Collins, Application for Reconsideration [2025] PBRA 92 (09 May 2025) [2025] PBRA 92

PBRA

Collins, Application for Reconsideration [2025] PBRA 92 (09 May 2025)

[2025] PBRA 92 · 2025-04-04

1. This is an application dated 4 April 2025 (the Application) by Collins (the Applicant) for reconsideration of a decision made on the papers by a single MCA member dated 20 March 2025 (the Decision) not to direct the termination of his imprisonment for public protection (IPP) licence.

2. Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2022 and 2024 in light of the Victims and Prisoners Act 2024 (VAP)) (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 Decision, the Dossier relating to the Applicant consisting of 147 pages, the Application (including representations) made on behalf of the Applicant and two emails lodged in support of the Application from the police and probation service. I have also seen an email on behalf of the Secretary of State (the Respondent) declining to offer any representations in respect of the Application.

Request for Reconsideration

4. The grounds for seeking reconsideration are substantially as follows:

a. The Decision was irrational being based on material errors of fact, specifically:

i. Wrongly assuming (notwithstanding evidence before the member to the contrary) that whilst on release on licence the Applicant had acted violently towards his foster-mother, whereas evidence before the member was to the effect that there had been no allegation against the Applicant of such violence and that he has continuously denied acting with violence towards his foster-mother, claiming that another person was responsible for it.

ii. Wrongly assuming that no action was taken by the police in respect of this incident as the complainant did not support a prosecution, whereas there was evidence before the member which did not support such an assumption.

iii. Wrongly stating that there had been inconsistencies between what the Applicant had explained of this incident at his previous parole board panel hearing and what he was now saying.

iv. Although the relevant dates were correctly set out in the opening summary to the Decision, wrongly stating that the Applicant had remained in the community for a further two weeks after this incident before he was returned to custody, whereas the uncontroverted evidence was that he was arrested on the same day as his licence was revoked (a Friday), remained in police custody and was returned to prison the following Monday at the earliest opportunity.

v. Whilst seemingly assuming that the Applicant posed a high risk of serious harm to the public (as stated in the IPP Termination Report of 22 January 2025), the member ignored the fact that this assessment had, following review by an IPP Progression Panel, been specifically reduced to medium and was so stated in the later OASys Assessment dated 27 January 2025 (but failed to investigate the matter further).

b. The MCA member acted in a procedurally unfair manner:

i. In each and all of the foregoing respects;

ii. In failing to direct an oral hearing having regard to:

1. The factual disputes regarding the incident with the Applicant’s foster-mother, the reasons why he was not charged, the alleged inconsistencies, the reduction in the assessment of risk of serious harm to the public, the awareness of but failure to call for further investigation of the conclusions of the IPP Progression Panel;

2. The probation service supported termination of the licence;

3. The failure to afford the Applicant the opportunity of presenting his case fairly and fully particularly as regards risk reduction and the progress made since his previous release;

4. The failure to give proper and anxious scrutiny to the case having regard to the time expired since the tariff expiry date (some 13.5 years);

5. The need for fairness and prudence in all the circumstances of the case having regard to the principles outlined in Osborn & Ors v Parole Board

[2013] UKSC 61

;

[2014] 1 AC 1115

5. I was also referred to a helpful reconsideration decision of Sir Stephen Silber (not yet fully reported pending conclusion of the case) but a copy of which I have seen and in view of the matter not having yet been concluded do not refer to further in this decision.

Background

6. On the 25 July 2007, the Applicant, then aged 41, received an IPP sentence with a minimum specified term of 4 years, 5 months and 4 days for an offence of section 18 wounding with intent to cause grievous bodily harm. The term expired on 27 December 2011. He subsequently incurred a further sentence in 2019 of 21 months in respect of an offence of causing actual bodily harm (ABH) to his landlady whilst on licence. This sentence expired on 14 February 2022.

7. The circumstances of the IPP (index) offence were that the Applicant became involved in an altercation with a traveller in a pub. The Applicant left, returned with a knife to stab the victim in the chest causing a collapsed lung.

