Rosewell, Application for reconsideration, by [2025] PBRA 66 (14 April 2025) [2025] PBRA 66

PBRA
Rosewell, Application for reconsideration, by [2025] PBRA 66 (14 April 2025)
[2025] PBRA 66 · 2025-02-25
[1]This is an application by Rosewell (the Applicant) for reconsideration of a decision of the Parole Board following an oral hearing on 25 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. The papers comprise:a. The dossier now comprising 577 pages including written submissions put in on his behalf, after the hearing, dated 26 February 2025 and the decision letter (DL) the subject of this application.b. The Grounds (undated) submitted on behalf of the Applicant in support of the application. Background[4]The Applicant is now 27 years old. In March 2015 he was sentenced to an extended determinate sentence of 15 years comprising a custodial term of 6 years for offences of Sexual Assault, Rape and Attempted Rape. In September 2020 he was convicted of an offence committed while in prison under Section 20 of the Offences against the Person Act 1861 and sentenced to 18 months imprisonment consecutive to his sentence for the index offence. In May 2022 he was released on licence. On 1 March 2023 his licence was revoked and he was returned to prison the next day. His sentence will expire in December 2028. 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:[6]The Grounds are set out in full - insofar as they relate to the decision whether to order a reconsideration of the case. "3.The issue in this case is that the PNA [Programme Needs Assessment] dated 05/08/2021 was not submitted prior to the hearing so that it could be considered by all parties before the hearing. Even [the Applicant] was unaware that this PNA existed, and of the recommendation was that he was "not ready for programmes at this stage. Referral for multidisciplinary meeting to discuss treatment pathway is recommended." 4.This document only came to light during the hearing which was later uploaded to the dossier after the hearing on 25/02/25. After considering the decision letter, it can be noted that the "No Release" decision was mainly based on that PNA as it is extensively mentioned in the decision. 5.Moreover, the Panel agreed with the PNA and stated "The panel agreed with the recommendations in the PNA and from [the prison psychologist] that a Multi-Disciplinary approach is likely to be helpful to identify the appropriate risk reduction work for [the Applicant] given his responsivity needs." 6.It would also appear that [the prison psychologist] was also unaware of the PNA when he completed the report as there was no reference to it and also that his recommendation prior to having knowledge of the PNA was that [the Applicant] should be released. 7.We respectfully [sic] that such an important document which turned out to be decisive for our client should have been submitted to all parties prior to the hearing. As his solicitors, we should have had the opportunity to chase the prison with regards to the multidisciplinary work recommended and also get the views of our psychologist on it prior to the hearing. 8.Moreover, we would also submit that the 2021 PNA which has been heavily relied on by the Panel is also out of date as it is almost 4 years old. During this time, [the Applicant] was in the community, had sexual relationships and was in an intimate relationship without any offences alleged or investigated. As such, it would be our very respectful submission that the decision of the Panel is flawed as it had put considerable weight on an outdated report which all parties were completely unaware of and only came to light during the hearing. 9.Therefore, considering the above procedural unfairness, we respectfully invite the Parole Board to reconsider [the Applicant's] case and give him an opportunity to give evidence at another oral hearing where all parties would have the benefit of a new updated PNA which would also capture [the Applicant] [sic] new stance towards the index offence." Current parole review[7]Following the Applicant's recall the case was referred to the Parole Board by the Secretary of State for Justice . The Relevant Law 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. This is an eligible decision. Irrationality[9]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."[10]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.[11]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) .[12]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".[13]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.[14]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.[15]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.[16]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.[17]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.[18]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".[19]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[20]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.[21]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.[22]The overriding objective is to ensure that the Applicant's case was dealt with justly. Other[23]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.[24]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)[25]The Respondent has offered no representations in respect of this application. Discussion[26]The events surrounding the production at the hearing of the PNA - now pp540-1 of the dossier - are clearly crucial to the decision on this application. I therefore asked for and received the recording of the hearing so as to be able to follow the sequence of events. The pages in the dossier, as presented to me, following the PNA document contain the closing submissions sent in after the hearing by the Applicant's legal representative. These contain no reference to that document, an indication perhaps that its age (more than 3 and a half years) indicated to the Applicant's legal representative that it would play little part if any in the decision made on an offender who had since then spent nearly a year at liberty and nearly two years in prison following recall.[27]The helpful closing submissions sent in after the hearing make no reference to the PNA and its possible impact on the panel's decision.[28]However it is clear that it did feature in the reasoning of the panel since it is referred to in the analysis section within the decision-making section of the DL - in particular the " unfortunate " fact that it had not been revisited since August 2021 in the light of the multi-disciplinary meeting recommended in the report which did not take place after the significant events, including the recall, which have occurred since then.[29]The PNA which is dated 5 August 2021 was first referred to - in passing - by the first witness to give evidence at the hearing, the Prison Offender Manager (POM) when telling the panel how long he had known the Applicant. This was some 17 minutes into the hearing. At 50 and 52 minutes into the hearing the POM returned to the PNA and explained how the exigencies of the Covid pandemic and other difficulties combined with the approaching release/conditional release dates of the Applicant had resulted in the PNA recommendations being " shelved ".[30]At this point the Chair intervened to ask that the PNA be added to the dossier. And at the conclusion of the POM's evidence he was asked by the Chair to find the PNA and email it to the Parole Board. It was added to the dossier at 11.49 on the day of the hearing while the Applicant was in the middle of his evidence.[31]The Applicant gave evidence over 1 hour and three quarters. The PNA was not mentioned during his evidence.[32]The 2 psychologists - one from the prison and the other instructed on behalf of the Applicant - gave evidence together for more than an hour. There was a passing reference by one of them to the PNA during that evidence but not to its contents.[33]The previous and current Community Offender Managers (COMs) then gave evidence for close to an hour and a half. There was no mention of the PNA.[34]There was a passing reference to it 4 hours 51 minutes into the hearing while the 2 psychiatrists were giving evidence.[35]The Applicant's full closing submissions sent in after the hearing contained no reference to the PNA.[36]The DL - at paragraph 2.6 states - correctly - that the PNA was " provided to the panel during the hearing " and its contents are summarised during the rest of that paragraph and revisited at paragraph 2.24 and 2.46 and 4.9. Its recommendations and the absence of work done with the Applicant in accordance with the suggestions in the PNA clearly played a significant part in the eventual decision not to release the Applicant in spite of the unanimous recommendations to the contrary of the professional witnesses.[37]Panels must of course focus on the risks actually posed by offenders as at the time of the hearing and not release them simply because the system has 'failed them', or is unable for whatever reason to provide the measures or interventions which might be necessary to reduce their risks sufficiently to allow a direction for release.[38]However in this case there was in my judgment a 'procedural irregularity' as claimed in the Grounds of Appeal. For an offender's legal representative to receive a document on which the panel placed considerable weight, with no opportunity to consider it in advance with his client, amounted to a significant procedural irregularity. In addition this was a case in which the 5 professional witnesses all recommended release - even, in some cases though not all, with previous knowledge of the contents of the PNA. Thus the PNA and the procedural irregularity of its late addition to the dossier had a direct effect on the decision made by the panel. Decision[39]I conclude that the irregularity was such as to engage the principles set out in the above summary at paragraph 21 (b)-(d).[40]I therefore grant this application. Sir David Calvert-Smith 14 April 2025