McIntosh, Application for Reconsideration [2025] PBRA 70 (11 April 2025) [2025] PBRA 70

PBRA
McIntosh, Application for Reconsideration [2025] PBRA 70 (11 April 2025)
[2025] PBRA 70 · 2024-10-14
[1]This is an application by McIntosh (‘the Applicant’) for reconsideration of the decision of a single member of the Parole Board (‘the Board’) not to direct the termination of his licence and not to suspend the supervisory elements of the licence. There are various spellings of the Applicant’s name in the papers but I am using the spelling used by his legal representative, which I assume is the correct one.[2]The Applicant is serving a sentence of imprisonment for public protection (‘IPP’) for offences which will be described below. The sentence was imposed in March 2006. The Applicant was released on licence in April 2013. Since then he has been recalled to prison twice and re-released on licence twice, most recently on 14 October 2024. Details of his progress since he was first released on licence are set out below. The Relevant Law[3]Section 31A of the Crime (Sentences) Act 1997 (as amended) provides for the Secretary of State to refer the case of a prisoner serving an IPP sentence to the Board to decide whether to direct the termination of his licence. The test for the Board to apply is whether it is satisfied that it is necessary for the protection of the public that the licence should remain in force.[4]Rule 31 of the Parole Board Rules 2019 (as amended) provides that, when a referral is made by the Secretary of State under Section 31A, the case should be considered by a single member panel which may either make a decision itself on the papers or direct that the case should be heard by an oral hearing panel. A decision, whether made on the papers or after an oral hearing, is open to reconsideration under Rule 28.[5]Under Rule 28 an application for reconsideration may be made by the prisoner or by the Secretary of State. It may be made on one or more of the following grounds:(a) that the panel’s decision contains an error of law and/or(b) that it is irrational and/or(c) that it is procedurally unfair. The application must be made within 21 days after the decision is sent to the parties.[6]On 5 February 2025 the Secretary of State referred the Applicant’s case to the Board under Section 31A. The referral provided that if the Board did not direct the termination of the Applicant’s licence it should consider whether it would be appropriate to suspend the supervisory elements of the licence or to amend or vary or add to any of the licence conditions.[7]The case was considered by a single member panel which reviewed the case on 24 February 2025 and decided on the papers not to direct the termination of the Applicant’s licence and not to suspend the supervisory elements of the licence or to amend or vary or add to any of his licence conditions.[8]An application has been made by the Applicant’s legal representative for reconsideration of the panel’s decision on the grounds of irrationality and procedural unfairness. The application was made within the prescribed time limit and is therefore eligible for reconsideration.[9]I am one of the members of the Board who are authorised to act as ‘Reconsideration Panels’ to make decisions on reconsideration applications, and this case has been allocated to me.[10]The documents which have been provided to me and which I have considered for the purposes of this application are:(a) the dossier of papers provided by the Respondent for this case, which contains 148 numbered pages;(b) the representations made by the Applicant in support of his application for reconsideration; and(c) an e-mail from the Public Protection Casework Section of the Ministry of Justice (‘PPCS’) stating on behalf of the Secretary of State that she does not wish to submit any representations in response to this application. Irrationality[11]The power of the courts to interfere with a decision of a competent public authority on the ground of irrationality was defined in Associated Provincial Houses Ltd -v- Wednesbury Corporation 1948 1 KB 223 by Lord Greene as follows:
“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 Parole Board is a public authority for that purpose, and the Wednesbury test therefore applies to applications to the High Court for judicial review of a panel’s decision. It also applies to applications to Reconsideration Panels of the Board for reconsideration of a panel’s decision on the ground of irrationality.[12]In R (DSD and others) -v- the Parole Board 2018 EWHC 694 (Admin) (‘the Worboys case’) a Divisional Court applied this test to Parole Board decisions in these words:
“ 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 .”
