Baker, Application for Reconsideration [2025] PBRA 189 (08 September 2025) [2025] PBRA 189
PBRA
Baker, Application for Reconsideration [2025] PBRA 189 (08 September 2025)
[2025] PBRA 189 · 2025-07-24
[1]This is an application by Baker (the Applicant) for reconsideration of a paper decision of the Parole Board on 24 July 2025 not to terminate his imprisonment for public protection (IPP) licence, but to suspend eight of the conditions then attached to the licence.[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 142 pages including the decision letter (DL) the subject of this application.b. Grounds dated 14 August 2025 submitted on behalf of the Applicant.c. An email dated 28 August 2025 sent on behalf of the Secretary of State for Justice (the Respondent) indicating that they have no representations to make. Background[4]The Applicant is now 47 years old. In 2008 he was convicted of aggravated burglary and sentenced to IPP with a “tariff” which expired in September 2011. He has twice, in 2017 and 2024, been released on licence following directions from the Parole Board and then recalled for breaches of his licence conditions. Following his first release he committed offences of burglary for which he received a 76 month sentence which expired in March 2025. Request for Reconsideration[5]The grounds for seeking a reconsideration of the case submitted by the Applicant’s legal representative are lengthy. They are set out in summary below:a. The case should have been dealt with at an oral hearing rather than on the papers. i. There was a clear dispute between the Applicant and the probation service concerning the circumstances and thus the correctness of the recall. ii. Neither the MCA panel member nor the Duty member who made the decision not to direct release properly addressed the factors which determine whether an oral hearing should be held - as set out in the leading cases of Osborn, Booth & Reilly [2013] UKSC 61 .b. The statutory presumption recently inserted within Section 31A(4) of the Crime Sentences Act 1997 in favour of a direction for release was ignored, or if not ignored, not properly applied.c. The reasons for the decision - namely the fact that on his previous release he had breached the terms of his licence soon afterwards and committed serious offences - was insufficient to justify the decision bearing in mind the positive recommendations within the dossier from the professional witnesses. Current parole review[6]The case was referred to the Parole Board by the Secretary of State for Justice in January 2025. 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]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[23]The Respondent has offered no representations in respect of this application. Discussion[24]“ Procedural unfairness”. This ground, based on the decision not to direct an oral hearing, would seem at first sight to founder on the basis that a decision not to direct an oral hearing is not subject to the reconsideration procedure following the judgment of the Supreme Court in Osborn v Parole Board [2013] UKSC 61 . I have been able to consider previous decisions on reconsideration applications which have considered the issue. Perhaps unsurprisingly different views have been expressed by different decision-makers.a. In Church [2024] PBRA 66 the decision-maker assumed “ that ‘Osborn’ principles apply to this recent addition to the decisions to be taken by the Board ”.b. In McIntosh [2025] PBRA 70 the decision-maker took a different view - “ The present case is of course concerned with an offender serving an indeterminate sentence who has been released on licence and is seeking termination of his licence. 51.That is a different situation from those in the cases relied on by the legal representative, and I agree with the panel that Osborn and the other cases do not apply directly to licence termination cases. The underlying principle of fairness may however, in some such cases, require a single member panel to direct that the case should proceed to an oral hearing. – “c. Similar opinions were expressed in Snape [2025] PBRA 68 at paragraphs 30-33, Hanson [2025] PBRA 86 and Collins [2025] PBRA 92 .d. The decision in Ellis [2025] PBRA 143 at paragraphs 52-81 provides a helpful review of the way in which decision-makers should approach the issue of IPP licence termination. While the issue in IPP review cases does not involve the “liberty of the subject” similar considerations of fairness should apply. At paragraph 80 the decision sets out the kind of exceptional circumstances which may require an oral hearing in licence termination cases - “In summary, I consider the Guidance to be correct, but look to Church and Collins as giving examples of types of situations which should be weighed by the panel in determining whether there are exceptional circumstances for directing an oral hearing, namely: a) Where there are disputed and complex issues requiring oral evidence for full determination. b) Where credibility and risk cannot be assessed on the papers. c) Where there is significant elapsed time on licence. d) Where there is no clear case for paper determination”.[25]I have therefore - since the position is far from clear, - assumed, like those responsible for the decisions cited above, that the decision not to direct an oral hearing in licence termination cases is amenable to challenge by way of reconsideration. However, having done so I have come to the conclusion that this decision cannot be characterised as ‘procedurally unfair’. The DL - under the heading Any other information - indicates that the decision-maker considered the question of whether the case required an oral hearing. As the DL records, the panel had a full dossier together with helpful representations from the Applicant’s legal representative and the decision to deal with the case “on the papers” was thus not “procedurally unfair”.[26]As for the “irrationality” challenge, I have come to the conclusion that this ground too must be rejected. It is clear that the panel took into account:a. The “presumption” of termination - at paragraph 4.1.b. The positive changes made since release and the resulting removal of his GPS tag - at paragraph 2.1.c. The positive reports and recommendations of the professionals - at paragraphs 2.1 and 3.2.[27]However the panel was clearly entitled to consider the previous licence period and the comparatively short time in which the Applicant breached his licence conditions. The DL reflected the positive progress made by the Applicant by deciding to suspend 8 of the 19 current licence conditions. It is clear that the panel gave proper thought to the case and its decision cannot be characterised as irrational by reference to the cases cited above. Decision[28]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. Sir David Calvert-Smith 8 September 2025