Braithwaite, Application for Reconsiceration by, [2025] PBRA 218 (8 October 2025) [2025] PBRA 218

PBRA
Braithwaite, Application for Reconsiceration by, [2025] PBRA 218 (8 October 2025)
[2025] PBRA 218 · 2025-07-31
[1]This is an application by Braithwaite (the Applicant) for reconsideration of a paper decision of a single panel member dated the 31 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 the dossier consisting of 235 pages, the application for reconsideration drafted by the Applicant's legal adviser, the decision of the panel member and the representations by the Secretary of State (the Respondent). Request for Reconsideration[4]The application for reconsideration is dated 24 September 2025.[5]The grounds for seeking a reconsideration are set out below. Background[6]The Applicant is serving a sentence of life imprisonment for an offence of sexual assault. His tariff expired in February 2024. He was aged 48 at the time of sentence. He is now aged 57. The offence was committed against a lone female in the street and involved digital penetration. The Applicant was transferred to an open prison in November 2024. Current parole review[7]The Applicant's case was referred by the Secretary of State to the Parole Board to consider whether the Applicant should be directed for release. The matter was heard by a single Parole Board member pursuant to the Member Case Assessment (MCA) process. The Parole Board member considered a dossier then consisting of 219 pages. There were no representations at that time by the Applicant. This was the Applicant's second review. The Relevant Law[8]The panel correctly sets out in its decision letter dated 31 July 2025 the test for release. The panel also considered the principles in the case of Osborn v the Parole Board [2013] UKSC 61 concerning oral hearings. Parole Board Rules 2019 (as amended)[9]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)).[10]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[11]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.[12]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. "[13]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).[14]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.[15]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 considered the evidence.[16]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[20]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.[21]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[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. "
[23][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 it. 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[24]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[25]The respondent offered no representations. Grounds and Discussion Ground 1[26]The Applicant's legal adviser submits that the panel's decision was procedurally unfair because the panel failed to consider the principles in the case of Osborn v the Parole Board [2013] UKSC 61 . Discussion[27]The background to this application is that the Applicant is serving a sentence of life imprisonment for an offence of sexual assault. The Applicant, following an earlier decision of a Parole Board panel, had been transferred by the Secretary of State to an open prison. He had been transferred in November 2024. As is commonly the case, his sentence plan involved arrangements for temporary leave into the community. At the time of the panel member's decision, the reports indicated that the arrangements had not yet been completed, and the temporary leave had not begun.[28]The Applicant's legal adviser submits that the panel member should have sent this case for an oral hearing rather than reach a conclusion upon the evidence before the panel member. In the case of Osborn the Supreme Court comprehensively reviewed the basis on which the Parole Board should consider applications for an oral hearing. The Supreme Court did not decide that there should always be an oral hearing but said that there should be an oral hearing if fairness to the prisoner requires one. The Supreme Court indicated that an oral hearing is likely to be necessary where the Board is in any doubt about whether to direct one. It should be ordered where there is a dispute on the facts; where the panel needs to see and hear the prisoner in order to properly assess risk and where it is necessary in order to allow the prisoner to properly put his case. When deciding whether to direct an oral hearing the Board should take into account the prisoner's legitimate interest in being able to participate in a decision with important implications for him. It is not necessary that there should be a realistic prospect of progress for an oral hearing to be directed. Taking into account those principles in this case there was no dispute about the facts, there was a clear indication as to where the Applicant was in terms of his progression. The Applicant himself appeared to have told professionals that he understood that as he had been recently moved to an open prison there would be a process of escorted and unescorted leave and thereafter overnight leave to test the Applicants ability to manage risk in the community. It was also noted that further consolidation work was anticipated to take place with the Applicant's Community Offender Manager.[29]The Applicants legal adviser suggests that the panel making the decision should have anticipated the delays that might take place before the case was listed for an oral hearing and should therefore have directed an oral hearing anticipating such delays. I am not persuaded that this is an appropriate approach. Panels of the Parole Board are required to make decisions based upon the information that is before the panel at the time of the decision. In this case it is clear that the panel considered the evidence which was before them. The Applicant was making progress in an open prison, but there were a number of matters relating to progression which would need to be undertaken, by the Applicant, to demonstrate that risk could be managed in the community. I am not persuaded that the decision of the panel member could be characterised as irrational or procedurally unfair on the basis of this ground. The panel, in my determination, followed the principles set out in the case of Osborn and applied those principles to the facts as presented prior to the decision. Ground 2[30]It is submitted that the decision of the panel member was irrational on the basis that the Applicant had been in an open prison since November 2024 and that by the time of an oral hearing (which it was estimated would have been scheduled in February 2026), the Applicant would have completed the process of temporary leave in the community and therefore be ready to be considered for release. Discussion[31]This ground appears to be argued upon a similar basis to the first ground (above) submitted on behalf of the Applicant. As indicated above the panel member was entitled and obliged to make a determination based upon the evidence available and presented to the panel member at the time of the decision. It was clear at the time of the decision that, again as indicated above, there were a number of issues and matters relating to progression which were in train. The Applicant had yet to begin temporary leave, and was being invited to undertake further consolidation work with his COM. The decision was made upon the basis of the evidence presented to the Parole Board panel member. I am not persuaded that the decision maker acted irrationally in reaching a determination on the basis of that evidence. Decision[32]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 8 October 2025