Bannister, Application for Reconsideration by the Secretary of State for Justice [2025] PBRA 96 (14 May 2025) [2025] PBRA 96

PBRA
Bannister, Application for Reconsideration by the Secretary of State for Justice [2025] PBRA 96 (14 May 2025)
[2025] PBRA 96 · 2025-04-25
[1]This is an application by the Secretary of State for Justice (the Applicant) for reconsideration of a decision of an oral hearing dated 26 March 2025, amended 10 April 2025, to direct the release of Bannister (the Respondent).[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: · The Decision Letter (DL) as amended · The Application for Reconsideration · The Dossier, which, in the form I have it, consists of 716 numbered pages ending with the amended DL · Representations on behalf of the Respondent signed by her solicitors and dated 25 April 2025 Request for Reconsideration[4]The application for reconsideration is dated 22 April 2025. It is signed by (an unidentified member of) the Public Protection Casework Section (PPCS) Reconsideration Team on behalf of the Applicant.[5]The ground for seeking a reconsideration is that the decision to release was irrational, for reasons which I outline as follows:(1) The panel has failed to evidence that the Respondent’s risk has reduced to a level that will enable her to be managed by the Probation Service. The decision relies too heavily on the notion that the Respondent’s risk-related behaviour would be more manageable on release than it is in prison, and in adopting this stance, the panel fail to fully consider the evidence provided by the majority of witnesses that the Respondent cannot be safely managed on release.(2) The panel gave insufficient weight to crucial evidence.(3) “ Insufficient weight given or interrogation of professional witness evidence .” Although a complaint is made under this heading, the real points that are being made are threefold: (a) That the panel offered little reasoning for its finding that “ they simply could not be persuaded that the test for release was not met .” (b) The panel did not agree with the professional witnesses, and did not explain adequately why, or “ interrogate the professional opinions which are clearly contrary to their own views ”. (c) The panel did not take into account evidence of the Respondent’s recent use of violence, or draw from the Respondent’s unwillingness to co-operate with an open regime the appropriate conclusion as to her manageability in the community.(4) Inadequate reasons given for going against all report writers’ recommendations. Background[6]The Respondent was 19 years old in 2007, when she received a sentence of imprisonment for public protection for an offence of causing grievous bodily harm with intent. The period she had to serve before being considered for parole expired in March 2009. She has been released after hearings by the Parole Board, and recalled, three times. The first release was in July 2011. The Respondent received a conditional discharge in 2015 for threatening behaviour. She was recalled in August 2016, having committed a burglary with intent to cause criminal damage. She continues to deny that offence, for which she received a 42-month prison sentence. The Parole Board directed her release again in February 2019. She was recalled in April 2019, having lost her hostel bed placement. She was released again in January 2020. She was recalled in February 2022. She had been arrested for conspiracy to supply Class A drugs and modern slavery. That case resulted in her being convicted of an offence of conspiring to arrange or facilitate the travel of another person with a view to exploitation and received an 18-month prison sentence. The offence amounted to harbouring a 14-year-old boy in her house and using him in a “ county lines ” drug dealing operation. The panel commented that she continues to minimise her involvement.[7]The Respondent’s criminal record prior to the index offence dated back to 2003, when she was 14. There were two offences against the Public Order Act in that year. She has convictions for common assault and assault on the police, and for witness intimidation. In 2024 she appeared before the Magistrates’ Court for an offence committed in prison, an assault by beating on a prison officer, for which she received a conditional discharge.[8]The Respondent has received many adjudications in prison, mostly for assaults, disobedience and threatening words and behaviour. Very shortly before her oral hearing (the report is undated) she received an adjudication for failing to provide a mandatory drugs test and was further to be charged with threatening and abusive behaviour. Current parole review[9]The Applicant’s referral was for consideration of release or a recommendation for open conditions. The Respondent was 37 at the time of the hearing. Her application was for a direction for release. The case had been listed for 20 November 2024 but was adjourned for 4 months at the request of the Respondent’s representative.[10]The hearing took place on 20 March 2024, by video link. The panel consisted of two independent members and a psychiatrist member of the Parole Board. The witnesses who gave evidence were the Prison Offender Manager (POM), the Community Offender Manager (COM) and a previous COM, a psychologist based at the prison, a psychologist instructed on behalf of the Respondent, a member of the prison’s mental health in-reach team, and the Respondent herself. The POM was present with the Respondent, as were a uniformed prison officer, the MHIT worker, and the Respondent’s legal representative. The legal representative was present throughout, asked questions of the witnesses and made closing submissions. The Applicant chose not to be represented at the hearing, and made no submissions. The Relevant Law[11]The panel correctly sets out in its decision letter the test for release and the issues to be addressed in making a recommendation to the Secretary of State for a progressive move to open conditions. Parole Board Rules 2019 (as amended)[12]Rule 28(1) of the Parole Board Rules provides the types of decision which are eligible for reconsideration. This is an eligible decision and an eligible sentence type. 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) ( Worboys ) 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) 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).[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. Other[19]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.[20]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. " Reconsideration as a discretionary remedy[21]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 Respondent[22]The reply on behalf of the Respondent points out that, whereas the application asserts that the Respondent received 14 adjudications between September 2024 and January 2025, in fact there were only 7 proven adjudications during this period. The application refers to an assault allegedly committed by the Respondent in November 2024: the reply highlights the fact that it is later confirmed in the dossier that the disciplinary assault charge was dismissed for lack of evidence.