Brown, Application for Reconsideration [2025] PBRA 188 (03 September 2025) [2025] PBRA 188

PBRA
Brown, Application for Reconsideration [2025] PBRA 188 (03 September 2025)
[2025] PBRA 188 · 2025-07-21
[1]This is an application by Brown (the Applicant) for reconsideration of a decision of the Parole Board, following an oral hearing on 21 st July 2025, not to direct his 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. The papers comprise:a. The dossier now comprising 409 pages including the decision letter (DL) the subject of this application.b. Grounds dated 13 th August 2025 submitted on behalf of the Applicant. Background[4]The Applicant is now 63 years old. In 2001 he was convicted of murder and sentenced to life imprisonment. His “tariff” was set at 14 years. Following a Parole Board decision in October 2019 he was released on licence. On 4 th September 2024 his licence was revoked and he was returned to prison the following day. Request for Reconsideration[5]The grounds for seeking a reconsideration of the case submitted by the Applicant’s legal representative are set out below:
“We submit that the decision not to direct release is procedurally unfair for the following reasons: - “1. The contention that core risk reduction work remains outstanding was not evidenced and is based on erroneous information. “2. Insufficient reasons were provided to substantiate the view that risk cannot be properly safeguarded and managed in the community. “In paragraph 3.7 of the decision, the Panel noted; “The [prison offender manager (POM)] had been responsible for [the Applicant’s] case soon after recall and did not support release. He noted that [the Applicant] had been assessed as suitable for moderate intensity Building Choices.” “During evidence, the POM confirmed that he had used a statutory online tool which confirmed that in principle [the Applicant] had been deemed suitable for moderate Building Choices. When asked to confirm whether an actual programme need assessment had been carried out, he confirmed it had not and therefore could not be confident whether or not [the Applicant] would be assessed as eligible for this programme not withstanding his suitability by way of the dynamic factors used to make the online assessment. “In paragraph 3.6, the [community offender manager (COM)] further indicated: - “she was unsure whether accredited work could be completed in the community because she could not guarantee that [the Applicant] would be assessed as suitable”. “Neither professional witness highlighted in depth what if any core risk reduction work was outstanding and the COM stated that it would be “her preference for any further work to be completed in closed conditions”. “The Panel in their findings indicated at paragraph 4.4: - “in the absence of work to address risk factors, the Panel considered [the Applicant] to present a greater than minimal risk the public. In the Panel’s assessment, work to address risk factors cannot be completed safely in the community and [the Applicant] does not meet the test for release”. “The Panel indicated in paragraph 4.3 that in their assessment they had concerns about relationships, thinking, behaviour, emotional management, lifestyle and compliance. The Panel formed a view that these are active risk factors that need to be addressed. “It is not established or evidence that [the Applicant] is eligible for any interventions within the custodial environment. A programme need assessment has not been completed and at best, it is said that he potentially maybe eligible for the moderate strand of Building Choices which we would suggest is not core reduction work that needs to be completed within a closed environment. “We submit that the Panel did not provide adequate reasons to justify their assessment that any treatment needs to be addressed in the closed estate, and why they cannot be addressed in the community. “Although mentioned fleetingly within the conclusion, the Panel do not appear to place enough weight on the fact that [the Applicant] was on licence for nearly 5 years following completion of intensive risk reduction work. “A Psychological Risk Assessment was completed in 2017 and determined all risk factors had been addressed and that there was no further risk reduction work identified for him to complete. “[The Applicant] vehemently denied the circumstances leading up to his recall, but the Panel was satisfied and the balance of probabilities that there was sufficient evidence to establish that [the Applicant] had breached the exclusion zone and had attended at his wife’s address. “This highlights a non-compliance issue with regards to licence conditions, but no further offences were committed, and no finding fact was made as regards to allegations highlighted within the Security Intelligence Report. On that basis, we submit that the Panel have not recorded sufficient reasons as to why [the Applicant’s] risk cannot be adequately safeguarded. “[The Applicant] indicated during his evidence that he has no intention of reestablishing relationships with his ex-wife and confirmed that he would be relocating to [a different area]. This was supported by his COM. Any risk therefore associated to his ex-wife could be adequately mitigated by the imposition of the GPS Tag and an Exclusion Zone to include a wider geographical area. “The Parole Board has a Statutory Duty to provide reasons for its decision. The Parole Board Rules 2019, as amended in 2024, section 25 (6) (b). “Whilst it is accepted that there is not, in principle, a general duty to give reasons, the impact of the decision on an individual is relevant to the consideration of what reasons are required in interest of fairness. (Doody v Secretary of State for the Home Department and other appeals [1993] 3 ALL ER 92) “It is now increasingly implied that natural justice in fairness require adequate reasons, with this being increasingly the case when a judicial board, such as the Parole Board, is concerned. The leading case of South Buckinghamshire District Counsel v Porte (no 2) [2004] 1 WLR 1953 outlines reasons must be intelligible and adequate. While they may be concise, the individual concerned must be able to understand the reasons for the decision and what is required will depend on the circumstances of the case and what is at stake. “It is difficult to imagine a scenario of which more is at stake than an individual’s liberty of continued detention in a closed prison environment especially when the circumstances leading to recall are being vehemently denied. “It is submitted that the expectation would be for relatively extensive reasons to be provided for his continued detention and why the Panel feel that there remain active risk factors that require treatment, especially in the absence of any confirmation that he’s eligible for any such intervention. “Little focus and weight has been placed in our respectful submission as to the sustained and prolonged period of time that [the Applicant] spent in the community of licence set against the alleged breach of an Exclusion Zone.”
