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

I have set out the background earlier, so I will proceed straight to the Rule 19 decision in this case (‘Decision 1’). There were no initial representations by the Claimant on recall under rule 18, so its decision-maker (‘DM1’) recorded the Claimant’s offending history included offences of drugs, harassment, threatening behaviour and non-compliance with Court Orders. Indeed, that was the context for him having a restraining order against his partner. The Claimant then breached that restraining order in a serious manner by an assault and criminal damage, which which is why the sentencing Judge imposed a 49-month sentence. So, it was entirely justified for DM1 to observe the index offences and previous convictions indicated that the Claimant’s risk factors included poor anger and emotional regulation, especially within intimate relationships; use of violence; substance misuse; mental health and poor decision-making.

This also explains why, when the Claimant was released in July 2022, it was expected that he would complete his Domestic Abuse or ‘Building Better Relationships’ programme when on licence. However, as DM1 noted in Decision 1 which I re-quote for ease:

“His licence was revoked on 31 July 2022 after he absconded from approved premises.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.”

DM1 went on to say the Claimant’s conduct gave rise to concerns about his decision-making, but his surrender did show maturity. Decision 1 also recorded – without rejecting it – that:

“Mr [Brockie] denied any involvement in the alleged domestic violence incident and maintains he did not have contact with the victim of his offence.”

Whilst Mr Ridding suggested that Decision 1 must have taken into account the (later dropped) allegation made by the Claimant’s former partner which coincided with his disappearance in July 2022, in fact the DM1 specifically noted it – but also the Claimant’s denial of it – and actually based the conclusion not to order release in Decision 1 based upon the Claimant’s offending history followed by his absconding for two years. Likewise, it does not seem to me there can be any criticism whatsoever of the analysis of future risk in Decision 1:

“The community offender manager did not consider that Mr Deakin’s risk could be safely managed in the community until he has completed further work to address his areas of risk, which should include work to address mental health, thinking skills and behaviour within relationships. The community offender manager does not assess he is likely to comply with a further period on licence until he has improved his thinking skills. An assessment of independence has therefore been recommended…Although no further action was taken, he appears to have disengaged at the same time a report was made to the police from a female who alleged he had assaulted her. He has not completed work to address healthy relationships and emotional regulation within relationships, which appears from his history to be his main area of risk and directly linked to his risk of serious harm to the public, especially intimate partners. At the present time the panel concluded there would be a high risk of non-compliance if he were released on licence. If he is not complying with licence conditions his risk of serious harm cannot be safely managed in the community. If he were to enter into a new intimate relationship without having addressed his risks in this area, there may be an increase in risk of serious harm to an intimate partner. Given the need for work to address his thinking skills and behaviour within relationships as well as the risk of non-compliance, the panel could not justify a release decision or referral to oral hearing. He is therefore appropriately located in custody…to protect the public.”

Whilst I return to the issue of the oral hearing, DM1’s analysis refusing to release seems to me to be entirely rational and indeed compelling. Even leaving aside, as the first stage decision-maker plainly did, the question of the truth or otherwise of the allegation, save for the fact that it coincided with the Claimant’s disappearance for two years, he had been released on licence in the expectation of undertaking work in the community. He did not undertake that work, indeed he absconded for two years. It would have been astonishing, if DM1 in February 2025 had considered the Claimant a suitable candidate for release only a few months after he had been returned to custody. Indeed, DM1 was scrupulously fair in their analysis which did not rely either upon any disputed allegation nor go wrong in assessing risk, given so much work still needed to be done. Indeed, Decision 1 also dealt (briefly) with an oral hearing, saying:

“In making this decision the panel has considered this case against the principles set out in the case of 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.”

In response to that, the Claimant then did instruct solicitors, who then made detailed representations why the case required an oral hearing. I have quoted from those extensively already, but the key points were plainly intended to raise Osborn factors (c) and (d). Having explained the Claimant had not made Rule 18 representations because he was unrepresented and he had ‘issues with his learning style and ability to understand documents’ and that he had a history of mental health concerns and was under supervision in prison as a result, adding that

“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.”

