O'Donoghue, Application for Reconsideration [2025] PBRA 158 (31 July 2025) [2025] PBRA 158

PBRA
O'Donoghue, Application for Reconsideration [2025] PBRA 158 (31 July 2025)
[2025] PBRA 158 · 2025-06-16
[1]This is an application by O’Donoghue (the Applicant) for reconsideration of a decision of an oral hearing panel (OHP) dated the 16 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, the decision of the OHP, the application for reconsideration drafted by the Applicant’s legal adviser and the response by the Secretary of State (the Respondent) to the request for representations. Request for Reconsideration[4]The application for reconsideration is dated 6 July 2025.[5]The grounds for seeking a reconsideration are set out below. The application was in a narrative format. I have endeavoured to describe what appear to be the grounds argued in this case. Background[6]The Applicant is serving a sentence of imprisonment for public protection (IPP). The sentence was imposed in November 2010. His tariff expired in November 2015. The Applicant has been released twice before by the Parole Board, once in October 2017 and on the second occasion in January 2020. He was last recalled to custody in January 2023. He was 35 years old when sentenced. He is now 50 years old. The index offences occurred in 2008. The Applicant was seen driving dangerously by uniformed police officers. He was driving in a residential area. He stopped and reversed into a police car causing injury to one police officer. He drove away once again and drove dangerously and at speed, mounting pavements. He was eventually stopped and approached by a police officer. He attacked the police officer by punching him and striking him in the face with a police baton (which the Applicant had seized from the officer). The Applicant was eventually arrested having broken into the home of a stranger, who was alone with her young daughter, and threatened her with a baton pushing her down onto a staircase. Serious injuries resulted.[7]Prior to the index offences the Applicant had been convicted in 1997 of causing death by dangerous driving. He had driven a stolen car and killed a passenger, who was in a car with which he collided.[8]In 2002 he was convicted of causing grievous bodily harm with intent. The facts of this case were that he was convicted of beating the victim with a metal baseball bat. The victim apparently had failed to pay a drug debt. Current parole review[9]The Parole Board was considering a referral from the Respondent following the Applicant’s recall. The referral requested the Parole Board to consider whether the Applicant should be directed for release and if not whether he should be subject to a recommendation for transfer to an open prison.[10]The OHP consisted of a psychology member who was the chair of the panel. The chair was accompanied by two independent members of the Parole Board. Evidence was given at the oral hearing by a prison offender manager (POM), a prison instructed psychologist, and a community offender manager (COM). The Applicant was legally represented at the hearing and gave evidence himself. Relevant Law[11]The panel correctly sets out in its decision letter dated 16 June 2025 the test for release and the issues to be addressed in making a recommendation to the Respondent for a progressive move to open conditions. Parole Board Rules 2019 (as amended)[12]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)).[13]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)).[14]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 . Irrationality[15]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.[16]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. ”
[17]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).[18]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.[19]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.[20]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[24]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.[25]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[26]The test to be applied when considering the question of transfer to open conditions is the subject of a well-established line of authorities going back to R (Hill) v Parole Board [2011] EWHC 809 (Admin) and including R (Rowe) v Parole Board [2013] EWHC 3838 (Admin) , and R (Hutt) v Parole Board [2018] EWHC 1041 (Admin) . The test for transfer to open conditions is different from the test for release on licence and the two decisions must be approached separately and the correct test applied in each case. The panel must identify the factors which have led it to make its decision. The four factors the panel must take into account when applying the test are:(a) the progress of the prisoner in addressing and reducing their risk;(b) the likeliness of the prisoner to comply with conditions of temporary release;(c) the likeliness of the prisoner absconding; and(d) the benefit the prisoner is likely to derive from open conditions.