McKenzie, Application for Reconsideration [2025] PBRA 163 (12 August 2025) [2025] PBRA 163
PBRA
McKenzie, Application for Reconsideration [2025] PBRA 163 (12 August 2025)
[2025] PBRA 163 · 2025-06-19
[1]This is an application by McKenzie (the Applicant) for reconsideration of a decision of an oral hearing panel dated 19 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 oral hearing decision, the dossier consisting of 705 pages and the application for reconsideration. Request for Reconsideration[4]The application for reconsideration is dated 16 July 2025. It has been drafted by representatives on behalf of the Applicant. It submits that the decision was irrational.[5]The submission is supplemented by written arguments to which reference will be made in the Discussion section below. Background[6]On 21 July 2006 the Applicant received a sentence of life imprisonment for murder. His tariff was set at 14 years.[7]The Applicant was 51 years at the time of sentencing and is now 70 years old. Current parole review[8]The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) in August 2022 to consider whether or not it would be appropriate to direct his release. If the Board did not consider it appropriate to direct release, it was invited to advise the Respondent whether the Applicant should be transferred to open conditions.[9]The case proceeded to an oral hearing via videoconference on 10 June 2025. The panel consisted of an independent member and a psychologist member. It heard oral evidence from the Applicant together with his Prison Offender Manager (POM), Community Offender Manager and a prison psychologist. The Applicant was legally represented throughout the hearing. The Respondent was not represented by an advocate. 10.The panel did not direct the Applicant’s release nor make a recommendation for open conditions. It is only the release decision that is open for reconsideration. The Relevant Law 11.The panel correctly sets out in its decision letter dated 19 June 2025 the test for release and the issues to be addressed in making a recommendation to the Secretary of State 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. 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. The reply on behalf of the Secretary of State 20.The Respondent has submitted no representations in response to this application. Discussion 21.The application submits that the panel failed to properly scrutinise all the evidence before it, that the decision letter did not contain certain elements of evidence that was given at the hearing, that the panel failed to address the matters asked of the witnesses and put forward in closing submissions. The application further submits that the panel has failed to give proper and adequate reasons for its decision and that the panel has “failed to consider the minutia of the case as presented at the hearing and provided a decision which lacks detail and explanation ”. 22.Having carefully considered the decision letter and the dossier I am satisfied that the panel considered all relevant matters including the Applicant’s case, which is set out in some detail in the decision letter. It is not necessary for a panel to set out all the evidence presented, and the application does not set out what the panel omitted to address which would have made a difference to the decision. 23.Much of the application (paragraphs 14, 15, 22 - 26, 28 in particular) is concerned with the panel’s consideration of the need for Offender Personality Disorder (OPD) services. The application submits that the panel makes reference to the OPD pathway only 6 times in the decision letter and provides no detailed analysis. Having carefully considered the decision letter I am satisfied that the panel gives detailed consideration to questions regarding the OPD pathway - the decision letter does so in paragraph 3.9 and also clearly considered the reports in the dossier and the evidence of the witnesses. The reasons following on from those considerations are adequately and fully set out in paragraph 4.3 of the decision letter. There was nothing more the panel could or should have said. 24.The application claims (in paragraph 16 (although it is not clear if this is a comment or a complaint) and in paragraph 17) that the panel did not mention the lack of contact between the POM and the Applicant and the consequences for his evidence. Having read the decision letter I am satisfied that the panel dealt clearly and explicitly with this at paragraphs 2.13, 2.14 and 3.5. The panel clearly sets out the evidence of each professional and sets out in detail the Applicant’s evidence in response to the review. There is no omission identified in the application which affected the decision. 25.The application submits that the decision only made reference to the closing submissions in paragraph 4.1 of the decision. The application is correct in that regard; it was a detailed paragraph and contained all the matters raised in the hearing. The application submits that there was no explanation as to why those submissions were less favourable than those of the professionals. Reading beyond paragraph 4.1 provides all the reasons why the panel came to its conclusions which did not coincide with the submissions on behalf of the Applicant. Those conclusions (set out in paragraphs 4.1 to 4.10) are clearly and fairly analysed and supported by the evidence presented. 26.The application is based on disagreement with the panel’s conclusions, but disagreement is not enough to establish irrationality in law. The submissions based on claimed omissions in the panel’s decision letter are not based on any proper reading of the decision. The reasons given by the panel in supporting its conclusions were clear and thorough and not lacking in detail or explanation. The legal test for irrationality sets a high bar which this decision does not even come close to meeting. Decision 27.For the reasons I have given, I do not consider that the decision was irrational and accordingly the application for reconsideration is refused. Barbara Mensah 12 August 2025