Araf, Application for Reconsideration [2025] PBRA 140 (08 July 2025) [2025] PBRA 140

PBRA

Araf, Application for Reconsideration [2025] PBRA 140 (08 July 2025)

[2025] PBRA 140 · 2021-04-30

[1]This is an application by Araf (‘the Applicant’) for reconsideration of a decision of a panel of the Parole Board (‘the Board’).

[2]The Applicant is serving an extended determinate sentence (‘EDS’) which was imposed on 30 April 2021 for two serious offences of violence. Those offences (and the circumstances in which they occurred) will be discussed below.

[3]The EDS comprises a custodial term of 8 years and a licence extension period of 4 years. The Applicant will become eligible for early release on licence in September 2025. His case has been referred by the Secretary of State for Justice (‘the Respondent’) to decide whether to direct his early release when he has become eligible for it.

[4]If the Board does not direct early release on this or any subsequent review by the Board the Applicant will be automatically released on licence in May 2028. His sentence will not expire until May 2032.

[5]The case has been reviewed by a single member MCA panel who had the following options:(a) to direct the Applicant’s early release on licence on the papers;

(b) to decide on the papers that the Applicant should not be released early at this stage;

[6]By a decision issued on 16 April 2025 the MCA panel decided on the papers that the Applicant should not be released early at this stage.

[7]On 12 May 2025 the Applicant’s solicitors made a request to the Board that, notwithstanding the decision of the MCA panel, the case should be sent for an oral hearing.

[8]On 21 May 2025 that request was refused by a Duty Member of the Board.

[9]The Applicant’s solicitors have now applied on behalf of the Applicant for reconsideration of the MCA panel’s decision. The Application for Reconsideration

[10]Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2024) provides that in eligible cases applications for reconsideration of panel decisions may be made either by the prisoner or by the Secretary of State for Justice.

[11]Rule 28(2) specifies the types of cases which are eligible for reconsideration. They include cases, like the Applicant’s, where the prisoner is serving an extended determinate sentence.

[12]A reconsideration application may be made on the ground(a) that the panel’s decision contained an error of law and/or

(b) that it was irrational and/or

[13]In this case the application for reconsideration has been made on the grounds of irrationality and procedural unfairness. No error of law is suggested.

[14]The application was made within the time limit for applications of this kind and is therefore eligible for reconsideration.

[15]I am one of the members of the Board who are authorised (as ‘Reconsideration Assessment Panels’) to make decisions on reconsideration applications, and this case has been allocated to me.

[16]The documents which have been provided to me and which I have considered for the purposes of this application are:(a) the dossier of papers provided by the Respondent for the Board’s review of the Applicant’s case: the dossier now runs to page 304 and includes copies of the decisions made by the MCA member and the Duty Member;

(b) the representations made by the Applicant’s solicitor in support of this application for reconsideration; and

(c) an e-mail from the Public Protection Casework Section of the Ministry of Justice (“PPCS”) stating that the Respondent does not wish to make any representations in response to this application. Background and history of the case

[17]The Applicant is now aged 37. He grew up in a respectable family, did well at school and embarked on a successful career. However, he became a regular user of cannabis and he has accumulated a significant criminal record.

[18]Whilst at college he embarked on an intimate relationship with a fellow pupil (Ms X). After a couple of years they went their separate ways though they remained close friends.

[19]After a few short-term relationships, in 2015 the Applicant embarked on a new intimate relationship with another partner (Ms A) who was somewhat older than himself and had been in an unhappy marriage. In 2019, when Ms A was pregnant, they married. In due course Ms A gave birth to twins.

[20]It now appears that the marriage was not a very happy one and, according to Ms A, there was a certain amount of domestic violence on the Applicant’s part.