The same test of course applies to “ no release” decisions.[13]In R (on the application of Wells) -v- Parole Board 2019 EWHC 2710 (Admin) Mr Justice Saini set out what he described as a more nuanced approach in modern public law. This approach 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 ”
. This formulation of the 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).[14]As was made clear by Mr Justice Saini, this is not a different test from the Wednesbury test. The interpretation of (and application of) the Wednesbury test in parole hearings (as explained in the Wednesbury and DSD cases) was of course binding on Mr Justice Saini. It is similarly binding on Reconsideration Panels of the Board. Procedural unfairness[15]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.[16]Examples of procedural unfairness which may be a ground for quashing a panel’s decision are where:(a) express procedures laid down by law were not followed in the making of the relevant decision; or(b) the party was not given a fair hearing;(c) the party was not properly informed of the case against them;(d) the party was 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.[17]These are not the only possible grounds for a finding of procedural unfairness but they are the ones most commonly alleged. The overriding objective is to ensure that the Applicant’s case was dealt with justly. Background and history of the case[18]The Applicant is now aged 40. He had a disrupted and traumatic childhood. He did well at school but became part of the local criminal fraternity. He was involved in drug dealing. His lifestyle consisted of spending time with likeminded peers. He accumulated a number of convictions for a variety of criminal offences.[19]He was aged 21 when he committed the offences for which he is serving his present sentence. The offences took place in a night club. He was in the club with his brother and a friend. They were all ejected for smoking cannabis. He entered the nightclub again by a rear entrance and was again ejected. He returned later with a loaded handgun which he fired at the legs of two members of the door staff who received serious leg injuries.[20]He was convicted of two offences of wounding with intent, for which he received the IPP sentence. He was also convicted of supplying Class A drugs for which he received no separate penalty.[21]As noted above the Applicant was released on licence in April 2013. His behaviour in prison had been good and he had completed a number of accredited programmes designed to reduce an offender’s risk to the public.[22]He remained on licence for more than six years before being recalled to prison in October 2019. His compliance and behaviour on licence were generally good for a long time but deteriorated towards the end of 2018. He was caught driving while disqualified in December 2018 and in the following month he received an 11 month sentence for perverting the course of justice (pretending that somebody else had committed driving offences which he had committed). He was not recalled under his IPP sentence for either of those matters. Though it is not mentioned in the dossier I assume that he must have been serving his 11 month sentence in prison for 5½ months in 2019 and been automatically released on licence at the half-way point in that sentence.[23]However in October 2019 he was involved with others in an affray at a club in the course of which he threw a pole at a member of the door staff. This was clearly offence paralleling behaviour and he was recalled to prison. He eventually pleaded guilty to affray and possession of an offensive weapon for which he received a 19 month sentence. Back in prison his behaviour was of his usual good standard.[24]In November 2021 a panel of the Board decided that he should be re-released on licence when a bed space became available at approved premises. The panel stated in its decision:
“You have now been back in custody for 2 years and in the panel’s opinion your recall will serve as a reminder to you should you mislead and deceive probation again in the future and commit any further offences. There is support for release from all the professionals. The panel did not assess your risk to be imminent and considers that there would be clear warning signs if your risk was escalating in the community that probation will be monitoring. The panel was further reassured by the comprehensive plans in place to manage you in the community including a robust risk management plan. In consequence, the panel assessed that you now met the public protection test.”
[25]The Applicant was duly released on licence in January 2022 and appeared to be doing well. Regrettably an incident occurred which led to the Applicant being recalled again in February 2023. The police stopped a car which he was driving and found in it a carrier bag containing £40,000 in cash. The car was suspected by the police of being linked to criminal activity. When arrested and questioned the Applicant declined to offer any explanation for the money. Nobody claimed it and it was forfeited by the Magistrates. The Applicant was recalled to prison but he was not charged by the police with any offence.[26]Probation naturally had suspicions about the money and were also concerned about two breaches of the Applicant’s licence conditions. He had spent two nights at a hotel in breach of the condition requiring him to reside as directed, and he had declined to provide the police with the log-in details of the mobile phone he was using.[27]Following his recall the Applicant’s case was, as usual, referred by the Secretary of State to the Board to decide whether he should be re-released on licence. A Member Case Assessment panel then directed that it should proceed to an oral hearing.[28]The hearing should have taken place in April 2024 but had to be adjourned because it was thought that there was going to be a non-disclosure application by the Secretary of State. That did not materialise and the hearing eventually took place before a single member panel on 6 September 2024.[29]A police officer attended to give evidence but was unable to provide much in the way of helpful information. The Applicant told the panel that the cash in the car had been lent to him by a family friend and he did not know why the friend had not claimed the money back from the police. He said that the phone was a replacement for one which he had been given on release and that his Community Offender Manager (‘COM’) knew about it (which she confirmed). He said that he initially refused to give the police the log-in details because he was frustrated by being stopped and arrested but he provided them later. He said that he had been stopped by the police on previous occasions. He understood why there were reasonable suspicions about the circumstances and he accepted that the recall was justified.[30]The COM supported re-release on licence and told the panel that there had been a positive period on licence prior to recall, with no further concerns about criminality, and that there had been several positive aspects. She had no residual concerns following on from the recall. She said that the Applicant had been compliant prior to his recall and she expected that to continue.[31]The Applicant said that he would comply with the proposed risk management plan and licence conditions; he would have preferred the conditions around notification of vehicles and phone ownership not to be in place but after some discussion with the panel he accepted them as necessary for monitoring him and his activities.[32]The panel’s conclusions about the circumstances of the recall were as follows:
“The circumstances of the recall were concerning and [the Applicant’s] failure to check what was in the bag he was given, to consider the wisdom in carrying it around, while acknowledging he was someone police had been interested in, suggests that at best [the Applicant] was, as his COM described, being complacent. The panel were candid with [the Applicant] about their concerns, and the indication he could have been involved in serious criminality. He denied it and no evidence was provided that confirmed that had been the case or that there was evidence he continued to be or would continue to be involved in criminality going forward.”
