Webb, Application for Reconsideration by, [2025] PBRA 44 (25 February 2025) [2025] PBRA 44

PBRA

Webb, Application for Reconsideration by, [2025] PBRA 44 (25 February 2025)

[2025] PBRA 44 · 2025-01-15

[1]This is an application by Webb (the Applicant) for reconsideration of a decision of an oral hearing panel (OHP). The decision is dated 15 January 2025.The decision was 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

[3]I have considered the application on the papers. These are the dossier now consisting of 426 pages, the panel decision, and the application for reconsideration drafted by the Applicant's legal adviser. Request for Reconsideration

[4]The application for reconsideration is dated 4 February 2025.

[5]The grounds for seeking a reconsideration are set out below. Background

[6]The Applicant is serving an extended prison sentence consisting of a custodial period of eight years and an extension period of three years. The Applicant was aged 28, at the time of sentence. He is now aged 34. The Parole Board review requested consideration as to whether the Applicant should be directed for release. The Applicant was eligible for parole in August 2023. The Applicant will be released conditionally in October 2025. This was the Applicant's first review. The Applicant was serving his sentence in relation to both child sexual offences and offences relating to controlling and coercive behaviour of a partner. The child offences were committed in 2007 when the children involved were under 13. The offences relating to controlling and coercive behaviour related to an intimate relationship. The incidents amounting to this offence occurred between 2015 and 2018. The Applicant had a lengthy offending history involving various offences including a conviction for sexual activity with a child for which he had served a prison sentence in 2015. Current parole review

[7]The OHP consisted of an independent chair, a psychologist member of the Parole Board and a judicial member of the Parole Board. Evidence was given at the hearing by a prison offender manager (POM), a community offender manager (COM) and a prison instructed psychologist. The Applicant was legally represented and gave evidence at the hearing. The Relevant Law

[8]The panel correctly sets out in its decision letter dated 15 January 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)). 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) 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).

[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 heard 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;

(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

[19]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.

[20]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

[21]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

[22]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)

[23]The Respondent offered no representations. Grounds and Discussion Ground 1

[24]It is submitted on behalf of the Applicant that the panel made a material error of fact on which it then substantively relied upon in making its decision. Discussion

[25]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."

[26]It is a well-established ground for a grant of judicial review if a tribunal has taken into account information which it is accepted is inaccurate. The grounds for reconsideration mirror those for judicial review and therefore it is also a ground for reconsideration. I accept that it is capable of being both irrational and procedurally unfair to take into account inaccurate factual information in making a decision. It is important that decisions are not only fair but are also seen to be made according to a fair procedure. If incorrect information is included in the decision letter, the fairness of the procedure is called into question.

[27]However, it will not invariably follow that if there is an inaccurate fact or facts in the decision letter that an application for reconsideration will be granted. Reconsideration, like judicial review, is a discretionary remedy and, if I am satisfied that the incorrect fact did not materially affect the decision then the application is likely to be refused.

[28]In this case the factual error which forms the basis of this ground relates to a comment by the panel in their decision letter namely "[the Applicant] had a previous conviction for a child sexual offence and went on to commit the index offences ."

[29]The accurate position was that the Applicant had committed, and been convicted of, offences involving child sexual offending on two occasions. The first set of offences were committed in 2007 when the Applicant was probably aged 16. These offences were the index offences, they had lain dormant, and had not been reported by the victims or investigated until some years later (in 2019).

[30]In 2015 the Applicant was convicted of an offence involving sexual offending relating to a child victim. He was sentenced to a term of imprisonment. This was therefore his first court conviction involving child sexual offending.

[31]In 2019 the offending behaviour (the index offences) which had occurred in 2007 was disclosed by the victims and investigated by the police. The Applicant was subsequently charged and convicted of these (historical 2007 offences) in 2019.

[32]It was therefore inaccurate to record that the Applicant had a " previous conviction" for a child sexual offence prior to the index offending. The index offences were the first child sexual offences he had committed.

[33]The relevant passage in the decision indicated as follows:

" The panel was inevitably concerned by [the Applicant's] offending history, in particular with the diverse pattern of harmful behaviour and the fact that previous convictions for similar misconduct had failed to change [the Applicant's] behaviour. [The Applicant] had been convicted of past child sexual abuse and went on to reoffend in a similar manner in the index offences."

[34]The implication was that the Applicant had been alerted to his offending by a previous conviction and therefore should have been deterred and changed his behaviour. There was also an implication that the index offences (the 2007 offending) were rendered more serious because the Applicant had a previous conviction. As noted above he did not in fact have a previous conviction for child sexual offending because the 2007 behaviour had not come to light. The index offences precede the 2013 offending (but were not convictions until 2019) and therefore were inaccurately described as " previous convictions ".

[35]The panel somewhat reinforced the concern about this issue by the emphasis they placed upon the point. The panel emphasised that the " previous convictions...had failed to change [the Applicant's] behaviour".

[36]The offending and conviction timeline in this case required careful scrutiny and could be confusing. It appears that the panel inaccurately analysed the timeline and inevitably drew inaccurate conclusions.

[37]The previous conviction issue was not the only reason for the panel's decision, I acknowledge there were a number of other relevant and concerning, risk related, issues highlighted by the panel which appropriately supported their final decision not to direct release.

[38]As noted above, reconsideration is a discretionary remedy and I have therefore considered whether, in all the circumstances, this is a case where I should exercise my discretion to reject the application for reconsideration despite the obvious error of fact. I am conscious of the fact that if I exercise a discretion in this case it would amount to making the decision on the facts as I see them and without seeing or hearing the witnesses, substituting my analysis of the evidence for that of the panel. That is not the role of the reconsideration panel.

[39]I am therefore persuaded that this error by the panel appears to have been a material issue in the decision, the panel specifically emphasised its importance and in my determination it therefore amounts to a procedural irregularity in the sense set out above. Other ground

[40]In the light of my finding in relation to the first ground I have not addressed any other issues raised by the Applicant's legal adviser. Decision

[41]Accordingly, whilst I do not find there to have been an irrational conclusion, I do consider, applying the test as defined in case law, the decision to be procedurally unfair. I do so solely for the reasons set out above. The application for reconsideration is therefore granted and the case should be reviewed by a fresh panel by way of an oral hearing. HH Stephen Dawson 25 February 2025