[21]The Applicant’s family had some concerns about the Applicant’s mental health, which erupted in a serious incident which occurred shortly after midnight on 28 May 2020. That was, as it happened, the couple’s first wedding anniversary. The incident has been described as follows:

“Police were called to the house where they lived after a neighbour heard a woman screaming. [The Applicant] could be seen through the front door window kicking his unresponsive wife who was lying by the front door. There was blood around [the Applicant’s] wife and a knife was seen lying on the floor near to her. Police entered the house and then saw [the Applicant] holding a baby by the ankle and dangling him over the stairs. He started to swing the baby round by the ankles and then went out of sight. Police then heard noises as though the baby’s head was being hit against a wall. Police went upstairs and entered a room where they saw the baby lying on the floor in distress and apparently bleeding. [The Applicant], covered in blood and wearing only boxer shorts, was also in the room; he failed to comply with officers and lunged towards the child, trapping it under his leg on the bed. [The Applicant] would not release the child and a Taser was used to subdue him and to rescue the child .”

[22]Both Ms A and the baby suffered serious injuries which could have been far worse. In due course the Applicant pleaded guilty to causing grievous bodily harm to both of them (‘the index offences’) and on 30 April 2021 he received the EDS sentence referred to above.

[23]Whilst awaiting trial the Applicant was initially remanded in prison. However on 22 June 2020, because of concerns about his mental health, he was transferred to a psychiatric unit. He was transferred to another such unit on 11 August 2020 and remained there until he was sentenced. Since then he has been detained in the prison system.

[24]The views of the psychiatrists who assessed the Applicant for the purposes of his sentence were that at the time of the May 2020 incident he had been suffering from an acute psychotic episode which could be characterised as being due to paranoid schizophrenia. Whilst in the psychiatric units he was treated by the appropriate medication, which was gradually reduced. He is now still taking the same medication but in much smaller doses. The possibility of an acute reappearance of another psychotic episode obviously has to be considered. The Relevant Law The test for release on licence

[25]Under the Codified Public Protection test a panel of the Board can only direct a prisoner’s release on licence if it is satisfied that the prisoner’s continued confinement in prison is no longer necessary for the protection of the public. The panel can only be so satisfied if it considers that, if the prisoner were to be released into the community, there would be no more than a minimal risk of his committing a further offence of a kind which might result in serious harm to somebody else. The rules relating to reconsideration of decisions

[26]Under Rule 28(1) of the Parole Board Rules 2019 (as amended in 2024) a decision is eligible for reconsideration if (but only if) it is a decision that the prisoner is or is not suitable for release on licence.

[27]The grounds on which an application may be made are as set out above (error of law, irrationality or procedural unfairness). As noted above the application in this case is made on the grounds of irrationality and procedural unfairness.

[28]A decision that a prisoner is or is not suitable for release on licence is eligible for reconsideration whether it is made by:(i) a paper panel, as in this case, (Rule 19(1)(a) or (b)) or

(ii) an oral hearing panel after an oral hearing (Rule 25(1)) or

(iii) an oral hearing panel which makes the decision on the papers (Rule 21(7)).

[29]As noted above the application in this case was made by the Applicant’s solicitors on his behalf. The arguments deployed by the solicitors in support of the application will be discussed below. The definition of irrationality

[30]The power of the courts to interfere with a decision of a competent public authority on the ground of irrationality was defined in Associated Provincial Houses Ltd -v- Wednesbury Corporation 1948 1 KB 223 by Lord Greene as follows:

“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 Parole Board is a public authority for that purpose, and the Wednesbury test therefore applies to applications to the High Court for judicial review of a panel’s decision. It also applies to applications to Reconsideration Panels of the Board for reconsideration of a panel’s decision on the ground of irrationality.

[31]In R (DSD and others) -v- the Parole Board

2018 EWHC 694

(Admin) (‘the Worboys case’) a Divisional Court applied this test to Parole Board decisions in these words:

“ 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 .”

The same test of course applies to “ no release” decisions.

[32]In R (on the application of Wells) -v- Parole Board

2019 EWHC 2710

(Admin) Mr Justice Saini set out what he described as a more nuanced approach in modern public law. This approach is “ 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 formulation of the 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) .

[33]As was made clear by Mr Justice Saini, this is not a different test from the Wednesbury test. The interpretation of (and application of) the Wednesbury test in parole hearings (as explained in the Wednesbury and DSD cases) was of course binding on Mr Justice Saini. It is similarly binding on Reconsideration Panels.

