McLeod, Application for Reconsideration [2025] PBRA 45 (04 March 2025) [2025] PBRA 45

PBRA
McLeod, Application for Reconsideration [2025] PBRA 45 (04 March 2025)
[2025] PBRA 45 · 2025-01-31
[1]This is an application by McLeod (the Applicant) for reconsideration of the decision of the Parole Board, following an oral hearing on 31 January 2025, of 7 February 2025 not to direct his 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 and after listening to the recording of the hearing which lasted 5 hours 46 minutes. The papers comprise:a. The dossier, now comprising 784 pages, including the decision letter (DL), the subject of this application.b. Written submissions dated 31 January 2025 sent in by the Applicant’s legal representative to the Parole Board panel following the hearing.c. An email sent by the Applicant’s Offender Manager to the Applicant’s legal representative prior to the hearing - see below paragraph 5 iii.d. The application dated 10 February 2025 submitted on behalf of the Applicant.e. An email dated 13 February 2025 on behalf of the Secretary of State for Justice (the Respondent) indicating that she does not wish to make representations in respect of the appeal. Background[4]The Applicant is now 44 years old. In 1997 he was convicted of a number of offences of dishonesty and assault. In 1998 he was again convicted of 17 offences of dishonesty and of assaulting a police officer and sent to a Young Offenders’ Institution for three months. In 1999, 2000 and 2001 he was again convicted of offences of assault, affray, threatening behaviour and offences of dishonesty and driving a vehicle with excess alcohol. In 2002 he was convicted of 16 offences, including an offence under Section 20 of the Offences against the Person Act 1861. In 2004 he was twice convicted of offences of actual or threatened violence and sentenced to 15 months imprisonment. In February 2006, following his conviction for murder he was sentenced to life imprisonment. His minimum term was set at 17 years and one month. Following a Parole Board hearing on 21 October 2020 which was followed by a number of adjournments, in December 2021 a panel declined to order his release or to recommend his transfer to open conditions. Request for Reconsideration[5]After a helpful summary of the law and various decisions of the courts on the way in which the Parole Board should approach its task and set out its decisions, the specific grounds for seeking a reconsideration of the case submitted by the Applicant’s legal representative are set out in full below: i. “Having undertaken a holistic approach and considering all the evidence before the panel. With regard to the security intelligence, the Panel were unanimously of the view that there was no proven evidence that [the Applicant] was involved in the drug culture, bullying or intimidation. The panel also accepted the intelligence had most recently reduced. Notwithstanding this, based on the volume and specific type of entries, the period of time over which [the Applicant] had accrued the intelligence and the fact that the intelligence had followed him from one establishment to another, the panel were of the view there was sufficient information to conclude there have been concerns with regard to [the Applicant] custodial behaviour over a lengthy period of time, leading the panel to attach weight to the security intelligence when undertaking a risk assessment.” ii. The Panel also state, “. Overall the Panel did not consider that the controls and support provided by the risk management plan would be sufficient to manage the risk of harm which [the Applicant] currently presents.” The panel have failed to give adequate reasons on this point given no violence since his index offence, risk not being imminent, intelligence not be offence paralleling, completion of core risk work and warning signs being apparent. In light of all of these points, the release test would be met. Recommending open due to the length of time he has been in custody or in order to aid resettlement is not a reason to support open conditions when all other evidence points to the release test being met. iii. The Decision states, “After further questioning from the Panel the COM (Community Offender Manager) said that the volume and length of time the intelligence spans is concerning and that is why she is attaching weight to it. Therefore in her professional opinion he doesn’t meet the test for release, but given that there isn’t any strong evidence that [the Applicant] has been involved she considered that he did meet the test for open conditions and no longer needed to stay in closed conditions.” The COM gave clear evidence that risk was manageable at the start of her evidence despite the intelligence. We attach an email from her where she states, “I think if there are ongoing / credible security concerns we need to test him in open before feeling confident he can be managed in community - I can’t propose that his risk is manageable in the community if there are credible concerns around drug supply and threats / bullying of others currently. If the security concerns are discounted in the hearing, then I think he can be released to a standard AP with move on to his mums address whilst CYPS assess if he can live with [his partner], or to [his partner’s] if CYPS have completed their assessments in time.” On the basis of this comment it appears that the panel relied upon a view of the COMs position which was at variance with the COM’s evidence. This difference in interpretation is a fine point, in the light of the complications of this oral hearing and risk assessment material as a whole. However, whether