I note the Claimant’s solicitor’s submissions, well-judged as they were, did not say that an oral hearing might persuade the Parole Board to release him immediately. Their point was that Rule 19 decisions were premised on the basis that a prisoner would have an opportunity to make representations, but they contended the Claimant had not been able to make those representations when unrepresented due to his cognitive limitations. His solicitors argued the Defendant needed hear the Claimant’s side of the story at an oral hearing, not to consider his release, but rather what work was appropriate and the timescales for that work to be done. Equally realistically, Mr Ridding submitted, the argument for an oral hearing was not that it would be likely to order release (in my view there was no realistic chance of that at all), but that as the Claimant only had just over a year to go before he is released automatically at the end of his sentence, given how things went badly wrong after he was released on licence, an oral hearing was an important part of the planning work with the Claimant and ensuring that his release is successful rather than unsuccessful. That in itself would be a valuable exercise.

There is considerable force in the need for proper release planning for the Claimant. However, I am not myself convinced that fairness requires an oral hearing for that purpose, given there are other ways that such planning could be undertaken. In relation to the Osborn criteria:

For those reasons, one would think DM2 had a relatively straightforward task in Decision 2. Indeed, on first reading, they seemed to have discharged it. I re-quote and italicise the key part

“We confirm you have requested an oral hearing…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..” (my italics)

However, I have been persuaded by Mr Ridding that DM2 slid into the error - discussed at length already - of a Rule 20 decision-maker reviewing the Rule 19 decision rather than exercising their own independent judgment. On the crucial issues, DM2 said: ‘The representations raise an issue regarding an allegation.However, the paper panel decision maker did not place particular weight on this’ and ‘The duty member [i.e. DM1] did not find the important facts in dispute [,] that an oral hearing is needed properly to make an assessment of risk [,] or that you can put your views across effectively.” So, not quite as clearly as in Stubbs, Decision 2 is characterised by language of review not independent judgement and is procedurally unfair. Fairness requires under Rule 19 and Rule 20 a two-stage process where two different members of the Parole Board reach their own independent views on the question of whether there should be an oral hearing. It is unfair for the rule 20 decision-maker simply to review the Rule 19 decision’s analysis, especially where representations have been made to the Rule 20 decision-maker that the prisoner was legitimately not able to participate effectively in the Rule 19 process. So, I uphold the claim on normal procedural fairness grounds, but not the Osborn criteria.

Moreover, on that question, Decision 2 in this case simply did not engage at all with the question of whether fairness required an oral hearing to enable the Claimant to participate effectively in release-planning bearing in mind he was not able to contribute to Decision 1. Decision 2 simply says ‘he was advised of his right to do so’. That is totally inadequate and unfair and fails to grapple in any meaningful way with the submission that the Claimant could not effectively exercise his right to do so, albeit through no-one’s fault. It can hardly be said to be ‘pointless’ in the Pathan sense for DM2 to engage with Rule 20 submissions – it was DM2’s job. They may well have reached the conclusion that fairness did not require an oral hearing given planning alternatives for the reasons I have discussed, but DM2 did not do so.

In those circumstances, whilst I cannot properly determine that fairness required an oral hearing exercising my own judgment under Osborn principles, so cannot properly order the Defendant to arrange an oral hearing, I can and will quash Decision 2. It did not fairly decide that fairness did not require an oral hearing and did not engage properly with the representations about that. Therefore, even though – unlike Stubbs – it may be logically open to me to find that s.31(2A) SCA applies in this case, I cannot find that it is ‘highly likely’ that the outcome for the Claimant would not have been substantially different had the unfairness not occurred.

Therefore, Decision 2 will have to be re-made. However, I am not saying that the new Rule 20 decision it must direct an oral hearing, simply that it must come to a lawful decision about it, one way or the other. I hope the Defendant can produce a Rule 20 decision which is a clear and comprehensive consideration in the judgment of the Parole Board member themselves about whether fairness requires an oral hearing. They should focus particularly on whether the Claimant’s legitimate interest in participation – particularly given his literacy problems and his impending release in just over a year – means that fairness requires an oral hearing, which may also be a valuable exercise, even if release is not ordered. I make no order for costs in the circumstances save for public funding assessment of the Claimant’s costs because, sensibly, Mr Ridding did not seek a costs order because the Parole Board and the Secretary of State did not participate in the proceedings.