[34]It follows from these principles that in considering an application for reconsideration a Reconsideration Panel cannot substitute its own view of the evidence for that of the panel who heard the witnesses and were able to assess their reliability. The Reconsideration Panel will only direct reconsideration on the ground of irrationality if the Wednesbury test is satisfied. The definition of procedural unfairness

[35]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.

[36]Examples of procedural unfairness which may be a ground for quashing a panel’s decision on this ground are where:(a) express procedures laid down by law were not followed in the making of the relevant decision; or

(b) the party was not given a fair hearing;

(d) the party was 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.

[37]These are not the only possible grounds for a finding of procedural unfairness but they are the ones most commonly alleged. The overriding objective is to ensure that the Applicant’s case was dealt with justly. The solicitors’ application for reconsideration of the MCA Member’s decision

[38]In their representations the Applicant’s solicitors advance a number of grounds for reconsideration. Essentially the solicitors suggest that instead of making a negative decision on the papers the MCA member should have adjourned or deferred the case. It is the Board’s policy not to adjourn or defer a case for more than 4 months but the solicitors suggest that this case could and should have been adjourned or deferred for that period. The reasons for that suggestion will be set out below. The reply on behalf of the Respondent

[39]As noted above the Respondent has offered no representations in respect of this application. Discussion:

[40]It is convenient to start the discussion by examining the reasons given by the MCA member for his decision. The MCA member’s reasons

[41]The MCA member began with an accurate analysis of the Applicant’s offending history, concluding with the following comments about the index offences:

“The index offences have the appearance of largely unrestrained and malicious anger directed towards [the Applicant’s] wife and child. The Trial Judge acknowledged that the offences were “…committed in the context of domestic violence…” and that “…it is the opinion of the doctors that [the Applicant] retained a degree of insight into (his) offending at the time of the incident and would have known what (he was) doing was both wrong and unlawful whilst that being in the context of the psychosis.”

Whatever the combination of motivation(s) and trigger(s) that led to the index offences, they demonstrate a very significant increase in the level of seriousness of offending of which [the Applicant] is capable and indicate a continuing risk of serious harm to which the uncertainties of causation contribute.”

[42]The MCA member then considered the Applicant’s risk factors, stating:

“The dossier did not contain an up-to-date psychological or psychiatric report. That notwithstanding, from a consideration of [the Applicant’s] offending history and the circumstances of his index offending, the Panel concluded that in broad terms his significant risk factors include: his accommodation; management of relationships and domestic violence; substance misuse; thinking and behaviour; attitudes; emotional management; mental health; limited victim empathy; lack of insight into his offending behaviour; use of violence to resolve conflict, and poor temper control. [The Applicant] is currently receiving medication and is completing core risk reduction work. Until that work is fully undertaken, and relevant consolidation has been completed, the Panel was unable to identify any significant protective factors which might mitigate risk in [the Applicant’s] case. The MCA member also noted the report that [the Applicant] now considers that he may be able to manage without his medication which raises concerns both about compliance with any medication regime within the community, and with the depth of [the Applicant’s] understanding and appreciation of his own mental health issues.”

[43]Next the MCA member examined the evidence about any changes in the Applicant’s understanding and insight during his sentence, stating:

“Information in the dossier indicates that [the Applicant] still, to some extent, minimises the seriousness of the index offences and continues to place blame on his wife. He has also, recently, described the index offending as “one-off” and “stupid”. [The Applicant] is currently completing [the recommended risk reduction programme]. He had previously been deemed not treatment ready due to his reported inabilities to adequately recall relevant, problematic behaviour. He has since reported that his views “regarding the issues that led to the offence(s)” had changed, although his Community Offender Manager does note concerns about the validity of that reported change. The MCA Member concluded that until [the Applicant] has fully completed [the programme], the post-programme report has been completed, and then further Psychological and Psychiatric assessments have been completed, which may, or may not indicate the need for further work, a panel of the Parole Board will not be able to adequately consider issues of risk.”

[44]Next the MCA member considered the professional assessments of the Applicant’s risks to the public.

