Waszczuk, Application for Reconsideration [2025] PBRA 170 (13 August 2025) [2025] PBRA 170

PBRA
Waszczuk, Application for Reconsideration [2025] PBRA 170 (13 August 2025)
[2025] PBRA 170 · 2025-07-01
[1]This is an application by Waszczuk (the Applicant) for reconsideration of a decision of an oral hearing panel dated 01 July 2025 not to direct release but to recommend transfer to open conditions.[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 now consisting of 567 pages, the panel decision, and the application for reconsideration drafted by the Applicant’s legal representatives. Request for Reconsideration[4]The application for reconsideration is dated 21 July 2025.[5]The grounds for seeking a reconsideration are that the panel’s decision was irrational for the following reasons: a) That the panel (wrongly) relied on evidence that the Applicant had used violence, or was alleged to have used violence while on licence in the community and in custody since his return to prison. The Applicant denied some allegations and admitted others, but gave reasons for the admitted violence that the panel should have taken into account. b) That in relation to one of the allegations, the panel expressed concern that the Applicant may have been the instigator of the violence. This concern arose out of evidence in the dossier which was hearsay, and the panel, while acknowledging it must use caution when considering unproven allegations, should not have concluded that the Applicant may have instigated violence. In this regard the panel had evidence that the Applicant was the victim of an assault. Any evidence that he started the fight was untested and vague. Background[6]The Applicant is serving a sentence of imprisonment for public protection (IPP) for the index offence of causing grievous bodily harm with intent. He was also sentenced at the same time for breach of a community order. He was given a tariff of 4 years, this expired in March 2010. He was 18 years old at the time of sentence. The Applicant, after completing offence focused work, was transferred to open conditions on three occasions but on each occasion was returned to closed conditions for a variety of reasons. A panel of the Parole Board heard his case in January 2023 and directed his release on licence. He was released on 3 April 2023, however he was recalled and returned to custody on 30 December 2023. Current parole review[7]The Secretary of State’s referral is dated 5 February 2023, however this would have been in error since the Applicant was not recalled until after this date. The correct date would be 5 February 2024. The referral is to consider release on licence or, failing that, to advise whether the Applicant was suitable for open conditions. A single member of the Parole Board considered the referral in April 2024 and made a decision to conclude the review on the papers. That single member panel made a preliminary decision of no direction for release and no recommendation for open conditions. Following legal representations for an oral hearing, the case was directed to an oral hearing by a Duty Member. The case was listed for a hearing in October 2024 but deferred in September by the panel chair who determined that insufficient time had been allocated for the hearing. It was relisted in May 2025 and evidence taken, however it was adjourned on the day for further information prior to conclusion on the papers. The panel considered this further information after the second hearing, along with written concluding submissions, before making its decision. The Applicant was 37 years at the time of the oral hearing.[8]The panel consisted of three independent members. The decision letter indicates that the dossier ran to 541 pages after the further evidence was added to the dossier. The dossier contained mandatory information about the index offence, prior convictions, reports from psychologists, the Prison Offender Manager (POM) and the Community Offender Manager (COM), information relating to work undertaken by the Applicant to reduce risk, the release decision of the Parole Board in 2023, recall reports and police reports as well as information relating to custodial behaviour. There were legal representations, these included the request for an oral hearing as noted above and the written concluding submissions. Oral evidence was taken from the POM, the COM and from the Applicant. The Relevant Law[9]The panel correctly sets out in its decision letter 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)).[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)).[12]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[13]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.[14]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. ”
