Brown, Application for Reconsideration [2025] PBRA 175 (19 August 2025) [2025] PBRA 175
[1]This is an application by Brown (the Applicant) for reconsideration of a decision of an oral hearing panel dated the 14 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(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 representations by the Applicant’s legal adviser relating to reconsideration and the response by the Secretary of State (Respondent). Request for Reconsideration[4]The application for reconsideration is dated 3 August 2025.[5]The grounds for seeking a reconsideration are set out below. The Applicant’s legal adviser most helpfully set out focused grounds upon each of the issues to be considered in relation to reconsideration. Background[6]The Applicant is serving an extended sentence of imprisonment. The sentence consists of 51 months imprisonment and a three year extended licence. The Applicant was aged 18 at the time of sentence. He was aged 22at the time of the OHP. The index offences were wounding contrary to section 18 of the Offences Against the person Act. The Applicant was also convicted of being in possession of an offensive weapon. The facts of the index offence were that the Applicant had a verbal altercation with another person. The dispute was said to be linked to gang rivalry. The Applicant was allegedly threatened by the victim. The Applicant then left but returned and stabbed the victim with a lock knife to the abdomen area. The Applicant was aged 17 at the time of the index offence. Current parole review[7]The Applicant was released automatically from prison in June 2024. He was recalled in August 2024 having had difficulties at the approved premises where he was living. This was the Applicant’s first review following his recall. The oral hearing panel consisted of an independent chair and a psychologist member of the Parole Board. Evidence was given at the hearing by a Community Offender Manager (COM) and a Prison Offender Manager (POM). The Applicant was legally represented and gave evidence himself. The Relevant Law[8]The panel correctly sets out in its decision letter dated 14 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)). 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 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).[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. Error of law[20]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.[21]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[22]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[23]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[24]The Respondent offered no representations. Grounds and Discussion Ground 1[25]It is submitted on behalf of the Applicant that the failure of the oral hearing panel to secure further evidence relating to an adjudication for fighting was procedurally unfair. Discussion[26]This submission arises from a prison adjudication which the oral hearing panel considered during the course of the oral hearing. The Applicant had been involved in a physical altercation with another prisoner. The evidence received at the oral hearing was that prison officers came upon a fight between prisoners, they had seen the Applicant throwing a punch, and the prison officers tried to intervene. Despite the intervention by officers, the Applicant continued fighting. Both prisoners were placed on a report and were adjudicated for fighting.[27]The Applicant in this case submitted that he was acting in self defence, and that he had been initially attacked by the other prisoner. The Applicant had explained, in the hearing, that the other prisoner had followed him into a laundry area. The other prisoner apparently had “issues” with the Applicant. The Applicant said that the other prisoner stood in the exit area and prevented the Applicant from leaving. The other prisoner then allegedly lunged towards the Applicant and the Applicant fought back. The Applicant denies the contention by the prison officers that he continued fighting after they tried to intervene.[28]The panel assessed the evidence that was presented at the oral hearing. It is argued that the panel should have secured further evidence for instance CCTV or similar. The panel’s position, at the oral hearing, was that there had been an adjudication, which had not been appealed and was binding upon the Applicant. The panel were able to assess security notes which were recorded in writing by members of staff. These notes referred, in particular, to the Applicant continuing to fight after the staff arrived.[29]In assessing evidence of this nature, including collateral allegations, the panel were entitled to weigh the evidence before them, and to reach a conclusion on the balance of probabilities. It is clearly established by the case of Pearce and by the Parole Board published Guidance on Allegations that the panel have a right and a duty to consider allegations within the framework of the case of Pearce. The panel’s major concern was the fact that the Applicant was involved in and resorted to violence to resolve a dispute, and that he had a background of violent behaviour. The panel gave a clear analysis of how they had assessed the incident involving the fight in prison. The panel indicated that, even if the incident was one which involved self defence, the panel were concerned about the Applicant’s emotional control and problem solving techniques. The panel were also concerned about the fact that the Applicant continued to fight after the staff intervened. The panel therefore rejected the Applicant’s contention that he did not fight when the officers intervened. The panel were entitled to reach a conclusion upon these facts. That conclusion was on the basis of the written reports by prison officers who were actually present at the incident. The panel also found, in support of their concerns about imminent violence, the fact that there had been intelligence reports both before and after the adjudication relating to violence associated behaviour by the Applicant. Therefore there existed a pattern of concerning behaviour associated with violence and the Applicant. The panel were also entitled to reach a conclusion that the Applicant was a person who minimised his responsibility for negative behaviour, and took relatively little responsibility for such behaviour.