Powell, Application for Reconsideration [2025] PBRA 168 (11 August 2025) [2025] PBRA 168

PBRA

Powell, Application for Reconsideration [2025] PBRA 168 (11 August 2025)

[2025] PBRA 168 · 2025-07-25

[1]This is an application by Powell (the Applicant) for reconsideration of a decision of an oral hearing panel (OHP) dated the 25 July 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

[3]I have considered the application on the papers. These are the dossier consisting of 319 pages, the application for reconsideration drafted by the Applicants legal adviser, the OHP’s decision and the representations by the Secretary of State (the Respondent). Request for Reconsideration

[4]The application for reconsideration is dated 25 July 2025.

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

[6]The Applicant was convicted of being in the possession of a firearm with intent to cause fear of violence. The Applicant, with others, went to the premises occupied by a former partner of the Applicant and by her son. It is thought that one of the co-defendants had a dispute with the son of the Applicant’s former partner. The firearm was discharged twice, once at a window and once at the door of the home of the partner and her son. The Applicant was aged 40 at the time when he was sentenced. He was 41 at the time that he appeared before the OHP. The Applicant was serving an extended sentence consisting of a period of four years and six months with an extension period of one year. The Applicant was eligible for parole when he came before the OHP. He is eligible for release in November 2026. Current parole review

[7]The Respondent referred the matter to the Parole Board in the light of the fact that the Applicant was eligible for parole. The panel hearing took place in July 2025. The panel consisted of an independent chair of the Parole Board and a further independent member. Evidence was given to the panel by a Prison Offender Manager (POM), a prison commissioned forensic psychologist, and the Community Offender Manager (COM). The Applicant gave evidence to the panel and was legally represented. The Relevant Law

[8]The panel correctly sets out in its decision letter dated 25 July 2025 the test for release. Parole Board Rules 2019 (as amended)

[9]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)).

[10]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)).

[11]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

[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 heard the witnesses.

[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

[18]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.

[19]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.

[20]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]The Applicant’s legal adviser fundamentally argues, in this case, that the decision of the panel was irrational and unsupported by evidence. The major support for this argument is the fact that all three professionals who gave evidence were supportive of a direction for release. The panel did not direct release. The submission therefore references the above-mentioned case of Wells . The application is therefore premised on the basis that the panel either did not explain clearly its reasons for declining to direct release or that the reasons were not sufficient to justify its conclusions or both. Discussion

[27]The index offence in this case was serious. The Applicant was convicted of being in possession of a firearm with intent to cause fear of violence in a joint enterprise. The Applicant, with others, had attended the home of a former partner of the Applicant. One of those who attended was in possession of a firearm thought to be a sawn off shotgun. A shot was fired at the window of the home of the former partner. The second shot was fired at the front door. The background to the reason for the offending appeared to be that one of the men had a criminal dispute with the son of the Applicant’s former partner (who lived at the premises with his mother). So far as the Applicant was concerned the matter was made more serious by the fact that he was at the time subject to a suspended prison sentence. The judge, when sentencing the Applicant, indicated that the Applicant had a history of violent and aggressive behaviours in respect of interpersonal relationships. There is an extensive domestic abuse history, against (family members).

[28]The Applicant’s referral to the Parole Board, by the Respondent was considered at an oral hearing.

[29]The OHP were told that the Applicant had completed a thinking skills course. The Applicant had not undertaken any specific work in connection with domestic violence which was a suggested risk factor.

[30]The panel articulated other risk factors including; an entrenched pattern of violent offending; a lack of empathy for victims; an absence of being deterred from offending (despite prison sentences); substance misuse; poor problem-solving skills; impulsiveness; grievance thinking; recklessness; difficulties with intimate partner relationships; and minimisation.

