Darkoh, Application for Reconsideration by, [2025] PBRA 161 (07 August 2025) [2025] PBRA 161

PBRA

Darkoh, Application for Reconsideration by, [2025] PBRA 161 (07 August 2025)

[2025] PBRA 161 · 2025-07-18

[1]This is an application by Darkoh (the Applicant) for reconsideration of a paper decision of a single member not to terminate an imprisonment for public protection (IPP) licence.

[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

[3]I have considered the application on the papers. These are the dossier, the decision of the single member, and the representations by the Applicant's legal adviser. Request for Reconsideration

[4]The application for reconsideration is dated 18 July 2025.

[5]The grounds for seeking a reconsideration are set out below. Background

[6]The Applicant is on licence having been given an IPP sentence in relation to an offence of robbery. The offence was committed in 2006. A knife was said to be used to threaten the victim. The background was the Applicant's drug addiction. The Applicant was released in 2017 on licence. He was in the community until 2023 (apart from a five-week sentence in 2022). He was recalled in 2023 after a dispute with a neighbour. The dispute led to a conviction for assault. Eventually that conviction was reviewed on appeal and the sentence reduced to a conditional discharge from an 18-week custodial sentence. The Applicant was released on licence in 2024 and he has been in the community since June 2024. On release the Applicant initially occupied a place at approved premises. He was then provided with probation supported accommodation. The accommodation was provided because there had been the dispute with a neighbour which had led to the recall in 2023 and which meant he could not return to his home address with his wife and children. As mentioned below there had been a concern about the fact that the Applicant was said to be " raging " and shouting at a member of staff who entered his bedsit accommodation. The Applicant is now aged 57. He was aged 38 at the time of sentence. Current parole review

[7]The referral from the Secretary of State (the Respondent) requested the Parole Board to consider termination of the IPP licence or in the alternative suspending the supervisory elements of the licence or amending conditions.

[8]The termination referral was considered by a single member panel, and the decision was a paper decision. The referral was reviewed on 26 June 2025. The panel member considered a dossier which contained the report from the probation service and representations from the Applicant's legal adviser. The Relevant Law

[9]The panel correctly sets out in the template area of its decision letter dated 26 June 2025 the test for termination. As noted below the test was not fully set out in the concluding remarks. Parole Board Rules 2019 (as amended)

[10]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)).

[11]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

[12]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.

[13]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. "

[14]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).

[15]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.

[16]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 considered the evidence.

[17]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;

(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

[21]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.

[22]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

[23]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

[24]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

[25]The Respondent offered no representations. Discussion Grounds

[26]It is submitted on behalf of the Applicant that the single panel member, who determined this decision, incorrectly stated that there had been no representations regarding an incident of aggression relating to the manager of accommodation being rented by the Applicant. The Applicant's legal adviser submits that the single member was incorrect, as there had been a reference to the incident in legal representations and an explanation offered. Discussion

[27]This case was an application for reconsideration of a decision not to terminate an IPP licence. As is usual in these cases, a report had been provided by the probation service. The position of the probation service in relation to a recommendation was that originally the recommendation was to support termination. However, an incident occurred at the Applicant's residence which resulted in the Applicant losing his temper and shouting at a member of staff who had entered his bedsit. Following this incident, the probation service reviewed their position and decided that it could not support the application to terminate because of the incident with a member of staff at the Applicant's rented property.

[28]The Applicant's legal adviser submitted representations, in writing, in advance of the decision by the single member. The representations (regarding the accommodation manager) were that the member of staff entered the rented room, which was a bedsit, without a prior appointment. The Applicant felt that his privacy had been invaded as he understood that the contract with the accommodation providers indicated that the rooms could only be entered on appointment. The representations also indicated that the Applicant accepted that he should have responded in a calmer manner.

[29]Additionally, the representations indicated that the Applicant had started to undertake a conflict resolution course and was likely to have completed that course by the time of the decision. The application requested that an updated probation report be secured which would enable the decision maker to be appraised of any work that had been completed in connection with conflict resolution.

[30]The referral was refused by the single member. The single member emphasised the concerns about the incident at the accommodation. The single member indicated that the IPP panel, in the view of the single member, had good cause to review the incident at the accommodation and by inference to change the recommendation of the probation service. The single member also said that the details of the incident were "not contested" in the legal submissions. It was not entirely clear whether the single member took the view that the legal submissions amounted to the Applicant not contesting the facts of the incident. However the legal submissions sought to explain what had happened and to place the incident in context and were not commented upon specifically.

[31]It is also unclear as to whether the single member took account of these submissions (by the legal adviser) relating to the incident. The wording of the single member (relating to the legal submissions) in the decision was " there is no reference to the report of aggression displayed" (to the manager of the accommodation). In fact there was clearly a reference to the behaviour of the Applicant in the legal submissions.

[32]A second issue is that, most likely due to a typographical error, in the conclusion the panel member stated as follows:

" The panel was therefore not satisfied that it is no longer necessary that the licence should remain in force"

. The test, as is well known (and indeed is set out at the top of the template), is that the necessity must arise " for the protection of the public ". The single member has not included this part of the test in the final conclusion.

[33]Finally, it was noted by the single member that the application for an adjournment was refused because " the panel was not satisfied that a short adjournment will provide a meaningful opportunity for [the Applicant] to demonstrate the application of learning from any further work completed". Although it may have been that the work undertaken by the Applicant required further consolidation work, and more time demonstrating stable behaviour, the panel member (at the time of the decision) was not in possession of details of the work which was undertaken, or of whether or not it was necessary for further consolidation to be undertaken. In the light of the fact that the presumption must be in favour of termination, it appears to me that the decision not to adjourn is also a procedural irregularity in this particular case.

[34]Taken in the round, therefore, I have concluded that there were procedural irregularities in this decision. I have therefore concluded that the matter should be reconsidered. The reconsideration will be by way of a paper reconsideration. Decision

[35]Accordingly, whilst I do not find there to have been an irrational conclusion, I do consider, applying the test as defined in case law, the decision to have been procedurally unfair. I do so solely for the reasons set out above. The application for reconsideration is therefore granted and the case should be reviewed by a fresh panel by way of a paper hearing. HH S Dawson 07 August 2025