AC-2025-BHM-000177 - [2025] EWHC 2551 (Admin)

I can take the factual background from Mr Ridding’s Skeleton Argument and the bundle.

The Claimant is serving a 49-months for breach of a restraining order, ABH and battery of his former partner and three counts of criminal damage. He was sentenced on 6 August 2020, and his sentence expiry date is now 20 October 2026. He was released on licence automatically on 22 July 2022, but his licence was revoked by the Interested Party on 31 July 2022. The Claimant was returned to custody on 14 October 2024 after handing himself in to the police. The Interested Party then referred his case to the Defendant for consideration of re-release.

The circumstances of the Claimant’s recall to custody were that he absconded from his approved premises following his release. His former partner also alleged he assaulted his former partner, but the Police took no further action on that. In the Interested Party’s referral (where the Claimant was referred to by his alternate name of Mr Deakin), it was noted:

“In my professional opinion, I do not assess that it is currently safe to re-release Mr Deakin into the community at this juncture. Mr Deakin was recalled on 01/08/22 after he absconded from the Approved Premises (AP) after only 9 days following his prison release. This followed an alleged further DV offence which has now been filed by Police with no further action. He then remained unlawfully at large for 26 months before he handed himself in to the Police. Mental health concerns have been evidenced since he was returned to prison. He is expected to engage in core risk reduction work including programmes interventions to improve on his thinking skills and awareness of healthy relationships whilst serving his recall. This is a prerequisite prior to any future release which will need to be facilitated through an AP to ensure additional risk management measures are in place.

Mr Deakin is [under supervision] and until 23/10/24, he was being monitored by prison staff on a constant watch due to M/H issues including him being found with a ligature and after he swallowed a battery on 22/10/24. His COM also notified the prison of a concerning phone call received from Mr Deakin's Sister on 22/10/24 in which she disclosed he had attempted suicide. This information was passed to the POM and the prison were already aware of his M/H issues.”

The Claimant, then unrepresented, was invited to make representations but did not do so – it is said due to his poor mental health and lieracy that did not enable him to do so. Accordingly, a single-member panel of the Defendant reviewed the case on the papers on 10 February 2025 in the Member Case Assessment process (‘Decision 1’). ‘Decision-Maker 1’ (or ‘DM1’) as I shall call them, declined to direct the Claimant’s re-release or to order an oral hearing, saying:

“In making this decision the panel has considered this case against the principles set out in [Osborn] concerning oral hearings. The panel does not find that there are any reasons for an oral hearing. However, if it is believed that this case should proceed to an oral hearing, further representations should be submitted to the Parole Board within 28 days of receipt of this decision outlining why it should proceed to a hearing.”

“[The Claimant needs to] engage with work to address his areas of risk and until that has been completed, the panel would be concerned about his risk of serious harm, especially if he were to enter into a new intimate relationship. Therefore, while core risk reduction work remains outstanding, the panel was satisfied it remains necessary for the protection of the public he should be confined so it did not direct his release.”

This reference to ‘core risk work being outstanding’ is the Building Better Relationships (Domestic Abuse) programme the Claimant had been expected to undertake when released on licence in 2022 but did not do so as he absconded. The first stage decision-maker continued:

“However, his licence was revoked on 31 July 2022 after he absconded from approved premises. The police disclosed there had been an alleged domestic violence incident on 30 July 2022 after a female reported having been assaulted by him. No further action was taken but he remained unlawfully at large until 14 October 2024. It was said that he was encouraged by family members to attend the police station to hand himself in due to the impact of being at large on his mental health. The panel considered the recall to have been appropriate based upon his disengagement from supervision in July 2022, the fact he remained unlawfully at large for a significant period of time raises concerns about his decision making and the degree to which he takes responsibility for his actions. However, he did hand himself in to the police, for which the panel gave him credit. It shows a level of maturity and acceptance of responsibility for his situation. Mr Deakin has denied any involvement [Mr Deakin being the alias of Mr Brockie, the claimant] in the alleged domestic violence incident and maintains he did not have contact with the victim of his index offence. The panel took into consideration that the Claimant he engaged well in interview with his prison offender manager and community offender manager in October 2024. Although there have been no concerns about his compliance with the regime in prison, he has been on ‘Active Care in Custody Treatment’ due to mental health concerns”.

