Holt, Application for Reconsideration [2025] PBRA 132 (07 July 2025) [2025] PBRA 132

PBRA

Holt, Application for Reconsideration [2025] PBRA 132 (07 July 2025)

[2025] PBRA 132 · 2025-05-12

[1]This is an application by Holt (the Applicant) for reconsideration of a decision of a Panel of the Parole Board at an oral hearing which concluded on 12 May 2025 not to direct his release.

[2]Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2022) (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

[3]I have considered the application on the papers. These are the decision dated 16 May 2025, the dossier now paginated to 722 pages and the application for reconsideration. Request for Reconsideration

[4]The application for reconsideration is dated 2 June 2025.

[5]The grounds for seeking a reconsideration are that the Panel acted irrationally and in a procedurally unfair manner by failing to direct that the Applicant undergo an MRI (Magnetic Resonance Imaging) scan. Background

[6]On 15 January 2013 the Applicant received an extended determinate sentence of imprisonment of 14 years comprising a custodial element of nine years and an extended licence period of five years for the offence of causing grievous bodily harm with intent to do grievous bodily harm contrary to section 18 Offences against the Person Act 1861.

[7]This offence involved an unprovoked and prolonged assault upon the female victim with whom he had been in a casual sexual relationship. The Applicant has a significant history of offending, with a large number of convictions for violent offences, including wounding, assault, battery and assaulting a constable. Many of his violent offences are against previous partners in the context of domestic violence.

[8]The Applicant was aged 28 at the time of sentencing and is now 41 years of age. The Sentence Expiry Date is given as being in June 2026.

[9]He was released on licence in December 2016 and recalled to prison in November 2019, where he has remained, as a result of concerns that his behaviour was deteriorating. He had missed appointments and tested positive for drugs; he was seen to be abusive to his mother and was questioned about three shoplifting offences although no charges were brought.

[10]This was his third review since recall. Current parole review

[11]An undated referral from the Secretary of State (the Respondent) directed the Parole Board to consider whether or not the Applicant should be released from prison.

[12]The case was directed to an oral hearing before a Panel of the Parole Board and was initially due to take place on 23 July 2024. Unfortunately, this hearing had to be deferred because neither the allocated Community Offender Manager ("COM") nor the allocated Prison Offender Manager ("POM") was able to attend the hearing which was deferred.

[13]The Panel which consisted of a psychologist and two independent members of the Parole Board, one of whom acted as the Chair, reconvened on 6 November 2024.

[14]The Panel considered the dossier and heard evidence from the COM, the POM and the Applicant who was legally represented.

[15]The Panel then adjourned as it considered the risk management plan (RMP) was not sufficiently developed to enable it to complete a fair assessment of risk and the Panel directed a fully formulated RMP from the COM.

[16]The Panel had planned to reconvene on 20 December 2024, to conclude the review on the papers but the date was amended to 11 April 2025 following the decision of a Duty Member of the Parole Board to grant an extension request on behalf of the COM.

[17]On 17 March 2025, the Panel Chair refused a request from the COM via PPCS for a direction for a MRI scan to be carried out. However, the deadline for the COM report was extended until 25 April 2025. The Panel planned to reconvene on 2 May 2025 but, having reviewed the directed information, it agreed that it could conclude the case on the papers without the need for further oral evidence. The Relevant Law

[18]The Panel correctly sets out in its decision letter dated 16 May 2025 the test for release. Parole Board Rules 2019 (as amended)

[19]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)).

[20]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)). Irrationality

[21]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.

[22]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."

[23]In R(on the application of 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 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).

[24]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.

[25]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.

[26]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

[27]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.

[28]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;

(d) they were prevented from putting their case properly;

(e) the panel did not properly record the reasons for any findings or conclusion; and/or

(f) the panel was not impartial.

[29]The overriding objective is to ensure that the Applicant's case was dealt with justly. The reply on behalf of the Secretary of State

[30]An e-mail dated 9 June 2025 confirms that the Respondent has no representations to make in response to the reconsideration application. Discussion

[31]The Applicant's lengthy criminal record for violent offences and his continued aggressive and disruptive behaviours in custody since recall have for a number of years caused professionals considerable concern as did his history of possible ABI (Acquired Brain Injury).

[32]It was suggested in a Care Act Assessment completed as long ago as November 2020 that the Applicant had suffered an ABI following a previous assault which had resulted in him struggling to interact with others and feeling stressed if he was put in a situation where he did not feel comfortable and appropriate panel meetings were held on a regular basis to discuss the complexities of this case.

