Fell, Application for Reconsideration [2025] PBRA 40 (26 February 2025) [2025] PBRA 40

PBRA
Fell, Application for Reconsideration [2025] PBRA 40 (26 February 2025)
[2025] PBRA 40 · 2024-12-13
[1]This is an application by Fell (‘the Applicant’) for reconsideration of the decision of a single member of the Parole Board (‘the Board’) not to direct the termination of his licence and not to suspend the supervisory elements of the licence.[2]The Applicant is serving a sentence of imprisonment for public protection (‘IPP’) for offences which will be described below. The sentence was imposed in August 2006. The Applicant was released on licence in October 2013. Since then he has been recalled to prison twice and re-released twice. His licence will expire in September 2025. Application[3]Section 31A of the Crime (Sentences) Act 1997 (as amended) provides for the Secretary of State to refer the case of a prisoner serving an IPP sentence to the Board to decide whether to direct the termination of his licence. The test for the Board to apply is whether it is satisfied that it is necessary for the protection of the public that the licence should remain in force.[4]Rule 31 of the Parole Board Rules 2019 (as amended) provides that, when a referral is made by the Secretary of State, the case should be considered by a single member panel which may either make a decision itself on the papers or direct that the case should be heard by an oral hearing panel. A decision, whether made on the papers or after an oral hearing, is open to reconsideration under Rule 28.[5]Under Rule 28 an application for reconsideration may be made by the prisoner or by the Secretary of State. It may be made on one or more of the following grounds:(a) that the panel’s decision contains an error of law; and/or(b) that it is irrational; and/or(c) that it is procedurally unfair. The application must be made within 21 days after the decision is sent to the parties.[6]On 13 December 2024 the Secretary of State referred the Applicant’s case to the Board under Section 31A. The referral provided that if the Board did not direct the termination of the Applicant’s licence it should consider whether it would be appropriate to suspend the supervisory elements of the licence or to amend or vary or add to any of the licence conditions.[7]This case was considered by a single member panel who decided on the papers not to direct the termination of the Applicant’s licence and not to suspend the supervisory elements of the licence or to amend or vary or add to any of his licence conditions. The panel’s decision is dated 27 December 2024 but it was not actually issued until 6 January 2025.[8]On 24 January 2025 an application for reconsideration was submitted by the Applicant in person on the ground of irrationality. It was filed within the time limit and is thus eligible for reconsideration.[9]I am one of the members of the Board who are authorised to act as ‘Reconsideration Panels’ to make decisions on reconsideration applications, and this case has been allocated to me.[10]The documents which have been provided to me and which I have considered for the purposes of this application are:(a) The dossier of papers provided by the Secretary of State (the Respondent) for this case, which contains 185 numbered pages;(b) The representations made by the Applicant in support of his application for reconsideration; and(c) An e-mail from the Public Protection Casework Section of the Ministry of Justice (‘PPCS’) stating on behalf of the Respondent that she does not wish to submit any representations in response to this application. The Relevant Law[11]The panel correctly sets out in its decision letter the test for licence termination. Parole Board Rules 2019 (as amended)[12]Rule 28(1) of the Parole Board Rules specifies 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)).[13]Rule 28(2) of the Parole Board Rules specifies the sentence types in respect of which an application for reconsideration may be made. These are:(a) indeterminate sentences (rule 28(2)(a))(b) extended sentences (rule 28(2)(b))(c) certain types of determinate sentence subject to initial release by the Parole Board (rule 28(2)(c)) and(d) serious terrorism sentences (rule 28(2)(d)). Irrationality[14]The power of the courts to interfere with a decision of a competent public authority on the ground of irrationality was defined in Associated Provincial Houses Ltd -v- Wednesbury Corporation 1948 1 KB 223 by Lord Greene as follows:
“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 Parole Board is a public authority for that purpose, and the Wednesbury test therefore applies to applications to the High Court for judicial review of a panel’s decision. It also applies to applications to Reconsideration Panels of the Board for reconsideration of a panel’s decision on the ground of irrationality.[15]In R (DSD and others) -v- the Parole Board 2018 EWHC 694 (Admin) (‘the Worboys case’) a Divisional Court applied this test to Parole Board decisions in these words:
“ 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 .”