[45]He began by noting the statistical risk assessments used by probation. He recorded that these suggested a medium risk of general and violent reoffending and a low likelihood of general reconviction. Given the information in the dossier, the MCA member could not be satisfied that these assessments, which were actuarially based, represented a reliable assessment of the levels of risk presented by the Applicant.

[46]He went on to note the clinical assessments by probation of the Applicant’s risks of serious harm to various categories of individuals in the community and the professional Spousal Assault Risk Assessment, all of which indicated a high level of risk. His conclusion was that, given(a) the nature of the index offences

(b) the Applicant’s previous offending record

(d) his potentially inadequate understanding of the risk presented by his diagnosis

(e) residual uncertainties about the causes of his index offending and

(f) the absence of completed and assessed core risk reduction work, these were realistic assessments of the risks that the Applicant currently presents.

[47]Next the MCA member considered the manageability of the Applicant’s risks in the community as follows:

“[The Applicant’s] Community Offender Manager has provided the following professional opinion as to whether [the Applicant] can be safely managed in the community: “It is my professional opinion, that release is not currently supported as [the Applicant], does not appear to have yet developed relevant skills and techniques to address his offending behaviours.”

The Panel considered that it was not possible to assess the viability of a community-based risk management plan until [the Applicant] has completed the outstanding core risk reduction work and time has been taken to allow for a consolidation period followed by adequate, new assessments of [the Applicant].”

[48]Finally the MCA member explained his reasons for his decision as follows:

“The Panel carefully considered all of the information put before it. The panel considered this case against the principles set out in the case of Osborn, Booth & Reilly [2013] UKSC 61 concerning oral hearings. It is fully accepted that the intention of holding an oral hearing is not only to assist with the Board’s decision-making, but also to enable prisoners to participate fully in a process that holds important implications for them. [The Applicant] is currently in the process of completing core risk reduction work ([the programme])which he is currently due to complete on, or after 25/07/2025, with a post programme review likely to be completed by the end of August 2025. A period of consolidation will then be required before Psychological and Psychiatric reports can realistically be completed. The MCA Member concluded, on the basis of all of the material in the dossier and the information provided, that there is no reason to believe that oral evidence could currently assist in: resolving any disputes concerning facts; providing information that might mitigate the apparent level of risk presented; or, would enable clarification of any points materially relevant to the assessment of risk, which are already clearly set out in the information supplied. The Panel considered that it was not possible to assess the viability of a community-based risk management plan until [the Applicant] has completed the outstanding core risk reduction work and time has been taken to allow for a consolidation period followed by adequate, new assessments of [the Applicant]. The Panel considered the length of time required to complete these outstanding steps in appropriate sequence to significantly exceed the length of time deemed appropriate as set out within the Parole Board’s guidance on adjournments and deferrals, and did not deem that the circumstances of this case provided any grounds to treat the case as an exception. Accordingly, the Panel considered it appropriate to finalise this case on the papers and to invite the Secretary of State to continue to monitor this case and re-refer it at an early point should circumstances significantly change. The Panel considered [the Applicant’s] case against the Codified Public Protection Decision test. The representations made by or on behalf of [the Applicant] suggest that the currently proposed community-based risk management plan “…provides robust controls to supervise and monitor once [the Applicant] is living in the community.”

