Djima, Application for Reconsideration [2025] PBRA 173 (18 August 2025) [2025] PBRA 173
PBRA
Djima, Application for Reconsideration [2025] PBRA 173 (18 August 2025)
[2025] PBRA 173 · 2025-06-27
[1]This is an application by Djima (the Applicant) for reconsideration of an oral hearing decision dated the 27 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 1193 pages and the application for reconsideration. Request for Reconsideration[4]The application for reconsideration is dated 28 July 2025 and has been drafted by representatives on behalf of the Applicant. It submits that the decision is irrational in failing to give reasons and procedurally unfair in its consideration of the allegation of assault, that the panel’s assessment of the Applicant’s conduct was misrepresented and that the refusal to allow an opening statement was unfair.[5]The details of the written arguments will be referred to in the Discussion section below. Background[6]The Applicant received a sentence of imprisonment for public protection on 23 December 2009 following conviction for an offence of threats to kill. His tariff was set at two years six months.[7]The Applicant was 29 years old at the time of sentencing and is now 45 years old. Current parole review[8]The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) in June 2021 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 Secretary of State whether the Applicant should be transferred to open conditions.[9]The case proceeded to an oral hearing which was held face to face on 21 May 2025. The panel consisted of two independent members and a psychologist member. It heard oral evidence from the Applicant, together with his Prison Offender Manager POM), Community Offender Manager (COM) who gave evidence by videoconference and a prison psychologist. The Applicant was not represented through the hearing. The Relevant Law[10]The panel correctly sets out in its decision letter dated 27 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)[11]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)).[12][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)).][13]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 14.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. 15.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. ” 16.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). 17.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. 18.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. 19.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.[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.] The reply on behalf of the Secretary of State 24.The Respondent has not submitted any representations in response to this application. Discussion 25.Ground 1 - The decision of the Board to refuse the attendance of DHL. The application, which contains much narrative and less in the form of clear submissions, provides no explanation as to who DHL, who the ground states the Board refused to allow to attend, refers to. 26.The application notes the decision of the panel to consider the principles in Pearce [2023] UKSC 13 and repeats the correct enunciation of the principles by the panel (paragraph 14 of the application letter). The application states (paragraph 17) that the panel incorrectly stated that the Applicant “ failed to accept responsibility for the injuries caused to the officer ” when the Applicant’s instructions are that “ he acknowledged that he may have caused injury to the officer but that was not his intention ”. The panel has recorded the evidence of the Applicant, there is no suggestion that anyone else caused the injury to the officer and the important finding made by the panel was that it did not accept the Applicant’s claim of self-defence. The grounds do not explain how, even if his account was wrongly stated, it would amount to a ground for reconsideration. 27.The application submits (paragraph 18) that the panel references written submissions by the Applicant but none exist and “ it is of concern that the Panel has made reference to material that does not exist ”. The panel notes at the outset of the decision that the Applicant had attended the hearing with lengthy submissions on a laptop (which were not read or given to the panel) and at the end of the hearing the Applicant had made closing submissions which were based on reading the closing paragraph of his written submissions. Those written submissions were never passed to the panel. The panel made it clear that it did not receive any written submissions and the inadvertent mention of them at paragraph 2.14 was clearly an unfortunate slip. There is nothing in that paragraph or any other quoting or making reference to specific submissions. 28.The application submits (paragraphs 20 to 34) that the panel failed to make proper enquiry into the allegation. It is submitted that the panel should have requested the CCTV evidence, the trial transcript and attendance of witnesses from the criminal trial. It is further submitted that as the Applicant was unrepresented and has vulnerabilities and as such the panel “ should have, of its own volition explored those avenues ”. 29.It was not necessary for the panel to call that evidence. As the panel correctly reminded itself it is not a court of criminal law, it is not tasked with making decisions on culpability for criminal offences. The panel had all necessary statements and documents in the dossier and most crucially they were able to take evidence directly from the Applicant himself. The panel was also entitled to take into account the Applicant’s character and antecedents and that, together with the evidence he gave led the panel to the conclusion that the Applicant was responsible for striking the custody officer and had done so in circumstances when he was not under threat and did not need to defend himself. That finding was properly open to the panel and was neither irrational nor unfair. 30.Ground 2 - General view reached regarding the conduct of the Applicant. The application argues that the panel’s assessment of the Applicant’s custodial conduct is a misrepresentation and has taken into account issues in dispute without resolution. The grounds submit that the decision letter does not make it clear whether it has taken into account 77 adjudications, or 77 proved adjudications, that the Applicant does not accept all the references and disputes some of the entries which are not assessed by the panel and that the panel failed to explain its reasons for accepting some of the entries. 31.The application is correct in noting that the panel does not have to enquire into every disputed issue. There is no merit in this ground which seeks to reargue matters which are already placed on the Applicant’s custodial record. Even if the entries the Applicant disputes are removed, the point made by the panel is a valid one, namely that the Applicant has accrued a large number of entries which need to be balanced against the improved behaviour shown. 32.Ground 3 - Refusal of request to make an opening statement. There was no unfairness in this refusal. The panel explained why it could not hear an opening statement and made alternative suggestions to the Applicant. The Applicant’s response to the submission of written representations is set out in the decision letter. The application does not identify what difference the reading of a lengthy opening statement would have made in a case in which the Applicant was present and able to give oral evidence directly to the panel. Decision 33.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. Barbara Mensah 18 August 2025