Raven, Application for Reconsideration [2025] PBRA 67 (24 April 2025) [2025] PBRA 67

PBRA
Raven, Application for Reconsideration [2025] PBRA 67 (24 April 2025)
[2025] PBRA 67 · 2025-03-24
[1]This is an application by Raven (the Applicant) for reconsideration of a decision of an oral hearing dated the 3 March 2025 not to recommend her transfer to open conditions.[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. These are:a. The dossier now containing 751 pages including the closing submissions on behalf of the Applicant and the decision, the subject of this application.b. The submissions in support of the application. Request for Reconsideration[4]The application for reconsideration is dated 24 March 2025.[5]The grounds for seeking a reconsideration are as follows:
“1.IRRATIONALITY i. The panel placed insufficient weight on professional assessments of risk all of whom recommended open conditions. ii. The panel placed insufficient weight on the views of professionals that there was no core risk reduction work outstanding and that remaining risk was not imminent. iii. The panel placed insufficient weight on [the Applicant’s] good custodial behaviour and evidence that she has been applying the skills learnt in a custodial setting. iv. The panel placed insufficient weight on the views of professionals that sufficient progress had been made in closed conditions and that [the Applicant] was a low risk of abscond. v. The panel placed undue weight on the fact that [the Applicant] is transgender. vi. The panel placed undue weight on the evidence of [the Psychotherapist] notwithstanding her role as a therapist as opposed to an assessor of risk. 2.PROCEDURAL UNFAIIRNESS [sic] i. [The Applicant] is considered to have a cognitive impairment and has completed adapted programmes. When the case was originally considered suitable for a remote hearing. ii. A subsequent WAIS assessment in January 2025. The member is invited to consider the report of [the Prison Psychologist] dated 6th January 2025 for full details. In particular the assessment concluded that [the Applicant] had an extremely low working memory and that verbal comprehension was borderline. iii. The author suggested that [the Applicant] was likely to experience difficulties understanding and responding to verbal questions. Information should be kept simple with complex language avoided. iv. The hearing took place over a period in excess of six hours during which [the Applicant] was questioned at length. Both those instructed and the Prison Offender Manager have since spoken with [the Applicant] who states that her understanding of the proceedings was very limited. v. The Prison Offender Manager advises that [the Applicant] now says that she felt under pressure to provide an answer without fully understanding what was being asked and provides an example of [the Applicant] giving a different answer on the third time of asking. vi. Overall the Prison Offender Manager was of the view that insufficient allowance was made for [the Applicant’s] learning difficulties and that questions from the panel were overly long and complex. [the Applicant] is reported to have felt scared and confused during the hearing and not able to ask for a break. vii. In hindsight a face to face hearing would have been fairer to [the Applicant] and in the event that a further hearing is convened this is requested. The Prison Offender Manager supports the application for reconsideration.”
Background[6]The Applicant is now 66. In 1981 she - then Robert - was convicted of murder and sentenced to life imprisonment from which she was released on licence in 2000. In 2013 she - then Robert- was convicted of rape of a child and other offences committed in the years 2001-3 following her release, and sentenced to an extended sentence of 16 years imprisonment of which 12 years were the custodial portion and four years the extension. Since 2021 she has been known by her current name. Current parole review[7]The case was referred to the Parole Board by the Secretary of State for Justice (SoSJ) in 2022 In May 2024 a panel met to hear the case but adjourned it with detailed directions designed to fill gaps in the information before the panel.[8]The hearing took place on 11 February 2025 before a 3 member panel containing a judicial and a psychologist member. The panel heard evidence from the Prison Offender Manager, the Applicant, the Community Offender Manager, a psychologist, and a psychotherapist. The hearing lasted some 6 hours. The Relevant Law[9]The panel correctly set out in its decision letter the issues to be addressed in making a decision on a recommendation to the Secretary of State for a progressive move to open conditions. Parole Board Rules 2019 (as amended)[10]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)).[11]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)).[12]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[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- Parole 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[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;(e) the panel did not properly record the reasons for any findings or conclusion; and/or(f) the panel was not impartial.[21]The overriding objective is to ensure that the Applicant’s case was dealt with justly. Error of law[22]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.[23]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[24]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.][25]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)[26]The reply on behalf of the Respondent was as follows: PPCS can confirm that we have liaised with [the Applicant’s] POM to verify these claims. The POM responded and has confirmed that the claims are an accurate representation of the hearing and it is her view that a face to face hearing will provide [the Applicant] with additional support as her solicitor will be present. Discussion[27]The principal complaint has to be rejected out of hand. A Parole Board decision whether or not to recommend the transfer of an offender to open conditions is not subject to reconsideration (See paragraph 12 above).[28]I have studied the second complaint which raises a possible procedural irregularity in that the hearing was by remote link rather than at a face to face hearing and to which the response submitted by the SoSJ was directed. In that respect I have noted that:a. There was no application before or during the hearing by or on behalf of the Applicant or by any other witness for the hearing to be fixed in advance or adjourned so that it could be conducted face to face.b. This in spite of the facts that all the professional witnesses had significant knowledge of the Applicant from their dealings with her over the years, and that the legal representative had no doubt met and discussed the case with her client before the hearing. Of course the hearing was the first chance the panel had of speaking to and listening to the Applicant save for the introductions - and that was when the hearing was already well under way.c. The previous hearing in 2022 had been held remotely without apparent objection. The Applicant was represented by the same firm of solicitors at both hearings.d. I have listened to the recording of the evidence of the POM and the Applicant in particular. The POM’s evidence was thorough and contained - as was the case for the report prepared for the hearing - no suggestion that the hearing should be being conducted face to face or that particular steps be taken to make the hearing easier for the Applicant.e. The Applicant gave evidence over some 2 and a half hours with short breaks during it for various reasons and the taking of a 30 minute break for lunch. The questioning was lengthy and no doubt stressful. On the very few occasions when the Applicant clearly did not understand a question the question was then rephrased. In general however the questions were relevant to the issue before the Board and clearly understood by the Applicant who had no doubt been asked similar questions many times by professionals in the years since the relevant convictions which have resulted in parole hearings over the years.f. Every parole hearing - just like any criminal trial - will be stressful for the offender or accused person. I detected nothing in the recording of the hearing to suggest that the Applicant was put at any disadvantage beyond the normal nervousness.g. It is not difficult to envisage circumstances in which an offender disappointed with the result of a hearing ‘in person’ might claim that he or she was at a disadvantage because of the close proximity in the hearing room of the professional witnesses and the panel.[29]I have detected no procedural irregularity in the decision - unchallenged either before or during the hearing - to conduct the hearing remotely. It may or may not be decided that the next hearing of the Applicant’s case by a Parole Board panel will be conducted face to face. No doubt any representations one way or the other will be made before the decision is made rather than after the conclusion of the hearing. Decision[30]For the reasons I have given, I do not consider that the decision was procedurally unfair and accordingly the application for reconsideration is refused. Sir David Calvert-Smith 24 April 2025