The same test of course applies to ‘ no release’ decisions.[16]In R (on the application of Wells) -v- Parole Board 2019 EWHC 2710 (Admin) Mr Justice Saini set out what he described as a more nuanced approach in modern public law. This approach 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 ”
. This formulation of the 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) .[17]As was made clear by Mr Justice Saini, this is not a different test from the Wednesbury test. The interpretation of (and application of) the Wednesbury test in parole hearings (as explained in the Wednesbury and DSD cases) was of course binding on Mr Justice Saini. It is similarly binding on Reconsideration Panels of the Board.[18]It follows from these principles that in considering an application for reconsideration a Reconsideration Panel cannot substitute its own view of the evidence for that of the panel which heard the witnesses. It can only direct reconsideration on the ground of irrationality if the Wednesbury test is satisfied.[19]The authorities have shown that the test may be satisfied in a variety of situations. One of those situations is where the panel can be seen to have failed in its ‘duty of enquiry’, i.e. where it failed to make an enquiry which the panel could reasonably have been expected to make in order to be in a position to make a fully informed decision. Background[20]The Applicant is now aged 40. He suffers from Autistic Spectrum Disorder (‘ASD’) which has resulted in:(a) his finding it difficult to form healthy relationships;(b) his misreading cues from women who are not interested in developing a relationship with him; and(c) his difficulties in perspective-taking. He was not formally diagnosed with ASD until 2015 but his difficulties had been apparent from an early age. His parents have always been very supportive of him.[21]At the age of 15 he touched the breasts of a teenage girl without her consent, for which he received a police caution. At the age of 20 he became obsessed with a female doctor whom he had seen on television. He sent her unwelcome expressions of his feelings towards her and was charged with and convicted of harassment. He then breached court orders intended to deter him from further harassment of the doctor, resulting in a 6 month sentence in a Young Offenders Institution.[22]On release from that sentence, he resumed his harassment of the doctor. This time he was made subject to a hospital order (i.e. that he should be detained in a hospital). He was soon discharged from the hospital and received help and counselling from a local service for young people with difficulties of his kind.[23]Not long after that, when he was aged 21, he committed the offences for which he received the IPP sentence. He had become obsessed with young women wearing nose rings. On three occasions he approached such young women and tried (successfully on one occasion) to steal their nose rings. For those offences he was convicted of one robbery and two attempted robberies. His minimum term under the IPP sentence was fixed at 2 years less the time which he had served on remand.[24]He was released on licence in October 2013 on the direction of the Board, but was recalled to prison in April 2014 as a result of approaching a young woman with a nose ring and taking a ‘ selfie ’ of the two of them together.[25]He was re-released on licence in December 2015 on the direction of the Board but was recalled again to prison in October 2016. This was because, after a consensual relationship with a young work colleague who wore a nose ring had ended, he became obsessed with another work colleague. He persistently pursued contact with her by various means, despite her clear message to him that this was unwelcome and she had no wish to be in a relationship with him. He pleaded guilty to harassing her, for which he received an 8 week sentence to run concurrently with his IPP sentence.[26]In August 2018 he was transferred from prison to a medium secure psychiatric hospital which specialises in the care and treatment of people with ASD. The treatment which he received at that hospital focussed on his social deficits, sexual pre-occupations and inability to navigate relationships successfully. The hospital staff noted his obsession with female staff members with nose piercings, particularly one Healthcare Assistant. He convinced himself that she was open to having a relationship with him, despite her making it clear to him that she was not.[27]In April 2021, when he was still residing at the hospital, the Applicant began a series of sessions with doctors from the Forensic Outreach and Liaison Service (‘FOLS’). That service works with individuals suffering from ASD and Learning Disabilities who pose a high risk of harm. The work undertaken by FOLS starts with patients in hospitals and continues into the community where it focusses on applying learning to real life situations.