Lock, Application for Reconsideration [2025] PBRA 54 (31 March 2025) [2025] PBRA 54

PBRA
Lock, Application for Reconsideration [2025] PBRA 54 (31 March 2025)
[2025] PBRA 54 · 2025-03-04
[1]This is an application by Lock (the Applicant) for reconsideration of a paper decision of the Parole Board not to direct the termination of his licence on his indeterminate sentence for public protection (IPP).[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. The papers comprise:a. The dossier now comprising 50 pages including the decision letter (DL) the subject of this application.b. Grounds dated 4 March 2025 submitted on behalf of the Applicant. Background[4]The Applicant is now 58 years old. In 2012 he was convicted of robbery and sentenced to imprisonment for public protection with a minimum term of imprisonment which expired in March 2015. The Decision Letter records him as having been convicted of robbery many times in the past, most recently in December 2008 when he received an extended sentence. He was on licence from that sentence when he committed the index offence. He was released following a direction from the Parole Board in May 2021 and has been in the community on licence since then. Request for Reconsideration[5]The grounds for seeking a reconsideration of the case submitted by the Applicant’s legal representative are set out in summary below:a. Section 31A(4) of the Crime (Sentences) Act 1997 requires the Parole Board to direct the cessation of the licence in such cases unless it is satisfied that it is necessary for the protection of the public that the licence should remain in force. This was described by the Secretary of State for Justice (SoSJ) in Parliament as instituting “a statutory presumption that the IPP licence will be terminated by the Parole Board at the end of the qualifying period. In practice, this will mean strong justification on public protection grounds would be needed not to terminate the licence […].”b. The Applicant has been fully compliant with his licence conditions since his release.c. The report prepared for the purpose of the hearing by his Community Offender Manager (COM) was overwhelmingly positive in its support for the termination of the licence.d. The Applicant has been engaging with mental health services and has complied with his requirements concerning prescribed medication.e. He appears to be managing his finances - a previous trigger to offending - well.f. His COM recommended that his licence conditions be terminated.g. The two matters raised within the DL which provoked the decision not to terminate his licence were - in summary: i. The Applicant’s acknowledgement that staying drug free is an ongoing challenge. ii. The Applicant continues to face some challenges in applying lessons learned from programmes to real life situations, particularly during periods of heightened stress. Further voluntary engagement with community services will be critical in ensuring sustained behavioural change.” (My bold type).h. Such concerns have thus far not led to any particular concern from the COM.i. If there were such concerns in the mind of the panel, the proper course would have been to direct a report from the COM on which the Applicant could make further representations or to direct an oral hearing. Current parole review[6]The case was referred to the Parole Board by the SoSJ on 31 January 2025. The Relevant Law Parole Board Rules 2019 (as amended)[7]Rule 28(1) of the Parole Board Rules provides the types of decision which are eligible for reconsideration. This is an eligible decision. Irrationality[8]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 para116, “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.”[9]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.[10]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 (SoSJ) 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) .[11]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 ”.[12]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.[13]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.[14]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.[15]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.[16]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.[17]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 ”.[18]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[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. Other[22]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.[23]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 (the Respondent)[24]The Respondent has offered no representations in respect of this application. Discussion[25]I have come to the conclusion that the application should be granted and the case be remitted to an oral hearing. .[26]The terms of Section 31A(4) of the Act, accompanied by the clear intention of Parliament when the amendment was passed make it clear that the “ burden and standard of proof ” was set in favour of positive decisions on this issue by parliament.[27]The DL listed the following concerns as possibly pointing away from a decision to remove all conditions. a) Concerns expressed by the COM as to the “ consistent application of learning from earlier risk reduction work in stressful situations. ” b) In the past, substance misuse and inadequate thinking skills had led to the public being put at risk of serious harm.[28]All the direct evidence before the panel pointed in the direction of termination.[29]In particular the COM highlighted the “ consistent ” compliance of the Applicant with the conditions of his licence - p16 of the dossier.[30]The strongest indication within the dossier in favour of the decision reached is to be found within the COM’s report at page 12 of the dossier and the phraseology used by the COM who later on recommends the termination of the licence which includes the words “Despite these concerns, recent evidence of improved emotional regulation and problem-solving skills indicated progress toward reducing risk.” There was thus a ‘tension’ between the recommendation of the COM and the “concerns” referred to in his report.[31]In my judgment, the weight of the evidence was such that even if the panel was not convinced by the report to make the order sought, any doubt on the matter should have been resolved by an oral hearing which would have given the panel the chance to assess the weight of the COM’s evidence face to face and following any cross-examination on behalf of the Applicant and - if he chose to give evidence - the chance for the panel to assess the credibility of the Applicant himself at the hearing. Thus in my judgment the case for ’procedural irregularity’ has been made out.[32]Accordingly this application is granted. The case must be remitted to a fresh panel. Although the current indications are that an oral hearing would be necessary, it is impossible to predict the future. The next panel will have to make a decision based on the material then before it, which will no doubt include a report on the effect, if any, on the Applicant’s behaviours or attitudes of the negative decision. Sir David Calvert-Smith 31 March 2025