Patnaik, Application for Reconsideration [2025] PBRA 233 (28 October 2025) [2025] PBRA 233

PBRA
Patnaik, Application for Reconsideration [2025] PBRA 233 (28 October 2025)
[2025] PBRA 233 · 2025-09-19
[1]This is an application by Patnaik (the Applicant) for reconsideration of a decision of an oral hearing panel dated the 19 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 decision of the oral hearing panel, and the representations drafted by the Applicant’s legal adviser applying for reconsideration. Request for Reconsideration[4]The application for reconsideration is dated 9 October 2025.[5]The grounds for seeking a reconsideration are set out below. Background[6]The Applicant is serving a sentence of life imprisonment. The Applicant was sentenced on 16 November 2006. His tariff expired in April 2018. The index offences were four offences of rape and five offences of sexual assault by penetration. There were also offences of making or distributing indecent images. The victims of the offences were sex workers who were initially approached for payment for sexual services. The offences arose in circumstances where the Applicant was found to have refused payment and then committed offences of rape. The sentencing judge indicated that the Applicant was “a very dangerous man whose depravity has plumbed untold depths”. The Applicant was aged 31 at the time of sentence, he was 50 at the time of the panel hearing. He was resident in an open prison at the time of the panel hearing. Current parole review[7]The referral from the Secretary of State requested the panel consider whether the Applicant should be directed for release. The oral hearing panel consisted of two independent members of the Parole Board. Evidence was given at the oral hearing by a Prison Offender Manager (POM), and a Community Offender Manager (COM). The Applicant was legally represented. The Relevant Law[8]The panel correctly sets out in its decision letter dated 19 September 2025 the test for release. 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)).[11]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[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 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 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. 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[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. ”
Reconsideration as a discretionary remedy[25]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[26]The Respondent offered no representations. Discussion Ground 1[27]The primary ground argued in this case by the Applicant’s legal adviser on behalf of the Applicant is that the oral hearing panel rejected the recommendations of the two professional witnesses, and failed to demonstrate the evidential basis upon which they (the Panel) reached a conclusion contrary to the views of those professional witnesses. Discussion[28]A substantial consideration for the panel in this case was the fact that the Applicant (who was resident in an open prison) had been involved in various incidents in relation to his behaviour when on temporary leave in the community and had acted in a way which the panel concluded was indicative of pushing boundaries and indicated a potential for risk to be elevated in circumstances where non-compliance occurred in the community. A fundamental consideration of any panel involves considering both external and internal controls to manage risk. Pushing boundaries and attempting to avoid compliance requirements are clearly a matter of great importance in terms of assessing the manageability of risk.[29]It is of some relevance that the dossier indicated over a number of years a consistent concern by professionals relating to the Applicant’s compliance and the pushing of boundaries, the explanation for the behaviour being attributable to the presence of unhelpful schemas such as “ I know best ” and “ I can do what I want ”.[30]Set out below is a short summary of the two individual matters which the panel interpreted as concerning in terms of risk but which the professionals believed to have a limited impact upon risk. Boundary pushing[31]The Applicant’s legal adviser suggests that the panel misinterpreted or misunderstood an incident which related to the Applicant giving an impression (to a duty prison officer) that he had been given permission to visit Manchester while on release on temporary leave (ROTL). The Applicant had claimed that he had been given permission by his COM. This was not the case. The panel, having asked professionals about this incident, recorded in the decision that had this matter not been raised and pressed by a duty officer in the prison, the likelihood would have been that the Applicant would have been in the community in a place where he was not approved to visit. The Applicant’s COM and POM apparently made little of this incident. The panel however took the view that it reflected a lack of openness and honesty, and an example of the Applicant attempting to take advantage of a situation.