8. Prior to this and since the age of 11, the Applicant had accrued a long history of convictions for violence and non-compliance, often alcohol related.

9. On 20 May 2016 the Applicant was first released on licence following a parole board hearing. This licence was revoked on 29 April 2019 for non-compliance and investigations into a suspected further offence (that of ABH for which he was sentenced as described above). The Applicant was at large for almost 3 months, returning to custody on 13 July 2019. On 14 June 2021 the Applicant was again released on licence, again after a parole board hearing. This licence too was revoked on 23 June 2023 (after the incident allegedly involving his foster-mother also referred to above) with the Applicant being returned to custody on the 26 June 2023. Finally, the Applicant was released again, again following a parole board hearing, on 13 May 2024. He remains on licence.

10. Since his latest release in 2024 the evidence suggests that the Applicant has, matured since the imposition of the IPP sentence, kept out of trouble, and complied with his licence conditions though there was also some mention that, whilst the Applicant had increased his skills as regards dealing with difficult situations, alcohol, and understanding of the consequences of domestic conflict/abuse on the victim and others, all the work necessary to address these issues remained to be completed.

11. The Applicant’s case was, as previously noted, apparently considered by an IPP Progression Panel on 23 January 2025 (see above), but, so the Decision records, the current review panel was not informed as to the participants nor the views expressed at that Panel. One of the Applicant’s complaints in his present application is that the member took no steps to ascertain those views.

12. Notwithstanding the mention of the outstanding work (above), it also appears that the probation service and the Termination Report all noted the significant progress made by the Applicant since his recent release, the addressing of the risk factors at the time of his IPP sentence, and recommended termination of the licence.

Current parole review

13. The current review was conducted, as mentioned, solely on the papers.

14. On the issue of whether or not to direct an oral hearing, the member duly noted that the Applicant’s legal representatives (who had supplied written representations - included in the dossier) requested an oral hearing should there not be a termination decision on the papers. The member, however, considered that the panel had the necessary information in the dossier to make a decision. The member also noted the policy of the Parole Board concerning the appropriateness of oral hearings in licence termination cases and that the Osborn judgment (above) did not apply to a licence termination review.

15. As regards the question whether or not to terminate the IPP licence, the panel (i.e. the member) expressly noted that the termination of the licence was “ ultimately subject to the public protection test ” and concluded as follows:

“ 4.5 The panel agreed that [the Applicant] poses a high risk of serious harm. The panel did not consider that he has demonstrated a significant period of stability in the community since his initial release in 2016. Whilst not sentenced until later, he reoffended soon by committing a serious violent offence of actual bodily harm in 2017. Having served that sentence and having been re-released in June 2021, he was recalled again around two years later. Since his most recent release, whilst currently demonstrating some stability, [the Applicant] has been in the community for less than a year. He remains in supported accommodation and he has yet to demonstrate that he can retain his stability when he has the opportunity of transitioning to independent accommodation where there will be less oversight of his behaviour and his drinking.

4.6 The probation officer has identified some positive developments that [the Applicant] has made with regard to his risk factors, but she identifies that there are unaddressed treatment needs. [the Applicant] has not completed any risk reduction programmes for many years and not since he committed his ABH offence and the second recall incident. Whilst the panel agrees that [the Applicant] is likely to have developed some maturity over the time he has been subject to an IPP, he has continued to drink and his drinking has been excessive at times. The panel considers that his alcohol and emotional management risk factors have not been sufficiently addressed.

4.7 To comment further on [the Applicant’s] second recall. The panel acknowledges that the incident associated with it remains an allegation and there were no criminal proceedings. However, the panel noted some inconsistency in what [the Applicant’s] said about the incident at his last Parole Hearing and what he is saying now. The panel was also concerned that at that time, [the Applicant] was drinking heavily and his life was unstable partly due to accommodation and employment problems. He was not open and honest with his probation officer and he spent a period unlawfully at large. The incident itself had similarities to [the Applicant’s] pattern of offending and he was demonstrating poor problem solving skills.