[33]In April 2021 his then COM stated that it was unclear what effect this had on him and expressed the view that further exploration was needed into the impact of the ABI on his mental health and offending behaviours. Accordingly, since at that time the appropriate interventions and support care package could not be identified, it was assessed that it would not be safe to release the Applicant as his risks could not be effectively managed in the community.

[34]In the initial Probation report prepared for this review in May 2023 the COM states:

"It is my view that further exploration is needed with regards to impact of the acquired brain injury and the impact of this on his mental health and offending behaviours, in additon [sic] to the completion of the recommended inteventions [sic] as detailed in the psychological assessment report. In addition, until an appropriate support care package is put in place, I do not believe [the Applicant's] risks can be effectively managed in the community."

[35]It was felt imperative that there should be a neurological assessment and in October 2023 the MCA Member noted that the concerns about ABI were not fully understood and directed "an assessment as to whether this has an impact on his propensity to offend and his reaction to situation in which he finds himself."

[36]This led to the preparation of an Independent Neuropsychological Report by a Clinical Neuropsychologist, [Dr F], dated 12 November 2023 who confirmed that the report was completed at the request of the Parole Board.

[37]She carried out a full assessment noting initially a case entry from 12 August 2020 where an Addenbrookes Cognitive Assessment recorded the Applicant as scoring 30/100 which is a " very poor score " and below the cut-off for dementia. The report goes on to record:

"...He also has a history of several head injuries. 6.2 Following a head injury in 2017 there is a Neurologist letter diagnosing him with post concussive syndrome, left hearing loss and tinnitus, anxiety and depression. The Neurologist's plan was for an MRI head and EEG. The EEG was reported as normal. No results of MRI found in records. 6.3 His most recent head injury was this year, 2023. No MRI following 2023 head injury. [The Applicant] reported poor memory and attention. He attributed this to the many head injuries that he has suffered. He reported that Tinnitus is ongoing. 6.4 He reported that he has been taking Pregabalin for pain for 12 years."

[38][Dr F] concludes "With reference to the possible effects of his brain injuries on behaviour . This assessment is difficult to interpret given his very high reported levels of anxiety and depression. Both can affect cognitive performance. He reported that he had not had an MRI scan since his latest head injury. I could not find an MRI report anywhere in his notes. I would therefore recommend referral for MRI. I defer to a neurologist for the interpretation of this."

[39]Despite this clear recommendation for a MRI, disappointingly, no progress appears to have been made and the Panel Chair Directions of 10 June 2024 make no mention of the lack of a MRI despite [Dr F's] report appearing in the dossier.

[40]However, it is to be noted that in a Psychology Memorandum prepared at the request of the Panel and dated 24 June 2024 under the heading of "Plans for future work" it is reported:

"At the time of writing, [the Applicant] has no active referrals to Psychology Services. An Independent Neuropsychological Report ([Dr F], 12/11/2023) in [the Applicant's] current Parole dossier notes that he has experienced a number of head injuries, which may be impacting upon his functioning. However, the assessment further highlights that it was difficult to assess this due to the confounding effect of [the Applicant's] anxiety and depression. The report provides a recommendation that the impact of these head injuries is explored further through an MRI. Once [the Applicant's] health-related factors, including anxiety, depression and head injuries, are understood and addressed through Health services, consultation between Psychology Services and [the Applicant's] Prison Offender Manager could support with identifying a progression pathway for him ."

[41]In the report for the hearing fixed for July 2024 (which ultimately had to be deferred) the COM records the Applicant's continuing poor behaviour, does not support release but unfortunately makes no mention of a MRI.

[42]However, following the adjournment in November 2024, the COM was directed to file a further report including, inter alia, an RMP. In the subsequent application of 2 December 2024 from the COM requesting an extension of time which was dealt with by a duty member of the Parole Board, the following information is provided: "A consultation was held on 3/12/24 with [S] Complex Case Manager -Offender PD Pathway (North) and [B] Lancashire Offender Personality Disorder Services. During this consultation, there was an overarching concern that in the absence of an MRI and updated neurological assessment, an RMP will remain under developed . The PD Pathway team require the MRI to confirm an ABI and then complete an assessment to determine the most appropriate pathway for [the Applicant].

[43]The request for more time was granted and the case was subsequently simply re- timetabled.

[44]Finally and, it must be said, belatedly, PPCS on the instructions of the COM issued an application for a direction from the Panel for a MRI scan. It is stated in the application:

"Complex case manager, [S], is in the process of finding out who would now request and fund this MRI. The MRI is required to confirm whether [the Applicant] has an ABI. From this, sentence planning would progress. Until the completion of an MRI, Probation are unable to provide a sufficient risk management plan to manage [the Applicant's] risk and effectively support his individual needs. I would ask if the Parole Board are able to direct completion of an MRI."

