Connor, Application for Reconsideration [2025] PBRA 164 (07 August 2025) [2025] PBRA 164

PBRA
Connor, Application for Reconsideration [2025] PBRA 164 (07 August 2025)
[2025] PBRA 164 · 2025-07-07
[1]This is an application by Connor (the Applicant) for reconsideration of a decision of a panel of the Parole Board dated 7 July 2025 making no direction for release but recommending transfer to open conditions following an oral hearing on 24 June 2025.[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 decision, the application for reconsideration and the dossier. Request for Reconsideration[4]The application for reconsideration is dated 17 July 2025.[5]The grounds for seeking a reconsideration are that the hearing was procedurally unfair and the decision was irrational. It is argued that the decision was irrational as there are errors of fact in the decision which would not have happened if the panel had properly inquired about them during the hearing rather than relying on inaccurate information in the dossier. It is argued that the decision that further testing in open conditions was necessary was irrational and the reliance on the circumstances of the Applicant’s previous move from open to closed was not justified on the evidence. Background[6]On 26 January 1998 the Applicant was sentenced to life imprisonment for murder. The minimum term that the Applicant was required to serve was 18 years less time on remand before he was eligible to apply for parole. He has never been granted parole and is now more than 10 years over tariff. Current parole review[7]The case was referred to the Parole Board on 27 February 2024.[8]The hearing took place on 24 June 2025 and the three member panel included a psychiatrist. The panel heard evidence from two psychologists, the prison offender manager (POM) and the community offender manager (COM). The Applicant was represented and written submissions were made after the hearing. The Relevant Law[9]The panel correctly sets out in its decision letter dated 7 July 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)[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)). Irrationality[11]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.[12]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. ”[13]In R(on the application of Wells) -v- Parole Board 2019 EWHC 2710 (Admin) set out what Saini J 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).[14]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.[15]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.[16]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.[20]It is possible to argue that mistakes in findings of fact made by a decision maker result in the final decision being irrational, but the mistake of fact must be fundamental. The case of E v Secretary of State for the Home Department [2004] QB 1044 sets out the preconditions for such a conclusion:
“ there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter; the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable; the appellant (or his advisors) must not have been responsible for the mistake; and the mistake must have played a material (though not necessarily decisive) part in the tribunal's reasoning.”
See also R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] AC 295 , which said that in order to establish that there was a demonstrable mistake of fact in the decision of the panel, an Applicant will have to provide “ objectively verifiable evidence ” of what is asserted to be the true picture. Reconsideration as a discretionary remedy[21]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 (the Respondent).[22]The Respondent has made no submissions in response to this application. Discussion[23]The Applicant submits that there are statements in the decision which are incorrect and had the panel asked questions about those matters he could have corrected them. Some of those suggested mistake of facts come in quotations from previous parole decisions such as an allegation that the Applicant had made threats to a doctor and disengaged from professionals. The Applicant asserts that the allegation of threats to a doctor had been investigated and was incorrect as was the suggestion that he had disengaged from professionals. Accepting what the Applicant says as correct it demonstrates the danger of simply quoting from a previous decision without checking the details. However, the Applicant was represented and it would have been open to his representative to clarify this matter if there had been errors in the previous decision.[24]The main ground for complaint both as to unfairness and irrationality is the weight put on the transfer of the Applicant from open to closed conditions. The Applicant while in open conditions reported the fact that he had overheard conversations which he believed showed that the son of the victim in this case had gained access to the prison and was seeking to do him harm. He believed first that he had come in as an inmate but when this proved to be incorrect believed that he had gained access to the prison in some other way. While this was considered unlikely, and there was no evidence to support it, there was evidence that travellers had been gaining access to the prison and had obtained food in the canteen and a previous Parole Board panel had not been able to make any firm factual findings about it. The possible relevance of this was that the initial offence had been committed as a result of the unjustified belief, that the Applicant had, that his children were going to be taken off him. Paranoia was a risk factor. The psychologists do not consider that his reaction in open prison was one of paranoia because he reacted in the correct way by notifying the authorities in the prison.[25]The Applicant also submits that it was irrational for the panel to take the view that the Applicant needed more testing in open conditions before being released.[26]I have considered the Applicant’s submissions with great care. On the assumption that there are errors of fact in the decision as the Applicant says that is very unfortunate and should not have happened. The issue for me however is whether working on that assumption would have made any difference to the decision. Would the decision have been different if the corrections suggested by the Applicant had been made? In my judgment it wouldn’t. The reason for the decision was that the panel thought that the Applicant needed to be tested more in open conditions before being released. They were entitled to take that view even though the psychologists and the POM thought he could be released. The Appellant committed a very serious and brutal offence which was committed at a time when he was probably suffering from some kind of mental illness but not sufficient to establish a defence of diminished responsibility. He has been in prison for a very long time and it is not unusual for a panel to want to see the changes that have occurred while in custody tested properly in open conditions before release bearing in mind the risk of serious harm if he were to re-offend.[27]It was not in my judgment irrational for them to take that view. While the Applicant had done two accompanied ROTLs before he was returned to closed, he had not been out of the prison overnight. Further the panel were entitled to take into account the circumstances of the Applicant’s return to closed in deciding whether more testing in open conditions was required. While the Applicant responded in the right way to his beliefs about the victim’s son by reporting the incident, the panel were entitled to consider that further testing was required to see whether this was something which might recur in open conditions and that the Applicant would continue to respond in the correct way.[28]I have sympathy for the Applicant. He is 10 years over tariff and he has responded to everything that has been asked of him including getting very many qualifications including a degree. One of the problems that faced the panel was his lack of a close relationship with his COM. That does not seem to me to be his fault. The COM does not seem to have had time to make anything but the most limited contact with the Applicant. While the letter written by the Applicant in response to the report might have been unwise, the COM’s report did contain a large number of inaccuracies which seem to be a result of copying and pasting. It is not surprising that the Applicant complained. In hindsight the report should have been given to the Applicant for comment.[29]While I refused the application for reconsideration, I hope that the Secretary of State accepts the recommendation and a transfer to open conditions takes place speedily and that the whole process is moved on quickly. If a further review can take place sooner rather than later that seems to me to be what justice requires. Decision[30]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. John Saunders 7 August 2025