4.8 The panel concluded that it was not satisfied that the licence should be terminated at the present time. The panel considers that the risks posed by [the Applicant] need to be supervised for longer and that he would benefit from further risk reduction work.

4.9 The panel considers that public protection requires that the licence remains in force. The panel did not vary the licence .”

The Relevant Legal Framework

Parole Board Rules 2019 (as amended) particularly in light of the VAP

16. 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)).

17. 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)).

Irrationality

18. 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.

19. 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. ”

20. 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 ).

21. 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.

22. 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.

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.

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.

Oral Hearing

27. In the Osborn case (above), the Supreme Court comprehensively reviewed the basis on which the Parole Board should consider applications for an oral hearing. Their conclusions are set out at paragraph 2 of the judgment. The Supreme Court did not decide that there should always be an oral hearing but said there should be if fairness to the prisoner requires one. The Supreme Court indicated that an oral hearing is likely to be necessary where the Board is in any doubt whether to direct one; they should be ordered where there is a dispute on the facts; where the panel needs to see and hear from the prisoner in order to properly assess risk and where it is necessary in order to allow the prisoner to properly put his case. When deciding whether to direct an oral hearing the Board should take into account the prisoner’s legitimate interest in being able to participate in a decision with important implications for him. It is not necessary that there should be a realistic prospect of progression for an oral hearing to be directed.

Reconsideration as a discretionary remedy

28. 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

29. In an email dated 15 April 2025 it was stated on behalf of the Respondent that no representations were being offered in response to the Application.

Discussion

30. It is convenient to start with the question of whether an oral hearing should have been directed.

31. The revised Parole Board Guidance for Members on Imprisonment for Public Protection v 1.2 February 2025 contains this at para. 16

“Directing an oral hearing when the individual is on licence

16.18 Whilst rule 31(5) does permit a panel to direct an oral hearing, this

should only be required in exceptional circumstances . Exceptional

circumstances might include critical disputes of fact, vulnerabilities, or

mental health or cognitive functioning which is particularly complex and

relevant to risk.

16.19 When deciding if an oral hearing is required panels are advised to consider

that paragraph 2(i) of the judgment in Osborn, giving the basis of the UK

Supreme Court’s decision, says that fairness may require a hearing when a

panel is “… determining an application for release, or for a transfer to open

conditions…”. Licence termination is neither of these. As the referral is

confined to the question of licence termination Osborn principles do not

apply . [My emphasis]

16.20 If an oral hearing is considered necessary to properly consider the matter,

then directions will need to be issued on a Duty Member Form. Directions

for an oral hearing should be set (any additional documents, witnesses etc)

and the Secretary of State should be directed to secure a suitable location

for the oral hearing to take place, where the individual is in the community.”

32. At the earlier para. 3.2 of the Guidance, by way of contrast, the following appears:

“Member Case Assessment (MCA) panels can conclude any IPP case on the papers where there is sufficient information to make a decision and fairness does not require an oral hearing. An oral hearing is not required unless the circumstances merit exploring oral evidence from witnesses or meet other criteria as set out in the Supreme Court’s judgment in Osborn, Booth & Reilly (OBR ).” [My emphasis]

33. It is, of course, correct that Osborn was concerned with hearings involving confined prisoners whereas in prescribed cases (as here) involving IPP licence termination reviews the offender is no longer confined. The public protection test is not precisely the same. Where the prisoner is confined the test is that release can only be directed if the panel is satisfied that it is no longer necessary for the protection of the public that the person should remain confined. Where an IPP licence termination is involved (post tariff where the offender is no longer confined in prison), whilst the statutory presumption (in this case) is in favour of termination, the test is that such termination can only be directed if it is no longer necessary for the protection of the public that the licence should remain in force. But that does not mean that the principles enunciated in Osborn do not apply (as seems implicitly recognised by the quoted paragraph 16.18 above and more expressly recognised in para. 3.2) and for my part I respectfully consider that the Guidance as set out in para. 16.18-19 (and in particular para. 16.19) might need to be reviewed.