[27]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[28]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 Respondent[29]The Respondent offered no representations. Grounds and Discussion Ground 1[30]It is submitted on behalf of the Applicant that the panel failed to take proper account of the evidence of the psychologist who was supporting release. Discussion[31]The OHP in this case received evidence from a prison instructed psychologist. A psychological report had been directed by the Parole Board. A psychological risk assessment by a prison instructed psychologist would be conventionally conducted by way of an interview or a series of interviews followed by the drafting of a psychological risk assessment. In this case the Applicant was approached by the psychologist who apparently introduced the Applicant to the process. The prison psychologist reported that at the first meeting the Applicant had been reluctant to physically sign a consent form which was necessary in order to conduct the interview and undertake the assessment. The Applicant was apparently prepared to provide verbal consent, but did not wish to sign a form. The Applicant was then told that there would need to be a witness by way of a prison officer if he wished to give verbal consent. The Applicant then altered his position and agreed to give written consent. However, approximately 20 minutes into the first interview, the Applicant told the psychologist that “we are done” and left the interview room. The psychologist waited to allow the Applicant time to consider the position, however the Applicant did not return.[32]To assist the panel and the parties, and as an alternative to a face-to-face interview, the psychologist provided the Applicant with a questionnaire to enable the Applicant to make a contribution to the psychological report. The report was prepared by the psychologist but was clearly somewhat unconventional in the sense that the psychologist was relying upon limited written evidence from the Applicant. It is also of note that the usual outcome, where a prisoner is reluctant to engage, is for the psychologist to terminate the commission and report back to the Parole Board.[33]The approach by the panel was to acknowledge that the psychology evidence was clearly unconventional (in the sense that the material from the Applicant had been received in writing), but to consider the content of the report and the oral evidence of the psychologist in the hearing itself.[34]The panel were told, by the Applicant, that he had not cooperated because he had been without prescribed medication at the time and felt anxiety and depression. He told the panel that the prison was at fault (rather than him) because of the absence of providing him with prescribed medication.[35]The psychologist’s evidence, as recorded by the panel, was that the Applicant had outstanding treatment needs which would assist him in addressing his attitudes towards authority and to understand reasons why he reacted with violence in situations where he felt challenged. The psychologist indicated that, in her view, the Applicant would need to explore alternative ways to deal with situations where he felt threatened. The psychologist had initially said, in her report, that this work would be core risk reduction work. However, it is noted by the panel that later in the hearing the psychologist resiled from that position, and indicated that the behavioural work could in fact be completed in the community (implying that the work was not core risk reduction work). The psychologist accepted that if the Applicant perceived a situation as a threat, it was possible that he would react violently. However, despite this view, the psychologist recommended that the Applicant be released. The reporting psychologist had not assessed risk to be imminent or serious, but in oral evidence accepted that in a high risk scenario, where the Applicant perceived his freedom to be a threat, he could respond with violence and would be capable of causing serious harm. It was also accepted that this harm could occur at any time in the community. The psychologist however also took the view that there would be warning signs, and the risk could be effectively managed by external controls and that therefore there would be an opportunity to prevent the risk of serious harm escalating.[36]In questions to the psychologist, the panel raised an issue about personality traits and personality disorder. This was not a matter which the psychologist had addressed. The psychologist was not qualified to make a formal assessment of personality; however the psychologist had identified negative attitudes towards authority and responses of a negative nature in situations where the Applicant perceived his freedom to be under threat, which were indicative of personality issues.[37]At paragraph 4.7 of the decision, the panel assessed the evidence both oral and written of the psychologist. The panel acknowledged that there were limitations to the reliability of the psychology report because of the absence of participation by the Applicant. The psychologist had also had the opportunity of hearing evidence from the Applicant in the hearing itself. The psychologist had concluded that the evidence given at the hearing did not impact upon her recommendation that the Applicant’s risk could be safely managed in the community.