As indicated above, the Panel considered that it was not possible to assess the viability of a community-based risk management plan until [the Applicant] has completed the outstanding core risk reduction work and time has been taken to allow for a consolidation period followed by adequate, new assessments of [the Applicant]. In making its decision the Panel considered the nature and seriousness of the offence(s) leading to the relevant sentence(s) (currently referred by the Secretary of State) and also of other offences of which [the Applicant] has been convicted.[The Applicant’s] index offences clearly indicate that he has a propensity to use very significant levels of aggression and violence which would present very high levels of risk to victims impacted by his behaviour. The Panel took into account [the Applicant’s] conduct throughout the duration of the relevant sentence(s) to date. [The Applicant’s] custodial conduct has generally been good. However, whilst the Panel considered that the motivation(s) and trigger(s) for the index offending remain, to a degree, opaque, it is clear that domestic violence issues were, to a significant extent, central to that offending. Hence, [the Applicant’s] custodial behaviour may not adequately be a predictor of risk and behaviour in the community. On the information presented, [the Applicant] is still completing core risk reduction work, the impact and effectiveness of which will need to be adequately assessed. There remains the possibility that further work may then be required. The Panel also took into account the need to protect the victim(s) of [the Applicant’s] offending and concluded that adequate assessments of [the Applicant’s] risks will need to be conducted post treatment and time for consolidation. The panel noted that public protection test does not include any presumption of release. Taking all the information put before it into account, significant aspects of which are set out above and which include concerns over [the Applicant’s] minimisation and understanding of his offending and the need for him to comply with medication in the community, the Panel could not be confident that, currently, [the Applicant] would be likely to comply with the terms of his licence. The Panel could not be satisfied that it is no longer necessary for [the Applicant] to be confined for the protection of the public and, accordingly, made no direction for his release.” The solicitors’ submissions

[49]I will examine the various points made by the solicitors and add my comments about them. Point 1:

“[The Applicant] is attending an accredited offending behaviour programme and is due to complete this by mid-June 2025 (although representations incorrectly stated July 2025). His behaviour has been broadly of a good standard since starting his sentence with only 1 adjudication and he has maintained enhanced status since 2021. The MCA panel noted [the Applicant] had not yet completed the offending behaviour programme but it is submitted the panel could have adjourned the review to assess what progress has been made and apply the release test. [The programme] is a lengthy programme of which he was more than half way through when representations were submitted.”

[50]The solicitors quite rightly acknowledge that in their representations of 2 April 2025 requesting release on the papers or an oral hearing they stated that the Applicant was due to complete the programme in July 2025. That was the anticipated completion date mentioned in the dossier and the solicitors and the MCA member naturally quoted it. In fact it is somewhat ahead of schedule.

[51]The MCA member could certainly have adjourned the case until after completion of the programme (and the programme review meeting) but the difficulty is that that would not have enabled him at that stage to make a fully informed assessment of the Applicant’s risks and their manageability on licence in the community. As he pointed out in his decision a number of steps would have needed to take place before he could do so.

[52]Those steps would have included (as a minimum)(a) a significant period of consolidation of the Applicant’s learning from the programme;

(b) a comprehensive psychiatric assessment of the Applicant’s mental health and the risks which it might pose to the public in the future;

(c) a comprehensive psychological risk assessment of the Applicant’s risks and their manageability on licence in the community; and

(d) a comprehensive report by the COM containing an assessment of the Applicant’s current risks and an up-to-date risk management plan. Point 2 :

“The Parole Board has stated that ‘A period of consolidation would be then be required before Psychological and Psychiatric reports can realistically be completed’ (paragraph 4.4). It is submitted it is not for the Parole Board to direct sentence planning or speculate where a prisoner should consolidate his learning and conclude from there, that release is premature.”

[53]I am afraid that I cannot agree with this point. I agree, of course, that it is not the role of the Parole Board “ to direct sentence planning .” That is the role of the Secretary of State and her officials, and they have made it very clear that the above steps need to be taken. The Parole Board is obliged to make its decision on that basis. Point 3:

“In some cases until psychological and/or psychiatric assessments have been produced, it is not known if further work is required, an aspect which further Parole Board directions could identify. Furthermore, expert reports do not necessarily transpire following offending behaviour work without Parole Board directions for the same risking [the Applicant] not being risk assessed by the prison psychology/psychiatry team.”

[54]I agree, and the MCA member agreed, that until the psychiatric and psychological reports have been obtained it is not possible to say whether further risk reduction work is required. That is why I have referred to the above steps as being the minimum which is needed.

[55]I cannot believe that both psychiatric and psychological reports will not be required in this exceptionally serious and complex case. Point 4:

“Representations submitted included that ‘he has increased his skills during the course of interventions which have been available to him to address his offending behaviour’. [The Applicant] had completed other offending behaviour focused courses by the time of the representations including ‘Victim Awareness’ and ‘Mindset’ courses. It is submitted [the Applicant] should be allowed the opportunity to demonstrate full progress made following all programmes completed. By not adjourning for further information about skills learnt on the offending behaviour programmes with the benefit of the post programme reports, he has been prevented from putting his case thoroughly and fairly for release.”

