence), the Board is also asked to consider whether or not it would be appropriate to release them unconditionally under section 31A of the Crime (Sentences) Act 1997.'

[33]On 22 January 2025 a Member Case Assessment ('MCA') member of the Board reviewed the case and directed that the case should proceed to an oral hearing. A panel comprising three independent members of the Board was duly nominated.

[34]On 3 March 2025 the panel chair directed the production of any police call-outs involving the Applicant and any of his partners (past or present). There were none. The hearing

[35]The hearing took place remotely by video link on 13 June 2025. The Applicant was legally represented. The dossier contained 436 numbered pages. The panel took oral evidence from the Prison Offender Manager ('POM'), the Applicant and the COM.

[36]At the conclusion of the hearing it was agreed that the Applicant's legal representative would provide closing submissions in writing. He did so on 16 June 2025 and the panel issued their decision on the following day.

[37]The legal representative's submissions were admirably concise. They addressed four issues:(1) the Applicant's release from prison;

(2) the reasonableness of his recall (not challenged);

(3) an issue raised by the prison concerning possible coercive or controlling behaviour on the Applicant's part in telephone calls from prison to Ms X (not accepted and not established); and

(4) termination of his licence conditions.

[38]I need not go into the detail of (1), (2) or (3) as the only issue raised on this reconsideration application is (4).

[39]The legal representative was not suggesting that the supervision element of the licence should be terminated but only that the licence conditions should be removed. He wrote:

'(i) [The COM] stated that Probation were in the process of applying for licence termination before [the Applicant's] recall. The position remains unchanged, and they are confident that he can be managed without any restrictions. (ii) [The POM] stated that it would be beneficial for him to have a further period of conditions. She had no concerns about his relationship, and there was no evidence of any issues. (iii) Although [the Applicant] felt the conditions were fair, the Panel still have to be satisfied that they are necessary and proportional. (iv) It is submitted that the conditions are not necessary. [The COM] will continue to manage [the Applicant] for a further two years post-release, after which consideration will be given to terminating the licence altogether.'

The Relevant Law (1) The test for release on licence

[40]For completeness I will set out this test (the Codified Public Protection Test) though there is no dispute that it is met in this case. Under the test a panel of the Board can only direct a prisoner's release on licence if it is satisfied that the prisoner's continued confinement in prison is no longer necessary for the protection of the public; the panel can only be so satisfied if it considers that, if the prisoner were to be released into the community, there would be no more than a minimal risk of his committing a further offence of a kind which might result in serious harm to somebody else. (2) Termination of IPP licences

[41]Termination of an IPP licence is governed by Section 31(A) of the Crime (Sentences) Act (as amended) and Rule 31 of the Parole Board Rules 2019 (as recently amended).

[42]Rule 31 provides:

'(1) Where the Secretary of State makes a reference for an offender's licence to be terminated under section 31A of the 1997 Act, the Secretary of State must serve any reports or evidence at the same time as making the reference to the Board. ... (4) Where the Board receives a reference, a panel appointed under rule 5(5) must consider the application in accordance with section 31A(4) of the 1997 Act. (5) In considering the reference, the panel may (a) make a decision on the papers, or (b) direct that the reference should be decided by a panel at a hearing. (6) Where a panel considers the reference on the papers or at a hearing, it must decide to (a) terminate the offender's licence; (b) dismiss the reference, but amend the offender's licence in accordance with section 31(3) of the 1997 Act, or (c) dismiss the reference. (6A) Where the reference has been made for an offender who is in prison having been recalled under section 32 of the 1997 Act, the panel must consider the reference in accordance with section 31A(4F) of that Act. (7) The decision under paragraph (6) or (6A) must (a) include the reasons for that decision; and (b) be provided to the offender and the Secretary of State within 14 days of that hearing. (7A) Any decision made by the panel under paragraphs (6) or (6A) is provisional, and becomes final if no application for reconsideration under rule 28 is received within the period specified by that rule.'

[43]Section 31A(4F) of the 1997 Act (as recently amended) states:

'Where this subsection applies (a) the Parole Board must direct the Secretary of State to release the prisoner unconditionally, unless paragraph (b) applies; (b) if the Parole Board is satisfied that it is necessary for the protection of the public for the prisoner, when released, to be released on licence in respect of the preventive sentence or sentences, it must not give a direction under paragraph (a) .'