[30]Given all these factors I am not persuaded that the panel reached their conclusions, relating to the adjudication and in relation to the Applicant’s risks generally, either irrationally or by procedural unfairness. The decision in Pearce makes it clear that panels will be making assessments on the basis of the evidence before them. Panels are obliged to ensure that they apply the appropriate test set out in the case of Pearce, I am not therefore persuaded that there lies an obligation upon panels to continue to call for evidence in circumstances where the evidence before them, is, in their view, sufficient to reach a conclusion on the balance of probabilities. Reliance could not be placed upon evidence which was insufficient as set out in the case of Pearce. The panel clearly concluded in this case that there was sufficient evidence upon which a conclusion on balance could be reached. Ground 2[31]The panel failed to give sufficient reasons for their conclusion that the test for release was not met. In particular the panel acted irrationally in not following the recommendations of the POM and COM in this case, both of whom recommended that the Applicant be released. Discussion[32]As noted above in the case of Wells it is well established that sufficient reasons must be shown by a panel to support a decision. A panel are also obliged to indicate the evidence upon which they have concluded that the Applicant’s risk (in this case) could not be managed in the community. The panel are additionally obliged to indicate why they had not followed the recommendations of professionals.[33]The panel, appropriately, approached the issue of the Applicant’s future risk on the basis of both the historical evidence and the more recent evidence of behaviour.[34]The panel were entitled to refer to the index offence which was a serious attack with a knife. The panel were also entitled to comment upon the fact that the Applicant had never offered an explanation as to how and why the (index offence) attack occurred. In more recent times the Applicant had been in approved premises. There had been issues regarding compliance and on searching the Applicant’s room a flick knife had been found (the Applicant denied knowledge of the knife and suggested it was placed there by the AP staff). The panel indicated that they concluded that the explanations given by the Applicant for negative behaviour showed clear signs of minimisation and denial. This, for the panel, was evidence of a failure to take responsibility for his risky behaviour and an indication by the panel that the Applicant’s explanations and reliability in terms of self reporting were questionable.[35]As indicated above, the panel also indicated a concern relating to the incident which resulted in a fight, and where the Applicant (on the finding of the panel) continued fighting when staff try to intervene.[36]Taking these matters into account the panel took the view that if faced with conflict, and feeling fearful, the Applicant had the capacity to respond with violence. The finding of a weapon in his room in the approved premises was concerning as it was an indication that the Applicant could well return to his previous thinking and lifestyle which involved violence, weapons and impulsive behaviour.[37]The panel therefore clearly set out in the decision the basis of their findings and conclusion. The panel did not accept the assessment of the POM and COM in this case. Both professionals had concluded, that despite the evidence of negative behaviour and potential violence the Applicant’s risk of serious harm in the community was not imminent and could be managed. The panel disagreed, and felt that the evidence of behaviour both before recall in the approved premises and in prison (as evidenced by the adjudication and the negative security entries) was sufficient for the panel to conclude that there was a high risk and an imminent risk of serious harm.[38]Having concluded that the risk of serious harm was high and imminent, the panel were therefore obliged to apply the public protection test. The panel in my view explained the reasons for rejecting the recommendations of the professionals, and supported their explanation with evidence which had been adduced at the hearing and in the dossier. The panel took a more serious view, than the professionals, of both the historical evidence of violence and the more recent incident in prison and the security material.[39]The panel had the advantage of an extensive dossier of reports and other material. They had the advantage of seeing and hearing the Applicant as well as the witnesses. The Applicant was also legally represented throughout. Where there are conflicting opinions as to behaviour and other matters it is plainly a matter for a panel to determine which opinion they preferred. Provided the reasons given are explained and soundly based upon evidence, it would be inappropriate to direct that the decision be reconsidered, unless it is manifestly obvious that there are compelling reasons for interfering with the decision of the panel.[40]Panels of the Parole Board are not obliged to adopt the opinions and recommendations of professional witnesses. It is their responsibility to make their own risk assessments and to evaluate the likely effectiveness of any risk management plan proposed. They must make their own minds up on the totality of the evidence that they hear including any evidence from the Applicant. They would be failing in their duty to protect the public from serious harm (while also protecting the prisoner from unnecessary incarceration) if they failed to do just that as was observed in the divisional Court in DSD, they have the expertise to do it.[41]In all the circumstances I am not persuaded that the panel’s decision in this case was procedurally irregular or irrational and I make no order in relation to reconsideration. Decision[42]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. HH S Dawson 19 August 2025