Hussain, Application for Reconsideration [2025] PBRA 167 (11 August 2025) [2015] EWCA Crim 1580

EWCA-Crim
Hussain, Application for Reconsideration [2025] PBRA 167 (11 August 2025)
[2015] EWCA Crim 1580 · 2025-07-20
[1]This is an application by Hussain (the Applicant) for reconsideration of a decision dated 20 July 2025 not to direct his release. The decision was made by a panel following an oral hearing.[2]Rule 28(1) of the Parole Board Rules 2019 (as amended) (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.[3]I have considered the application on the papers. These are the decision, the dossier (consisting of 498 numbered pages), and the application for reconsideration. Background[4]On 29 May 2015, the Applicant received an extended sentence consisting of ten years in custody with a three year extension period following conviction for robbery. This was varied on appeal to an extended sentence consisting of 13 years in custody with a three year extension period ( Attorney General’s Reference No. 53, 54 & 55 of 2015 [2015] EWCA Crim 1580). The Applicant and his co-defendants approached a security delivery driver while wearing masks and demanded he hand over a cash box. When the victim tried to create distance by waving the cash box, he was threatened with a 12-inch bladed knife and dropped it out of fear. The co-defendants took the cash box and fled in a getaway vehicle driven by the Applicant.[5]The Applicant was 35 years old at the time of sentencing and is now 45 years old.[6]Key dates relevant to his sentence are reported to be: a) Parole eligibility date: January 2024; b) Conditional release date: May 2028; and c) Sentence expiry date: May 2031. Request for Reconsideration[7]The application for reconsideration has been submitted by solicitors on behalf of the Applicant. It argues that the decision was irrational and procedurally unfair.[8]The submissions are supplemented by written arguments to which reference will be made in the Discussion section below. Current Parole Review[9]The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) in April 2023 to consider whether or not it would be appropriate to direct his release. This is the Applicant’s first parole review.[10]The case proceeded to an oral hearing on 9 July 2025, before a three-member panel, including a psychologist specialist member. The panel took oral evidence from the Applicant, the Prison Offender Manager (POM), the Community Offender Manager (COM) and a forensic psychologist instructed by HMPPS. The Applicant was legally represented throughout the hearing.[11]The POM and COM recommended the Applicant’s release, whereas the psychologist did not.[12]The panel concluded that the statutory test for release was not met. The Relevant Law[13]The Parole Board will direct release if it is no longer necessary for the protection of the public that the prisoner should be confined. Parole Board Rules 2019 (as amended)[14]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)).[15]Rule 28(2) of the Parole Board Rules provides the sentence types which are eligible for reconsideration. These are indeterminate sentences (rule 28(2)(a)), extended sentences (rule 28(2)(b)), certain types of determinate sentence subject to initial release by the Parole Board (rule 28(2)(c)) and serious terrorism sentences (rule 28(2)(d)).[16]A decision to recommend or not to recommend a move to open conditions is not eligible for reconsideration under rule 28. This has been confirmed by the decision on the previous reconsideration application in Barclay [2019] PBRA 6 . Irrationality[17]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 (CA) 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.[18]In R(DSD and others) v Parole Board [2018] EWHC 694 (Admin) the Divisional Court applied this test to Parole Board hearings in these words (at [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 .”
[19]In R(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 the Divisional Court in R(Secretary of State for Justice) v Parole Board [2022] EWHC 1282 (Admin).[20]As was made clear by Saini J in Wells, 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.[21]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.[22]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. Procedural unfairness[23]Procedural unfairness means that there was some procedural impropriety or unfairness resulting in the proceedings being fundamentally flawed and therefore, producing a manifestly unfair, flawed, or unjust result. These issues (which focus on how the decision was made) are entirely separate to the issue of irrationality which focusses on the actual decision.[24]In summary an Applicant seeking to complain of procedural unfairness under rule 28 must satisfy me that either:(a) express procedures laid down by law were not followed in the making of the relevant decision;(b) they were not given a fair hearing;(c) they were not properly informed of the case against them;(d) they were prevented from putting their case properly; and/or(e) the panel was not impartial.[25]The overriding objective is to ensure that the Applicant’s case was dealt with justly. The reply on behalf of the Respondent[26]The Respondent has advised that no representations will be submitted in response to this application. Discussion Irrationality[27]The Applicant argues that the panel’s decision was irrational on three grounds. He first contends that it failed to give due weight to the professional consensus recommending his release: specifically, the views of his POM and COM both of whom had sustained and recent contact with him. These professionals noted his positive behaviour, engagement with risk reduction work, and apparent insight. The Applicant asserts that their support was grounded in direct observations and should have carried significant weight.[28]Second, he challenges the panel’s reliance on the psychologist’s concerns, arguing that they were speculative and unsupported by formal evidence of non-compliance. The psychologist raised issues relating to impression management and a lack of openness, but the Applicant notes that there had been no adjudications or formal breaches while he was in open conditions. He maintains that this undermines the credibility of the psychologist’s concerns and renders the panel’s reliance on them disproportionate.