Current parole review[6]The case was referred to the Parole Board by the Secretary of State (the Respondent) on 27 th September 2024. The Relevant Law Parole Board Rules 2019 (as amended)[7]Rule 28(1) of the Parole Board Rules provides the types of decision which are eligible for reconsideration. This is an eligible decision. Irrationality[8]In R (DSD and others) v the Parole Board [2018] EWHC 694 (Admin) , the Divisional Court set out the test for irrationality to be applied in judicial reviews of Parole Board decisions. It said, at para116, “ 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 .”[9]This test was set out by Lord Diplock in CCSU v Minister for the Civil Service [1985] AC 374 . The Divisional Court in DSD went on to indicate that in deciding whether a decision of the Parole Board was irrational, due deference had to be given to the expertise of the Parole Board in making decisions relating to parole. The Board, when considering whether or not to direct a reconsideration, will adopt the same high standard for establishing “ irrationality ”. The fact that Rule 28 contains the same adjective as is used in judicial review shows that the same test is to be applied.[10]The DSD case is an important case in setting out the limits of a rationality challenge in parole cases. Since then another division of the High Court in R (on the application of Secretary of State for Justice v Parole Board [2022] EWHC 1282 Admin) (the Johnson case) adopted a “ more modern ” test set out by Saini J in R (Wells) v Parole Board [2019] EWHC 2710 (Admin) .[11]In the Wells case Saini J set out “ a more nuanced approach ” at paragraph 32 of his judgment when he said: “ A more nuanced approach in modern public law is 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”.[12]It must be emphasised that this is not a different test to the Wednesbury reasonableness test. In the Wells case Saini J emphasised at paragraph 33 that “ this approach is simply another way of applying ” the Wednesbury irrationality test.[13]What is clearly established by all the authorities is that it is not for the reconsideration member deciding an irrationality challenge on a reconsideration - or a judge dealing with a judicial review in the High Court - to substitute his or her view for that of the panel who had the opportunity to see the witnesses and evaluate all of the evidence. It is only if a reconsideration member considering the application decides that the decision of the panel did not come within the range of reasonable conclusions that could be reached on all of the evidence, that he or she should allow the application.[14]Panels of the Board are wholly independent and are not obliged to adopt the opinions or recommendations of professional witnesses. The panel’s duty is clear and it is to make its own risk assessment and to evaluate the likely effectiveness of any proposed risk management plan. That will require a panel to test and assess the evidence and decide what evidence they accept and what evidence they reject.[15]Once that stage is reached, following the guidance provided by such cases as Wells a panel should explain its reasons whether or not they are going to follow or depart from the recommendation of professional witnesses.[16]The giving of reasons by a decision maker is “ one of the fundamentals of good administration ” (Breen v Amalgamated Engineering Union [1971] 2 QB 175). When reasons are provided, they may indicate that a decision maker has made an error or failed to take a relevant factor into account. As I understand the principles of public law engaged in deciding this application, an absence of reasons does not automatically give rise to an inference that the decision maker has no good reason for the decision. Neither is it necessary for every factor to be dealt with explicitly for the reasoning to be legally adequate in public law.[17]The way in which a panel fulfils its duty to give reasons will vary depending on the facts and circumstances in any particular case. For example, if a panel is intending to reject the unanimous evidence of professional witnesses then detailed reasons will be required. In Wells at paragraph 40 Saini J said: “ The duty to give reasons is heightened when the decision maker is faced with expert evidence which the panel appears, implicitly at least, to be rejecting ”.[18]When considering whether this decision is irrational, I will keep in mind that it is the decision of the panel who are expert at assessing risk; importantly it was the panel who had the opportunity to question the witnesses and to make up their own minds what evidence to accept. As I have already observed, it is extremely important that I do not substitute my judgment for theirs. My function is to decide whether the panel in this case erred in law or reached a decision that was Wednesbury unreasonable and/or procedurally unfair in some respect. Procedural unfairness[19]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.[20]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; and/or(e) the panel was not impartial.[21]The overriding objective is to ensure that the Applicant’s case was dealt with justly. Other[22]It is possible to argue that mistakes in findings of fact made by a decision maker result in the final decision being irrational, but the mistake of fact must be fundamental. The case of E v Secretary of State for the Home Department [2004] QB 1044 sets out the preconditions for such a conclusion:
“ there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter; the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable; the appellant (or his advisors) must not have been responsible for the mistake; and the mistake must have played a material (though not necessarily decisive) part in the tribunal's reasoning .”
See also R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] AC 295, which said that in order to establish that there was a demonstrable mistake of fact in the decision of the panel, an Applicant will have to provide “ objectively verifiable evidence ” of what is asserted to be the true picture.[23]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 ." The reply on behalf of the Secretary of State[24]The Respondent has offered no representations in respect of this application. Discussion[25]Although the grounds suggest that the application is based on a claim of procedural unfairness in reality it is clearly based on allegations of irrationality.[26]The professional witnesses did not recommend release. The panel was faced with the opposite situation to that envisaged in the quotation set out at paragraph 17 above. A decision to follow such recommendations is highly unlikely to be irrational, let alone procedurally unfair. I have studied the reports within the dossier and the terms of the DL. The grounds seem to be implying that if necessary work is necessary which is not currently available in prison then release should be ordered whatever the risk posed by the offender of serious harm. That is not the case. The Board is bound to make its decisions - as this panel did - based on the state of evidence at the time of the hearing. In this particular case the current absence of suitable work within the prison estate was due as much to the attitude of the Applicant towards it as to the existence of resources to provide it.[27]The DL - at paragraphs 4.1-4 following its summary of the evidence of the witnesses (in particular the POM and COM, neither of whom recommended release) - rationally sets out why it declined to direct the Applicant’s release. In particular it acknowledges the fact that the Applicant was “ on licence for nearly five years “. Decision[28]This application is accordingly dismissed. Sir David Calvert-Smith 3 rd September 2025