Bush, Application for Reconsideration [2025] PBRA 48 (05 March 2025) [2025] PBRA 48

PBRA
Bush, Application for Reconsideration [2025] PBRA 48 (05 March 2025)
[2025] PBRA 48 · 2025-01-20
[1]This is an application by Bush (the Applicant) for reconsideration of a decision dated 20 January 2025 not to direct his release. The decision was made by a panel following an oral hearing.[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.[3]I have considered the application on the papers. These are the decision, the dossier (consisting of 877 numbered pages), and the application for reconsideration. Background[4]The Applicant received a sentence of imprisonment for public protection (IPP) on 15 August 2006 following conviction for grievous bodily harm with intent. His tariff was set at 27 months and expired in August 2008. On the same occasion he was also convicted of affray and received a concurrent six month determinate sentence (now served).[5]The Applicant was 27 years old at the time of sentencing and is now 46 years old.[6]He has been released and recalled five times on this sentence and has received further convictions for drunk and disorderly behaviour and resisting or obstructing a constable (February 2013), theft (September 2013), harassment with fear of violence (April 2014) and using threatening/abusive words/behaviour or disorderly behaviour likely to cause harassment, alarm or distress (August 2018). He was most recently released in February 2021 following an oral hearing before the Parole Board. His licence was revoked in May 2022, and he was returned to custody. Request for Reconsideration[7]The application for reconsideration has been submitted by solicitors on behalf of the Applicant and pleads grounds of procedural unfairness and irrationality.[8]These grounds are supplemented by written arguments to which reference will be made in the Discussion section below. Current Parole Review[9]The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) on 24 June 2022 to consider whether or not it would be appropriate to direct his release. This is the Applicant’s first parole review since his fifth recall.[10]On 28 November 2023, the hearing was adjourned for a full psychological risk assessment (PRA).[11]On 2 April 2024, the hearing was further adjourned for the Applicant to complete recommended offending behaviour work.[12]On 5 September 2024, the hearing was adjourned again. There had been new allegations relating to the Applicant masturbating in view of prison healthcare staff. The adjournment directions note the Prison Offender Manager’s (POM) concerns about the unpredictability of sexualised behaviour which impacted on manageability of risk and suggested further work was required. The adjudication relating to these matters had been dismissed and the matters had not been passed to police. The POM said this was due to the poor completion of the paperwork by the healthcare (NHS) staff who were not completely familiar with the relevant procedures. The panel considered that it may need to make a finding of fact and directed further information surrounding the allegations including witness statements, a security report and an addendum psychology report.[13]The hearing proceeded on 9 January 2025, before a three-member panel. Oral evidence was taken from the Applicant, the POM, his Community Offender Manager (COM), an HMPPS Forensic Psychologist, the Adjudicating Governor, and two members of Healthcare staff. The Applicant was legally represented throughout the hearing, and closing written submissions were made on his behalf after the hearing.[14]In the professional opinion of the COM, POM and the HMPPS Forensic Psychologist the Applicant was suitable for release. The panel did not direct his release. In doing so, the panel made a finding of fact (on the balance of probabilities) that the Applicant had masturbated in full sight of Healthcare staff knowing that they would probably see him and placed weight on this finding when assessing his risk. The Relevant Law[15]The Parole Board will direct release if it is no longer necessary for the protection of the public that the prisoner should be confined. Parole Board Rules 2019 (as amended)[16]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)).[17]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)).[18]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 . Procedural unfairness[19]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.[20]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.[21]The overriding objective is to ensure that the Applicant’s case was dealt with justly. Irrationality[22]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 (CA) 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.[23]In R(DSD and others) v Parole Board [2018] EWHC 694 (Admin) the Divisional Court applied this test to Parole Board hearings in these words (at [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 .”
[24]In R(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 the Divisional Court in R(Secretary of State for Justice) v Parole Board [2022] EWHC 1282 (Admin).[25]As was made clear by Saini J in Wells, 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.[26]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.[27]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. The reply on behalf of the Respondent[28]The Respondent has advised that no representations will be submitted in response to this application. Discussion[29]Submissions on behalf of the Applicant argue that the decision was both procedurally unfair and irrational. Irrationality[30]It is argued that the decision is irrational since it “ disregards core work completed since recall and shows little gratitude for the development made by [the Applicant] throughout his time in custody” .[31]It is not a matter for any panel of the Parole Board to show gratitude for any prisoner’s progress or otherwise. However, panels must take any risk-related development into account in reaching a decision.[32]The primary submission here appears to be that the panel failed to give adequate reasons for its decision. In doing so it attempts to rely on Osborn [2013] UKSC 61 , although the passage provided appears not to be taken from the judgment itself and therefore carries no legal weight. It is an unusual choice of authority, given the more direct and recent treatment given to the issue in R(Wells) v Parole Board [2019] EWHC 2710 (Admin) . Irrespective, it is clear that if a panel departs from the views of witnesses, it must give reasons for doing so which can be justified on the basis of the evidence before it.[33]In my view, the panel provided clear, evidence-based, and well-supported reasons for disagreeing with the views of professional witnesses. The panel chose to place more weight on the Applicant’s denial and minimisation of the allegations of exposure, upon which the panel had made a finding of fact.[34]The legal test of irrationality sets a high bar which this case does not meet. Accordingly, this ground fails. Procedural unfairness[35]The second ground advanced is that the panel did not adjourn further for completion of the psychological addendum report which was directed in September 2024.[36]When the review adjourned, directions were set including individual statements from healthcare staff and an addendum psychological report taking those statements into account. Statements were provided, but there is no addendum psychological report within the dossier.[37]The decision explains that the psychologist did not complete an addendum report because she had not reviewed the witness statements. However, she confirmed at the start of the hearing that she would provide a verbal update after listening to the witnesses.[38]There is no evidence that the Applicant’s legal representative raised any objections at the time. Furthermore, the absence of a written report was not mentioned in the closing written submissions.[39]If there were concerns about procedural unfairness on this point, they should have been raised at the time rather than after an unfavourable decision was issued. Generally, cases where the Applicant was represented by a lawyer are unlikely to lead to a successful reconsideration unless the alleged irregularity was challenged during the hearing. An exception might be if the other party failed to disclose material relevant to the decision.[40]Therefore, this argument fails.[41]It is also argued that not all witnesses regarding the allegations were present at the oral hearing and that two of the witness statements were unsigned. This matter was raised in closing written submissions as follows:
“ We would submit that the Panel need to take extreme care with the one signed witness statement and two non-signed witness statements that were in the dossier as they have not been subject to any kind of interrogation or questioning by anybody.”
[42]Regarding the issue of signatures, the Board is not obliged to follow the rules of evidence that apply in criminal trials. It is permitted to consider hearsay evidence, along with other information concerning misconduct or criminal offences, and does so routinely. It must also consider information or evidence regarding the good conduct of a prisoner, whenever it took place. Therefore, in making what has been described as a “ global assessment of risk ” a panel’s assessment is bound to have regard to all the relevant information placed before it provided that the prisoner is given a proper opportunity to respond. There is no limit placed on the Board as to the nature and character of the information it considers in assessing risk, provided that the Board in all respects act fairly.[43]The panel was entitled to take the unsigned statements into account.[44]Moreover, the panel did hear oral evidence from two healthcare staff and the adjudicating governor and considered that evidence to be sufficient to make a finding of fact on the balance of probabilities. It was entitled to do so.[45]Therefore, this argument also fails. Decision[46]For the reasons set out above, the application for reconsideration is refused. Stefan Fafinski 05 March 2025