[15]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) .[16]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.[17]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.[18]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. Other[19]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. "[20]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[21]The Secretary of State made no submissions on this application. Discussion[22]I will consider both issues raised together as they relate largely to the same issue, which is the manner in which the panel weighed the evidence regarding the allegations and admitted violent behaviour before it.[23]With respect to allegations and the case of Pearce cited by the panel and referred to by the application for reconsideration, it might be useful for the purposes of this reconsideration to provide a brief but helpful summary of the principles in the Guidance provided to the Parole Board on allegations. These are as follows:[24]Certain principles must be followed by the Board when considering allegations, as set out by the Supreme Court in the case of Pearce (2023) UKSC 13 on appeal from (2022) EWCA Civ 4 .[25]These principles have been embedded throughout the ‘ Guidance on Allegations’, and are summarised here: · Panels must make objective decisions based on all information provided/obtained from panel inquiries, undisputed facts, disputed but relevant allegations where the panel has made a finding of fact, and relevant allegations where there is no finding of fact, but the panel considers the serious possibility that the allegation is true. · Assessments of risk must be evidence-based. · The consideration of allegations is subject to the overriding requirement of fairness, and panels need to ensure that they comply with procedural fairness by giving the prisoner a fair opportunity to contest any allegations. · Allegations should only be considered when relevant to the panel’s assessment of risk, or otherwise disregarded. · Panels must always investigate allegations that are relevant and make findings of fact where possible. · When unable to make a finding of fact, panels must proceed with considerable caution in the interest of fairness. · Panels cannot make a determination of guilt or find the prisoner guilty of a criminal offence, they can only determine a finding of fact. · The standard of proof that must be met to justify a finding of fact is the civil standard, namely the balance of probabilities, which is less than applied in criminal courts which require proof beyond reasonable doubt. · When unable to make a finding of fact the panel should consider whether there is a serious possibility that the allegation may be true. · Panels should record in their reasons what, if any, findings of fact have been made.[26]With respect to the evidence considered by the panel in relation to allegations, this can helpfully be sub-divided into allegations that led to the Applicant’s recall, and allegations relating to behaviour in custody since recall. Allegation leading to recall:[27]Evidence considered by the panel included (but is not restricted to) the original allegation (this is what led to the Applicant’s return to custody) that was listed in the recall report (Part A); legal representations on behalf of the Applicant indicating that no further action would be taken on the grounds of insufficient evidence; further information directed by the panel that had deferred the review; and oral evidence taken by the panel from witnesses at the oral hearing as well as from the Applicant. In brief, the allegation was that the Applicant had assaulted a person and was in possession of a knife.[28]The decision letter provides a very detailed account of the evidence considered by the panel and its analysis of the evidence in relation to this allegation. Evidence was taken from a police report which included witness statements. The panel explains that there was no corroborating information such as CCTV footage, it was essentially one person’s account against another (ie the alleged victim and the Applicant who denied being involved in any way). The alleged victim, it was reported, was also difficult to engage with by the police. It was explained in the decision letter that this was the reason for the matter not being taken any further by the police. The Applicant’s account of the incident was provided in the decision letter, first briefly at the end of the account of the allegation and then later, where a long and detailed account of the circumstances of the Applicant’s engagement with the alleged victims (and others relevant to the incident) was provided. In brief, in the oral evidence provided by the Applicant, the decision letter records that there had been an altercation with the alleged victim(s), this was in relation to the alleged victims preying on a vulnerable friend of the Applicant’s, and that the Applicant disclosed that he had grabbed one of them “by the scruff of the neck” and escorted them out of this friend’s home. Allegations were made following this incident. The Applicant denied having any knife. The decision letter further states that the Applicant told the panel that he had done nothing wrong and was trying to protect a friend, and it was in his nature to do this.[29]In my opinion the panel satisfied the requirements of Pearce in considering the allegations and investigating the evidence in relation to it.[30]I now turn to the conclusion, if any, that the panel reached about these particular allegations, having considered the evidence. This is difficult to do to some extent because the panel has, understandably, considered the various violent or alleged violent behaviours as a whole rather than separated them out as I have, but from the letter it is evident that the panel was concerned about the Applicant’s response when faced with conflict, and also that he justified this behaviour. The Applicant is reported to have stated that he had used force to eject people from his friend’s house, and then justified it by saying he was doing it to protect a friend. The panel considered this behaviour lacked problem solving skills, which was an identified risk factor for the Applicant. The panel was however very clear that in relation to the actual allegations, and I quote, “ Given [] the lack of supportive evidence, the Panel cannot make a finding of fact on this matter and to do so would not be evidence led” .