[32]In my determination this was an example of an incident which the panel were entitled to reflect upon, and consider independently of the professionals. The panel were entitled to take the view that this was an example of the Applicant attempting to take advantage of a situation and possibly bypassing or avoiding the need to comply with conditions. One of the purposes of temporary leave (from an open prison) and conditions relating to temporary leave, are to test the commitment of a prisoner to complying with supervision on licence requirements. The panel had sufficient evidence in this case to reach the conclusion that they did. Creating an email account[33]As noted in the panel’s decision, the Applicant while on temporary leave in the community had visited a public library and created a personal email account while in the public library. He had then emailed a female prison governor. He had secured the governor’s email address by guessing the address, using the prison governor’s name. The Applicant was apparently using this process to “ chase up ” an issue that he required to be addressed by the prison governor. He had also made an inappropriate reference within the email.[34]The general view of the panel was that this activity, coupled with concerns about inappropriately contacting staff (in other prisons) on earlier occasions, was again an example of the pushing of boundaries and behaving inappropriately while in the community.[35]The Applicant’s POM and COM apparently told the oral hearing panel that they saw no concerns with these behaviours. The panel were again at liberty to reflect upon the behaviour, and the factual matters and to reach their own conclusion. As indicated the panel felt that this was concerning behaviour in terms of the management of risk in the future.[36]The panel had the advantage of an extensive dossier of reports and other material. They had the advantage too of seeing and hearing the Applicant as well as hearing the evidence of the witnesses. 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 serious harm (while also protecting the prisoner from unnecessary incarceration) if they failed to do just that. As was observed in the case of DSD , Parole Board panels have the expertise to undertake this task.[37]It is acknowledged that if the panel makes a decision contrary to the opinions and recommendations of professional witnesses, it is important that they should explain clearly the reasons for doing so and that its stated reasons should be sufficient to justify its conclusions as per Wells above.[38]In this case the explanation for the panel’s decision was clear. The panel took a different view of various incidents which were listed in the panel decision. The panel took the view in general terms that the Applicant was a man who had historically pushed boundaries and acted inappropriately. The panel found that incidents described in the hearing were further examples. It is clearly of vital importance that a risk management plan and licence conditions are likely to be adhered to in the community. The professionals clearly took the view that the Applicant would comply with licence conditions, and the risk management plan, and therefore that his risk could be safely managed. The panel, however, took a different view. They explained their reasons.[39]It is understandable that the Applicant would be disappointed by the panel’s decision, however the reconsideration mechanism is not a process whereby the judgement of the panel when assessing risk can be lightly interfered with. Where a panel arrives at a conclusion exercising its judgement based on the evidence before it and having regard to the fact that they saw and heard the witnesses 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. I do not find that there are compelling reasons in this case. In particular, I do not find that the 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. This is clearly a case where there is a difference of opinion in interpretation of various incidents which are factually described within the decision. For these reasons I decline to order reconsideration on this ground. Ground 2[40]It is submitted by the Applicant’s legal adviser that the professionals took the view that a further period in the open prison “would not reduce the risk of serious harm that [the Applicant] presents. ” Discussion[41]I am not persuaded by this submission. The panel’s role was to consider the evidence presented to them at the oral hearing and to apply the test for release. The role of supporting a prisoner to reduce risk is one for the prison and the prisoner himself. The panel were required to assess risk at the time of the panel hearing decision.[42]However, were the Applicant to demonstrate, over a period of time, that he had acted in a way which indicated better management of his potential for pushing boundaries and possibly breaching licence conditions (and therefore elevating risk), he would clearly wish to present this change to a future panel. Ground 3[43]The Applicant’s legal adviser lists various individual items which are suggested to be mistakes of fact. Discussion[44]I have considered the four points which are listed by the Applicant’s legal adviser. I am not persuaded that if the mistakes of fact are correctly recorded, they would have played a material part in the panel’s reasoning and therefore in my determination cannot amount to irrationality. Decision[45]For the reasons I have given, I do not consider that the decision was irrational and accordingly the application for reconsideration is refused. HH S Dawson 28 October 2025