Dowe, Application for Reconsideration [2025] PBRA 169 (19 August 2025) [2025] PBRA 169
PBRA
Dowe, Application for Reconsideration [2025] PBRA 169 (19 August 2025)
[2025] PBRA 169 · 2025-07-11
[1]This is an application by Dowe (the Applicant) for reconsideration of a decision of an oral hearing panel dated 11 July 2025 not to direct the Applicant’s 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 Oral Hearing Panel (OHP), the application for reconsideration drafted by the Applicant’s legal adviser and the response by the Secretary of State (the Respondent). Request for Reconsideration[4]The application for reconsideration is dated 30 July 2025.[5]The grounds for seeking a reconsideration are set out below. Background[6]The Applicant is serving a sentence of imprisonment for public protection. His tariff expired in July 2010. The Applicant had been released on licence on two occasions and recalled. The last release was in December 2019 with the recall in January 2020. The Applicant is now aged 45. He was aged 26 at the time of sentence. The index offences were robbery, false imprisonment, assault (ABH) and theft. The victim of the offence was taken by force from a family home and repeatedly assaulted and robbed. A family member at the family home was also assaulted. The victim was beaten unconscious and left on waste ground. The background was said to be associated with illicit drugs. Current parole review[7]This was the third review since the Applicant’s last recall. The Applicant was legally represented at the oral hearing. The panel consisted of a judicial chair and two independent Parole Board members. Evidence was given at the hearing by a Prison Offender Manager (POM), a prison instructed forensic psychologist, and the Applicant’s Community Offender Manager (COM). The Relevant Law[8]The panel correctly sets out in its decision letter dated 11 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)[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 ) 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 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[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]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) , 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.[24]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[25]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[26]The Respondent offered no representations. Grounds and Discussion Grounds[27]It is submitted on behalf of the Applicant that there was a procedural irregularity because the panel considered a report by the COM which had been prepared and submitted before undertaking a formal interview with the Applicant. It is submitted that the panel should have adjourned the review to allow the COM to secure further information. Discussion[28]The background to this submission was that the Applicant’s COM had made an appointment to interview the Applicant (in June of 2024) before writing the initial probation report for the panel hearing. Before the scheduled date, the probation officer was told by the prison that the Applicant had cancelled the arranged appointment and had gone to work instead. Later the Applicant’s solicitor contacted the COM to say that there had been an error, and that the Applicant had in fact not been notified of the interview. The COM was required to submit a report and upload it to the dossier within a timeframe. The COM therefore prepared a report on the basis of collateral evidence and that report was placed on the dossier. The COM did not recommend release.[29]The Applicant’s COM then undertook a further interview with the Applicant, in July 2024. At that interview, the Applicant indicated that he was aggrieved by the fact that a report (June 2024) had been written which was not supporting release without an interview having taken place. It was explained to the Applicant that the probation officer had a requirement to submit a report within a timeframe and had done so on the basis of collateral evidence. The Applicant, at that interview was given an opportunity to discuss and possibly challenge what had been written. The Applicant in fact was angry and abusive, and terminated the interview.[30]Further interviews were conducted in May and June of 2025. It is reported that the Applicant was civil, in his exchanges with the COM at these subsequent meetings. Upon the instructions of the Parole Board the COM wrote an update report which was submitted and updated to the dossier and dated 18 June 2025. The COM also gave oral evidence at the hearing.[31]Additionally, there was a psychological risk assessment prepared and written by a prison instructed chartered psychologist dated April 2025. The psychologist also gave evidence at the hearing.[32]The Applicant in this case was substantially over tariff. He had been released on licence on two occasions. On both occasions he had been recalled fairly quickly and there had been concerns about his risk in the community.[33]Following his most recent recall the Applicant had been referred to the Parole Board (for a review of his sentence) on an earlier occasion and a hearing had taken place in January 2022. The January 2022 panel analysed in some detail the background and the current position. The view of that panel was that there were outstanding core risk factors which meant that the Applicant’s risk could not be managed in the community. The major concern was the determination that the Applicant had a history of difficult relationships with professionals, particularly those who sought to challenge him. (He was apparently able to have good relationships with those who did not challenge him).[34]There was also evidence recorded, by that earlier panel, of abusive and controlling behaviour towards partners and of a general risk to partners and those with whom the Applicant might form a relationship.[35]By the time of the current (2025) oral hearing, the panel noted that there had been no progress in terms of addressing the risk factors which have been identified by the earlier panel and which the current panel also identified.[36]In its concluding remarks the panel noted that previous allegations explored by a previous parole panel made significant findings and were adopted by the current panel. That panel had concluded that the Applicant did not accept or understand that he had any outstanding areas of risk to be addressed, in particular in relation to relationships; that there was a difference between behaviour in a custodial setting and that in the community as observed by both the COM and the prison instructed psychologist; that the risk management plan proposed was similar to that which have been proposed when released on licence on an earlier occasion and that the Applicant had failed to comply with that plan. Also noted was that the Applicant had a difficult attitude towards supervision, which would impact on manageability in the community; that the Applicant indicated (on the basis of some of his interjections at the hearing) that he was likely to have a negative attitude towards compliance and finally that there was core risk reduction work which had not been undertaken.[37]Whilst there may have been other factual matters which could have been investigated, prior to the hearing, for example the mental health of a partner. I am not persuaded that the Applicant or the panel were unfairly constrained by the evidence which was available at the hearing.[38]It is argued by the Applicant’s legal adviser that there were gaps in the evidence. I am not persuaded that the identified gaps were material. Matters such as improving the exclusion zone parameters or the current state of the Applicant’s relationships, were matters which did not in my determination amount to material issues impacting upon the decision of the panel regarding risk.[39]The Applicant himself had decided that he would elect not to offer evidence at the parole hearing. As the chair pointed out, the Applicant had no obligation to contribute to the hearing by way of evidence or otherwise and was at liberty to choose not to engage with the hearing, in terms of giving evidence. However inevitably the panel were not offered the Applicant’s view of the situation at the oral hearing and had no current representations from the Applicant upon which they could rely.[40]The Applicant’s legal adviser also accepts that neither the legal adviser, nor the Applicant himself, sought to adjourn the review. In cases where a party to a Parole Board hearing has been present and been represented by a lawyer it is highly unlikely that a successful appeal will be generated if there had been no challenge made to the alleged irregularities by the Applicant or his legal adviser during the hearing itself.[41]The role of the Parole Board panel is not to undertake the task of gathering evidence for either party. A Parole Board is obliged to reach a conclusion upon the evidence presented by the parties at the hearing. The parties have substantial time in advance of the hearing to seek further evidence or to seek orders to adduce further evidence.[42]It is also the duty of the Parole Board, pursuant to Article 5(4) of the European Convention on Human Rights, to provide a speedy review of the prisoner’s detention. Reviews must be delayed as little as possible.[43]I have therefore considered the submissions presented by the Applicant’s legal adviser. I am not persuaded that the Applicant was prevented from fairly and fully presenting his case at the oral hearing. I am also not persuaded that the panel acted irregularly in proceeding upon the basis of the evidence available at the hearing. Decision[44]For the reasons I have given, I do not consider that the decision was procedurally unfair and accordingly the application for reconsideration is refused. HH S Dawson 19 August 2025