[28]In September 2021 a Mental Health Tribunal considered the Applicant’s case and concluded that he had made sufficient progress for it not to be necessary that he should continue to be detained in hospital. If he had not been subject to an IPP sentence he would have been discharged into the community with a detailed risk management plan which would include input from FOLS.[29]In these circumstances the Applicant was returned to the prison system and the Respondent referred his case to the Board to decide whether to direct his re-release on licence.[30]In June 2023 a panel of the Board considered the case and concluded that he could safely be released into the community on licence. It is worth quoting from the panel’s conclusions:
‘[The Applicant’s] case is a complex one and the panel had to decide whether it is necessary for him to remain confined for public protection …. ‘The panel considered a wealth of written and oral evidence and the closing submissions … on [the Applicant’s] behalf. ‘The panel had regard to the nature of [the Applicant’s] robbery and attempted robberies, which related not to financial gain but an intense sexual arousal to women wearing nose jewellery. His index offences did not result in serious physical harm, but they caused considerable psychological harm. ‘He has a previous conviction for harassment of a doctor whom he had only seen on television and he behaved highly inappropriately on two releases into the community …. He still minimises his behaviours that led to those recalls and struggles seeing others’ perspectives. There were a number of concerns about his behaviour when at [the hospital], particularly his obsession with a female member of staff with a nose ring, and he did not make as much progress in treatment as was hoped. ‘The panel weighed the above considerations against the fact that [the Applicant] has spent more than 6½ years in confinement since his last recall, his good behaviour in prison prior to and following his period in hospital, and some evidence that he has made partial progress in treatment. ‘He appears to be more able to recognise what is expected of him on IPP licence and has built good relationships with his current COM and a Psychologist from the FOLS Service, which offers bespoke work in the community with those, such as [the Applicant], with ASD. He appears genuinely motivated to comply with licence conditions and benefit from support and therapy from FOLS and the Bridging the Gap IIRMS service. ‘[The Applicant’s] risk is seen primarily now as serious psychological harm from harassment or stalking, and the panel considers work with him in the community is likely to further reduce his risks. ‘[The Applicant] will be closely monitored on release by several agencies and a stringent risk management plan is proposed, including GPS tracking. All witnesses willing to give a recommendation considered that [the Applicant’s] risks have reduced to a level where he can now be managed in the community. On balance, the panel agreed.’
[31]Details of the Applicant’s concerning behaviour at the hospital were contained in the panel’s decision but it is unnecessary to repeat them here.[32]In pursuance of the panel’s direction the Applicant was re-released on licence on 1 September 2023. He initially resided at a probation hostel (‘Approved Premises’) where his behaviour gave no cause for concern.[33]In October 2023, when 10 years had elapsed since the Applicant’s first release on licence, there was an automatic referral to the Board by the Respondent to decide whether his licence should be terminated. In the following month the case was considered by a single member panel which, since the Applicant had only recently been released on licence after a long period in prison and hospital, unsurprisingly decided on the papers that his licence should not be terminated.[34]The panel on that occasion noted that at the time of the report by probation for the Respondent the Applicant was still residing in Approved Premises but move-on accommodation was being sourced and an intensive risk management plan was being put in place. He was receiving continuing support from FOLS; he was due to start work with the Intensive Intervention and Risk Management Service (‘IIRMS’); and trail monitoring was planned for a period of 12 months.[35]Shortly after that decision was made the Applicant moved from the Approved Premises to a family address on a temporary basis, and in January 2024 he moved again to supported accommodation of his own. In addition to support from FOLS and IIRMS further support has been provided to him by the Circles of Support and Bridging the Gap organisations.[36]On 12 September 2024 the trail monitoring condition in the Applicant’s licence was revoked by the Board as being no longer necessary.[37]The present referral to the Board was made in December 2024. A detailed report had been made by the Applicant’s Community Offender Manager (‘COM’) to the Respondent on 25 November 2024. That report sets out details of the Applicant’s progress since his latest release on licence as follows:
