Dickins v Parole Board for England And Wales

The Parole Board’s statutory reconsideration power is limited to the grounds specified in its Rules. “Irrationality” and illegality are separate public-law concepts; an error of law is not a form of irrationality merely because it causes relevant material to be overlooked. The Board therefore has no power under rule 28 to reconsider a decision for legal error. A panel performs its decision-making function when it has made and recorded its decision in accordance with the statutory scheme. Communication of the written decision is administrative and does not postpone functus officio. Outside the reconsideration and slip-rule provisions, the Board cannot revoke or modify a decision once made.

The claimant, a post-tariff life prisoner, challenged a Parole Board decision granting reconsideration of an earlier decision directing his release. After the original panel had made and recorded its decision, information emerged concerning an alleged contraband incident. The reconsidering judge held that the panel had wrongly treated itself as functus officio, that the failure to consider the information was an error of law, and that the release decision was irrational.

The claim raised two issues: whether rule 28 permitted reconsideration for an error of law, and whether the panel was functus officio before its decision had been communicated to the parties.

1. Ground 1 allowed. The reconsideration decision was quashed. The failure to consider the new information flowed directly from the panel’s conclusion that it had no legal power to consider it. That was an error of law, not irrationality.
2. Illegality and irrationality address different mischiefs. Illegality concerns whether the decision-maker correctly understands and applies the law regulating its power. Irrationality concerns irrational decision-making, including failure to take relevant matters into account or an outrageous outcome. Neither concept is a subset of the other.
3. Rule 28(1) is clear and unambiguous. It permits reconsideration only where the decision is irrational or procedurally unfair. The consultation documents cannot justify reading “error of law” into the Rules. Parliament did not enact that proposed ground, and no power exists to reconsider a decision on that basis.
4. Ground 2. Although academic, the court held that the panel had performed its relevant function when it made and recorded its decision at 8:51 on 11 May 2020. The statutory scheme and rules distinguish deciding and recording a decision from the administrative act of communicating it. The panel was therefore functus officio before communication.
5. The Board is a creature of statute and has no inherent jurisdiction. Apart from rule 28 and the slip rule in rule 30, it has no power to modify or revoke a decision once made. R v Parole Board ex p Robinson was no longer good law because the statutory framework had changed. The court followed the reasoning in R(Secretary of State for Justice) v Parole Board and rejected a general power of review arising from R(Gourlay) v Parole Board.
6. The decision was quashed. The court noted that the new information was highly relevant to public protection, but held that it was for Parliament, not the court, to alter the Rules.

This was a first-instance judicial review in the Administrative Court. Permission was granted by Saini J on both grounds, and the claim was heard on an expedited basis.