[31]I can find no irrationality in the approach of the panel to the allegations that led to recall. In relation to concerns raised about the circumstances of the recall, the panel took into account the admitted use of force by the Applicant. I consider this to be not just reasonable, but necessary for any panel to consider in relation to future risk. Allegations relating to custodial behaviours:[32]Evidence considered by the panel in relation to custodial behaviours included (but is not restricted to) reports from the prison service including security intelligence and adjudications papers; reports from professional witnesses; oral evidence from professional witnesses at the hearing and the Applicant’s evidence at the hearing. The panel also took into account written legal representations on custodial behaviours. The panel noted that the Applicant had not accrued any proven adjudications in relation to what they referred to as ‘significant’ security intelligence. The decision letter helpfully details the evidence from the dossier considered by the panel, as well as the evidence of the witnesses and the Applicant’s account. I note that the panel expresses concerns at the number of security issues.[33]In my view the panel discharged its duties to ensure that it had made all reasonable attempts to obtain evidence about these matters prior to scrutinising them.[34]I now turn to the evidence about custodial matters taken at the hearing. The panel took detailed evidence from the POM, whose role it is to understand and manage a prisoner’s custodial conduct and engagement in prison. The POM is reported as stating that although none of the adjudications were proven, she put weight on the allegations relating to violence as these were reported by staff. The letter also reports that she was further concerned about the intelligence relating to drugs and drug dealing. She reported that on the one occasion that the Applicant tested positive for illicit drugs (March 2025) the adjudication did not make a finding because it was timed out.[35]In relation to the Applicant’s oral evidence relating to these many security concerns, the panel detailed his responses in the letter. He admitted to using illicit drugs since his return to custody on more than one occasion and that the last one was only three days before the oral hearing. In relation to any allegations of violent behaviours as stated in the security intelligence since recall, the Applicant appears to have denied most of them at the oral hearing but accepted two events occurred, one being in March 2024 and the other in May 2025. I consider them in more detail below.[36]I note that the March 2024 incident is reported in the dossier as the Applicant being involved in a fight with another prisoner. The adjudication was not proceeded with, apparently because of contradictory statements. The POM however told the panel that she put weight on the intelligence because an officer had reported seeing the Applicant throw a punch. The Applicant provided a detailed account at the oral hearing, effectively stating that he was punched by the other prisoner. There is no admission of any violence from him. The account in the prison intelligence does indicate that he might have been the instigator. The account of the POM was that she believed the entry because it had been made by the officer. The account from the Applicant was that he was the victim of an assault.[37]The panel, in its consideration of this security intelligence and having taken further evidence, states that “ whilst the Panel cannot make a finding of fact as to if he has been an instigator of violence since recall, having heard the oral evidence, the Panel does not dismiss them and as outlined they indicate presence of some known risk factors”.[38]The panel also states that “there is more convincing evidence that the Applicant may have been the instigator of violence as an officer reported that ‘on entering the cell he proceeded to start a fight’” . The panel also specifically accepts representations made by the Applicant’s legal representatives at the time that the panel must be cautious on placing weight on any adjudications (following intelligence) that have not been proceeded with.[39]Written evidence in the dossier about this incident can be found in adjudication papers. I have read the report of an officer, who states that the Applicant was seen entering another prisoner’s cell and on entering the cell “ he proceeded to start a fight…” . It is then reported that the officer shouted for them to stop and the Applicant stopped and was escorted back to his cell.[40]I also notice that the reason given for the fact that the adjudication was specifically rejected (i.e. not found) was “Flawed notice of report - Evidence on the 3 adjudication hearings that are linked are not consistent with each other and contradict each other” .[41]While the decision letter does make clear no finding of fact is made, in my opinion having very carefully read the decision letter, the panel did put a significant amount of weight on the report of the officer as recorded in the adjudication papers, as well as the POM’s interpretation of the event. The original author of the piece of intelligence was not questioned by the panel and the adjudication papers indicate the reason for dismissing the adjudication was inconsistent and contradictory reports of the incident. The panel had before it, other than the above, the POM’s interpretation of the intelligence, and the Applicant’s account of what he said happened. A finding of fact with this evidence would in my opinion be unsafe.