Gambrell, Application for Reconsideration [2025] PBRA 179 (26 August 2025) [2025] PBRA 179

PBRA
Gambrell, Application for Reconsideration [2025] PBRA 179 (26 August 2025)
[2025] PBRA 179 · 2025-08-05
[1]This is an application by Gambrell - the Applicant - for reconsideration of a paper decision dated the 5 th August 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(c) that it is procedurally unfair. This is an eligible case, and the application was made in time.[3]I have considered the application on the papers. These are:a. The dossier now containing 311 pages including closing submissions on behalf of the Applicant and the decision (DL) the subject of this application.b. The submissions in support of the application. No submission was received from the Secretary of State for Justice (the Respondent). Request for Reconsideration[4]The application for reconsideration is dated 6 th August 2025.[5]The grounds for seeking a reconsideration are lengthy and are summarised as follows: i. PROCEDURAL UNFAIRNESSa. The panel erred in deciding to conclude the case ‘on the papers’ in spite of well-founded submissions on his behalf that an oral hearing should be directed.b. The panel failed to consider properly the principles set out most clearly in the case of Osborn v Parole Board [2013] UKSC 61 when deciding not to direct an oral hearing.c. The practical difficulties of organising such a hearing between 30 th July 2025 and the Applicant’s Conditional Release Date (CRD) in December 2025 could have been overcome by prioritising the listing of the Applicant’s case. ii. IRRATIONALITY a. The matters alleged at 1 a b and c above resulted in the panel’s decision not to direct release being irrational. Background[6]The Applicant who is now 23 years old was sentenced to an extended determinate sentence of 7 years and 2 months imprisonment with an 8 year extension period on 7 th November 2019 for serious sexual offences committed against a child under 13. Current parole review[7]The case was referred to the Parole Board by the Secretary of State for Justice in February 2024, following a Parole Board decision in October 2023 not to direct his release.[8]The Applicant was due to have an oral hearing on 30 th July 2025. Unfortunately the Community Offender Manager (COM) was not able to provide a full report and the case was adjourned. The adjournment directions contained the following; “ The case was adjourned on the day due to [the Applicant’s] COM not being able to attend and the stand in COM not being able to answer questions on risk or provide a professional opinion. The panel for the following reasons is minded to conclude the case on the papers; [The Applicant’s] CRD is [in December 2025] and the Parole Board is currently listing cases for November 2025. The panel noted that his COM would not return form [sic] maternity leave until September 2025 and that they would needed [sic] to attend any oral hearing.”[9]His legal representative asked for an oral hearing so that the Applicant could engage in his resettlement planning. The panel took the view this was not the role of an oral hearing and had confidence having heard from the stand in COM that probation would engage fully in this process and directed that the hearing be concluded on the papers subject to legal representations to be received by the 13 th August 2025.[10]Representations were received on the 5 th of August 2025 and - as set out above - the decision was issued on the same day. The Relevant Law Parole Board Rules 2019 (as amended)[11]Rule 28(1) of the Parole Board Rules provides the types of decision which are eligible for reconsideration. The current decision is eligible.[12]Rule 28(2) of the Parole Board Rules provides the sentence types which are eligible for reconsideration. These include the sentence imposed on this applicant. Irrationality[13]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.[14]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. ”[15]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).[16]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.[17]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.[18]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 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. 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;(e) the panel did not properly record the reasons for any findings or conclusion; and/or(f) the panel was not impartial. The overriding objective is to ensure that the Applicant’s case was dealt with justly.[22]In the case of Osborn v Parole Board [2013] UKSC 61 , the Supreme Court comprehensively reviewed the basis on which the Parole Board should consider applications for an oral hearing. Their conclusions are set out at paragraph 2 of the judgment. The Supreme Court did not decide that there should always be an oral hearing but said there should be if fairness to the prisoner requires one. The Supreme Court indicated that an oral hearing is likely to be necessary where the Board is in any doubt whether to direct one; they should be ordered where there is a dispute on the facts; where the panel needs to see and hear from the prisoner in order to properly assess risk and where it is necessary in order to allow the prisoner to properly put his case. When deciding whether to direct an oral hearing the Board should take into account the prisoner’s legitimate interest in being able to participate in a decision with important implications for him. It is not necessary that there should be a realistic prospect of progression for an oral hearing to be directed.[23]It is possible to argue that mistakes in findings of fact made by a decision maker result in the final decision being irrational, but the mistake of fact must be fundamental. The case of E v Secretary of State for the Home Department [2004] QB 1044 sets out the preconditions for such a conclusion:
“ there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter; the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable; the appellant (or his advisors) must not have been responsible for the mistake; and the mistake must have played a material (though not necessarily decisive) part in the tribunal's reasoning.”
See also R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] AC 295 , which said that in order to establish that there was a demonstrable mistake of fact in the decision of the panel, an Applicant will have to provide “ objectively verifiable evidence ” of what is asserted to be the true picture.[24]In Oyston [2000] PLR 45 , at paragraph 47 Lord Bingham said: “ It seems to me generally desirable that the Board should identify in broad terms the matters judged by the Board as pointing towards and against a continuing risk of offending and the Board's reasons for striking the balance that it does. Needless to say, the letter should summarise the considerations which have in fact led to the final decision. It would be wrong to prescribe any standard form of Decision Letter and it would be wrong to require elaborate or impeccable standards of draftsmanship. "] Reconsideration as a discretionary remedy[25]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[26]The Respondent has not submitted any representations in response to this application. Discussion[27]The grounds draw attention to certain passages in the reports within the bundle which may have, if aired and tested at an oral hearing together with any evidence the Applicant chose to give, have resulted in a direction for release.[28]However, as the DL points out at paragraphs 2.8. and 2.9., neither the psychologist nor the COM were recommending release in recent reports within the dossier and a newly appointed Prison Offender Manager was unable to make a recommendation either way.[29]I have looked for signs of irrationality in the DL as compared with the evidence within the dossier and found none.[30]In reality this application amounts to a complaint that an oral hearing was not directed, a matter not amenable to the reconsideration procedure. Decision[31]For the reasons I have given, I do not consider that the decision was irrational or procedurally unfair and accordingly the application for reconsideration is refused. Sir David Calvert-Smith 26 th August 2025