Nevins, Application for reconsideration by, [2025] PBRA 214 (1 October 2025) [2025] PBRA 214

PBRA
Nevins, Application for reconsideration by, [2025] PBRA 214 (1 October 2025)
[2025] PBRA 214 · 2025-09-04
[1]This is an application by Nevins (the Applicant) for reconsideration of a decision of an oral hearing panel dated the 4 September 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 the dossier, the representations submitted on behalf of the Applicant by his legal adviser and the representations by the Secretary of State (the Respondent). Request for Reconsideration[4]The application for reconsideration is dated 16 September 2025.[5]The grounds for seeking a reconsideration are set out below. The application for reconsideration was in a narrative format. I have endeavoured to identify the individual grounds as set out below. Background[6]The Applicant is serving a sentence of life imprisonment. The index offence was murder. The minimum period set by the judge was 17 years (less 207 days). The Applicant was 23 years old when sentenced. The Applicant was 42 years old at the time of the oral hearing. The index offence was committed with others. The Applicant attended premises where there was a party. The Applicant had drunk alcohol and taken drugs. The Applicant was said to have bullied the victim and then tied his legs with wire. The Applicant and co-defendants then attacked the victim. He was said to have been struck at least 12 times to the head causing irreversible damage and death.[7]The Applicant received a further 12 month prison sentence for escaping lawful custody in 2008 when he escaped whilst on a hospital visit. The Applicant was transferred to an open prison in 2021. He failed to return on one occasion and was unlawfully at large for a period of days. Current parole review[8]The panel hearing was conducted in August 2025. The panel consisted of an independent chair of the Parole Board and two further independent members. Evidence was given at the panel hearing by a Prison Offender Manager (POM), a Community Offender Manager (COM) and the Applicant. The Applicant was legally represented. The Relevant Law[9]The panel correctly sets out in its decision letter dated 4 September 2025 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)).[12]A decision to recommend or not to recommend a move to open conditions is not eligible for reconsideration under rule 28. This has been confirmed by the decision on the previous reconsideration application in Barclay [2019] PBRA 6 . 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) 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 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. Error of law[22]An administrative decision is unlawful under the broad heading of illegality if the panel: a) misinterprets a legal instrument relevant to the function being performed; b) has no legal authority to make the decision; c) fails to fulfil a legal duty; d) exercises discretionary power for an extraneous purpose; e) takes into account irrelevant considerations or fails to take account of relevant considerations; and/or f) improperly delegates decision-making power.[23]The task in evaluating whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring the duty or power upon the panel. The instrument will normally be the Parole Board Rules, but it may also be an enunciated policy, or some other common law power. Other[24]The test to be applied when considering the question of transfer to open conditions is the subject of a well-established line of authorities going back to R (Hill) v Parole Board [2011] EWHC 809 (Admin) and including R (Rowe) v Parole Board [2013] EWHC 3838 (Admin) , R (Hutt) v Parole Board [2018] EWHC 1041 (Admin) . The test for transfer to open conditions is different from the test for release on licence and the two decisions must be approached separately and the correct test applied in each case. The panel must identify the factors which have led it to make its decision. The four factors the panel must take into account when applying the test are:(a) the progress of the prisoner in addressing and reducing their risk;(b) the likeliness of the prisoner to comply with conditions of temporary release(c) the likeliness of the prisoner absconding; and(d) the benefit the prisoner is likely to derive from open conditions.][25]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. "
[26]Omitting to put information before a panel is not a ground for procedural unfairness, as has been confirmed in the decision on the previous reconsideration application in Williams [2019] PBRA 7 . This is the case even where the information, had it been before the panel, would have been capable of altering its decision, or prompting the panel to take other steps such as putting the case off for an oral hearing where the new information and its effect on any risk assessment could be examined. This is because procedural unfairness under the Rules relates to the making of the decision by the Parole Board, and when making the decision the panel considered all the evidence that was before them. There was nothing to indicate that further evidence was available or necessary, and so there was nothing to indicate that there was any procedural unfairness. Reconsideration as a discretionary remedy[27]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[28]The Secretary of State submits that the information from the prison was that the dossier, was served upon the Applicant, and as at 4 September 2025 (namely the hearing date) comprised of 447 pages. Discussion Ground 1[29]It is submitted on behalf of the Applicant, by his legal adviser, that the panel were mistaken in their view that the Applicant minimised his role within the index offending. It is submitted that the Applicant would not have been transferred to an open prison if this were the case. Discussion[30]Having considered the content of the decision and the careful notes by the panel of the replies given to the panel by the Applicant it is clear that the panel had reasonable grounds for concluding that the Applicant minimised his involvement in the index offence. The panel compared the comments made by the Applicant about the amount of violence used by him with the comments made by the sentencing judge and others at the time of the offending which indicated a far greater involvement in the index offence and the violence associated with the index offence. In my determination there was sufficient evidence available to the panel to conclude that the Applicant did (in fact) minimise his involvement in the index offence and therefore the comment was made with an evidential base. I do not therefore find that this ground amounts to irrationality in the sense set out above. Ground 2[31]It is submitted, by the Applicants legal adviser, that the panel