Hanson, Application for Reconsideration [2025] PBRA 86 (28 April 2025) [2025] PBRA 86

PBRA
Hanson, Application for Reconsideration [2025] PBRA 86 (28 April 2025)
[2025] PBRA 86 · 2025-03-10
[1]This is an application by Hanson (the Applicant) for reconsideration of a decision of a single member panel (‘the panel’) of the Parole Board not to direct the termination of his licence and not to direct an oral hearing. Request for Reconsideration[2]I have considered the application on the papers. These are the panel’s decision dated 10 March 2025, the dossier in the case and the application for reconsideration from the Applicant’s legal representative.[3]The application for reconsideration is dated 25 March 2025.[4]The Applicant submits that the panel’s decision was both irrational and procedurally unfair.[5]The grounds for seeking a reconsideration are as follows:a. The presumption of termination of the licence was not applied by the panel.b. The panel determined ‘that the licence should remain in force, not because of any current behaviour or intelligence suggesting an increased risk, but because of incidents that either occurred long before … release or related to allegations that were never substantiated’.c. The panel rejected termination of the licence because of a need to further test whether change in the Applicant’s behaviour was ‘embedded’ and this is not a lawful basis to reject termination.d. The Community Offender Manager supported termination of the licence and the police had not raised any concerns about offending. ‘ The panel’s decision to override or discount this evidence without articulating any compelling basis for doing so is irrational and unsupported by the dossier’.e. The Applicant had asked for an oral hearing if termination could not be directed on the papers and one should have been listed. The Relevant Law[6]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 Parole Board to decide whether to direct the termination of his licence. The test for the Parole 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.[7]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.[8]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. Irrationality[9]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.[10]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. ”
[11]In R(on the application of Wells) -v- Parole Board 2019 EWHC 2710 (Admin) Mr Justice Sani 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).[12]As was made clear by Mr Justice Sani 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 Mr Justice Saini. It is similarly binding on Reconsideration Panels of the Parole Board. 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;(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. The overriding objective is to ensure that the Applicant’s case was dealt with justly. Background[16]The Applicant is serving a sentence of imprisonment for public protection (‘IPP’) which was imposed in 2009, at the age of 18, following his conviction for firearm and ammunition offences.[17]The Applicant had been driving a stolen car with the police in pursuit. He hit a kerb and blew a tyre. Two male passengers ran off and, as they did, they threw away two loaded machine guns. The Applicant was arrested in the car.[18]The Applicant had been suspected of being involved in a gang but had always denied this. In July 2006, he was the victim of a serious stabbing and was later charged with the murder of another youth but was released without conviction in November 2007.[19]After a successful period in open conditions, the Applicant was first released by the Parole Board on 11 January 2019. He was recalled to custody on 9 June 2020.[20]In May 2019, the Applicant was stopped by the police at 3.50am due to having no insurance and no licence. He gave a false name to the police and stated that it was his partner’s car. As a result of this, a GPS tag was added to his release licence.[21]In May 2020, the police stopped and searched the Applicant in the early hours of the morning. He again attempted to give false details. At the time, national coronavirus lockdown procedures were in place.[22]In June 2020, Probation was advised that the Applicant had been arrested for an offence of affray and had attempted to give a false identity. He was recalled to custody.[23]The incident leading to recall took place at a venue known as ‘ The Manor House’ which was described as a very large villa/mansion complex set in its own extensive grounds. The property had been rented for a private event and neighbours complained to the police about the number of people present. There were also reports of gun shots and a stabbing.[24]A 999 call was received regarding a stabbing incident. The police spotted a car travelling at speed towards the hospital. Four men were in the car, two with serious injuries. One had a partially severed arm, the second had a knife wound to the top of his head and neck. The second man was the Applicant. He gave a false name to the police but was identified via a live scan fingerprint machine. He refused to give any details to the police about what had happened.[25]Following his recall, the police investigated the incident but closed the investigation. The Applicant had refused to give an account of what had happened, there was no CCTV available relating to ‘ The Manor House’ , there was no forensic evidence and no one at the party was willing to give evidence.[26]The Applicant has maintained that he does not know why he was stabbed or who stabbed him. He has said that it was a random attack. He told the Parole Board in 2024 that he had ‘ relaxed a bit too much’ in the community, had started going to parties and had become complacent. He denied any wrongdoing.[27]The Parole Board reviewed the Applicant’s case at an oral hearing on 22 August 2024 and directed his re-release. In his evidence to the Parole Board in 2024, the Applicant accepted that he would need external controls to assist him in staying away from gang culture. He claimed that he had no ongoing gang associations and did not want that lifestyle.[28]The Parole Board in 2024 noted that the Applicant’s evidence had been ‘ credible ’, although it noted that he had ‘ struggled over openness and honesty with professionals, and has demonstrated deceitful behaviour throughout his life. There are multiple occasions when he has provided false names or narratives to the police, probation officers, and prison staff, to try and avoid the repercussions of his behaviour. However, he does appear to have made progress in this area and his openness with professionals is improving over time… ’.