[45]On 17th March 2025 the Panel Chair refused this application as follows:

"After careful consideration, the Panel Chair was of the view that an MRI scan is not required by the panel to support the risk assessment, but it is clearly required by the Probation Service to formulate a risk management plan. It is a matter for the Probation Service to provide a viable risk management plan so that the Parole Board can fairly consider whether [the Applicant's] risk can be effectively managed in the community . On this basis, the Panel Chair respectfully declines the request."

[46]Accordingly, in her final report of 24th April 2025 the POM concludes:

" [The Applicant] has not completed any offending behaviour work since his transfer to [Prison A]. This is largely due to there being ongoing discussions regarding an MRI being requested to assess for an acquired brain injury (ABI). This was following a recommendation from a neuropsychological assessment which took place in 2023; however, this has become stuck with queries around where the funding would come from and who would source this MRI. Until there is confirmation around whether [the Applicant] has suffered an ABI, it is not deemed suitable for him to undertake psychological work or offending behaviour programmes. I have made enquiries with the mental health team to ascertain whether an MRI would be funded due to the recommendation from the neuropsychological assessment, however, I have been informed that the GP does not find a clinical need for this and therefore it would not be funded at [Prison A]."

[47]Similarly, in a report of the same date, the COM concludes:

"At present, I do not feel that [the Applicant] can be safely managed in the community. It is vital that [the Applicant] has access to the most suitable support/treatment pathway for his needs, and currently this is not in place. I am in consultation with Enhanced Reconnect, Intensive Intervention Risk Management Service, Offender Personality Disorder Pathway Service and Adult Social Care to ensure the most effective care package and risk management plan is in place ahead of re-release . Whilst there are various pathways to take, professionals have indicated that [the Applicant] would benefit from undertaking an MRI scan to ascertain whether he has an acute brain injury. Once this is confirmed, agencies involved will be able to provide more accurate and tailored support for [the Applicant] and would also provide the Probation Service with the necessary information for a robust and effective risk management plan to be put in place. With regards to accommodation, [the Applicant] does not currently have accommodation to be released to. If released at this stage, he would be required to reside at an approved premises. However, as recommended in the neuropsychology report completed in 2023, an MRI is required to explore a possible ABI. Confirmation of an ABI would allow the necessary referrals to be completed based on what is appropriate for his needs, including accommodation. If an ABI is confirmed, [the Applicant] would be assessed for specific pathways such as residential treatment at [a complex mental health needs hospital] which would involve 1-1 psychologically informed interventions. [The Applicant] would be able to access this during his time in prison, as a transfer to their secure unit."

[48]The COM goes on to say:

"Whilst there are various pathways to take, the neuropsychological report completed in 2023 recommended that [the Applicant] would benefit from undertaking an MRI scan to ascertain whether he has an acute brain injury (ABI). Once this is confirmed, agencies involved will be able to provide more accurate and tailored support for [the Applicant] and would also provide the Probation Service with the necessary information for a robust and effective risk management plan to be put in place. Until such things are in place, I feel [the Applicant] would not have the necessary tools or wrap around support to succeed in the community..." "...Completing intervention work with [the Applicant] will prove difficult under [sic] services have a full understanding of his needs and his ability to understand his licence. We are in agreement with the neuropsychologist report completed in 2023 which recommended an MRI scan to explore if [the Applicant] has an ABI. If an ABI is confirmed, the Probation Service are able to explore a specific pathway through guild lodge who would be able to look in to tailored 1-1 work with [the Applicant] and a throughcare package to support him in the community ..." " [The Applicant's] case has been discussed in a complex case panel over the past few years and there are ongoing discussion about whether [the Applicant] suffers from an acquired brain injury (ABI)..." "...From a probation perspective, an ABI would need confirming to ensure [the Applicant's] risk management plan is tailored to his risks and specific needs. Until then, Probation is unable to confirm the correct pathway for [the Applicant] or be certain that [the Applicant] is able to fully understand what is expected of him if subject to further period on licence."

[49]The COM is recorded in the Decision as giving oral evidence to the Panel to a similar effect but it appears that, in reaching its decision, the Panel did not feel it necessary to revisit the earlier refusal to direct an MRI nor to explain, when finding that it was "not confident that his risk was manageable in the community under the proposed risk management plan" why it felt able to do so in the absence of the piece of information believed by professionals to be necessary "to ensure the most effective care package and risk management plan is in place ahead of re-release." Finding

[50]On any view, this was a complex case. The Applicant has a considerable record of serious violence and aggression, both in the community and in custody, but, following his initial release in 2016, he had remained in the community for nearly three years, eventually being recalled due to a number of concerns which did not, however, include convictions for further offences.