[33]The panel directed that the Applicant should be re-released on licence. It stated that it did not consider it appropriate to remove the IPP licence (it had evidently been asked to consider doing so) until there was a period of extended positive progression in the community where the Applicant did not come to the notice of police.[34]The Applicant was duly re-released on licence on 14 October 2024. He had completed, for the second time, one of the risk reduction programmes which he had previously undertaken.[35]On 27 January 2025 the COM completed a detailed report to the Secretary of State concerning the possible termination of the Applicant’s IPP licence. Whilst in many ways her report was favourable to the Applicant she did not support termination of the licence. Her report was endorsed by two senior probation officials.[36]On 28 January 2025 the Applicant made an application for the termination of his IPP license, and on 5 February 2025 the Secretary of State referred the case to the Board to decide whether to direct termination.[37]On 12 February 2025 the Applicant’s legal representative submitted lengthy and detailed representations supporting his application and requesting that his application should be granted on the papers or, if not, that it should be directed to an oral hearing.[38]On 10 March 2025 the licence condition which had been in place requiring the Applicant to wear a GPS tag was due to expire. There had been no problems with the use of the tag.[39]On 24 February 2025 a single member panel decided on the papers not to terminate the Applicant’s IPP licence and not to direct the case to an oral hearing. Discussion[40]The starting point is that there is nowadays a presumption that after the qualifying period has elapsed an IPP licence should be terminated unless it can be shown that it remains necessary for it to remain in place. That presumption was acknowledged and applied by the panel in this case. The panel concluded that the evidence showed that the presumption should be rebutted and that the Applicant’s licence should remain in place at this stage.[41]In reaching that conclusion the panel attached significant weight to the decision of the September 2024 panel. That panel had understandable concerns about the circumstances of the Applicant’s latest recall which it carefully discussed as set out in paragraph 32 above. That panel’s concerns were not sufficient to require a decision that the Applicant should remain in prison but they were sufficient for the panel to reach the clear conclusion that his IPP licence should remain in place until there was a period of extended positive progression in the community where he did not come to the notice of police.[42]I am satisfied that the September 2024 panel’s decision was fully justified given the Applicant’s past record and the circumstances of his latest recall.[43]The February 2025 panel stated that it saw no reason to divert from the view of the September 2024 panel and no reason to direct an oral hearing. It added:
“There has not been an extended period of positive progression and it is too early to bring the licence to an end. Although presumption is of termination, there is a clear need for an IPP licence to remain in this case. The Applicant’s offending has presented a very serious risk of harm to others. He rightly points out the changes he has made to his life, however he is yet to have sufficient time on licence without issue to prove that he can lead a better life.”