In this case, of course, the Applicant is in prison and therefore Section 31A(4F) applies. That section effectively creates a presumption that the Board must direct termination of the licence unless the panel concludes that the continuation of the licence is necessary for the protection of the public. (3) The definition of irrationality

[44]The power of the courts to interfere with a decision of a competent public authority on the ground of irrationality was defined in Associated Provincial Houses Ltd -v- Wednesbury Corporation 1948 1 KB 223 by Lord Greene as follows:

"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 Parole Board is a public authority for that purpose, and the Wednesbury test therefore applies to applications to the High Court for judicial review of a panel's decision. It also applies to applications to Reconsideration Panels of the Board for reconsideration of a panel's decision on the ground of irrationality.

[45]In R (DSD and others) -v- the Parole Board

2018 EWHC 694

(Admin) ('the Worboys case') a Divisional Court applied this test to Parole Board decisions in these words:

" 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 ."

The same test of course applies to " no release" decisions.

[46]In R (on the application of Wells) -v- Parole Board

2019 EWHC 2710

(Admin) Mr Justice Saini set out what he described as a more nuanced approach in modern public law. This approach is " 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 formulation of the 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) .

[47]As was made clear by Mr Justice Saini, this is not a different test from the Wednesbury test. The interpretation of (and application of) the Wednesbury test in parole hearings (as explained in the Wednesbury and DSD cases) was of course binding on Mr Justice Saini. It is similarly binding on Reconsideration Panels.

[48]It follows from these principles that in considering an application for reconsideration a Reconsideration Panel cannot substitute its own view of the evidence for that of the panel who heard the witnesses and were able to assess their reliability. The Reconsideration Panel will only direct reconsideration on the ground of irrationality if the Wednesbury test is satisfied. (4) The definition of procedural unfairness

[49]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.

[50]Examples of procedural unfairness which may be a ground for quashing a panel's decision on this ground are where:(a) express procedures laid down by law were not followed in the making of the relevant decision; or

(b) the party was not given a fair hearing;

(d) the party was 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.

[51]These are not the only possible grounds for a finding of procedural unfairness but they are the ones most commonly alleged. The overriding objective is to ensure that the Applicant's case was dealt with justly. The application for reconsideration of the panel's decision

[52]This application is, like the legal representative's closing submissions, admirably clear and concise. I will discuss his submissions below. The reply on behalf of the Respondent

[53]As noted above the Respondent has offered no representations in respect of this application. Discussion

[54]I do not need to discuss all the reasons given by the panel for their decision that the test for re-release is met. That decision has not been the subject of an application for reconsideration by the Respondent, and it therefore stands.

[55]I must start the discussion by noting that there was one important matter in this case which was overlooked by PPCS, the panel and the legal representative. That matter was the recent introduction of the presumption that an application for termination of an IPP licence should be granted unless the panel concludes that the continuation of the licence is necessary for the protection of the public (see paragraph 43 above).

[56]The panel made no mention of that presumption and did not address the question whether in this case the presumption should be overridden by the need for the protection of the public. The panel's failure specifically to address that question was certainly a procedural irregularity. However, not all procedural irregularities amount to procedural unfairness: that all depends on all the circumstances of the case (which I will discuss below).

[57]It was drawn to the attention of members of the Board in a Practice Reminder issued in April 2025 that PPCS had introduced a new form of referral note to reflect the recent changes in the law and the Rules but that they had not always used that form as they should have done. The Practice Reminder stated: The Secretary of State referral should ask the panel, if the licence is not terminated, to consider whether suspension of supervision (if still in place) or other licence conditions should be added, amended, or revoked. The referral should contain the following: This case is hereby referred to the Parole Board by the Secretary of State under section 31A of the Crime (Sentences) Act 1997 to consider whether or not it would be appropriate to terminate the licence. AND Should the Board not agree to termination of the licence then they are also asked under sections 31 and 32 of the Crime (Sentences) Act 1997 to consider whether or not it would be appropriate to suspend the supervisory elements of the licence or add/amend/vary any additional conditions contained within the licence. We have been notified of cases where the referral does not include the second paragraph. The absence of the second paragraph on the referral is an error and PPCS will aim to rectify this by submitting a replacement referral. However, the panel can continue to review the case without this second paragraph. The panel can, of its own volition, consider whether the conditions on the existing licence are still necessary and proportionate to manage risk. A panel can vary a licence as needed i.e., add, amend, or revoke conditions even where the referral does not make any such request. This can be undertaken in accordance with section 31(3) of the 1997 Act.

