Tai, Application for Reconsideration [2025] PBRA 52 (17 March 2025) [2025] PBRA 52

PBRA
Tai, Application for Reconsideration [2025] PBRA 52 (17 March 2025)
[2025] PBRA 52 · 2025-02-06
[1]This is an application by Tai (the Applicant) for reconsideration of a decision of an oral hearing panel dated the 6 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 202) (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 oral hearing decision, the dossier consisting of 434 pages and the application for reconsideration. In addition, I listened to the recording of the hearing. Request for Reconsideration[4]The application for reconsideration is dated 25 February 2025. It has been drafted by representatives on behalf of the Applicant. It submits that the decision was irrational and procedurally unfair.[5]The grounds for seeking a reconsideration are that the panel were incorrect in their interpretation of the evidence of the prisoner commissioned psychologist, failed to consider her evidence and failed to adjourn for further information. The submission is supplemented by written arguments to which reference will be made in the Discussion section below. Background[6]The Applicant was sentenced on 20 July 2018 as a sentence of particular concern to 10 years imprisonment comprising a custodial element of 9 years and a licence extension of one year. The sentence was imposed for sexual assaults on two females, the first was 7 years old at the time and the second was 16 years old. His sentence expiry date is in July 2028.[7]The Applicant was aged 43 years old at the time of sentencing and is now aged 49 years old. Current parole review[8]The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) in March 2023 to consider whether or not it would be appropriate to direct his release.[9]The case proceeded to an oral hearing via videoconference on 13 January 2025. The panel consisted of three independent members. It heard oral evidence from the Applicant, together with this Prison Offender Manager (POM), Community Offender Manager (COM), a prison appointed psychologist and a prisoner commissioned psychologist. The Applicant was legally represented throughout the hearing. The Respondent was not represented by an advocate. The Relevant Law[10]The panel correctly sets out in its decision letter dated 6 February 2025 the test for release. Parole Board Rules 2019 (as amended)[11]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)).[12][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 13.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. 14.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. ” 15.In R(on the application of Wells) -v- Paoystonrole Board 2019 EWHC 2710 (Admin) 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). 16.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. 17.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. 18.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. The reply on behalf of the Secretary of State 22.The Respondent has not submitted any representations in response to this application. Discussion 23.Ground 1 - Irrationality Factual Inaccuracy. The Applicant submits that the panel erroneously recorded the prisoner commissioned psychologist’s evidence and that she did not recommend not to release or agree with the recommendation of the prison psychologist not to release. The Applicant submits that the panel relying on this erroneous conclusion came to a decision that was irrational. 24.Having carefully listened to the recording, it is clear that the prisoner commissioned psychologist was not so clear in her conclusion as the Applicant records. In her evidence she replies to questions from the panel as to whether she was still maintaining the position in her report or in agreement with the prison appointed psychologist as follows:
“ It’s difficult because I set out 5 or 6 contingencies which are still not particularly clear. …I’m in a bit of a stand-off between the various agencies who are waiting for other agencies to act first. At some point someone will have to go first but I am not sure who that will be. …I now have much more clarification of what resources would be available to [the Applicant] if released and it is not an encouraging answer. ...If immigration is resolved then release is a viable option… There is no core risk reduction work that can be done .”
When asked further whether she is recommending release she replies that whilst she believes “ he meets the test for release but that needs to be managed in the community and how that can be specifically managed remains in doubt ” because of the lack of clarity about the next steps. 25.The evidence of the prison commissioned psychologist was clear and unequivocal. She said that she did not support release because she did not think the risk could be managed in the community in the absence of the matters still being questioned such as where he would live, who he would live with, how he would manage financially and how he would support himself, all key matters which would give structure, support and normality in his life. In the prison psychologist’s view those matters were not in place. 26.Following the answers given by the prison psychologist, which was clearly for no release, the panel asked the prisoner commissioned psychologist if she wished to come back on that. Her reply was “ I am not disagreeing with [the prison psychologist] at all. I just think it is the way we say it is different. I think he meets the test for release but as I said and as [the prison psychologist] has said, there are still some unknowns here which are quite critical and without them being clarified it leaves a waste ground of what can be done and some of these other agencies are going to have to go first ”. She concludes by saying “ I’m not sure I’ve given a really helpful answer ”. 27.In the light of her answers, I do not accept that the panel wrongly recorded the position of the commissioned psychologist which was in most respects conditional on factors which had not been resolved. The panel’s conclusion was not contingent on the commissioned psychologist agreeing with the prison psychologist. The panel took into account all the evidence presented, including that of the Applicant himself and that of the COM who did not support release and conducted its own assessment. The panel took into account the Applicant’s limited insight and self-awareness, the concerns regarding his compliance and engagement, openness and honesty and uncertainty regarding community links and support network. The panel’s conclusions, on the evidence presented, that there remained risk reduction work to be undertaken and the risk management plan was not robust enough to manage the Applicant’s risk was a conclusion open to the panel and does not meet the test for irrationality set out above. This ground must therefore fail. 28.Ground 2 - Procedural fairness, failure to consider oral evidence. This ground submits that the panel failed to properly consider the oral evidence of the prisoner commissioned psychologist in incorrectly stating that she did not support release. 29.The panel clearly considered the evidence of the commissioned psychologist. It was clear as set out above, that her conclusion was not an unconditional statement of release. It may be that the panel did not make the conditionality of her response clear in the decision letter but having listened to the recording and having set it out above, it would have been known to the Applicant. There was no procedural unfairness in the panel’s consideration and analysis of the commissioned psychologist’s evidence. This ground must also fail. 30.Ground 3 - Procedural fairness, failing to adjourn for further information. The Applicant submits that the panel adjourned in July 2024 for additional information but that many matters remained outstanding at the time of the oral hearing in January 2025. The Applicant submits that in written submissions following the hearing, a request was made for an adjournment which was not acknowledged by the panel. The Applicant submits that the missing information, including information about immigration matters and social services updates, was critical to the recommendations of the professional witnesses. 31.The matters in respect of which the Applicant makes reference were dealt with at the oral hearing. The application does not identify what purpose an adjournment would have served. Questions regarding financial payments for immigration applicants and social services assessment were sufficiently answered by the professionals to enable the panel to proceed without adjournment. An undated document in the dossier from the Public Protection Casework Section (PPCS) set out the current telephone contact arrangements between the Applicant and his children, the concerns that the Applicant was sentenced for sexual offending against children, the minimisation by the children’s mother of the Applicant’s offending and lack of honesty about his whereabouts leading to concerns as to whether she could keep the children safe. In addition, the COM noted that social services were unlikely to make a decision until a release decision was made as there would be no purpose to be served in doing a social services assessment if the Applicant was not to be released. 32.Whilst there was no reference in the decision letter to the application for an adjournment in the legal submissions, that does not amount to procedural unfairness. It is of note that no application was made for an adjournment at the beginning or the end of the hearing. The matter was not raised until the written submissions. The application does not identify what difference an adjournment would have made in the light of the evidence in the dossier and the oral evidence given by the witnesses and all the reasons given in the decision letter. I am not satisfied there was any procedural irregularity in failing to adjourn for a response to directions in circumstances where the panel had all the information it needed to make a decision including answers to the questions set out in the earlier directions. Therefore this ground must also fail. Decision 33.For the reasons I have given, I do not consider that the decision was irrational or procedurally unfair and accordingly the application for reconsideration is refused. Barbara Mensah 17 March 2025