Ali, Application for Reconsideration by, [2025] PBRA 210 (01 October 2025) [2025] PBRA 210

PBRA
Ali, Application for Reconsideration by, [2025] PBRA 210 (01 October 2025)
[2025] PBRA 210 · 2025-07-07
[1]This is an application by Ali (the Applicant) for reconsideration of a decision of the Parole Board, following a paper decision on 7 th July 2025 (followed by a review of the paper decision not to hold an oral hearing dated 31 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 comprising 194 numbered pages including the decision, the subject of this application.b. The further decision of 31 st July 2025.c. Grounds dated 22 nd August 2025 submitted on behalf of the Applicant.[4]No submission has been received from the Secretary of State (the Respondent). Background[5]The Applicant is now 35 years old. In December 2024 he was convicted of an offence of arson endangering life committed in December 2021 and sentenced to an extended sentence of 10 years imprisonment made up of six years custody and an extended licence period of four years. Request for Reconsideration[6]The grounds for seeking a reconsideration of the case submitted by the Applicant's legal representative are set out below: Current parole review[7]The case was referred to the Parole Board by the Respondent on 19 th March 2025. The Relevant Law Parole Board Rules 2019 (as amended)[8]Rule 28(1) of the Parole Board Rules provides the types of decision which are eligible for reconsideration. This is an eligible decision. Irrationality[9]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 ."[10]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.[11]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 ) .[12]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 ".[13]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.[14]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.[15]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.[16]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.[17]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.[18]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 ".[19]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[20]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.[21]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.[22]The overriding objective is to ensure that the Applicant's case was dealt with justly. Other[23]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.[24]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[25]The Respondent has offered no representations in respect of this application. Discussion[26]The Grounds submit that the decision was "procedurally flawed as a case this complex could not fairly be determined on the papers , to do so did not adequately consider or apply the necessary and relevant case law in this area of Osborn & Booth, Somers along with the recent case of Owen ."[27]The grounds - at paragraphs 5, 14-17, 21, 23, 23 (sic) and 24-34 - go on to suggest that an oral parole hearing would be necessary for the Applicant to understand the needs for further treatment, to agree to submit to such treatment and that the failure of the panel to direct such a hearing was procedurally unfair.[28]The concluding grounds read as follows:
" Concluding Submissions for Reconsideration "35. It is submitted that the decision is flawed due to procedural unfairness based upon the above Grounds. It is further submitted that the procedural defects above did impact on the decision making of Panel in this case. "36. Finally, this is plainly a case where the stakes are exceptionally high, as it concerns [the Applicant's] liberty. Justice must not only be done, but must also be seen to be done. The absence of clear reasoning for refusing an oral hearing undermines the appearance of justice being served. Accordingly, we respectfully submit that the decision should be quashed and that an oral hearing should be directed."
[29]The law is clear. The decision whether to direct an oral hearing or to decide the case on the papers is not amenable to the reconsideration process.[30]I have considered the submissions which might justify a challenge on the ground of irrationality. In short they amount to a submission that there was insufficient material within the dossier as presented to the panel for it to make a rational decision and that (in the absence of an immediate decision to direct an oral hearing when the alleged deficiencies could be made good by the receipt of further evidence) a decision based on what was available to the panel could not be a " rational one ".[31]I have studied the dossier and the resulting decision with this submission in mind. The panel had the benefit - inter alia - of:a. The previous criminal record of the Applicant.b. The Pre-Sentence Report and the trial judge's sentencing remarks,c. A Psychiatric Report prepared for his trial in September 2024.d. A report from a Prison Offender Manager of May 2025 listing a number of proved adjudications during his time in custody since his arrest and subsequent sentence.e. A recent report from a Community Offender Manager (COM) expressing the clear view that, " In my professional opinion [the Applicant] should not be released at the present time ".f. A recent OASys Assessment in which the existence of significant risks to the public are set out at paragraph 10 and elsewhere.g. The helpful submissions (of July 2025) on the Applicant's behalf to the panel asking that the case be directed to an oral hearing.[32]The decision accurately summarised the relevant evidence concerning the existence or otherwise of a risk of serious harm to the public, (whether statistical or as assessed by professionals), the degree to which that risk had been reduced thus far during the sentence, and the degree to which any licence conditions could reduce the current risk sufficiently to direct his release in spite of the clear views of the COM to the contrary. The eventual decision was entirely rational and falls far short of passing the test of 'irrationality'. Decision[33]This application is accordingly dismissed. Sir David Calvert-Smith 1 ST October 2025