[23]The reply underlines the evidence of all the witnesses, supported by the written evidence of the psychologist instructed on the Respondent’s behalf, that the behaviour she showed in custody would not be anticipated, certainly not at the same levels, in the community. All witnesses agreed that the Respondent’s behaviour was exacerbated by her being in a custodial environment. Much of her behaviour relates to her not being correctly medicated, and the majority of the negative comments and disciplinary charges relate to healthcare and issues with medication.[24]The reply points out that in her evidence the psychologist instructed on the Respondent’s behalf expressed the opinion that the Respondent’s instability with her mental health interferes with her capacity to apply the skills she has learnt. The panel found that the view of all the witnesses was that the Respondent’s behaviour was the result of the prison environment within which, perhaps largely due to her personality disorder and mental health problems, she simply could not consistently contain her emotions. This has often made restraint necessary but that then exacerbates her problems.[25]Looking at all the evidence, the reply points out, the panel concluded that the risks the Respondent presents would be significantly lessened, or more easily avoided, with robust external controls. The Respondent’s representative argues that is clearly relevant when applying the public protection test to consider how this behaviour would translate in the community. “ The panel explored this in the evidence and indeed all the witnesses agreed there is a lower risk of harm in the community than in custody .”[26]The Respondent’s representative submits that the panel addressed how the Respondent’s risk can be addressed in the community in the evidence and the reasoning. The panel considered that in the community the protective factors it identified could be more confidently relied on.[27]The representative argues that the panel closely analysed the Risk Management Plan (RMP), and the support it offered as well as the stringent controls set out.[28]The representative argues that the panel was entitled to look at the time since the index offence, and the long periods she has spent in the community without violent offending. Apart from the arrest and charge for the offences that led to her recall, there were no other concerns about the Respondent during her most recent period on licence. Discussion[29]I start by pointing out that references in the application to the panel ‘adopting a stance’ or ‘failing to interrogate the professional opinions which are clearly contrary to their own views’ betray a misunderstanding of the respective positions of the panel and the parties, of whom the Applicant is one. The parties may (or may not) adopt a stance, or have views which they express to the panel. The panel performs a judicial function in assessing the evidence and coming to a conclusion: it has neither a stance, nor views. The way in which the panel performs that function may or may not establish a basis for reconsideration.[30]At the core of the first complaint, and indeed at the core of the application as a whole, is the suggestion that the panel erred in preferring the evidence of the psychologist instructed on the Respondent’s behalf, and its own assessment of the significance of the Respondent’s behaviour both in the community and in custody, to the opinions expressed by the POM, the COM and the prison-based psychologist, all of whom regarded the Respondent as not passing the test for release.[31]The Applicant (correctly) agrees that it is for the panel to decide what evidence it accepts. See the clear statement set out at Paragraph 18 above. The panel took full cognizance of the Respondent’s behaviour both in and out of custody. It said that the evidence of her behaviour in the community since her first release, notwithstanding her recalls and the criminal convictions, meant that the panel should give “ considerable weight ” to the absence of any serious violence since the index offence some 18 years ago, when the Respondent was 18. This was her only assault leading to serious harm. The panel went on to say “ The panel did give careful consideration to the treatment of the 14-year-old child and concluded this to constitute a risk of serious emotional harm. This was committed as part of a practice of drug dealing and the panel’s view is that measures to successfully manage her return to the drug culture, will also reduce the risk of any recurrence .” There is probably a typographical slip of some sort here, but the meaning is clear.[32]The witnesses all agreed (see DL Paragraph 4.11.) that much of the Respondent’s behaviour was the result of the prison environment within which, perhaps largely due to her personality disorder and mental health problems, she simply could not contain her emotions.[33]It is in this context that the panel concluded that the Respondent’s risk could be managed in the community, subject to a robust Risk Management Plan, which it found to be in place. The panel also took account of the 5 years the Respondent spent in the community, “ during which there was no evidence of crime or police involvement .” This latter statement is hard to reconcile with the fact of the Respondent’s conviction (with a conditional discharge) for threatening behaviour in 2015, and the conviction for burglary that followed her recall. But the thrust of the panel’s conclusion, that in the community the Respondent’s behaviour has not given cause for concern with regard to serious assaults, remains unaffected, and is justifiable on the evidence.[34]The panel’s further conclusion, that the Respondent’s behaviour in prison is significantly linked to the prison environment, her mental health and her perceived hopelessness regarding the IPP sentence, is one to which it was entitled to come on the evidence. The panel was entitled to conclude that, there being no suggestion of serious harm while on licence (from assault, at least, leaving aside the psychological damage to the victim of the exploitation offence), the Respondent’s risk could be safely managed in the community, despite her behaviour in custody.[35]The panel was fully aware of the Respondent’s history, and of the views of the professional witnesses. The questions for me are not whether I agree with the assessment of the panel which heard and considered all the evidence, but whether the panel’s decision is within the range of decisions to which a reasonable panel properly assessing the evidence could come, and whether it sufficiently explained how it came to its conclusions. I do not find the panel’s decision to direct release was irrational, nor that it failed properly to explain its reasoning. Decision[36]For the reasons I have given, I do not consider that the decision was irrational, and accordingly the application for reconsideration is refused. HH Patrick Thomas KC 14 May 2025