[56]The victim awareness and mindset courses were of course helpful but the programme which the Applicant is currently undertaking is a much more comprehensive one. Certainly it is to be hoped that once he has completed that course (and been able to demonstrate his learning from it) he will be able to demonstrate that he has reduced his risk to the public to a level which meets the Codified Public Protection Test. However, realistically I think that is some way off now. Point 5 :

“In [the Applicant’s] representations, it was argued that he has protective factors to mitigate risk (and a number of these were cited in the representations) and his risk would be manageable in the community. The MCA panel was ‘unable to identify any significant protective factors’ (paragraph 1.18) and did not refer to the protective factors raised in the representations.”

[57]It might have been better if the MCA member had referred to the factors put forward by the Applicant and his solicitors as protective. However, it is fairly clear that the MCA member was unable to attach much weight to those factors at the current stage (i.e. in the light of the evidence as it currently stands and unless and until the professional witnesses have confirmed that they are indeed significantly protective). Point 6:

“The MCA member raised concerns with ‘his compliance with medication regime in the community and with the depth of his understanding and appreciation of his own mental health issues’. (paragraph 1.19). An adjournment for further information on these issues would allow the Parole Board to assess the concerns from witnesses, not least [the Applicant], given the dispute around risk factors which may well materially affect the Parole Board’s risk assessment and therefore a panel decision. It is our submission that the failure to, at least adjourn the review in these circumstances, renders the paper decision irrational.”

[58]I am afraid I cannot attach much weight to this point. The COM expressed very clearly in her report her concerns about the Applicant’s mental health issues and his understanding of them. The Applicant had ample opportunity in his extensive discussions with her to demonstrate a better understanding of his mental health issues and their relevance to his future risks, but does not appear to have done so. Point 7:

“The MCA member could have chosen to defer or adjourn the MCA case for the maximum allowed of 4 months in order to direct the post programme report confirming [the Applicant’s] completion of the programme and whether this had addressed his risk factors to be manageable in the community and meet the release test. In conclusion, by not directing an adjournment to consider [the Applicant’s] release, we submit that the conclusion reached on partial evidence available, when potentially critical information would be available within 3 months, has both elements of procedural unfairness and irrationality. Having gone at least half of his way through [the programme] [the Applicant] was engaged with by the time of the representations, an adjournment would have been the fairest way of dealing with the review with a view to making a direction for his release.”

[59]This is the crucial issue which I have to resolve in order to decide whether there was any irrationality or procedural unfairness in the MCA member’s decision. Was it irrational to refuse an adjournment as requested by the Applicant and his solicitors, and was there procedural unfairness in making a decision on the papers?

[60]I have considered these questions very carefully, and in doing so I have examined the whole of the evidence in the dossier as well as the representations helpfully made by the Applicant’s solicitors and the decisions of the MCA member and the Duty Member. I have of course paid close attention to the principles set out in paragraphs 30-37 above.

[61]As regards irrationality, I cannot find any in the panel’s very full and careful decision. Other MCA members might have adjourned the case but that is not the test. This is, as I have said, a complex and difficult case which involves exceptionally serious crimes and difficult issues. I cannot fault the MCA member’s decision. It is certainly not a decision which is so unreasonable that no reasonable MCA member could have come to it. As the Duty Member pointed out, the MCA member very sensibly and fairly invited the Secretary of State to continue to monitor this case and to re-refer it at an early point should circumstances significantly change. I am sure that the Secretary of State will adopt that course.

[62]As regards procedural unfairness, for the same reasons I cannot find any of that. The MCA member applied the correct legal approach to his decision and his approach was in no way unfair. Decision

[63]For the above reasons I cannot uphold any of the grounds persuasively advanced by the Applicant’s solicitors and I must therefore dismiss this application for reconsideration. I hope very much that the Applicant will be able to continue his progress and reach a point before too long where the Board will be in a position to consider directing his release on licence. Jeremy Roberts 8 July 2025