[51]Professionals were particularly concerned to ascertain the aetiology for his offending with a focus upon his history of ABI and its possible impact upon his behaviours.

[52]This was eventually properly addressed in November 2023 and it is noteworthy that it was by a direction of a MCA member in the course of the current review that a neuropsychological report was speedily obtained which came to the conclusion, with a clear recommendation, that an MRI scan was necessary, to be followed by a neurology report, in order to address the question of the possible effects of brain injuries upon the Applicant's behaviour.

[53]During 2024 and whilst the review was ongoing, the lack of the recommended MRI scan, about which there appear to have been considerable funding issues, was, in the absence of a direction from the Board, preventing the identification of appropriate, psychologically-informed interventions and the formulation of a sentence pathway as well as hampering the COM in the preparation of a comprehensive risk management and release plan which would provide for tailored work with the Applicant and a wrap-around, throughcare package to support him in the community.

[54]Having heard oral evidence in November 2024, the Panel was obviously concerned about the gaps in the RMP and its adjournment directions serve to bring into sharp focus the particular deficit identified in December 2024 as " an overarching concern [my emphasis] that in the absence of an MRI and updated neurological assessment, an RMP will remain under developed."

[55]The COM had by this time marshalled a considerable number of agencies and services which could provide assistance and support for the Applicant, all of whom, apparently, were of the same view about the necessity for a MRI scan, and this, eventually, led to a formal application for a direction from the Panel for a MRI scan to take place.

[56]In refusing the application the Panel Chair states, "it [the MRI scan] is clearly required by the Probation Service to formulate a risk management plan. It is a matter for the Probation Service to provide a viable risk management plan so that the Parole Board can fairly consider whether [the Applicant's] risk can be effectively managed in the community."

[57]In doing so the Panel Chair acknowledges (as the Panel itself did in November 2024 in adjourning for the provision of a properly developed RMP) that, if the Panel was fairly to consider the Applicant's application for release, it must have before it a viable plan against which to consider whether the Applicant's acknowledged risks could be safely managed in the community, thus meeting the test for release.

[58]Of course, it is for the Probation Service to provide such a plan but the professionals were making it abundantly clear that efforts to obtain the provision of a scan had reached an impasse. In the circumstances, rather than simply accepting the situation, it was, in my view, open to, and indeed incumbent upon, the Panel, which has an inquisitorial function and a duty to investigate and be pro-active, to acknowledge the unanimous professional view and to make a direction for the obtaining of a MRI scan in the reasonable expectation that, as with the direction for the preparation of a neuropsychological report, appropriate funding would be made available and the necessary steps taken in short order for the scan and subsequent report to be obtained and so break the logjam and allow the various professionals to focus on formulating, for the Panel's consideration, a recommended sentencing pathway and perfected RMP on the basis of whatever the scan, in due course, did or did not reveal.

[59]I understand that the Panel and its Chair would have had in mind its duty to avoid further delay, the length of time this review had been ongoing and, as it points out itself, the imminency of the Applicant's Sentence Expiry Date in June 2026. Nevertheless, in my view, it was a fine and, ultimately, unsustainable distinction that the Panel Chair sought to draw between the Panel not needing a scan for the purposes of risk assessment (which itself is arguable) and a scan being needed for the purposes of the preparation of a fully developed RMP, since by doing so, the Chair simply draws attention to the fact that, in declining to obtain the information which was preventing a number of agencies from, in their view, being able to carry out their professional duties, the Applicant was deprived of the opportunity of advancing a positive case for release since both the POM and the COM, as they make clear in their final reports, were thereby left with no option but to oppose re-release given the inability of professionals "to ensure the most effective care package and risk management plan is in place ahead of re-release." Decision

[60]I find that there was procedural unfairness here in that the Applicant was prevented from putting his case properly and did not receive a fair hearing resulting in the proceedings being fundamentally flawed and therefore, producing an unjust result.

[61]Reconsideration is a discretionary remedy. That means that, even if procedural unfairness is established, I am not obliged to direct reconsideration of the Panel's decision. I can decline to make such a direction having considered 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.

[62]Having found there to have been a procedural irregularity, I consider, applying the test as defined in case law, that the decision not to direct the Applicant's release was procedurally unfair. I do so for the reasons set out above and, in the exercise of my discretion, I am satisfied that the application for reconsideration should be granted.

[63]Having found procedural unfairness, there is no need for me to consider the same submission made under the heading of irrationality. Peter H. F. Jones 7 July 2025