[31]The panel assessed the evidence both oral and written presented at the hearing. The Applicant’s POM, the prison instructed psychologist and the Applicant’s COM had all concluded that the Applicants risk could be safely managed in the community. The view of the professionals was that the Applicant had undertaken the thinking skills course, his behaviour in prison had been positive, and there were plans for the Applicant to undertake further behavioural work in the community. In addition the Applicant’s COM had drafted a robust risk management plan which would have involved residence at Approved Premises, a curfew and help with move-on accommodation. Other outside services would be used including mental health services as the Applicant had some issues relating to mental health historically.

[32]The panel having analysed and assessed the evidence presented at the hearing, and the dossier, set out in some detail (in their decision) the reasons for declining to direct release. Those reasons are articulated between paragraph 4.5 and 4.18 of the decision. In brief the panel determined that the Applicant had limited insight into his risk factors; that the Applicant had an extensive and diverse criminal history accompanied by failures to comply with court orders and other restrictions leading to the conclusion by the panel that the Applicant would be undeterred by fear of a further sentence or indeed by licence conditions and the risk management plan; the panel concluded that the Applicant showed naïveté as to his risks and his strategies for managing those risks; the panel also concluded that the Applicant had minimised his offending and took little responsibility for his behaviour, the panel took the view that the Applicant was reluctant to take responsibility and blamed others for his offending; the Applicant told the panel that he was “ not a violent man ”, the panel felt that this was an incongruous comment in view of the number of violent offences that have been recorded against the Applicant.

[33]The panel detected very little in the way of internal controls demonstrated by the Applicant and therefore were concerned that reliance would be upon external controls to manage risk.

[34]The panel also noted that the Applicant had candidly accepted that he was smoking cannabis throughout his time in prison and that he was likely to continue with his cannabis use in the community. This caused two areas of concern for the panel; firstly the fact that the Applicant has been convicted of offences connected with drugs (including cannabis associated offences) in the past. Secondly, the reality of the situation, namely that the Applicant had made no attempts to curb his cannabis use while in custody and did not appear to have plans to curb that use in the community. The panel were faced with the reality that possession and use of cannabis remains a criminal offence. The panel noted that it was likely that were they to direct release the Applicant would be drug tested in the Approved Premises and may well be subject to intervention by the probation service. The panel were also concerned about the fact that there had been no risk reduction work undertaken by the Applicant in relation to relationships and in particular violence within relationships.

[35]The panel were aware of their requirement to consider risk indefinitely. In the light of the issues set out above the panel concluded that the test for release had not been met.

[36]The panel had the advantage of an extensive dossier of reports and other material, they also had the advantage of seeing and hearing the witnesses and importantly the Applicant. The Applicant was also legally represented throughout. Where there is a conflict of opinion, it is plainly a matter for the panel to determine which opinion they preferred. Provided the reasons given are soundly based on evidence as well as rational and reasonable or at least not so outrageous to be irrational, in the sense set out above, the panel will have applied the test required of them as articulated in Wells .

[37]The reconsideration mechanism is not a process whereby the judgement of the panel when assessing risk can be lightly interfered with. Nor is it a mechanism where a reconsideration panel should be expected to substitute its view of the facts and conclusions, as found by the panel, unless of course it is manifestly obvious that there was an error of an egregious nature which can be shown to have directly contributed to an irrational conclusion by the panel. It will be inappropriate to direct that a decision be reconsidered unless it is manifestly obvious that there are compelling reasons for interfering with the decision of the panel.

[38]It is understandable that the Applicant in this case would be disappointed in the light of the fact that professionals were supporting a direction for release. However, the panel have set out in some detail the basis upon which they had concluded that the test for release had not been met.

[39]I have considered with care whether the panel had justifiable reasons for its decision as required in the case of Wells . I am satisfied that the conclusions are justified on the basis of the evidence cited by the panel. For this reason I am satisfied that this is not a case for reconsideration. Decision

[40]For the reasons I have given, I do not consider that the decision was irrational and accordingly the application for reconsideration is refused. HH Stephen Dawson 11 August 2025