Uddin, Application for Reconsideration [2025] PBRA 192 (08 September 2025) [2025] PBRA 192

PBRA
Uddin, Application for Reconsideration [2025] PBRA 192 (08 September 2025)
[2025] PBRA 192 · 2025-08-06
[1]This is an application by Uddin (the Applicant) for reconsideration of a decision of an oral hearing panel (‘the panel’) dated 6 August 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. These are the dossier, the panel’s written decision and the undated application made by the Applicant’s legal representative. Request for Reconsideration[4]The application for reconsideration is made on the grounds of irrationality and procedural unfairness. Irrationality[5]It is submitted that the decision not to direct release was irrational because all witnesses recommended release and believed that the statutory test for release was met. It is submitted that the panel’s alternative view, including a prediction that the Applicant ‘ would fail to sustain engagement …’ was ‘… unsupported by his recent custodial history’ .[6]It is submitted that the panel’s ‘treatment of [temporary overnight release] performance was also illogical ’, because he had completed many periods of overnight release and had complied with restrictions.[7]It is submitted that the panel’s assessment of prison security intelligence was ‘ internally inconsistent’ because the panel ‘ gave no weight to uncorroborated mobile phone allegations but relied on similarly uncorroborated claims of additional cannabis use beyond adjudicated incidents …’. Procedural Unfairness[8]It is submitted that the hearing was unfair because a new Prison Offender Manager (POM) had been allocated only two weeks before the hearing and so was unable ‘ to give a full, first-hand account of [the Applicant’s] conduct in open conditions’ . The panel ‘ relied on an allegation, raised for the first time in oral evidence, that [the Applicant] had shouted at the prison psychologis t’ and ‘ no contemporaneous record was produced’ .[9]It is submitted that the panel disregarded positive factors without explanation, with little or no reference to the Applicant’s lengthy time in custody without violence, his compliance in the open prison and other positive aspects of his behaviour.[10]It is submitted that the ‘ the panel treated [the Applicant’s] “generic” or “vague” language as evidence of minimisation and impression management’, failing to take account of known learning needs. Background[11]On 24 November 2006, at the age of 24, the Applicant received a sentence of imprisonment for public protection following his conviction for an offence of robbery. The sentencing court set a tariff of 1 year, 7 months and 20 days before the Applicant’s release could be considered. He reached that eligibility date on 13 July 2008.[12]The Applicant had consumed a large quantity of vodka and had smoked cannabis at the time of the robbery. He took exception to a group of students who were on a night out because he thought they were laughing at him. He assaulted a male victim, argued with the group and threatened the group with a knife, stealing a handbag from a female victim.[13]The Applicant was first released on the direction of the Parole Board in December 2012. Less than a fortnight later he committed a further offence of false imprisonment. It was suggested that the victim was involved in a turf war or had a drug debt to the Applicant’s brother. In January 2014, the Applicant received an extended determinate sentence (5 years custody and 3 year extended licence) for this offence. The Applicant told the panel that he had not expected the situation to escalate as it did but that he should have known that his brother’s lifestyle and associates were risky.[14]The Applicant was released for a second time in September 2020. He was recalled around 12 months later when he was charged with dangerous driving, assaulting emergency workers and criminal damage. He pleaded guilty at court to the charges, aside from one assault, and received an 8 week determinate sentence. He had been intoxicated at the time of these offences.[15]An earlier review by a panel of the Parole Board in 2023 at an oral hearing led to a decision not to direct re-release. However, it was recommended that the Applicant should be transferred to an open prison and the Secretary of State accepted that recommendation. The Applicant moved to an open prison in October 2023 and he remained at that prison at the time of the present panel’s review.[16]The Secretary of State subsequently referred the Applicant’s case to the Parole Board for it to consider whether release could be directed. In a later amendment to the referral, in line with a change in legislation, the Secretary of State asked the panel to consider whether the Applicant could be released unconditionally (bringing an end to his IPP sentence) or conditionally (subject to an IPP licence and supervision).[17]The panel considered the case at an oral hearing on 16 July 2025 and heard evidence from the Applicant, his POM, Community Offender Manager, a prison forensic psychologist and a forensic psychologist instructed by the Applicant’s legal representative.