[38]The panel however rejected the assessment by the prison instructed psychologist. The panel took the view that the conclusions of the psychologist were at odds with the Applicant’s own evidence. This was particularly in connection with his attitudes towards authority and towards violence. The panel took the view that the oral evidence indicated that the Applicant did not have insight into his risks, or the necessary internal controls to manage risk. The panel indicated that they did not feel that the psychologist’s assessments and recommendations were a realistic reflection of the Applicant’s risk of serious harm.[39]The basis of the panel’s conclusion is set out in some detail in the lengthy decision. The panel referred to the reason for the Applicant being recalled, namely violence towards a police officer in circumstances where he had been detained, as a factor supporting their view that the confidence of the psychologist was misplaced. Additionally, the Applicant himself had confirmed that he had been involved in various incidents since his recall. These incidents included serious verbal abuse directed towards prison staff (where the Applicant had deliberately ignored prison rules). Additionally, the Applicant had reportedly stated that he could not respect prison officers who represented “the King of England” . He had also decorated his prison cell wall with a phrase associated with Irish republicanism. It had also been reported that during the earlier part of his recall he had experienced dark moods and become very low, agitated and angry and expressed violent thoughts leading to rage. He had apparently spent time in a segregation unit during these periods.[40]It is clear therefore that the panel identified a number of issues which, in their determination, undermined the confidence of the prison instructed psychologist that the Applicant’s risk of serious violence could be contained and managed.[41]The panel also received reports of some positive behaviour particularly from the POM.[42]I have considered the submissions made on behalf of the Applicant in relation to the evidence of the psychologist and the circumstances of the psychology report. Whilst it may have been that the Applicant had problems with medication, the Applicant had been given every opportunity to engage with the psychological assessment. The decision not to engage was clearly a relevant consideration in terms of the Applicant’s likely compliance in the community. The panel were justified, in my determination, in commenting upon the fact that the psychological report would have limitations because of the absence of active participation by the Applicant. The panel were also at liberty to take account of the evidence of the Applicant at the hearing itself and of his behaviour, and set that evidence against the view of the psychologist regarding the potential for risk elevating in the community.[43]As is acknowledged by the Applicant’s legal adviser, a panel of the Parole Board is not obliged to adopt the recommendation or views of professionals. The panel, if it is rejecting a recommendation, is obliged to explain the reasons why the view is rejected. In this case the panel clearly indicated that they did not accept that the psychologist’s conclusion regarding the management of risk in the community was supported by the evidence. It appears that the psychologist had initially suggested that further core risk reduction work would be needed to continue to manage the Applicant’s risk, however the psychologist later indicated that the nature of the work would not in fact be core risk reduction (which would normally imply work which needs to be completed in order to manage risk before release), but would be work which could be ongoing in the community. In my determination the panel demonstrated an evidential basis upon which they rejected the view of the psychologist. The view of the psychologist had elements of speculation as to how the Applicant’s volatility and impulsivity could be managed in the community. I am also not persuaded that the fact that the report was prepared in a somewhat unconventional manner was material to the panel’s conclusions. The panel assessed the view of the psychologist, and rejected the conclusion that the Applicant’s risk could be safely managed. In my determination there was sufficient evidence upon which such a conclusion could be reached and the panel explained why they had reached that conclusion. I am not therefore persuaded that this ground amounts to irrationality in the sense set out above. Ground 2[44]It is submitted on behalf of the Applicant that the panel failed to fully explain the reasons why the decision not to direct release was made. Discussion[45]The panel’s decision and analysis in this case was set out over 16 pages. The panel considered the oral and written evidence and the submissions by the Applicant’s legal adviser.