Johnson, Application for Reconsideration [2025] PBRA 156 (28 July 2025) [2025] PBRA 156
PBRA
Johnson, Application for Reconsideration [2025] PBRA 156 (28 July 2025)
[2025] PBRA 156 · 2025-05-06
[1]This is an application by Johnson (the Applicant) for reconsideration of a decision dated 6 May 2025 not to direct his release. The decision was made by a panel on the papers.[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.[3]I have considered the application on the papers. These are the decision, the dossier (consisting of 221 numbered pages), and the application for reconsideration. Background[4]On 24 May 2021, the Applicant received an extended determinate sentence comprising a custodial period of six years with two years on extended licence following conviction for causing/inciting a girl under 13 to engage in sexual activity (no penetration). On the same occasion he also received four concurrent 15 month determinate sentences for sexual assault of a female child under 13 and a further concurrent four month sentence for supplying cannabis. The Applicant pleaded guilty to all offences.[5]His parole eligibility date passed in April 2024. His conditional release date is reported to be in April 2026 and his sentence ends is April 2028.[6]The Applicant was 34 years old at the time of sentencing and is now 38 years old. Request for Reconsideration[7]The application for reconsideration has been submitted by solicitors on behalf of the Applicant. It argues that the decision was procedurally unfair.[8]The application is supplemented by written arguments to which reference will be made in the Discussion section below. Current Parole Review[9]The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) in March 2025 to consider whether or not it would be appropriate to direct his release. This is the Applicant’s second parole review.[10]The case was reviewed by a single member Member Case Assessment panel (MCA panel) on 6 May 2025. The panel did not direct the Applicant’s release.[11]This decision was made under rule 19(1)(b) and, by operation of rule 19(6) was a provisional decision. Rule 20(1) permits a prisoner who has received a provisional negative decision on the papers to apply in writing for his case to be determined by a panel at an oral hearing. Rule 20(2) provides that any such application must be served within 28 days of receipt of the provisional decision.[12]An application for an oral hearing was submitted on 6 June 2025. On 17 June 2025, a Duty Member refused the application for an oral hearing.[13]The Duty Member concluded that an oral hearing had not been required in the Applicant’s case. It was considered that the MCA panel had fully taken into account the principles set out in Osborn, Booth & Reilly [2013] UKSC 61 in determining that there had been sufficient evidence on the papers to assess risk. The panel had access to the complete dossier, including details of the Applicant’s sentence progression, and no new information had been presented in the representations that would have been likely to change its view.[14]The facts of the case, including the index offences and offending history, had been clearly set out in the decision. While professionals had recommended a psychological risk assessment (PRA), the MCA panel also considered a psychology case advice note which indicated that such an assessment had not been necessary at that stage, given the Applicant’s identified treatment pathway. The MCA panel found that the Applicant had not yet demonstrated any reduction in risk, particularly in light of his failure to engage with professionals and his lack of offence-focused work. This was an assessment that had not required oral evidence.[15]The Applicant had been assessed as posing a high risk of serious harm to the public and to children. Although he had made some efforts to access rehabilitative work, the MCA panel found that significant risk factors remained unaddressed. The legal representations submitted following the provisional decision had not raised any new issues sufficient to call the paper decision into serious question.[16]The provisional decision of the MCA panel is now and is therefore within the scope of the reconsideration mechanism. The Relevant Law[17]The Parole Board will direct release if it is no longer necessary for the protection of the public that the prisoner should be confined. Parole Board Rules 2019 (as amended)[18]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)).[19]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)).[20]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 on the previous reconsideration application in Barclay [2019] PBRA 6 . Procedural unfairness[21]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.[22]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; and/or(e) the panel was not impartial.[23]The overriding objective is to ensure that the Applicant’s case was dealt with justly. The reply on behalf of the Respondent[24]The Respondent has advised that no representations will be submitted in response to this application. Discussion Ground 1- core risk reduction work and internal controls[25]The Applicant notes the MCA panel’s view that the Applicant had not completed risk reduction work in custody and goes on to provide a detailed update from the Applicant stating that “ he wishes to make the panel aware of his current circumstances”.[26]It cannot be procedurally unfair for any panel to make a decision based on the evidence before it at the time, and the reconsideration mechanism is not a means by which new evidence can be introduced. This ground is misconceived and must fail. Ground 2- lack of engagement with professionals[27]This ground is also based upon comments from the Applicant regarding his engagement with professionals. There is no legal argument advanced regarding any potential procedural unfairness, and the ground fails for the same reasons as the first ground. Ground 3- psychological risk assessment[28]The final ground argues that a PRA should be conducted. This is a rehearsal of the same argument that was put forward in seeking an oral hearing and which was dismissed by the Duty Member. I dismiss it for the same reasons. Summary[29]Each of the three grounds advanced in the application rests on material either already considered by the MCA panel or not available at the time of the decision. None of the grounds establishes procedural unfairness in the making of the original decision. Decision[30]For the reasons set out above, I am satisfied that the panel’s decision not to direct release was procedurally fair. The application for reconsideration must therefore be refused. Stefan Fafinski 28 July 2025