[18]In its written decision dated 6 August 2025, the panel declined to direct release. The panel noted the progress made by the Applicant in custody, including since his move to an open prison. There had been some behavioural concerns, including a report of veiled threats to staff and positive drug test results. The panel noted that ‘ professionals have found that [the Applicant] can be demanding, rude and rigid in his thinking … [he] became frustrated and angry when he could not take [periods of temporary overnight release in the community] when he wanted to. He maintained he was entitled to [overnight release], found it difficult to accept that they were a privilege and subject to [accommodation] availability, only wanted to go to a particular [accommodation], wanted a later curfew time and wanted to be allowed to stay at his mother’s address rather than at [the identified accommodation]. ’[19]In his evidence to the panel, the Applicant said that on periods of overnight release in the community he had spent the minimum time possible in the identified accommodation and had gone to his mother’s address. The panel indicated its surprise that he had been allowed to spend so much time at his mother’s home where his brother, who was linked to the further conviction in 2012, lived.[20]The panel noted further concerns about the Applicant’s behaviour, including him being reported to be loud, angry and unwilling to listen to staff. The prison forensic psychologist told the panel that the Applicant had been aggressive and had shouted at her when her report was disclosed to him. The Applicant told the panel that he had been frustrated at the time and had not intended to be aggressive.[21]All witnesses at the oral hearing supported the Applicant’s release. The panel disagreed and did not direct release. In its written decision, it outlined its concerns about the Applicant’s likely engagement on licence and that the release plan was ‘ over-reliant on external controls, some of which will inevitably fall away within the first six to twelve months even if professionals would prefer them to remain in place’ .[22]In its conclusion, the panel stated that the Applicant had a history of violent offending, had offended on licence on the present sentence and that his behaviour at the open prison had been ‘ mixed ’. The panel found that the Applicant had used cannabis more than once since being in the open prison, had failed to manage his emotions appropriately and had ‘ continued to present with an attitude of entitlement’ .[23]The panel found that the Applicant had ‘ told untruths to professionals and has engaged in impression management … There is a pattern in which [the Applicant] is compliant when he gets what he wants, as has been the case during [temporary overnight release], but can be challenging, hostile, and sometimes aggressive when he does not … it is a significant concern in respect of risk management on licence’ .[24]The panel found that periods of temporary overnight release had ‘largely been on [the Applicant’s] terms’ . It also noted that the Applicant’s learning from offending behaviour work on his sentence, which was undertaken some time ago, was ‘largely generic and his insight is limited ’, although it acknowledged reported cognitive difficulties. The Relevant Law[25]The panel correctly sets out in its written decision the test for release. Parole Board Rules 2019 (as amended)[26]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)).[27]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[28]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.[29]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. ”
[30]In R(on the application of Wells) -v- Parole Board 2019 EWHC 2710 (Admin) Saini J 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).[31]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.[32]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.[33]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. Other[37]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 (the Respondent)[38]The Respondent has not submitted any response to the Application. Discussion[39]It is right to note that all witnesses supported the Applicant’s release, however, the panel was obliged to carry out its own assessment of risk and reach its own decision on whether the Applicant met the test for release. In its detailed written decision, it explained why it did not agree with the recommendations. Noting the explanation, there was nothing irrational in it reaching that conclusion.[40]The Applicant complains that it was wrong to predict potential compliance issues on release or that the Applicant’s time during periods of temporary overnight release had been on his terms. The panel explained, in detail, why it reached that conclusion and, in fairness to the Applicant, it also noted times of compliance and engagement. Nevertheless, his time during temporary release was not without issue and the panel was entitled to attach weight to this.