[46]In brief the conclusions of the panel were that the Applicant had shown limited ability to manage his risk within the custodial setting following his recall (and before recall in terms of the recall offence). The panel concluded that the Applicant had continued to demonstrate hostile attitudes towards prison staff, in particular exhibiting verbal abuse and aggression. He had shut a cell door in the face of his COM when he first had contact with her. The panel also concluded, on the basis of the Applicant’s oral evidence, that although he had some understanding of his presentation and behaviour towards others, he had little concern about how his behaviour may impact upon others. Fundamentally the panel concluded that the Applicant continued to evidence a risk in relation to others (in particular those in authority) and in being violent generally. The panel concluded that the Applicant had not addressed his potential risk to the public, and in particular to those who might challenge him in authority.[47]The panel noted that there had been some limited work in relation to addressing his risk factors, however there had been insufficient evidence of undertaking behavioural work (core risk reduction work) which would manage his risk. The panel indicated as follows:
“ the panel concluded that [the Applicant] continues to hold strong beliefs in relation to the importance of moral right or wrong over legal right or wrong and has a significant distrust of any form of legal authority ”
. The panel cited evidence of behaviour both in the community and in custody. The panel considered whether work could be undertaken in the community, however the panel’s conclusion was this would not be commensurate with protecting the public from harm. The panel took the view that the work that was required to be undertaken by the Applicant was core risk reduction work. The panel also took the view that there was a lack of “ responsibility taking” by the Applicant, a lack of “ insight into his risks ” and a lack of knowledge a s to how to manage his risks. The panel concluded that the Applicant remained prepared to use violence (where he thought it was justified) and would be capable of causing serious harm.[48]I am therefore satisfied that the panel set out in some detail the basis upon which they concluded that the Applicant’s risk could not be managed. The panel understood that the professional opinions were directed towards release, however the panel explained the reasons why they rejected those opinions in the detailed conclusion set out in the decision. The panel also considered the risk management plan but concluded that it was unlikely that the Applicant would adhere to the need for compliance, and that therefore the known risk factors would escalate leading to an increased risk of serious harm to the public. I am therefore satisfied that the panel set out in sufficient detail the reasons for their decision. I am not therefore persuaded that this ground amounts to irrationality. Ground 3[49]It is submitted on behalf of the Applicant’s legal adviser that the panel placed disproportionate weight upon security intelligence and the Applicant’s historical anti-authoritarian beliefs and failed to take account of positive progress and engagement with professionals. Discussion[50]The panel were entitled to take account of both positive and negative evidence in coming to a conclusion about the Applicant’s risk. There was evidence, within the written decision, that the panel took account of the fact that the Applicant had had a lengthy period in the community when there had been no recorded risky or violent behaviour. The panel also acknowledged that there had been periods of time in prison when the Applicant had behaved well. However, these instances were balanced against negative information, for example, that contained within security intelligence and the Applicant’s acknowledged views about those in authority. The panel were also entitled to take account of the history of the Applicant’s negative behaviour and in particular the more recent assault which led to the recall.[51]The panel also carefully assessed the evidence from the Applicant himself, which indicated a lack of insight and empathy. Again, the panel were entitled to make an overall assessment of the evidence. I am not persuaded that the panel unfairly focused upon negative evidence, however, inevitably, in addressing the codified test for release they would be likely to be undertaking a cautious assessment in relation to negative behaviour. I am not therefore persuaded that this ground amounts to irrational decision-making in the sense set out above. Ground 4[52]It is submitted on behalf of the Applicant, that the panel overemphasised the importance (in terms of risk) of the use of abusive and hostile language that the Applicant had used towards prison officers. It is submitted by the Applicant’s legal adviser that prison officers are expected to have a higher threshold of tolerance than ordinary members of the public. Discussion[53]The basis for this submission is a case, cited by the legal adviser on behalf of the Applicant, which relates to a civil claim for damages arising from the work by police officers following a disaster (White v Chief Constable of South Yorkshire [1999] 2 AC 455 ) . I am not persuaded this is an argument with any substance.[54]The material and relevant facts, in this case, relate to the lack of insight and empathy displayed by the Applicant in terms of his relationships with those in authority. The Applicant told the OHP that prison officers were in the “ wrong profession ” if they were not capable of accepting abusive and aggressive language.