[58]PPCS did not use this new form of referral in this case. I have set out in paragraph 30 the terms of the referral note issued in September 2024 and in paragraph 32 the relevant part of the amended referral note issued in January 2025. It is of particular note that the September note expressly stated that, if the licence was not terminated, suspension of supervision was not to be considered by the Board. There was nothing in the January note to suggest otherwise.

[59]It is fairly clear that that is why the legal representative's closing submissions to the panel did not raise the possibility of suspension of supervision (see paragraph 39 above).

[60]Where PPCS have erred in failing to include the second paragraph in their referral, the panel can still consider whether to vary/add/amend the licence conditions on their own accord. The panel did not do this.

[61]I now come to the reasons given by the panel for deciding, on the Termination Referral, not to direct termination of the Applicant's IPP licence and to impose certain licence conditions. The panel, like the legal representative and no doubt for the same reason, did not address the possibility of suspension of supervision if the licence was not terminated. Their reasons for their decision on the licence termination referral were quite brief. They were as follows:

'The POM and COM felt that [the Applicant] could be released unconditionally [.] The POM felt release with conditions would be beneficial and the COM that he may need support upon initial release. [The Applicant] expressed that he would like to be released unconditionally but would comply with licence conditions and engage with professionals. Given the previous issues with his financial management, his association with drugs, his association with negative peers and his further offending (1st recall) when in the community, and the pressures release would place on his personal relationships the panel concluded that the DPP [sic] licence and supervision remain necessary for the protection of the public. '

In addition to standard licence conditions the panel considers the following licence conditions to be both necessary and proportionate for the management of risk in the community:

'Not to approach or communicate with any victims of your offences without the prior approval of your supervising officer. '

Attend a location as required by your supervising officer, to give a sample of oral fluid / urine in order to test whether you have any specified Class A and specified Class B drugs in your body, for the purpose of ensuring that you are complying with the condition of your licence requiring you to be of good behaviour. Do not take any action that could hamper or frustrate the drug testing process. 'Notify your supervising officer of any developing relationships, including status changes such as engagement, marriage, pregnancies or the ending of any relationships, and disclose the details of the person you are in a relationship with. 'Attend a location, as directed by your supervising officer, to address your dependency on, or propensity to misuse, A CONTROLLED DRUG. 'To comply with any requirements specified by your supervising officer for the purpose of ensuring that you address your drug offending and behaviour problems.'

[62]The panel, of course, needed to make their own decision, irrespective of the legal representative's representations, on the whole issue of licence termination or variation which they were charged to resolve.

[63]My task is to consider whether the panel's reasoning in reaching its decision on that issue can be supported or whether, as submitted by the legal representative, it meets the Wednesbury test for irrationality. To reach a conclusion about that I have considered very carefully the whole of the evidence in the dossier as well as the panel's decision and the legal representative's submissions. I am afraid that I have reached the clear conclusion that the panel attached too much weight to past matters and too little to the present, and that the seriousness of that error can properly be treated as amounting to irrationality.

[64]It is quite clear from the dossier that with remarkably few blemishes the Applicant's progress during his sentence (both in prison and on licence in the community) has been exceptionally good. He has engaged well with professionals and it is not surprising that, until he was falsely accused of serious sexual offences, his COM was minded to support the complete termination of his IPP licence.

[65]The Applicant did have some difficulties in the past in financial management (in particular the difficulty in repaying the outstanding loan in 2019) but that occurred in particular circumstances which are unlikely to recur, and there have been no problems since then. He has told his COM that he has been financially stable for a long time now and there is no reason to doubt that that is the case.

[66]Equally the Applicant did for some time have an association with drugs but that was many years ago and there has been no sign for many years either of the use of drugs or of involvement in drug dealing.

[67]The Applicant did for some years have an association with negative peers but that appears to be a thing of the past. The COM reports in the OASys that he insists he has no desire to get involved with negative peers as he realises the impact his recall had on his family. The COM states that to his credit he has been working, supporting his family and there has been no evidence to suggest he is still associating with his previous substance misusing associates; there is nothing to indicate that [the Applicant] is engaging with negative peers or leading a pro-criminal lifestyle; he appears to have aspirations to own and run his own business and is working hard to achieve this goal and remain financially supportive towards his family.