[29]In making its decision to release, the Parole Board in 2024 stated ‘ Undoubtedly the very serious nature of [the Applicant’s] index offence, the Judge’s sentencing remarks, his antecedents, and the events around the recall, will give the panel very considerable pause for thought before directing re-release. The identified risk factors must add to the caution’ . It described its decision to release as ‘ finely balanced’ and that the Applicant was a ‘ work in progress’ .[30]The Applicant was then released on 1 October 2024 and he has remained in the community ever since.[31]On 24 February 2025, the Secretary of State (‘the Respondent’) referred the Applicant’s case to the Parole Board under Section 31A. The referral provided that if the Parole 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.[32]An IPP Progression Panel met on 14 February 2025 and supported termination of the licence. The Probation report, within the dossier produced by the Respondent, also supported termination of the licence.[33]The case was considered by the panel on 10 March 2025. The panel decided on the papers not to direct the termination of the Applicant’s licence and not to suspend the supervisory elements of the licence. The panel did amend the licence conditions.[34]In reaching its decision, the panel noted the Applicant’s progress in the community. He had engaged with his licence and with supervision, and there had been no information to suggest he had been in contact with negative associates.[35]The panel noted that if the licence were to be terminated, then the Applicant would become ‘ solely responsible for the management of his risks. All licence conditions would cease to be of effect … ’ and it was ‘ concerned at the removal of such controls within five months of release … ’ which it considered to be ‘… premature’ .[36]The panel noted the presumption of termination and that Probation had seen a ‘ noticeable shift in [the Applicant’s] attitude and approach to the authorities …’ . However, it was concerned that any change was ‘ relatively recent’ and it determined a need for ‘ further time … to establish if … [the changes were] truly embedded and resilient in the face of adversity and challenge in the community … ’.[37]The panel noted that the Applicant had admitted to becoming complacent in the lead up to his earlier recall to custody, that he had only been on licence since re-release for a short time and that it remained ‘… necessary for the protection of the public that his licence remained in place ’.[38]The panel declined to direct an oral hearing and was satisfied that sufficient evidence was detailed in the written dossier. The Applicant had also submitted representations, which the panel had considered. The reply on behalf of the Secretary of State[39]The Respondent has confirmed that she will not be submitting any representations. Discussion[40]I am not persuaded by the Applicant’s submissions.[41]The panel clearly applied the presumption of termination of the IPP licence in its review of the Applicant’s case. It noted the ‘ starting point is a presumption of termination ’ in paragraph 4.1 of its decision.[42]The panel was not obliged to follow the recommendations of professionals, even if they were unanimous. It is the panel’s responsibility to make its own assessment of the Applicant’s risk, to apply the presumption of termination, and if not persuaded to terminate to establish the necessity of his IPP licence continuing in terms of the need for public protection.[43]If the panel decide to depart from the recommendations of the professionals, as it did in this case, it must explain its reasons for doing so. On my reading of its decision, I find without hesitation that the panel did just that. Therefore, I find that the panel satisfied its public law duty to provide clearly expressed evidence-based reasons that sufficiently explained and justified the conclusion it had reached to refuse to terminate the IPP licence.[44]I do not agree with the Applicant’s submission that the panel’s approach to its task was wrong or that its determination of the need for further testing of the Applicant was not a reasonable ground for refusing to terminate the IPP licence.[45]The Applicant had been recalled following serious concerns. He had admitted that he had become complacent on licence and had told the Parole Board in 2024 that he needed support, and the Parole Board considered him to be a ‘ work in progress’ .[46]The panel had noted that the termination of the IPP licence would leave the Applicant responsible for his own risk management. It was not unreasonable for it to consider it premature for him to be relied upon to do this given that he had only been back in the community for a short time. It was reasonable to conclude that further testing of the Applicant would be necessary prior to establishing that the IPP licence could come to an end.[47]The principal authority relied upon by the Applicant in his challenge that an oral hearing should have been directed is the Supreme Court in the case of Osborn (2013) UKSC61. This is the leading case on the topic and has been followed and applied in many subsequent cases. These decisions were concerned with cases where the offender was in prison seeking release or a progressive move to an open prison. The Applicant’s case is concerned with an offender serving an IPP sentence who has been released on licence and is seeking termination of his licence. That is a different situation from the case of Osborn. Osborn does not apply directly to licence termination cases.[48]There is of course an underlying principle of fairness and that may require an oral hearing in some cases. 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. There had been an oral hearing in August 2024 and issues about the Applicant had been carefully considered at that review. This led to the Applicant’s release and the decision directing his release was reviewed by the panel considering termination of the IPP licence. Decision[49]For the reasons I have given, I can find no irrationality or procedural unfairness in the panel’s decision. The application for reconsideration is dismissed. Robert McKeon 28 April 2025

Cited in 1 later judgment