Lewin, Application for Reconsideration [2025] PBRA 166 (12 August 2025) [2025] PBRA 166

PBRA

Lewin, Application for Reconsideration [2025] PBRA 166 (12 August 2025)

[2025] PBRA 166 · 2025-07-10

[1]This is an application by Lewin (“the Applicant”) for reconsideration of a decision of a Panel of the Parole Board (“the Panel”) at an oral hearing which took place on 10 July 2025, not to direct his release.

[2]Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2024) (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 dossier provided by the Secretary of State (“the Respondent”) which now contains 388 numbered pages; · The Panel’s decision letter (“DL”) dated 11 July 2025; · The application for Reconsideration (“the application”) submitted on behalf of the Applicant by his solicitor. Request for Reconsideration

[4]The application is dated 22 July 2025.

[5]Reconsideration is said to be sought on the basis of both irrationality and procedural unfairness in reliance on two grounds which I will consider within the Discussion section of my decision. Background

[6]The Applicant is now aged 51. On 4 February 2008, at the age of 33 and upon his guilty plea, he was sentenced to life imprisonment for murder (“the index offence”). The minimum term was set at 11 years less time spent on remand in custody and the sentence expiry date was 14 October 2017.

[7]The Applicant had met the victim several days prior to the murder and was staying with him at his flat. They were both dependent alcoholics and had been drinking all day before the Applicant fatally stabbed the victim.

[8]The Applicant had numerous previous convictions for robbery, driving matters and theft and other dishonesty.

[9]The Applicant was initially released on life licence in April 2019 but was recalled to prison in July 2019. He was subsequently released and recalled on two further occasions, both of which featured concerns about his alcohol consumption.

[10]The Applicant was most recently released by direction of a Panel of the Parole Board to Approved Premises (AP) on 2 May 2024. He was recalled four days later when he failed to return to the AP, having, on his account, visited his mother's grave, slept beside it and then, appreciating that he would be recalled to custody, travelled to London in order to achieve a change of prison. Current parole review

[11]The Applicant’s case was referred to the Parole Board by the Respondent in May 2024 to consider whether or not it would be appropriate to direct his release or, in the alternative, be transferred to open prison conditions. This was the first review following what had been his fourth recall to prison on this sentence.

[12]The case was allocated to a two-person Panel which comprised an independent member, who chaired the Panel, and a psychologist member.

[13]The Applicant was represented by his solicitor who sought a direction for release.

[14]At the hearing evidence was given by: a) The Prison Offender Manager (POM); b) The Community Offender Manager (COM); c) The Applicant; d) A Psychologist instructed by HMPPS (the psychologist). The Relevant Law

[15]The Panel correctly sets out in the DL the test for release.

[16]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)). 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 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- 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.”

[19]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).

[20]As was made clear by Saini J this is not a different test to the Wednesbury test. The interpretation, 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;

(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.

[25]The overriding objective is to ensure that the Applicant’s case was dealt with justly. Reconsideration as a discretionary remedy

[26]Reconsideration is a discretionary remedy. That means that, even if an error of law, irrationality, or procedural unfairness is established, the Reconsideration Member considering the case is not obliged to direct reconsideration of the panel’s decision. The Reconsideration Member can decline to make such a direction having taken into account 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. The reply on behalf of the Secretary of State

[27]By email dated 31 July 2025 PPCS confirmed that the Respondent offers no representations in response to the application. Discussion

[28]In dealing with the grounds for reconsideration, it is necessary to stress certain matters of basic importance. The first is that the Reconsideration Mechanism is not a process by which the judgement of the Panel when assessing risk can be lightly interfered with. Nor is it a mechanism in which the member carrying out the reconsideration is entitled to substitute his/her view of the facts in place of those found by the Panel, unless, of course, it is manifestly obvious that there was an error of fact of an egregious nature which can be shown to have directly contributed to the conclusion arrived at by the Panel.

[29]The second matter of material importance is that when deciding whether a decision of the Parole Board was irrational, due deference has to be given to the expertise of the Parole Board in making decisions relating to parole.

[30]Finally, where a Panel arrives at a conclusion, exercising its judgement based on the evidence before it and having regard to the fact they saw and heard the witnesses, it would be inappropriate to direct that the decision be reconsidered unless it is manifestly obvious that there are compelling reasons for interfering with the decision of the Panel.

[31]I move now to consider the grounds put forward by the Applicant: (A)

[32]“ The panel’s decision to ignore the professional recommendations in this case for release and ignore professional opinions of both witnesses that there was no core risk reduction work to complete was irrational in the circumstances .”