he meets the test for release is a highly relevant factor in considering the concept of a risk of serious harm to the public. It was fundamental to record the views of the COM accurately. On the face of the decision it appears that the panel had interpreted the COM as supporting a view that the risk was not manageable which was not indicated in the attached document. There has therefore been a mistake in a finding of fact (namely the interpretation and recording of the view of the COM). This misrecording of fact was irrational in the sense set out above. Furthermore, given that 3 psychologists did not weight the intelligence heavily, POM said it is not offence paralleling and the lack of corroborating evidence, on the face of it there is no clear reason as to why he does not meet the release test other than gradual return to the community. The Panel were not able to explain how [the Applicant] poses a serious risk of harm to the public if released. Current parole review[6]The case was re-referred to the Parole Board in July 2022. The Relevant Law[7]The panel correctly sets out in its DL the test for release. Parole Board Rules 2019 (as amended)[8]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)).[9]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)). This is an eligible sentence. Irrationality[10]In R (DSD and others) v the Parole Board [2018] EWHC 694 (Admin) , the Divisional Court set out the test for irrationality to be applied in judicial reviews of Parole Board decisions. It said 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.”[11]This test was set out by Lord Diplock in CCSU v Minister for the Civil Service [1985] AC 374 . The Divisional Court in DSD went on to indicate that in deciding whether a decision of the Parole Board was irrational, due deference had to be given to the expertise of the Parole Board in making decisions relating to parole. The Board, when considering whether or not to direct a reconsideration, will adopt the same high standard for establishing “irrationality”. The fact that Rule 28 contains the same adjective as is used in judicial review shows that the same test is to be applied.[12]The DSD case is an important case in setting out the limits of a rationality challenge in parole cases. Since then another division of the High Court in R (on the application of Secretary of State for Justice v Parole Board [2022] EWHC 1282 Admin) (the Johnson case) adopted a “more modern” test set out by Saini J in R (Wells) v Parole Board [2019] EWHC 2710 (Admin) .[13]In the Wells case Saini J set out “a more nuanced approach” at paragraph 32 of his judgment when he said: “A more nuanced approach in modern public law 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”.[14]It must be emphasised that this is not a different test to the Wednesbury reasonableness test. In the Wells case Saini J emphasised at paragraph 33 that “this approach is simply another way of applying” the Wednesbury irrationality test.[15]What is clearly established by all the authorities is that it is not for the reconsideration member deciding an irrationality challenge on a reconsideration - or a judge dealing with a judicial review in the High Court - to substitute his or her view for that of the panel who had the opportunity to see the witnesses and evaluate all of the evidence. It is only if a reconsideration member considering the application decides that the decision of the panel did not come within the range of reasonable conclusions that could be reached on all of the evidence, that he or she should allow the application.[16]Panels of the Board are wholly independent and are not obliged to adopt the opinions or recommendations of professional witnesses. The panel’s duty is clear and it is to make its own risk assessment and to evaluate the likely effectiveness of any proposed risk management plan. That will require a panel to test and assess the evidence and decide what evidence they accept and what evidence they reject.[17]Once that stage is reached, following the guidance provided by such cases as Wells a panel should explain its reasons whether or not they are going to follow or depart from the recommendation of professional witnesses.[18]The giving of reasons by a decision maker is “one of the fundamentals of good administration” (Breen v Amalgamated Engineering Union [1971] 2 QB 175). When reasons are provided, they may indicate that a decision maker has made an error or failed to take a relevant factor into account. As I understand the principles of public law engaged in deciding this application, an absence of reasons does not automatically give rise to an inference that the decision maker has no good reason for the decision. Neither is it necessary for every factor to be dealt with explicitly for the reasoning to be legally adequate in public law.[19]The way in which a panel fulfils its duty to give reasons will vary depending on the facts and circumstances in any particular case. For example, if a panel is intending to reject the unanimous evidence of professional witnesses then detailed reasons will be required. In Wells at paragraph 40 Saini J said: “The duty to give reasons is heightened when the decision maker is faced with expert evidence which the panel appears, implicitly at least, to be rejecting”.[20]When considering whether this decision is irrational, I will keep in mind that it is the decision of the panel who are expert at assessing risk; importantly it was the panel who had the opportunity to question the witnesses and to make up their own minds what evidence to accept. As I have already observed, it is extremely important that I do not substitute my judgment for theirs. My function is to decide whether the panel in this case erred in law or reached a decision that was Wednesbury unreasonable and/or procedurally unfair in some respect. Procedural unfairness[21]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.