‘[The Applicant] has completed the third year of his studies with the Open University, he graduated with a First for his English degree and has since started a Masters course at [another university] studying Language and Linguistics. He has disclosed his offences to the admissions team and is awaiting formal confirmation from them of his ability to continue with his studies. ‘[The Applicant] has proactively managed any challenging situations by talking these through with his support network of professionals when needed. ‘Despite initially questioning some of his licence conditions immediately on release, including the necessity of his Approved Premises placement and purpose of trail monitoring, he has complied exceptionally well with all conditions and requirements in place and was successful in applying to have his trail monitoring tag removed early on the grounds of good progress, following endorsement at an IPP Panel. ‘[He] remains single and has not reported any developing relationships or interest in anyone specific since being released from custody. He initially spoke about wanting to 'look up' staff from [the hospital] on social media as he had prior to release, he talked about wanting to join a dating apps and was thinking of ways in which he could secure a casual sexual encounter. However, he quickly became more focused on his studies and is now reporting wanting to take his time in making plans for the future. ‘[The Applicant] presents as much less sexually pre-occupied and has also demonstrated an increased ability to consider the perspectives and needs of others. He has a more realistic view of the way in which he hopes to meet someone in the future, who shares similar interests and is more mature, recognising that he is about to turn 40 years old himself.’
[38]The COM’s recommendation to the Board was as follows: ‘Whilst the excellent progress made by [the Applicant] during the current licence period is acknowledged, it is currently the view of myself and those working with him that it would be beneficial for his licence to remain in place until he becomes eligible for automatic termination in September 2025 (at the point he has been in the community for two years). ‘Whilst it is acknowledged that there has been a reduction in risk and contact currently is more focussed on support than risk management, the concern would be that if [the Applicant] receives a negative response to his application to continuing his studies at [the university] then there would be limited support in place to help him to navigate this. There is also a concern that a lack of stability could in turn serve to increase risk. ‘It is hoped that by the licence remaining in place until September 2025 reporting arrangements could be reduced more gradually [the Applicant] had been subject to weekly reporting until November 2024) to allow a greater period of testing under less restrictive conditions. ‘There would be planned endings for both Circles of Support in February 2025 and Bridging the Gap in April 2025, with a reduction in contact in place to support this transition. The [university’s] post graduate admissions team also noted that they felt it was positive that [the Applicant] would be subject to supervision on licence during the first year of his studies with them to manage any concerns or provide additional support. At the time of writing we are still awaiting their final decision. ‘The suspension of supervision is not supported at this time and is felt to be the most important element in place to manage risk currently.’ [No licence variations were recommended].[39]On 25 November 2024 the Applicant submitted detailed representations in support of his request for his licence to be terminated.[40]As noted above the Applicant’s case was considered by a single member panel on 27 December 2024. After summarising much of the history of the case and the relevant parts of the probation report the panel concluded:
‘Having regards to all the facts in the case, the Panel concluded that it was necessary for the protection of the public that the IPP licence is not terminated. The panel note that [the Applicant’s] licence will terminate automatically in September 2025. It is noted that [the Applicant] was subject to weekly supervision until recently and there is a strong argument for a gradual decrease in support until the termination of the licence. For the same reasons the supervision has not been suspended. The Panel does note the positive progress [the Applicant] has made with his studies and reintegration and wishes him well for the future .’