[44]The Applicant’s legal representative advances a number of arguments for reconsideration of the February 2025 panel’s decision. She asserts that the decision was irrational and procedurally unfair because:(1) the panel failed to ensure that all information was available to make a fair decision and the case should have been referred for an oral hearing so that such information could be obtained;(2) the panel did not follow the relevant case law concerning the need for an oral hearing; and(3) the panel did not follow the relevant case law concerning the Applicant’s status as an IPP prisoner. Ground 1: failure to obtain information[45]It is well established that a panel should obtain all information necessary to enable it to make a fully informed decision, and if the dossier contains insufficient information the panel should either adjourn the case for further information or send it for an oral hearing.[46]I am not persuaded that the panel in this case failed to obtain all necessary information. It had the benefit of a great deal of information in the dossier and in the very detailed representations made to the panel before it made its decision. The key question for the panel to decide was whether a sufficient length of time had elapsed since the Applicant had most recently been released on licence to meet the very reasonable requirement set by the September 2024 panel before it would be appropriate for the Applicant’s IPP licence to be terminated. No amount of further evidence could have led to a decision that that requirement had been met.[47]It is of some significance that the panel was aware that the GPS tag licence condition would expire in the near future, leaving the Applicant to show that he could demonstrate the necessary compliance and good behaviour without that particular restriction. It did in fact expire in March 2025. Ground 2: case law concerning the need for an oral hearing[48]The principal authority relied upon by the legal representative was the decision of the Supreme Court in the cases of Osborn, Booth and Reilly (2013) UKSC 61 . This is the leading case on the topic and has been followed and applied in many subsequent cases including R(ex parte) Somers v Parole Board and Secretary of State for Justice (2023) EWHC 1160 , which is the other case relied on by the legal representative.[49]These decisions were concerned with cases where the offender was in prison and seeking a progressive move to an open prison or release on licence into the community. The underlying principle in such cases is that an oral hearing should be directed if fairness requires it, and there may be a variety of reasons why that may be the case. That is especially so in IPP cases where the prisoner is well “over tariff” and in cases involving a life sentence prisoner who is “stuck in the system”.[50]The present case is of course concerned with an offender serving an indeterminate sentence who has been released on licence and is seeking termination of his licence.[51]That is a different situation from those in the cases relied on by the legal representative, and I agree with the panel that Osborn and the other cases do not apply directly to licence termination cases. The underlying principle of fairness may however, in some such cases, require a single member panel to direct that the case should proceed to an oral hearing.[52]The panel in this case did not believe that fairness required that there should be an oral hearing, and I am satisfied that it was fully justified in that conclusion.[53]A particular feature of this case was that there had been an oral hearing less than six months before the panel considered the case. All issues (including the issue whether the Applicant’s licence should be terminated) had been carefully considered by the September 2024 panel.[54]The legal representative submits that there had been a long enough period to satisfy the requirement for an ‘extended positive period in the community’. The February 2025 panel did not agree, and I cannot find that their view was in any way irrational. Their view was reinforced by the fact that the important GPS tag condition would very soon expire. Ground 3: the Applicant’s status as an IPP prisoner[55]The legal representative submits:
“Taking into account [the Applicant’s] case as a whole; [he]could end up significantly post tariff and his liberty remains significantly at stake. He was originally sentenced to a minimum term of 7 years and has now served 12 years within a prison establishment. His most recent recall occurred without any evidence or justification. There is no evidence that this position has been considered in the decision refusing to terminate his licence.”
[56]I am afraid that this argument is misconceived. There are two problems with it.[57]The first problem is that if the Applicant were to end up back in prison and significantly over tariff it would be entirely his own fault. He has done well for most of his sentence and if he continues his current good behaviour for another year it is highly likely that his licence will be terminated. If he is recalled to prison again he will be able to challenge the reasonableness of the recall. If another panel of the Board then decides that the recall was justified he will have been the author of his own difficulties.[58]The second problem is that the Applicant’s latest recall was not, as the legal representative submits, “without any evidence or justification”. As explained above there was plenty of evidence to justify the recall, as indeed the Applicant himself has agreed.[59]The panel clearly did take into account the whole history of the case including the latest recall, and I believe it was fully entitled to conclude that it was too early to terminate the Applicant’s licence. Decision[60]For the reasons explained in the above discussion I can find no irrationality or procedural unfairness in the panel’s decision and I must therefore dismiss this application for reconsideration.[61]I do not believe that it would have been in the Applicant’s best interests to have an oral hearing. Such a hearing would have been most unlikely to result in a favourable conclusion and the delay caused by a hearing would merely have put back the Applicant’s next review by several months. Jeremy Roberts 11 April 2025 .

Cited in 1 later judgment