Downey, Application for Reconsideration by, [2025] PBRA 212 (01 October 2025) [2025] PBRA 212

PBRA
Downey, Application for Reconsideration by, [2025] PBRA 212 (01 October 2025)
[2025] PBRA 212 · 2025-08-11
[1]This is an application by Downey (the Applicant) for reconsideration of a decision of a panel of the Parole Board issued on 11 August 2025 making no direction for release but recommending transfer to open conditions following an oral hearing.[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 application for reconsideration; the decision of the panel; the dossier and a risk management plan prepared by the Applicant. Request for Reconsideration[4]The application for reconsideration is dated 12 September 2025.[5]The grounds for seeking a reconsideration are as follows. The decision was irrational in that:(a) It is contrary to the unanimous recommendations of the professional witnesses.(b) The reasons for differing from the views of the professional witnesses are not clear.(c) In deciding that the recall was justified which was a factor in refusing the application for release the panel took into account events which happened after the recall.(d) The decision that recall was justified was irrational. The procedure was unfair in that:(e) There was an extensive delay between the oral hearings which was unfair in that there should have been a further oral hearing to update the panel and deal with additional information that had been obtained.(f) The panel should have sought a revised risk management plan from the professionals.(g) The panel relied in their decision on inaccurate and unreliable information. Background[6]The Applicant was sentenced to life imprisonment for offences of attempted murder and causing grievous bodily harm with intent to cause grievous bodily harm on 22 July 2009. The minimum term that the Applicant had to serve before he was released on parole was 8 years. He was released on licence on 30 November 2017 and recalled on 8 April 2018; released again on 4 December 2018 and recalled 2 September 2021 and released again on 1 February 2023 and recalled on 21 November 2023. The Applicant has had mental health issues which have contributed to his offending. He has a substantial criminal record including a number of serious offences. Current parole review[7]The Applicant's case was referred to the Board on 14 December 2023. The oral hearings were on 7 February 2025 and 8 April 2025. After that date there were various adjournments to consider new evidence and obtain further reports and there were then delays in re-convening the panel because of leave dates.[8]The case was considered by a three-person panel including a psychiatrist. The panel heard evidence from a psychiatrist, two psychologists, two community offender managers (COM) and the prison offender manager. The Relevant Law[9]The panel correctly sets out in its decision letter the test for release and the issues to be addressed in making a recommendation to the Secretary of State for a progressive move to open conditions. Parole Board Rules 2019 (as amended)[10]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)).[11]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[12]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.[13]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. "[14]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).[15]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.[16]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.[17]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[18]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.[19]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.[20]The overriding objective is to ensure that the Applicant's case was dealt with justly. Other[21]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.[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. "
Reconsideration as a discretionary remedy[23]Reconsideration is a discretionary remedy. That means that, even if an error of law, irrationality, or procedural unfairness is established, the Reconsideration Member considering the case is not obliged to direct reconsideration of the panel's decision. The Reconsideration Member can decline to make such a direction having taken into account the particular circumstances of the case, the potential for a different decision to be reached by a new panel, and any delay caused by a grant of reconsideration. That discretion must of course be exercised in a way which is fair to both parties. The reply on behalf of the Secretary of State (the Respondent)[24]The Respondent has made no submissions in response to this application. Discussion[25]I have considered the decision in the light of the matters set out in the application for reconsideration. Read as a whole the decision is detailed, sets out clearly what the evidence was that the panel considered and the reasons for reaching the decision that they did. The panel had concerns about the mental health of the Applicant and his ability to cope in the medium term if released on licence without further testing in open conditions. The panel, as is accepted by the Applicant, was entitled to disagree with the professional witnesses provided they had good reasons for doing so and set out clearly why they did disagree. There was a psychiatrist on the panel who was able to guide the panel in their assessment of the evidence of the psychiatrist and the psychologists.[26]In my judgment the panel did set out clearly their reasons for disagreeing with the professionals.[27]The panel were in error in paragraph 2.11 of their decision when they included as a reason justifying the Applicant's recall that he had spat at a police officer in the police station which resulted in a conviction. That occurred after the Applicant had been recalled and should not have been considered by the panel when deciding whether the recall was justified.[28]I have therefore considered the other evidence relied on to justify recall: namely the deterioration in the Applicant's mental state and his reaction to being visited by his COM with a police officer. While the Applicant had made clear that visiting without an appointment would increase his paranoia that did not mean that the COM should not take steps to ensure that the decline in the Applicant's mental condition would not lead to further offending. The behaviour of the Applicant at the police station in spitting at the policeman was evidence that his mental state had deteriorated significantly by the time of recall. The COM had a duty to protect the public and in those circumstances, I am satisfied that, even had the panel not wrongly reasoned on the basis that the spitting contributed to the decision to recall, their decision would have been the same. Even if I am wrong about that I do not believe that the decision of the panel as to the second part of the test on recall namely whether the Applicant met the public protection test would have been any different.[29]Accordingly in my judgment the decision of the panel should not be reconsidered on the basis that it was irrational.[30]The Applicant argues that the decision was procedurally unfair principally because of the delay in the decision being made following the last oral hearing. The Applicant argues that there should have been a further oral hearing to update the panel and that a further risk management plan should have been obtained as the panel considered the original one put forward by the professionals as being thin.[31]While regrettable, there were perfectly good reasons for the delays. After the hearings other material was produced as to the availability of assistance for the Applicant if he was released into the community which required commentary from the professionals. None of it required further evidence from the Applicant and there were further representations on the evidence from his legal representative which the panel took into account.[32]I have considered the case of Matthews referred to in the application and, while I accept the decision as being correct as I am bound to, it is fact specific, and the facts of this case are very different. I do not consider that there was anything material in the additional material in this case which required evidence from the Applicant.[33]I also do not consider that the panel should have asked for a further risk management plan. Their conclusion about that may not have been reached before they made their final decision and to adjourn further would have been wrong. If a decision had been made about the risk management plan earlier, the panel had investigated it during the hearing and unless it was clear that something could be done to strengthen it, it would not have been practical to ask for it to be improved. I have read the Applicant's own risk management plan and do not consider that that would have or should have altered the decision.[34]While it is suggested that the panel accepted allegations which were challenged without hearing further evidence about them, I do not consider that that is justified from a reading of the decision.[35]In any event, if there were mistakes of fact in the decision then I am satisfied that they did not affect the eventual decision.[36]The panel decided, having taken into account the Applicant's mental state at the time of recall and the previous recalls, that a time in open to help prepare him for release was necessary. While others might disagree, and the professionals did, it was not a view which the panel couldn't take and they have, in my view, clearly expressed why they reached the decision that they did. Decision[37]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. John Saunders 01 October 2025