[55]The relevant point being made by the panel was the fact that the Applicant had limited insight into the effects that such behaviour might have, either to those in authority or to those in the public domain generally. The Applicant appeared to be content to justify the use of abusive and hostile language towards prison officers on the basis that they were in authority and should expect such language. In my determination the panel were at liberty to conclude that the Applicant lacked insight and an ability to moderate his behaviour in order to ensure that risk did not escalate. A decision in a civil claim ( White above) relating to whether police officers should receive compensation as rescuers is not in my determination of assistance where the issue is the potential risk in circumstances where abusive and aggressive language is being used towards those in authority. I am not persuaded that this view by the panel was irrational in the sense set out above. Ground 5[56]It is submitted by the Applicant’s legal adviser, that the panel took too much account of the fact that the Applicant appeared to have only some understanding (but little concern) for how his behaviour impacted upon others.[57]It is also argued on behalf of the Applicant that the panel failed to take account of the fact that the Applicant had moved forward in a positive way in terms of empathy and understanding, and that the Applicant demonstrated remorse particularly in connection with his offence of causing death by dangerous driving. It was submitted on the Applicant’s behalf that these positive points were not fully acknowledged by the panel. Discussion[58]In the concluding remarks of the panel’s decision, the panel accepted that the Applicant had undertaken some limited intervention work to address his risk factors (although he had not had the opportunity to complete the work). The panel noted that there had been no trauma informed intervention work, which was thought to be important in connection with risk. The panel noted that the Applicant had recently been promoted to an enhanced status in the prison incentive scheme (an indication of improved behaviour). The panel had also noted that the Applicant had said that he was “truly sorry for” the events which led to the death of a passenger in a taxi with which the Applicant collided when driving a stolen car (and which was the basis of the index offence).[59]Having considered the decision in its entirety, I determine that the panel made a fair assessment of the positive factors relating to the Applicant. The panel noted those positive factors. However, inevitably, the panel also looked in terms of risk at the negative factors underpinning the potential risk posed by the Applicant. The panel, in their decision, clearly noted that some limited progress had been made by the Applicant in terms of addressing risk.[60]Professionals had concluded that further work was required, although they had suggested that that work could be completed in the community.[61]The panel also found that further work would be necessary to support evidence that the Applicant was able to manage risk. The panel however differed from the professionals in that they took the view that, at the time of the oral hearing, the Applicant’s risk could not be safely managed in the community. I am satisfied that the panel clearly addressed the competing issues in connection with the Applicant’s risk. The panel were entitled to reach an overall conclusion based upon the evidence adduced at the hearing and in the dossier. I am not therefore persuaded that this ground amounts to irrational decision-making by the panel. Ground 6[62]It is submitted, on behalf of the Applicant, that the panel had been told that core risk reduction work had been completed, and that any further work could be completed outside closed prison conditions. It is argued on the Applicant’s behalf that the panel failed to take account of this view by the professionals. Discussion[63]Panels of the Parole Board are not obliged to adopt the opinions and recommendations of professional witnesses. It is their responsibility 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. However, where a panel makes a decision contrary to the opinions and recommendations of professional witnesses it is important that the panel should explain clearly its reasons for doing so and that those stated reasons should sufficiently justify its conclusions as per R v (Wells) v Parole Board 2019 EWHC 2710 .