Smith, Application for Reconsideration by, [2025] PBRA 58 (02 April 2025) [2025] PBRA 58

PBRA

Smith, Application for Reconsideration by, [2025] PBRA 58 (02 April 2025)

[2025] PBRA 58 · 2025-02-21

[1]This is an application by Smith (the Applicant) for reconsideration of a decision of an oral hearing panel dated the 21 February 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 consisting of 1132 pages, the application for reconsideration drafted by the Applicant's legal adviser, the decision of the panel and the representations from the Secretary of State (the Respondent). Request for Reconsideration

[4]The application for reconsideration is dated 7 March 2025.

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

[6]The Applicant is serving two indeterminate sentences. In 1979 (aged 18) he received a mandatory life sentence for murder.

[7]In 2007 (age 47) he received an indeterminate sentence for public protection, with a minimum term of six years, for attempted kidnapping.

[8]The murder victim was a young female. The Applicant raped and murdered the victim at night. The kidnapping was committed in 2007 when the Applicant was on licence having been released from prison. The victim was a young woman who was accosted in the street, an attempt was made to drag her into some gardens. She was able to break free.

[9]The Applicant was released on licence in October 2022, he was recalled in April 2023, having left probation provided premises and lost contact with his probation officer. Current parole review

[10]The oral hearing panel were considering a referral from the Respondent. The request was to consider whether the Applicant should be directed for release. If not, whether a recommendation for transfer to an open prison should be made. The Applicant was aged 64, at the time of the oral hearing.

[11]The hearing was conducted by a panel consisting of an independent chair, a further independent member, and a psychologist member of the Parole Board. Evidence was given by a community offender manager and a prison offender manager. The Applicant gave evidence and was legally represented. The Relevant Law

[12]The panel correctly sets out in its decision letter dated 21 February 2025 the test for release and the issues to be addressed in making a recommendation to the Secretary of State for a progressive move to open conditions. Parole Board Rules 2019 (as amended)

[13]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)).

[14]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)).

[15]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

. Irrationality

[16]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.

[17]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. "

[18]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 ).

[19]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. 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 23.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. 24.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

[25]The test to be applied when considering the question of transfer to open conditions is the subject of a well-established line of authorities going back to R (Hill) v Parole Board

[2011] EWHC 809 (Admin)

and including R (Rowe) v Parole Board

[2013] EWHC 3838 (Admin)

, R (Hutt) v Parole Board

[2018] EWHC 1041 (Admin)

. The test for transfer to open conditions is different from the test for release on licence and the two decisions must be approached separately and the correct test applied in each case. The panel must identify the factors which have led it to make its decision. The four factors the panel must take into account when applying the test are:(a) the progress of the prisoner in addressing and reducing their risk;

(b) the likeliness of the prisoner to comply with conditions of temporary release

(d) the benefit the prisoner is likely to derive from open conditions.

[26]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

[27]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

[28]The Respondent made no representations. Ground and Discussion Ground

[29]It is submitted by the Applicant's legal adviser that the panel in this case failed to demonstrate that it had taken account of the representations made on behalf of the Applicant by the Applicant's legal adviser. The representations were submitted in writing after the conclusion of the oral hearing. Discussion

[30]This was a case where the legal adviser who conducted the oral hearing was invited to make written submissions after the conclusion of the oral hearing. Written submissions were made. The complaint in this case is that the panel failed to demonstrate that they had taken account of those submissions. The panel did not refer to the submissions within the decision letter and did not indicate in the appropriate template area that the submissions had been received and considered.

[31]The Applicant cites the guidance of the Parole Board which indicates that when a written submission is made on behalf of a prisoner, the panel decision must make clear that all evidence, including legal submissions have been considered. It is also indicated, in the guidance, that the legal submissions should be summarised in a suitable fashion.

[32]In this case there is no reference to the legal submissions within the decision letter. There is therefore no evidence that the panel took account of the legal submissions in reaching their decision. It is both the matter of a procedural requirement and a matter of courtesy that legal submissions are considered and that a reference is made within the panel's decision of the fact that the submissions have been considered.

[33]I am satisfied that there was a procedural irregularity in this case. That procedural irregularity inevitably creates unfairness in the mind of the prisoner. It is incumbent upon panels to demonstrate fairness and to ensure that prisoners and their legal representatives are reassured that all evidence and submissions have been fully considered before a final decision has been reached. For this reason, this is a case which merits reconsideration and I therefore direct a reconsideration. I have not considered any further submissions in the light of this decision. Decision

[34]Granted - Accordingly, whilst I do not find there to have been an irrational conclusion, I do consider, applying the test as defined in case law, that the decision was 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 02 April 2025