34. There are, in my judgment, indeed a number of factors and circumstances arising in this case which echo a number of those instances in Osborn where Lord Reed pointed out that an oral hearing would be necessary such as:

(a) “where facts which appear to the Board to be important are in dispute ...the Board should guard against any tendency to underestimate the importance of issues of fact which may be disputed or open to explanation or mitigation”;

(b) “when it is maintained on tenable grounds that a face to face encounter with the board, or the questioning of those who have dealt with the prisoner, is necessary in order to enable the prisoner or his representatives to put their case effectively or to test those who have dealt with him”;

(c) “when dealing with cases concerning post-tariff indeterminate sentence prisoners, [the Board] should scrutinize ever more anxiously whether the level of risk is unacceptable, the longer the time the prisoner has spent in prison following the expiry of his tariff”;

(d) “the Board’s decision...is not confined to its determination of whether or not to recommend the prisoner’s release or transfer to open conditions, but includes any aspect of its decision (such as comments or advice in relation to the prisoner’s treatment needs or the offending behaviour work which is required) which will in practice have a significant impact on his management in prison or on future reviews”;

(e) “the Board should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense”;

(f) “in order to justify the holding of an oral hearing, the prisoner does not have to demonstrate that the paper decision was wrong, or even that it may have been wrong; what he has to persuade the Board is that an oral hearing is appropriate”; and

(g) “in applying the guidance, it will be prudent for the Board to allow an oral hearing if it is in doubt whether to do so or not”.

Decision

35. Bearing in mind the framework and principles I have referred to above I have reached the firm view that the MCA member (who, although helpfully supplied with written representations, did not have the advantage of the extended detailed arguments placed before me) did act in a procedurally unfair manner in failing to direct an oral hearing.

36. My reasons for this, both individually and cumulatively are as follows:

a. First, there were a number of issues or areas where in fairness to the offender he or his representatives should have been given a full opportunity to put the case effectively, to test the evidence of others and at least have the chance of demonstrating in a fair and balanced manner how the Applicant himself deals with cross-examination and any concerns about his conduct, risk and development. Examples include the issues over the incident involving the foster-mother, the decision not to bring charges in respect of this incident, the alleged inconsistencies in the Applicant’s statements, the reasons for the down-grading of risk assessment between the Termination Report and the final OASys assessment, the extent of the Applicant’s dependence on alcohol and how he addresses this, what were the views of the IPP Progression Panel, to what extent (given the recommendations) was it really necessary or helpful for him to undergo further programmes.

b. Second, given the background circumstances including in particular the positive evidence of the Applicant’s maturity and progress, the issues as to risk (was it a high risk of serious harm or medium?) and progress should have been tested at an oral hearing by seeing and hearing the Applicant and probation officers and at the very least giving the Applicant an opportunity to present his positive characteristics as well as exploring the issues above-mentioned.

c. Third, whilst it is fair to say that the Applicant has in his most recent release been now unconfined for a year, his tariff expired over 13 years ago which indeed means he requires anxious scrutiny as to the measurability of his risk all of which can be more carefully done by an oral hearing than on the papers.

d. Fourth, this is not a clear case for not having an oral hearing such that, as explained in Osborn , it would be “ prudent ” to allow one.

e. Fifth, it is, to my mind, at the very least arguable that the failure to direct an oral hearing together with the factual errors made by the member as referred to above have resulted in an irrational decision in the sense previously explained. In these circumstances the overall justice of the case, in my judgment, requires the Applicant at least to feel that his case has been given a fair, proper and anxious scrutiny and that his evidence, representations and arguments properly considered even if not accepted.

37. Accordingly, the application for reconsideration is granted.

HH Roger Kaye KC

09 May 2025

Cited in 1 later judgment

Baker, Application for Reconsideration [2025] PBRA 189 (08 September 2025) 2025