[64]I have considered whether the panel explained its reasons for not adopting the recommendations of the professionals in this case. It is clear that the panel took the view that the work that was required to be undertaken was work which was directly related to imminent risk, and therefore was core risk reduction work. In the light of the Applicant’s behaviour at the time of the index offence and the more recent instances of violence, in particular the offence which led to the recall (head-butting a police officer), I determine that the reasons given by the panel for rejecting the recommendations of the professionals were justified by the evidence in the dossier and the evidence taken orally at the oral hearing. For this reason, I do not find that the panel’s rejection of the views of the professionals amounts to irrationality in the sense set out above. Ground 7[65]It is submitted by the Applicant’s legal adviser that the Parole Board panel, having acknowledged that the risk assessment by the prison instructed psychologist was unconventional, should have issued further directions or adjourned the hearing in order to enable further interviews to take place. Discussion[66]The issue relating to the reliability of the psychological risk assessment was clearly analysed and assessed within the oral hearing decision. The Applicant himself made the decision that he would not engage directly with the reporting psychologist. A reasonable effort had been made to secure information, and prepare a report, which would assist the panel and the parties at the hearing. In my determination the panel were entitled to take account of such evidence as was available at the hearing, but also to note the fact that the nature of the psychological assessment was based upon written answers sent in by the Applicant. The report therefore lacked some degree of rigour but was presented as professionally viable by the reporting psychologist. It appears that neither the Applicant himself nor the Applicant’s legal adviser suggested any application for a further adjournment to allow for a face-to-face assessment take place. It is also of note that the reporting psychologist had in fact recommended that the Applicant be released. The psychologist had also indicated, within the oral hearing, that she had taken account of the oral evidence given by the Applicant in the hearing. The psychologist indicated to the panel that the oral evidence (from the Applicant) did not change her view and that her recommendation did not need revision. She continued to support release. The panel’s reasons for rejecting the view of the psychologist did not relate to the absence of a face-to-face psychological assessment but related to the fact that the panel disagreed with the views of the psychologist in particular in relation to the undertaking of core risk reduction work.[67]It would also have been unlikely and unusual for a Parole Board panel to adjourn matters in the hope that a prisoner would cooperate with a further report in the future, particularly in circumstances where the application was not being made by the Applicant or his legal adviser. The panel appropriately, in my determination, took account of the nature of the evidence that was presented by the psychologist and within the report. The panel, properly, also took account of the potential limitations of the report. I am not persuaded that this amounted to irrational behaviour by the panel. Ground 8[68]The panel failed to take account of the possibility of adjourning the case in order to secure further information from the COM about services which might be available in the community. The point being that the COM had been unable to confirm to the panel whether the services would be available immediately on release or otherwise. Discussion[69]Panels of the Parole Board are obliged to respond to the referral from the Secretary of State in a timely fashion and to undertake the referral with expedition. Although there are indications that the Applicant’s COM did not offer detailed information about the availability of services and interventions in the community, the panel again took account of the evidence which was available to them. It is clear that the absence, or otherwise, of intervention work in the community, was not a material factor in the panel’s decision.[70]As is noted above the panel’s decision was based fundamentally upon the fact that the panel took the view that the Applicant’s risk could not be managed in the community as there was an absence of evidence that the Applicant could manage his propensity to violence. This was reinforced by the fact that professionals took the view that the Applicant would benefit from undertaking core risk reduction work.[71]The professionals were suggesting that that work could be undertaken whilst in the community. The panel took the view that the work needed to be completed before release, on the basis that the Applicant might then be able to demonstrate that he had the ability to manage his risk of serious harm, particularly in circumstances where he might be challenged by an authority figure (or in the circumstances where he felt challenged). I am therefore not persuaded that this point amounts to irrationality in the sense set out above. Ground 9[72]The panel failed to explore the security intelligence or to request a further, more detailed, security report Discussion[73]I have considered the security evidence which was provided by the prison within the dossier. By the very nature of security information the detail is often limited. However, it is clear that a comprehensible report was provided and that the security department provided security ratings. It is clear that although the panel took account of the security information, much of it was uncontested (for example the presence of an Irish flag with a slogan alleged to be connected with Irish republicanism in the Applicant’s cell).