[42]I consider that, taking all the evidence into account, a finding of fact was not made, however the panel did consider that there was a serious possibility that the allegation was true. In my opinion the panel’s analysis meets the requirements of the Parole Board guidelines on allegations following the case of Pearce . I do accept that they could have explained their consideration more clearly.[43]I now turn to the May 2025 security intelligence. This is less problematic because the Applicant, in his account to the panel, admits the use of violence albeit in self defence. The panel had read the intelligence that the Applicant had been involved in a fight with another prisoner. The Applicant told the panel that a prisoner had asked to borrow vapes, and that when he had refused, this prisoner had punched him in the mouth, causing him to lose a tooth. The Applicant stated that he had punched the attacker once in response to defend himself. The panel noted that the adjudication for this had been dismissed because the paperwork was incorrect. The panel also noted witness statements in the dossier that supported the Applicant’s account, although the panel states they do not place extensive weight on these statements as they were from ‘unknown provenance’.[44]I cannot find any ‘finding of fact’ in relation to this May 2025 incident, however it was not necessary as the Applicant had admitted using violence. The panel does generally indicate concerns about the use of violence and the justification for this behaviour provided by the Applicant.[45]I now turn to the overall decision of the panel. I note that in relation to the admitted violence (the circumstances leading to recall and removing someone ‘by the scruff of their neck’ and the punch to the prisoner in custody in May 2025), the application for reconsideration states that “ It is suggested that to conclude (the Applicant) has demonstrated poor problem solving skills where he has only admitted to using reasonable and proportionate force that any member of the public would be entitled to use is irrational. ” With respect, I disagree. A person wishing to remove someone from a friend’s property or protect that friend from others can take a number of steps, including calling the police, or taking that friend away from the problem. The need to protect someone else can be a risk factor if the response is a violent one. Use of violence is a known risk factor for the Applicant.[46]A violent response to violence (the May 2025 custody incident) is similarly a problem if a prisoner has in the past been known to react violently, as in the case of the Applicant. The application also states that it is irrational that the panel stated concerns that the Applicant justified his use of violence (protecting a friend/defending himself). Given the Applicant’s background including his past custodial history, I consider that the panel’s concerns are reasonable and not irrational. The prisoner, having undertaken a range of offence focused work and being familiar with the requirements of any community licence or prison rules, was on notice as to what he needed to evidence for progression. It was reasonable for a panel to conclude that the Applicant did not apply problem solving skills at the time of the incidents.[47]I also note that the decision of the panel is not entirely focused on the alleged or admitted incidents of violence. The panel explored a large number of security reports since his return to custody including substance misuse (also raised as a concern before his recall), and allegations of threatening behaviour. The panel considered the Applicant’s risk factors and assessment of risk (he was assessed as a high risk of serious harm), and the recommendation of the POM that he did not meet the test for release. With regard to the other professional, the COM who did support release, the panel noted that this professional had limited knowledge of the Applicant compared with the POM, who had known him for ‘significantly longer’. The panel stated that taking into account the codified test for release, the Applicant did not meet it.[48]The single aspect of the decision that has given me concern was, as I stated, the panel’s assessment as to the incident of the alleged violence of March 2024. I have already explained my concerns about this above.[49]It does not mean, however, that the conclusion that the panel made in taking all the available evidence before it is irrational. In making its decision, the panel’s concerns about the March 2024 incident form only part of their reasoning. The panel refers to admitted violence (which I have already considered), the concerns about justification of the violence, the lapses into substance misuse, the Applicant’s historical custodial conduct along with the recommendation of the POM in making its decision. The panel also considered the positive aspects of the Applicant’s custodial journey and made a decision that while he did not meet the test for release he did meet the test for transfer to open conditions. In my view the test for irrationality is not met with respect to the final decision made by the panel. In doing so I have carefully taken into account all the relevant caselaw (cited above). Decision[50]For the reasons I have given, I do not consider that the decision was irrational and accordingly the application for reconsideration is refused. Chitra Karve 13 August 2025