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The Parole Board for England and Wales


You are here: BAILII >> Databases >> The Parole Board for England and Wales >> Byrne, Application for Reconsideration [2025] PBRA 78 (23 April 2025)
URL: https://www.bailii.org/ew/cases/PBRA/2025/78.html
Cite as: [2025] PBRA 78

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[2025] PBRA 78

 

 

 

Application for Reconsideration by Byrne

 

Application

 

1.   This is an application by Byrne (“the Applicant”) for reconsideration of a decision of a Panel of the Parole Board at an oral hearing, which took place on 11 March 2025, not to direct his release.

 

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 dossier provided by the Secretary of State (“the Respondent”) which now contains 436 numbered pages;

 

·       The Panel’s decision letter dated 23 March 2025 (“DL”);

 

·       The application for Reconsideration (“the application”) submitted on behalf of the Applicant by his solicitor with an attachment

 

Request for Reconsideration

 

4.   The application is dated 1 April 2025.

 

5.   Reconsideration is sought on the basis of irrationality in reliance on three grounds which I will consider within the Discussion section of my decision.

 

Background

 

6.   The Applicant is now aged 61. On 22nd July 2016, at the age of 52 and upon his guilty pleas, he received an extended determinate sentence of imprisonment comprising a custodial element of 12 years and an extended licence period of five years for offences of robbery and causing grievous bodily harm with intent to do grievous bodily harm. The Parole Eligibility Date is given as 30 March 2024, the Conditional Release Date as in March 2028 and the Sentence Expiry Date as in March 2033.

 

7.   The victim of these offences was a lady of 84 years of age who lived on her own in a terraced house. The Applicant had visited her on a number of occasions and carried out work for which, on each occasion, he was paid £100. He told the victim that he needed the money for drugs.

 

8.   In the early hours of the morning of 28 March 2016 the Applicant broke into the victim's home. He demanded money and then subjected her to a prolonged assault, hitting her to the head, kicking her, knocking her to the floor and breaking her arm. He also threatened to rape her.

 

9.   The Applicant prevented the victim from leaving and cut the telephone line with a knife. He found her bank card and, in order to get him to leave, she provided him with the PIN number. He then left taking a set of her keys. The victim reported that he was in the house, either searching for money and other items or mounting sporadic attacks on her, for a number of hours. She suffered significant life-changing physical and psychological injuries.

 

10.The Applicant told the Panel in evidence that he had been drinking alcohol all day and could not remember the offences that he had committed.

 

11.The Applicant has an extensive criminal record of convictions for over 100 offences with those of most concern to the Panel being for violence and non-compliance with orders.

 

12.The Panel noted a number of major risk factors to be derived from his offending history which included substance misuse, a willingness to resort to violence and attitudes which supported the use of violence.

 

Current parole review

 

13.The Applicant’s case was referred to the Parole Board by the Respondent in July 2023 to consider whether or not it would be appropriate to direct his release. This was the Applicant's first review.

 

14.The case was allocated to a two-person Panel which comprised a psychologist member and an independent member who chaired the Panel.

 

15.The Applicant was represented by his solicitor who sought a direction for release.

 

16.At the hearing evidence was given by:

 

a)   The Prison Offender Manager (POM);

 

b)   The Community Offender Manager (COM);

 

c)   The Applicant;

 

d)   A Prison Psychologist

 

 

The Relevant Law

 

17.The Panel correctly sets out the test for release in the DL.

 

Parole Board Rules 2019 (as amended)

 

18.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)).

 

Irrationality

 

19.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.

 

20.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.”

 

21.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).

 

22.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.

 

23.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.

 

24.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

 

25.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.

 

 

Reconsideration as a discretionary remedy

 

26.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

 

27.By email of 8 April 2025 it was confirmed that the Respondent offers no representations in response to the application.

 

Discussion

 

28.In dealing with the grounds for reconsideration, it is necessary to stress certain matters of basic importance. The first is that the Reconsideration Mechanism is not a process by which the judgement of the Panel when assessing risk can be lightly interfered with. Nor is it a mechanism in which the member carrying out the reconsideration is entitled to substitute his/her view of the facts in place of those found by the Panel, unless, of course, it is manifestly obvious that there was an error of fact of an egregious nature which can be shown to have directly contributed to the conclusion arrived at by the Panel.

 

29.The second matter of material importance is that when deciding whether a decision of the Parole Board was irrational, due deference has to be given to the expertise of the Parole Board in making decisions relating to parole.