[74]I am not persuaded that the panel’s decision turned to any great degree upon the absence or otherwise of more detailed security information, for that reason I do not determine that this ground amounts to irrationality or procedural irregularity in the sense set out above. Ground 10[75]The panel failed to fully explain the term used by the Applicant “bury them” because the Applicant had qualified these comments by saying that he would not actually do this (i.e. bury people who upset his family). Discussion[76]The context of this comment was that the Applicant was asked by the panel to envisage high risk situations in the future, and how he would deal with them. The Applicant told the panel that he would react violently depending on how much the situation meant to him. He offered, as an example, that if someone hurt a member of his family or did bad things to that member of his family he would “bury them” . The panel decision is not a verbatim report of the entire oral evidence. The panel were entitled to include quotes by the Applicant. The panel in this paragraph were clearly asking the Applicant about how he would manage highly risky situations in the future. Of relevance is clearly the fact that the Applicant candidly told the panel that he did envisage situations that might involve violence. The Applicant justified those situations by the fact that it would be circumstances where a family member was being abused or upset. The relevant point in my determination was the fact that the panel were recording that the Applicant himself accepted, that there were situations where he would turn to violence if he felt the violence was “justified” . The panel’s general view of the risk in this case was in relation to the ability, by the Applicant, to manage difficult situations without resorting to serious violence. The panel therefore were, in my view, entitled to reference this comment by the Applicant even though the Applicant may have later explained that he would not in fact bury any individual, but that he was using a turn of phrase. Again, I am not persuaded that this amounts to irrational decision making by the panel. Ground 11[77]The Applicant’s legal adviser submits that the hearing was unfair because the Applicant suffered from a disadvantage because of perceived “gaps” in the evidence which did not allow the Parole Board to make a proper assessment of the current risk or the risk management plan. The Applicant’s legal adviser cites the Parole Board guidance relating to ensuring that sufficient relevant evidence is adduced at the hearing and also cites the decision of the administrative court R v Ealing Magistrates Ex Parte Fanneran 1996 8 Admin LR 351, 359 (a decision reminding courts of the need to rely upon evidence rather than postulation). Discussion[78]As I have indicated above, I am not persuaded that there is evidence of “perceived gaps” in evidence which would prevent either the panel from reaching a fair and balanced conclusion or prevent the Applicant and his legal advisers from addressing the evidence. The panel and the Applicant had evidence in the dossier (which exceeded 400 pages) and also considered oral evidence from the witnesses and the Applicant. I am not persuaded that this was a case where the panel were relying on postulation rather than evidence. The panel’s decision clearly sets out the evidence upon which they reach their conclusions. I am not therefore persuaded that this ground amounts to irrationality in the sense set out above. Cases cited by the Applicant’s legal adviser[79]I have considered the decisions which were helpfully cited by the Applicant’s legal adviser and comment as follows:[80]R (on the application of Palmer) v Secretary of State for the Home Department [2004] EWHC at [24]: This decision mirrors the conclusions in the later case of R (Wells) v Parole Board 2019 EWHC 2710 . The rationale is that the panel must explain the reasons for its decision to enable the prisoner and his legal advisers to consider the basis of the decision. As noted above I am satisfied that the panel had set out, in some detail, the reasons for their decision and in particular the reasons for rejecting the views of the professional witnesses regarding a direction for release.[81]Also cited within the application for reconsideration are the following cases: · R (Talpada) v Secretary of State for the Home Department [2018] EWCA Civ 841 , · R (Brooke) v Parole Board [2008] 1 WLR 1950 , at [53] , · Roberts (FC) v Parole Board [2005] UKHL 45 and · R v Sussex Justices, Ex p McCarthy 1 KB 256 .[82]I have not addressed each case individually as it appears to me that, with respect to the Applicant, the cases refer to well understood principles of decision-making in the realms of courts and Parole Board hearings. Namely, that parties to hearings must be treated fairly and that a decision to release is a balancing exercise between the need to protect the public from serious harm, as against the rights of the prisoner not to be unnecessarily incarcerated. Decision[83]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. HH S Dawson 31 July 2025