[29]Third, the Applicant argues that the panel failed to give adequate weight to his mitigating conduct. He points to his proactive participation in rehabilitative programmes, and his willingness to discuss past behaviour openly during the hearing. He contends that these factors demonstrate a genuine shift in thinking and a readiness for supervised release, and that these factors were not properly acknowledged in the panel’s reasoning.[30]While both the POM and COM supported release, the panel was entitled to weigh their views against the nature and seriousness of the admitted conduct and the psychologist’s structured formulation of risk. The panel explained why it attributed less weight to the POM’s opinion, noting his limited engagement with the Applicant and lack of familiarity with the details of the return to closed conditions. As for the COM, the panel found that she had underestimated the gravity of the Applicant’s conduct in open conditions and placed undue confidence in his assurances. These were legitimate evaluative judgments, carefully reasoned and consistent with the panel’s duty to determine risk independently.[31]The psychologist’s concerns were not speculative but rooted in a longitudinal assessment of the Applicant’s behaviour, spanning both closed and open conditions. Her conclusions were informed by specific and admitted incidents, including the Applicant’s repeated visits to sex workers while in the community on temporary licence (ROTL), covert video recordings of sexual activity without consent, and the subsequent distribution of those videos to a convicted sex offender. These actions occurred while the Applicant was in the community under licence restrictions and only came to light through an unrelated cell search, not through any voluntary disclosure. This pattern of behaviour directly reinforced the psychologist’s earlier concerns about impression management, superficial compliance and a lack of openness with professionals.[32]The panel also addressed the Applicant’s mitigating factors. His engagement in rehabilitative activities and expressions of responsibility were noted and acknowledged. However, the panel was entitled to conclude that these factors were insufficient to outweigh the more recent and concerning behaviour, particularly where that behaviour revealed a willingness to conceal actions that breached trust and licence expectations. The panel’s ultimate finding that the risk management plan could not safely contain the Applicant’s risk in the community due to his dishonesty and pattern of minimising behaviour was reasoned and supported by the evidence.[33]Accordingly, the panel’s conclusions were not irrational. They reflected a coherent analysis of the Applicant’s risk factors, insight and likely compliance, grounded in specific evidence and expert opinion. Procedural unfairness[34]The Applicant also argues that the panel’s decision was procedurally unfair. He submits that the panel placed undue weight on alleged misconduct during his time in open conditions (specifically his conduct while on ROTL) despite the fact that none of these incidents resulted in adjudications or criminal charges. In his view, the absence of formal findings undermines the reliability of the concerns and renders the panel’s emphasis on them disproportionate.[35]He further argues that the panel unfairly discounted the evidence of the POM and COM in favour of the psychologist’s view, even though the POM and COM has closer and more recent contact with him.[36]Finally, the Applicant argues that the panel did not clearly articulate how the incidents in open conditions translated into a current and unmanageable risk of serious harm. He points to the proposed risk management plan as comprehensive and proportionate.[37]The panel was entitled to consider the Applicant’s conduct in open conditions, notwithstanding the absence of adjudications or criminal charges. The relevant test for release focuses on the risk of serious harm. The incidents in open, including admitted and repeated visits to sex workers while on ROTL, covert filming without consent, and distribution of those videos to a serving sex offender, were acknowledged by the Applicant and therefore constituted reliable, first-hand evidence. These were not merely unproven allegations but accepted behaviours that the panel could properly take into account.[38]The panel carefully considered the views of both the POM and COM and set out clear reasons for the weight it gave to each. The POM had limited contact with the Applicant, having only met him twice, and was unfamiliar with the detail of his conduct in open conditions. In the panel’s view the COM, while more experienced with the case, underappreciated the seriousness of the Applicant’s behaviour and appeared to take his assurances at face value. These assessments were explained in the decision and represent a reasoned evaluation of the evidence rather than procedural error.[39]As to the risk management plan, the panel accepted that it was well-structured and comprehensive in its terms. However, it correctly observed that any plan of this nature relies on the individual’s willingness to comply fully and to be open and honest with supervisors. The Applicant had, by his own admission, deliberately concealed risky behaviours over a sustained period in open conditions. The panel was entitled to conclude that this history of concealment created a substantial doubt over whether the risk management plan could function effectively in the community. That conclusion was not reached arbitrarily but based on clear evidence and a fair appraisal of the risks involved.[40]Accordingly, there was no procedural unfairness in the panel’s handling of the evidence or in its application of the statutory test for release. Decision[41]For the reasons set out above, I am not satisfied that the panel’s decision was irrational or procedurally unfair. The application for reconsideration is therefore refused. Stefan Fafinski 11 August 2025

Cited in 1 later judgment