[68]The Applicant has committed only one offence (to enable him to pay off the outstanding debt) during the years when he has been on licence in the community. That one offence resulted in a conditional discharge.

[69]As in all cases release will place some pressures on the Applicant's personal relationships but he and Ms X appear to have very sensible plans and the Applicant's history demonstrates that he is able to manage relationships well. His relationships with previous partners have ended amicably and he had remained on good terms with them. The enquiry by the panel for details of any police call-outs involving any of his partners revealed none. As regards to Ms X, the Applicant has explained that he and she at one stage had an on/off relationship but it has become stronger after the birth of their child. They have not lived together for practical reasons (Ms X wishes to have her own place with her baby) but hope to do so in the future if things work out. Suggestions of coercive or controlling conduct made by prison staff monitoring the Applicant's telephone were rejected by Ms X.

[70]The legal representative draws attention to two matters in the panel's decision which, though mentioned earlier in the decision, were not mentioned in their reasons for not terminating the Applicant's IPP licence. The legal representative believes, and I agree, that they may nevertheless have had some influence on their thinking when it came to the issue of licence termination or variation.

[71]The legal representative submits that the panel's views of these two matters were irrational and unjustified. What the panel wrote, in the context of describing his arrest and prosecution for serious sexual offences, was as follows:

'The panel note that he was not convicted but do consider that he demonstrated risky behaviour whilst driving under the influence of alcohol and were also concerned that he may have been associating with negative peers and demonstrating poor decision making.'

[72]The legal representative submits:

'The two key findings (that he was under the influence and that he may have been associating with negative peers) are irrational and procedurally unfair. '(1) The Panel had no evidence before it upon which it could make these findings. It was not part of the Crown's case that [the Applicant] was under the influence of alcohol, and there was no evidence either requested or presented before the panel to support this conclusion. The only evidence [about his driving] was that of [the Applicant], whose evidence was that he was not under the influence of alcohol and only had a small amount as he was to drive back. There was no evidence to suggest that he was 'under the influence' or that the drink that he did consume had affected his decision-making. '(2) There was simply no evidence that any of his peers were negative. He attended a party in celebration of his birthday, which was also a joint celebration with another person. There is no evidence to support the finding that his peers were 'negative'.'

[73]I agree with the legal representative's submissions on both these points. To jump from saying that somebody has drunk some alcohol to say that he was driving under the influence is irrational. Equally to jump from saying that somebody attended a party to saying that he 'may have been associating with negative peers and demonstrating poor decision making' is also irrational. Decision

[74]For a combination of reasons, discussed above, I am satisfied that the panel's decision on the issue of termination of the Applicant's IPP licence must be reconsidered.

[75]Three things went wrong in this case. The first was the mistake by PPCS in their referral notes which resulted in the Board being prohibited from suspending the supervisory element of the Applicant's licence. The second was the panel's failure to spot that mistake and request PPCS to correct it. The third was panel's failure to consider the presumption that the Applicant's IPP licence should be terminated unless the panel was able to find on the evidence that the presumption should be overridden by the need for protection of the public. Those things were all procedural irregularities.

[76]There is some doubt about whether a mistake by PPCS can amount to procedural unfairness for the purpose of an application for reconsideration of a decision made by a panel of the Board. However the panel's failure to spot the mistake and ask for it to be corrected and their failure to consider the presumption are certainly both procedural irregularities capable of amounting to procedural unfairness.

[77]Neither of those irregularities would in themselves necessarily have resulted in procedural unfairness such as to require reconsideration of the panel's decision. If the panel had given adequate and supportable reasons for concluding that the protection of the public required that the Applicant's IPP licence should remain in force with the conditions specified by the panel, I might have been able to uphold their decision notwithstanding the procedural irregularities. Furthermore if the panel had given such reasons it might have been possible to say that although the panel did not address the presumption they would, if they had done, clearly have concluded that the presumption should be overridden by the need for protection of the public.

[78]However, for the reasons explained above the panel's reasons for their decision were not compelling and indeed can properly be regarded as irrational within the meaning of the Wednesbury test. That being the case I must direct reconsideration of the panel's decision on the termination issue, primarily on the ground of irrationality but also on the ground of procedural irregularity amounting to unfairness. Jeremy Roberts 25 July 2025