McGee, Application for Reconsideration [2025] PBRA 186 (02 September 2025) [2025] PBRA 186
[1]This is an application by McGee (the Applicant) for reconsideration of a decision of a panel of the Parole Board making no direction for release dated the 22 July 2025 following an oral hearing on 18 July 2025.[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 application for reconsideration, the decision and the dossier consisting of 327 pages. I have been asked to listen to the recording of the hearing. I have not done that as I do not consider it to be necessary in order to properly and fairly consider this application. Request for Reconsideration[4]The application for reconsideration is dated 8 August 2025. The grounds for reconsideration are that the decision was procedurally unfair in that:(a) Express procedures laid down by law were not followed in the making of the decision.(b) He (the Applicant) was not given a fair hearing.(c) The panel did not properly record the reasons for any findings or conclusion.(d) The panel was not impartial. Background[5]The Applicant is serving an extended determinate sentence for offences of sexual activity with a child, child abduction and burglary imposed on 14 April 2023. The custodial period of the sentence was four years with an extended licence of 30 months. Current parole review[6]The case was referred to the Parole Board on 29 May 2024 and this was the first review. The Applicant was 21 at the time of the hearing.[7]The panel who heard the case on 18 July 2025 was made up of two independent members and a psychiatrist. The panel heard from a prison psychologist, the Prison Offender Manager (POM) and a stand in Community Offender Manager (COM). The Applicant was represented by a lawyer. The Relevant Law[8]The panel correctly sets out in its decision letter dated 22 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)). Procedural unfairness[11]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.[12]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.[13]The overriding objective is to ensure that the Applicant’s case was dealt with justly. Reconsideration as a discretionary remedy[14]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 (the Respondent)[15]The Respondent has made no submissions in response to this application. Discussion[16]The grounds for reconsideration, in brief, are that the panel did not look at the case in sufficient detail in that they did not ask questions which were necessary to establish risk and see whether there were measures which could be taken to enable the Applicant to be released. The panel had made up their minds before they heard the evidence. I accept what is said in the application about the lack of questioning by the panel of the witnesses and that is why I have not found it necessary nor helpful to listen to a recording of the hearing. I will deal with the application on that basis.[17]The Applicant is young; has had a very troubled background and suffers from attention deficit hyperactivity disorder as well as other difficulties that he has. He requires a great deal of help. It is however apparent from a detailed consideration of the dossier that he is not safe to be released at the moment. That is the opinion of all the professional witnesses which is supported by evidence.[18]The psychologist identifies work which needs to be done in closed conditions. The conduct of the Applicant in prison along with other matters has led the POM and the COM to recommend that the Applicant remain in closed conditions where it is hoped his problems can be addressed.[19]The panel do not need to follow the recommendations of the professionals but the contents of the dossier will form the evidential basis for any consideration of whether to release.[20]A parole hearing is an inquisitorial hearing. It is for the panel to decide how much they need or want to ask the witnesses. They will all have read the dossier in detail and will have reached a provisional view of what areas they want to investigate further in the evidence.[21]The legal representative will have had the opportunity to ask questions and if she thought that matters were being missed or there were points which had to be made, she could have used that opportunity to clarify anything in the dossier or adduce matters which she considered needed to be taken into account by the panel.[22]The legal representative will have read the dossier and been able to discuss the contents with the Applicant and cannot have been optimistic about the outcome of the hearing.[23]While it may be helpful for a panel to explore those areas of the evidence which help towards sentence planning, they are not obliged to do so and it may well be that what needs to happen in the future was clear from the dossier.[24]It is said that express procedures laid down by law were not followed in the making of the decision. These procedures are not identified and I cannot find any breach of the law.[25]It is said that the panel was not impartial. There is no evidence to support that allegation that I can find except to say that not many questions were asked and the panel did not direct release. That is not a proper basis for a suggestion that the panel was not impartial.[26]While the decision letter is brief, that is not a fault in itself and in my judgment the decision does adequately set out the reasons for the decision.[27]The panel were entitled to refuse the request for an adjournment to get a further risk assessment. Adjournments are rightly not encouraged particularly during a hearing and an adjournment for a further risk assessment would inevitably have been lengthy. Decision[28]For the reasons I have given, I do not consider that the decision was procedurally unfair and accordingly the application for reconsideration is refused. John Saunders 02 September 2025