Fletcher, Application for Reconsideration [2025] PBRA 193 (10 September 2025) [2025] PBRA 193
[1]This is an application by (the Applicant) Fletcher for reconsideration of a decision of an oral hearing panel dated 24 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 oral hearing decision, the dossier consisting of 683 pages, the recording of the hearing and the application for reconsideration. Request for Reconsideration[4]The application for reconsideration is dated 14 August 2025 and was drafted by legal representatives on behalf of the Applicant. It submits that the process was procedurally unfair and that the decision was irrational.[5]The Applicant submits that the process was unfair to him as the psychologist had not read the entire dossier and that impacted the decision at the hearing. In addition, he submits that undue weight was placed on his custodial behaviour and ignored the recommendation of the panel. Background[6]The Applicant received a sentence of 15 years comprising a custodial element of 13 years and two years extended licence for offences of wounding with intent to cause grievous bodily harm, robbery, handling stolen goods, burglary and aggravated burglary. He also asked for a number of offences to be taken into account.[7]The Applicant was 18 years old at the time of sentencing and is now 31 years old. Current parole review[8]The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) to consider whether or not it would be appropriate to direct his release.[9]The case proceeded to an oral hearing via videoconference on 9 July 2025. The panel consisted of three independent members. It heard oral evidence from the Applicant, together with his Prison Offender Managers (POMs) from his previous and current locations, Community Offender Manager (COM) and a prison appointed forensic psychologist. The Applicant was legally represented throughout the hearing. The Respondent was not represented by an advocate. The Relevant Law 10.The panel correctly sets out in its decision letter dated 24 July 2025 the test for release. Parole Board Rules 2019 (as amended)[11]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)).[12]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 13.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. 14.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. ” 15.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). 16.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. 17.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. 18.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[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;(e) the panel did not properly record the reasons for any findings or conclusion; and/or(f) the panel was not impartial.[21]The overriding objective is to ensure that the Applicant’s case was dealt with justly. The reply on behalf of the Secretary of State 22.The Respondent states that attempts to contact the psychologist were unsuccessful and that the claim that the psychologist had not read the entire dossier could not be confirmed. No further representations were offered. Discussion 23.Procedural Unfairness - the application states that the process was unfair as the psychologist had not read the entire dossier. No further details are given. 24.I have carefully considered the psychologist’s report dated 4 November 2024 and also considered the recording of the hearing. Both in her report and in her oral evidence the psychologist detailed her contact with the Applicant and his refusal to attend interviews with her. During a face-to-face meeting with him in September 2024 he had agreed to attend meetings but subsequently failed to do so despite being given a further opportunity to attend. The psychologist therefore proceeded to complete her report without further engagement from the Applicant. Thereafter the psychologist reported at the hearing, she had access to the dossier until the Applicant transferred to Prison B. That transfer took place in February 2025. 25.The order of witnesses during the hearing ensured that the psychologist heard the evidence of the two POMs and that of the Applicant before being questioned on her report of November 2024 and about her own conclusions. The psychologist also confirmed that she had seen the Risk Management Plan prior to the hearing. The Applicant, through his representative was able to question the psychologist about her report and her conclusions. The psychologist was able to answer without hesitation all the questions that were asked of her. Having heard the Applicant give his evidence and having read the risk management plan she was in a position to answer questions regarding risk. The Applicant’s representative made no complaint either in questions to her or in submissions to the panel about the psychologist not having read the entire dossier. The Applicant’s representative had the opportunity to raise any issues of fairness or to request an adjournment but did not do so. 26.The psychologist had access to the entirety of the dossier at the time of writing of her report. Any incompleteness at that stage was due to the Applicant’s failure to engage with her assessment. Thereafter the Applicant had transferred to Prison B and she had left the probation service. At the hearing she had the opportunity to hear the evidence of the POMs and also the evidence of the Applicant himself before being questioned. In the application for reconsideration no details are provided as to how any unfairness arises and having carefully considered the documents and recording, I can find no procedural unfairness caused to the Applicant. This is an entirely unfounded argument, and this ground therefore fails. 27.Irrationality - the application submits that the decision was irrational as the fact that the psychologist had not read the entire dossier before the hearing impacted the evidence provided at the hearing and that undue weight was placed on his custodial behaviour and the recommendation of the COM was ignored. 28.It is not clear how the psychologist not having read the entire dossier before the hearing made any impact at all on the evidence. As noted above the psychologist had the benefit of hearing from the POMs and the Applicant before answering questions from the panel and the Applicant’s representative. The application does not identify any issue that the psychologist was unable to answer or that was affected by the psychologist not having had regard to it before the hearing. 29.It is a matter for the panel the weight to be attached to the evidence presented. The panel took into account all the evidence presented including noting the positive factors in the Applicant’s favour. The panel did not ignore the recommendation of the COM nor that of the other professional witnesses, but panels are not obliged to follow the recommendation of one or more of the 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 up their own minds 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 if they failed to do just that. The panel was entitled to disagree with the recommendation of the COM and has given reasons for doing so. These reasons are soundly based on evidence as well as being rational and reasonable. There was no irrationality in this clearly, fairly and fully considered decision and this ground must therefore fail. Decision 30.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. Barbara Mensah 10 September 2025