should have considered commissioning an addendum psychological assessment. It is submitted that the Applicant had made progress, which was not fully identified by the panel. since the last report. Discussion[32]As is well understood, panels of the Parole Board are provided with dossiers of evidence. The Applicant and his legal adviser are also provided with dossiers and are at liberty to make applications and submissions if they feel that further reports whether psychological or otherwise are required. The panel were entitled to take the view that there was sufficient material on the dossier to complete an assessment of risk which was their duty. No application was made by the Applicant or his legal adviser to commission a further psychological report and no further psychological report was commissioned independently. I am not persuaded that there is evidence of irrationality in relation to this ground. Ground 3[33]The Applicant's legal adviser indicates that further information was secured (after the panel hearing), relating to the discovery of Tramadol tablets in the possession of the Applicant unlawfully (an issue which had been discussed at the panel hearing). The particular point being whether the Applicant was in fact in receipt of painkilling medication and was in need of painkilling medication. The evidence received by the panel at the hearing was that the Applicant had been receiving painkilling medication but that it had come to an end by the time of the panel hearing. The panel therefore expressed some doubt as to the veracity of the Applicant's need for medication or complaints about extreme pain. Discussion[34]Panels of the Parole Board are dependent upon the evidence that they receive at hearings. The Applicant was legally represented and had every opportunity to instruct his legal adviser about any misunderstandings at the hearing. The Applicant had the opportunity to correct any confusion which might have arisen as a result of the stress of being involved in a formal hearing. All prisoners are informed of their right to ask to speak to their legal adviser or to take breaks. In my determination the panel were at liberty to assume that the evidence that they were receiving from the Applicant was accurate. The panel decision was based upon the evidence that they received and heard in the hearing. (See Williams above) The reconsideration process (which mirrors judicial review) is one which relies upon an assessment of the panel's approach to evidence adduced at the hearing. I am not persuaded that this submission or ground amounts to procedural irregularity in the sense set out above. Ground 4[35]It is submitted that the panel were irrational in concluding that the risk management plan was insufficient to manage the Applicant's risk in the community. It is also submitted that the professional witnesses had supported the view that the Applicant's risk could be managed subject to the risk management plan in the community. Discussion[36]The panel in this case recorded a detailed and lengthy analysis of the evidence that was reflected in the dossier and received in the hearing. There were a number of concerning issues which impacted upon and engaged the Applicant's known risk factors. Those issues included instances of being unlawfully at large when in open prisons; becoming involved on the periphery of a serious incident of violence in the prison; being in possession of prescription drugs without appropriate permission; security reports of concerning behaviour and a finding by the panel of the minimising of responsibility for both earlier offending and later incidents.[37]Panels of the Parole Board are not obliged to adopt the opinions and recommendations of 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 harm (while also protecting the prisoner from unnecessary incarceration) if they failed to do just that. As was observed by the divisional Court in DSD - panels of the Parole Board have the expertise to make these decisions.[38]However, if the panel makes a decision contrary to the opinions and recommendations of professional witnesses it is important that the panel should explain clearly its reasons for doing so and that its stated reasons should be sufficient to justify its conclusions as noted in the case of Wells. In this case I am fully satisfied that the panel set out as indicated above a detailed and fully evidenced explanation as to the reasons for their decision. The panel set out in its decision the reasons why they did not support the views of professionals in this case.[39]Where a panel reaches a conclusion, exercising its judgement based on the evidence before it, having regard to the fact that they saw and heard the witnesses and the Applicant, it would be inappropriate to direct that the decision be reconsidered unless it is manifestly obvious that there are compelling reasons for interfering with the decision of the panel. I do not in this case find that there are such compelling reasons. The panel fully explained the basis upon which they reached their conclusion regarding continuing risk and the basis upon which they disagreed with the views of professionals. In the circumstances therefore I do not direct reconsideration. Ground 5[40]It is noted by the Applicant's legal adviser that the Applicant was not in possession of some pages of the dossier and that the matter was raised at the panel hearing. The Applicant was given access to the dossier used by the POM. Discussion[41]It appears that the question of the remaining pages of the dossier, which were not in the possession of the Applicant, was discussed at the hearing. The parties appear to have agreed that the Applicant could refer to and use the dossier in the hands of the POM. It is submitted that the Applicant did not have sufficient time to digests the content of the missing pages. The Respondent indicates that the evidence in the prison was that the Applicant was in possession of a dossier consisting of 447 pages as at 4 September 2025. The oral hearing panel noted that the dossier as at the date of hearing consisted of 411 pages.[42]The Applicant in this case was legally represented. If more time was needed to consider any particular aspect of the dossier it was incumbent upon the Applicant himself or his legal advisers to apply for more time or an adjournment. In circumstances where the parties agree to continuing, having discussed an issue of this sort, reconsideration would not be appropriate unless it can be clearly demonstrated that the Applicant did not receive a fair hearing. I am not persuaded that there is evidence of an unfair hearing in this case and therefore I do not find that there was a procedural irregularity in the sense set out above. Decision[43]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. HH S Dawson 1 October 2025