 

30.Third, where a Panel arrives at a conclusion, exercising its judgement based on the evidence before it and having regard to the fact they saw and heard the witnesses, it would be inappropriate to direct that the decision be reconsidered unless it is manifestly obvious that there are compelling reasons for interfering with the decision of the Panel.

 

31.I move now to consider the grounds put forward by the Applicant, adopting the numbering and wording of the application:

 

 

Ground 1 - New Evidence of Confirmation from Healthcare re Code Blue /Requesting assistance for medication due to difficulty sleeping issues

 

32.Under this heading the solicitors for the Applicant seek to put forward further information, which was not put before the Panel, in the form of an e-mail exchange with the Healthcare team at the prison where the Applicant is located containing responses to two questions.

 

33.Unhelpfully, the solicitors include this exchange in the application without any further commentary, written submission or indication of the purpose for which it is put before me. This is unsatisfactory.

 

34.Doing the best I can to assist the Applicant, I have presumed that the first part of the exchange relates to DL 2.6 where the Panel refers to a code blue “noted in May 2021 for being under the influence of substances although [the Applicant] denies this (heart issue)”.

 

35.The information from Healthcare would appear to confirm the information which was provided to the Panel and to contradict the Applicant’s account since it is recorded that he was found to be unresponsive, was confirmed to be under the influence and that, subsequently, no obstructive coronary artery disease was identified.

 

36.The second entry from March 2022 goes to confirm that the Applicant was then having trouble sleeping which, on his own account, led, over two years later, to him obtaining a tablet, not knowing what it was, from another prisoner and thus receiving an adjudication which he accepted, describing it as a “silly mistake”. The Panel found that this evidenced very poor decision-making and demonstrated that the Applicant still had the propensity to want to misuse substances when not coping.

 

37.There is, I find, no irrationality here but rather a confirmation of the Panel’s narrative of events and findings.

 

 

Ground 2 - Evidence of Cell Share Risk Assessment

 

38.In relation to this ground the Applicant now submits a separate document described by his solicitors as “the cell share risk assessment logs.” There is no indication on the face of this document of when it was prepared, who it was prepared by, the position they hold and the purpose for which it is placed before me other than the suggestion that it “supports the fact [the Applicant] never said he had any issues with whom he shares with.

 

39.In fact, it is clear that the Panel was concerned to carefully examine the issue of whether a high cell share risk was due to the Applicant self-reporting racist attitudes and that he would only share with white people.

 

40.At DL 2.16 the Panel acknowledges his denial that he was not able to share a cell due to self-reported racism but rather that this was due to his history of abuse.

 

41.The POM was therefore asked to clarify the position and he told the Panel that “it was actually not clear that any disclosure had made by [the Applicant]” and the Panel found that “this aligned with what [the Applicant] had told the panel in his evidence that he denied making this comment.”

 

42.I find therefore that the Panel accepted that there was no firm evidence that the Applicant had self-reported racism and, thereafter, the Panel makes no further mention of, and places no weight upon, the cell share issue in coming to its decision.

 

43.There is thus, I find, no substance in the submission that the Panel had concerns about racism which impacted on its decision and, accordingly, it is irrelevant whether or not the word “white” was used in written or oral evidence since the Applicant’s ethnic category is clearly noted in the dossier.

 

 

Ground 3 - Decision Letter Page 4 /9

 

44.This heading is, in fact, a reference to paragraph 2.3 of the DL. I find that nothing turns on the use of the word “some”, as the Applicant seems to suggest, since it is common ground that the Panel was aware of, and accepted in its conclusions, that the 1:1 work had been completed prior to the oral hearing.

 

45.The Applicant goes on to suggest that the Panel “added to much weight [sic]” to the need for the Applicant to consolidate and demonstrate his new skills in a controlled environment over a longer period and then goes on to make further submissions.

 

46.The question of weight is pre-eminently a matter for the Panel in arriving at its conclusions by exercising its judgement based on the oral and written evidence which it received on this issue. I can find no irrationality in the Panel's finding on this point.

 

47.Overall, I am satisfied that the Panel set out its concerns and conclusions with clarity and that it took proper account of the evidence and views of the professionals, which it analysed with care, and that it was justified, on the basis of the evidence before it, in reaching the conclusion that the Applicant did not meet the public protection test for release.

 

 

Decision

 

48.I find that the Application is entirely without merit and, for the reasons I have given and applying the appropriate tests, I do not consider that the decision was irrational and, accordingly, the application for reconsideration is refused.

 

 

 

Peter H. F Jones

23 April 2025

 

 


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