[33]I find that the Panel gave careful consideration to the views of the three professional witnesses and relevant details of their reports and oral evidence are set out in the DL.

[34]The Panel noted that the psychologist supported release if a viable risk management plan (RMP) was in place and did not consider that there was core risk reduction work outstanding.

[35]The Panel recognised that the support of the POM for release resulted from the contents of the psychological risk assessment and that release into the community offered better opportunities as compared to the lack of availability of further offending behaviour work in custody.

[36]The Panel had before it two reports from different COMs (from May 2024 and, more recently from February 2025), both of which did not, in fact, support release and concluded that the Applicant had further work to complete in custody in relation to decision-making and thinking skills.

[37]At the hearing the Panel heard from a stand-in COM who reported concerns relating to the Applicant’s thought processes that remained unaddressed, that there was little change in the Applicant and that her recommendation for release relied on an augmented RMP with voluntary support.

[38]In my view, therefore, the submission that the views and oral and written evidence of the three professional witnesses were ‘ignored’ by the Panel is not sustainable.

[39]The Panel then went on to give detailed reasons for not accepting the professional recommendations which included the absence of any identifiable protective factors, which would reduce the Applicant’s risk of offending in the community and his limited support network there.

[40]In addition, the Panel noted that the Applicant had a proven adjudication for failing to provide a sample for a drugs test in late May 2025 and had been observed to be under the influence on more than one occasion during the period March 2025 to May 2025. The Applicant, also, frankly accepted that he was an alcoholic and needed support to prevent relapse.

[41]The Panel expressed its concerns that the Applicant had recently lapsed into drug use during his parole review period in response to emotional triggers and found that the programmes and treatment he had undertaken in custody had not reduced his risk to the public because he had limited ability to seek support when he was emotionally triggered.

[42]The Panel made further findings that: · The RMP did not address the identified risk of the Applicant’s attitude towards offending and supervision, poor emotional wellbeing, and poor thinking skills; · He presented a low probability of compliance with a future period on licence; · He presented a high risk of serious harm to the public ; · Unless the Applicant addressed the underlying causes of his substance abuse and thinking skills, further work in the community was unlikely to succeed and the risk of offending would remain. The risk of offending and harm that he presented was not manageable within the RMP, given his level of risk. · There is core risk reduction work for him to complete and that this should take place in closed conditions.

[43]I am satisfied that the Panel gave careful consideration to the totality of the evidence before it, attributed weight where appropriate (which is a matter pre-eminently for the Panel) and arrived at its conclusions, which it set out fully, following an exercise of its judgement.

[44]I am further satisfied that the Panel properly considered the views of the professional witnesses in deciding on the question of release and, while not bound to accept their assessments, made clear its findings and its reasons for disagreeing with the professional conclusions when deciding that the Applicant did not meet the relevant test for release. (B)

[45]“ The panel’s decision went beyond the scope of the Secretary of States referral by commenting on offending behaviour work required and consideration to the Brixton LPU, which, in itself, is Wednesbury unreasonable .”

[46]It is not clear whether it is suggested that this narrow point amounts to procedural unfairness or is irrational or both.

[47]The submission appears to be derived from a brief statement (apparently from the stand-in COM, recorded at DL 2.38) that, if not released, the Applicant’s consent to engage with the Brixton LPU was a consideration which had been discussed and not declined by him, followed by an equally brief comment by the Panel in its conclusion (DL 4.7) that the exploration of the Brixton LPU would be of benefit to him.

[48]The issue of the LPU was clearly not a consideration for the Panel and formed no part of its thinking in deciding not to release the Applicant and I can deal with this submission shortly in that I have no hesitation in finding that it is without merit and disappointing that it should be submitted that, in making this comment, the Panel was acting so irrationally or with such procedural unfairness as to justify reconsideration of the decision.

[49]In any event I note that the guidance provided by the well-known case of Osborn, Booth & Reilly

(2013) UKSC 61

confirms that a Panel’s decision can properly include aspects “ such as comments or advice in relation to a prisoner's treatment needs or the offending behaviour work which is required which will in practice have a significant impact on his management in prison or on future reviews .” Decision

[50]I find that the Application is without merit and, for the reasons I have given and applying the appropriate tests, I do not consider that the decision was procedurally unfair or irrational and, accordingly, the application for reconsideration is refused. Peter H. F Jones 12 August 2025