[41]In my view, the Applicant’s criticism of the panel’s approach to its assessment of security intelligence is misguided. The panel evidenced a balanced and fair approach. It determined, in fairness to the Applicant, that it could not weight the mobile phone allegations because of the limited evidence available to it.[42]The panel stated that it was satisfied that the Applicant had ‘ used cannabis on more than one occasion’ . He had tested positive for cannabis more than once and had admitted to cannabis use in his evidence to the panel. The Applicant’s criticism is that the later security reports of alleged cannabis use had not been proved. In terms of those security reports about cannabis, the panel stated that this ‘ was plausible, given the positive drug tests and [the Applicant’s] disclosures, that [the Applicant] had been using cannabis sporadically’ . There is nothing irrational in this evaluation of the evidence, and the panel was entitled, on the balance of probabilities, to come to that conclusion when taking account of all available evidence.[43]It is right to note that the Prison Offender Manager had only been allocated to the Applicant’s case shortly before the oral hearing. The panel noted this in its decision and the limited contact the witness had had with the Applicant and his inability to comment on certain aspects of the Applicant’s case. However, the Applicant was aware of the change of Prison Offender Manager in an application dated 30 June 2025 (see page 558 of the dossier) seeking a change in the witness list. The Applicant had an opportunity to comment on this prior to the witness list being amended but did not do so. The panel agreed to the revised witness list on 9 July 2025. The Applicant made no complaint about the Prison Offender Manager witness either at the oral hearing or following a brief adjournment at the conclusion of the oral hearing. In fact, in written representations following the adjournment, the Applicant relied on the Prison Offender Manager’s support for his release (along with the support of other witnesses).[44]The panel considered the Prison Offender Manager’s oral evidence along with the other witnesses. It stated the limitations of the witness and therefore there was nothing procedurally unfair. Any complaint of potential unfairness should have been raised at the time of the oral hearing or following the adjournment.[45]It may be that the prison psychologist revealed for the first time how the Applicant behaved when her report was disclosed to him, but there was nothing unfair in this. Parole Board panels often hear new information in oral evidence because cases are fluid and further issues emerge. If the revelation was of concern, it was open to the Applicant’s legal representative to raise the issue at the time or even following the brief adjournment. In any event, the Applicant acknowledged that he had been frustrated, had shouted and he did not dispute what had been alleged.[46]I do not accept the Applicant’s submission that the panel failed to consider positive factors about his time in custody. The written decision by the panel allows the Applicant (and others) to understand why it decided not to direct his release. It is not a rehearsal of the entire evidence and of every aspect of the case. Reading the decision as a whole, it is clear that the panel did reflect on positive aspects, however, it was the concerns about risk and behaviour that it needed to explain in detailing why it was not directing release. The panel’s approach was fair.[47]The criticism of the panel’s review of ‘ generic ’ or ‘ vague ’ language from the Applicant is submitted as evidence of procedural unfairness because of a lack of regard for any disability. In fact, the panel was mindful of the report of learning difficulties.[48]The panel was entitled to conclude that the Applicant had limited insight and had a ‘ largely generic’ retention of learning from offending behaviour work he had completed. The panel took note of the learning difficulties identified by the psychologist instructed by the Applicant’s legal representative, who had identified ‘some insight’ but that the Applicant took an ‘ avoidant approach’ . The panel also noted the evidence of the prison psychologist who felt that the Applicant had limited self-awareness, could be disingenuous and it was her opinion that he used ‘ vague and generic language when speaking about risk…’ .[49]It is clear that the panel did consider the views of expert witnesses, contrary to the submission that it reached conclusions on the Applicant’s evidence ‘… without engaging with the expert evidence from [the Applicant’s psychologist witness] ’. This submission fails.[50]In my view, the panel’s assessment of the Applicant’s case was detailed and fair. I am not persuaded by the submissions made in his application for reconsideration. Decision[51]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. Robert McKeon 08 September 2025