On 26 February 2025, the Claimant’s previous solicitors, Purcell Parker, applied for an oral hearing to the Defendant pursuant to Rule 20 of the Parole Board Rules 2019 (as amended and discussed below). In detailed representations, they submitted that the Claimant denied the further allegation which had a material impact on the overall assessment of risk and that the allegation and requirement to complete work around domestic violence would be central to any risk assessment, so that it was only fair to hear and obtain further evidence from the Claimant and professional witnesses. Further, it was highlighted that there were reported issues in relation to the Claimant’s learning style and his ability to understand written documents and that the Claimant was on an ACCT review. It was submitted an oral hearing would allow further exploration as to the relevance of these points and any impact on the assessment of the risk of serious harm. In particular, the solicitors submitted that:

“[W]hen this case was considered on the papers, Mr Brockie was not represented and no representations were submitted either by himself or a legal representative. We note that there are reported issues in relation to Mr Brockie’s learning style and his ability to understand documents. In fairness to him, he was not in a position to submit representations for a paper review, and as such has not been able to have a fair risk assessment in the absence of being represented at that time. The only recourse now is to seek an oral hearing. It is also evident there is a history of mental health concerns in relation to this case and following recall, it is reported that he was on ACCT review. In our submission, an oral hearing will allow further exploration as to the relevance of his mental health and the impact this may have on his assessment of risk of serious harm. And in fairness to Mr Brockie, this can only now be concluded by means of an oral hearing. The benefit of an oral hearing will allow Mr Brockie to provide evidence directly to the panel which will undoubtedly assist in their decision making.

An oral hearing will allow Mr Brockie to take part in a risk assessment process and will allow the Parole Board to uphold his legitimate interest in the proceedings. There is also merit in allowing his legal representative to challenge the professionals managing him, not only to explore the issues regarding potential sentence pathway, but the management of Mr Brockie in the community.

While there have been some concerns regarding mental health since returning to custody, Mr Brockie has otherwise demonstrated compliant behaviour and we are advised he is now an enhanced prisoner…He is working closely with his prison offender manager to complete any core risk reduction work, we also advise the targets set for him are unobtainable in his current establishment….”

However, in the impugned decision dated 5 March 2025 (‘Decision 2’) a duty member of the Defendant (‘DM2’) refused the application for an oral hearing. I quote their reasons in full:

“We refer to the provisional decision of your parole review recently issued by a single member panel dated 10 February 2025 as set out in the decision you are allowed 28 days in which to consider whether to accept the decision or request an oral hearing. We confirm that you have requested an oral hearing, legal representation is dated 26 February 2025. The basis for this request is that Mr Brockie had not submitted representations. However, it is clear from the dossier that he was advised of his right to do. The representations raise an issue regarding an allegation; however the paper panel decision maker did not place particular weight on this matter, focusing on Mr Brockie’s absconding from his approved premises and being unlawfully at large despite encouragement to hand himself in. The anticipated offending behaviour work relates to the index offence and was a licence condition that remained unfulfilled. The duty member did not find the important factor in dispute that an oral hearing is needed properly to make an assessment of risk or that you can put your views across effectively. The representations submitted have been considered and the request has been refused for the reasons stated above. The paper decision is therefore final, and your current review is now concluded in accordance with the Parole Board rules, not applicable for reconsideration eligible cases.

The duty member did not find that important facts are in dispute, or that an oral hearing is needed to properly make an assessment of risk, or so that you can put your views across effectively. The representations submitted have been considered and the request has been refused for the reasons stated above.”

The Claimant changed solicitors and on 16 April 2025, the Claimant’s present solicitors, Bhatia Best Solicitors, served a Letter Before Action on the Defendant challenging the decision not to grant an oral hearing as procedurally unfair by reference to Osborn on the basis that there were factual disputes and complex risk assessment. Criticisms were made of the fairness of both Decision 1 and Decision 2, which have been pursued in the claim. As I explained, the Defendant and Interested Party have responded to say they remain neutral.