[22]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; and/or(e) the panel was not impartial.[23]The overriding objective is to ensure that the Applicant’s case was dealt with justly. Other[24]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.[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." The reply on behalf of the Secretary of State[26]The Respondent has offered no representations in respect of this application. Discussion[27]Panels are frequently presented with differing opinions on the suitability of a prisoner for release by professional witnesses. In this case:a. The Prison Offender Manager (POM) did not recommend release but supported a recommendation for his transfer to open conditions.b. The Community Offender Manager’s (COM) position was different. As the DL correctly summarises at paragraph 2.32, she said that “should the panel attach any weight to the security intelligence then [the Applicant’s] risks would not be manageable in open conditions or in the community, and therefore she would be wanting him to engage in a progressive regime. However, should the panel not attach any weight then [the Applicant’s] risks could be managed either in open conditions or in the community.”c. The prison psychologist did not recommend release but supported a recommendation for his transfer to open conditions.d. The two psychologists instructed by the legal representatives of the Applicant recommended release.e. However all the witnesses - like the COM - indicated that their recommendations were to some extent “conditional” since it was not for them but for the panel to consider what weight if any to place on the intelligence material put before it by the prison.[28]In order to follow the way in which the hearing developed I asked for and was provided with the recording of the hearing. The recording lasted for 5 hours 36 minutes.[29]It was clear that much turned on the weight, if any, which individual witnesses and - ultimately - the panel afforded to the security intelligence. It must be remembered in this context that while a number of different allegations may not themselves be capable of proof to either the criminal or civil standard, the fact that there are a significant number of them may justifiably lead to a panel concluding that there is sufficient reason to find that the relevant risk has not been reduced so far as to allow a direction for release in a case such as this concerning a prisoner whose life before committing the most serious offence in the criminal calendar had been marked by serious violent offending.[30]In order for the panel to have the best chance of correctly evaluating the unproven allegations contained within the intelligence reports a Security Officer was called to give evidence about the intelligence system at the relevant prison generally. Their evidence was helpful in explaining how information which comes into the possession of the Security Division at the prison is dealt with, and the various coded ways in which the veracity or otherwise of individual pieces of intelligence was assessed within it. They stressed however that the question of what weight if any should be given by the Parole Board to a quantity of information of different kinds which had been recorded by the Security Division was entirely a matter for the Board and not for them or the prison authorities to decide.[31]Hearings in which the professionals are divided in their opinions are not uncommon and it would be rare for a finding of irrationality to result from a DL which came to one decision or the other.[32]There is one statement in the DL which does not accurately reflect the position of the witness referred to. At paragraph 4.3 (eleventh bullet point) the DL reads:
“ [The COM] and [The POM] did attach weight on the security intelligence and deemed that a period in open condition was required to allow for further testing and to evidence a longer period without any negative intelligence ;”
This sentence does overstate the stance adopted by the COM, in the opposite way to way in which the grounds overstate it. The reality was that the witness effectively “sat on the fence” and refused to give a definite view on her recommendation, leaving it to the panel to decide on the weight which it would attach to the security information.[33]I have considered whether the “overstatement” set out above at paragraph 32 was such as to render the ultimate decision “irrational” by reference to the authorities set out above. I have come to the clear conclusion that it was not. The panel was entitled to conclude that the quantity and type of information emanating from the security reports was such as to militate against a direction for release.[34]Ultimately it was for the panel to decide one way or another between the three options open to it following the referral from the SoSJ. The DL carefully and (with the exception to which I have referred at paragraphs 32 and 33 above) accurately summarised the evidence which it had heard over the lengthy hearing. It may be that another panel may “rationally” have come to a different conclusion, but the decision it reached falls far short of being characterisable as “irrational” in the sense set out in the authorities cited - see in particular paragraphs 10-17 above. Decision[35]The application is therefore dismissed. Sir David Calvert-Smith 04 March 2025