Request for Reconsideration[41]As noted above this application was submitted on 24 January 2025 by the Applicant in person. His representations in support of the application were as follows:
‘The Parole Board Statutory Test clearly states that, from 1st November 2024, "there will be the presumption that the Parole Board will terminate the IPP licence unless they are satisfied that the licence is necessary for the protection of the public". My risk of reoffending is assessed as 'low', and my OM [‘COM’] clearly states in her report that Parole Board supervision is now about support, rather than risk management. In which case, I would argue that it was irrational to conclude that the licence remains necessary for the protection of the public. ‘Additionally, a key factor in [the OM’s] opinion and the decision of the panel was the uncertainty around my place on a master's course at [the university]. But my place at [the university] was confirmed unconditionally on 27th November, so this was already no longer an issue by the time of the termination request being reviewed by the Parole Board panel. ‘The fact that [the university’s] postgraduate admissions team expressed the view that it was positive I would be on licence for the first year of my 2-year course to manage any concerns should, I would argue, be irrelevant if risk is not an issue. [The OM] also expressed a preference that I come off my current support in a more gradual way. Again, I would argue this is irrelevant if risk is not an issue. In any case, all support aside from my OM will no longer be in place by this April at the latest. ‘I would very much appreciate this decision being looked into again for the reasons outlined above. Moreover, I was one of the earliest to receive an IPP sentence and received a relatively short minimum term. My first release was more than eleven years ago and I have worked extremely hard to turn my life around despite the challenges posed by the IPP sentence. If I had been given a determinate sentence instead of an IPP this would have been a 4-year sentence. That means my sentence would have expired in 2010 - fifteen years ago.’
The reply on behalf of the Respondent[42]As noted above, PPCS have indicated that the Respondent does not wish to submit any representations in response to this application. Discussion[43]The key point, I believe, is that the Applicant’s place on a 2-year master’s degree course at the university was (as the Applicant says and I have no reason to think otherwise) confirmed unconditionally on 27 November 2024. That was, as it happens, two days after the COM’s report and the Applicant’s representations in support of termination of his licence were both submitted to the Respondent.[44]The apparent uncertainty about whether the Applicant would be accepted on the course was clearly a significant point relied upon by the COM and the panel in support of their opinions. It is clear that the Applicant’s risk to women would have been significantly greater if his application to the university had been refused than if (as was the case) it was granted. It is also significant, I think, that the COM’s report of 25 November 2024 stated that the Applicant was ‘ awaiting confirmation’ of his place on the course: the admissions department seems to have been favourable to his application.[45]In those circumstances I think it can properly be said that the panel could reasonably have been expected on 27 December 2024 to make some enquiry as to whether the place had been confirmed, instead of making a decision on the basis of a report submitted a month earlier.[46]The panel’s failure to make such an enquiry, which would have revealed that the place had been confirmed, can I think be treated as Wednesbury unreasonable. Decision[47]That conclusion does not necessarily mean that this application for reconsideration should be granted: reconsideration is a discretionary remedy and I need to consider whether the panel’s decision would inevitably have been the same if the irrationality had not occurred. If so, it would be inappropriate to direct reconsideration of the panel’s decision.[48]There was quite a strong case for saying that the Applicant’s licence ought not to be terminated for the other reasons advanced by probation. As will be apparent (from the above summary of the history of the case,(a) the Applicant’s mental health difficulties were long standing and deep rooted, and(b) the significant reduction in his risk to women (especially those with nose rings) has been relatively recent and will need to be tested. There was force in the suggestion that testing should be carried out by the COM after the ending of the other sources of support.[49]However, I cannot say with any certainty that the panel’s decision would inevitably have been the same if it had made an appropriate enquiry and ascertained that the Applicant’s place at the university had been confirmed. On that basis I must direct that the panel’s decision should be quashed on the ground of irrationality (failure to make an appropriate enquiry) and the case should be reconsidered. I do not need to express any view on the other points advanced by the Applicant. Jeremy Roberts 26 February 2025