Hodkinson, Application for Reconsideration [2025] PBRA 185 (01 September 2025) [2025] PBRA 185

PBRA
Hodkinson, Application for Reconsideration [2025] PBRA 185 (01 September 2025)
[2025] PBRA 185 · 2025-08-06
[1]This is an application by Hodkinson (the Applicant) for reconsideration of a decision dated 6 August 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 336 numbered pages), and the application for reconsideration. Background[4]On 9 February 2017, the Applicant received an extended sentence of 16 years consisting of 12 years in custody with a four year extension period following conviction for wounding with intent to cause grievous bodily harm.[5]The Applicant was 20 years old at the time of sentencing and is now 29 years old.[6]Key dates relevant to his sentence are reported to be: a) Parole eligibility date: December 2024; b) Conditional release date: December 2028; and c) Sentence expiry date: December 2032. 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 January 2024 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 31 July 2025, before a three-member panel. The panel took oral evidence from the Applicant, the Prison Offender Manager (POM), the Community Offender Manager (COM), a forensic psychologist instructed by HMPPS and a forensic psychologist commissioned by the Applicant. The Applicant was legally represented throughout the hearing.[11]All four professional witnesses supported the Applicant’s release.[12]The panel concluded that the statutory test for release was not met and made no direction for release. It accepted that the Applicant had made some progress in custody, completing accredited programmes, securing employment, and demonstrating positive behaviour in recent years. Professional witnesses supported his release to a PIPE-approved premises, highlighting his increased insight, reduced violence, and apparent ability to apply skills learned from interventions. The panel acknowledged these factors and noted his articulation of remorse and the influence of his difficult childhood on his behaviour.[13]However, the panel also placed weight on his history of violent conduct in custody, including proven adjudications and his re-categorisation to Category B after a serious assault on staff. Of particular concern was an unproven but serious allegation from February 2025, when the Applicant was said to have threatened a member of staff with a weapon. Although the panel could not make a finding of fact, it considered there was a serious possibility the allegation was true, citing similarities with his past behaviour and the fact it had already influenced his security categorisation. The panel found that professional witnesses had given insufficient weight to this incident and to the wider pattern of violent behaviour during the sentence.[14]Ultimately, the panel was not persuaded that the evidence demonstrated a sufficiently sustained reduction in risk or a reliable ability to apply learning consistently. While progress was noted, it was not enough to conclude that there was no more than a minimal risk of the Applicant committing a serious offence if released. The Relevant Law[15]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)[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)).[17]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)).[18]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[19]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.[20]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 .”
[21]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).[22]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.[23]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.[24]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[25]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.[26]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.[27]The overriding objective is to ensure that the Applicant’s case was dealt with justly. The reply on behalf of the Respondent[28]The Respondent has advised that no representations will be submitted in response to this application. Discussion Irrationality[29]The Applicant argues that the panel’s decision was irrational because it relied heavily on an unproven allegation from February 2025, in which he was said to have threatened staff with a screwdriver. The allegation was never formally adjudicated, no CCTV or corroborating evidence was available, and the reporting officer was not present to give testimony. The POM confirmed that there was no formal record and described the matter as intelligence-based only. Despite this lack of substantiation, the panel concluded there was a “ serious possibility ” the allegation was true and used it to undermine unanimous professional support for release. The Applicant contends that the panel’s decision to override this consensus on the basis of untested intelligence was irrational and disproportionate.[30]The panel was entitled to take the February 2025 allegation into account under the framework set out in R (Pearce) v Parole Board [2023] UKSC 13 . That authority makes clear that unproven allegations may be weighed if they are relevant to risk, provided the panel proceeds cautiously, gives the prisoner an opportunity to respond, and does not purport to make unsupported findings of fact.[31]The panel followed that approach. It accepted that it could not make findings of fact but assessed instead whether there was a serious possibility that the allegation might be true. It explained its reasoning for that conclusion, pointing to the nature of the alleged threat, the striking similarities with previous proven adjudications involving weapons, the seriousness of the conduct alleged, and the fact that the incident had already influenced the categorisation board. The Applicant was given an opportunity to respond to the allegation during the hearing, and his account was taken into consideration.[32]Although all professional witnesses supported release, the panel was not bound to adopt their view, particularly where those witnesses had discounted the allegation when forming their assessments. The Board’s duty is to apply the statutory test independently, and it is entitled to depart from professional opinion if it provides rational reasons for doing so. On that basis, while it is clear that the Applicant and his representatives disagree with the weight the panel attached to the allegation, the reasoning demonstrates that the panel acted within the bounds of reasonable judgment. The decision therefore cannot be said to have been irrational. Procedural unfairness[33]The Applicant submits that the decision was procedurally unfair because the panel relied on an allegation that he was unable to contest effectively. The reporting officer who made the allegation was not available to give evidence, no CCTV or corroborating material was produced, and no formal adjudication or disciplinary finding had ever been made. Despite this, the panel did not adjourn for further enquiries or to seek additional evidence. The Applicant argues that this deprived him of a fair opportunity to challenge the allegation and left him disadvantaged in addressing a matter that materially influenced the outcome. He contends that the panel misapplied the principles in Pearce , arguing that while the case permits careful use of unproven allegations, fairness requires that such allegations be properly tested. In this instance, the Applicant argues, that standard was not met.[34]Pearce permits the consideration of unproven allegations provided that they are relevant to risk, that the prisoner has the opportunity to respond, and that the panel explains the reasons for attaching weight to them. Those requirements do not extend to an obligation to adjourn proceedings to secure further evidence in circumstances where it is unlikely to be forthcoming or probative.[35]In this case, the allegation was directly relevant to the Applicant’s risk profile, as it involved threats with a weapon of the same nature as the index offence. The panel put the allegation to the Applicant during the hearing, recorded his denial and explanation, and accepted that it could not make findings of fact due to the lack of corroborating material. Instead, it considered whether there was a serious possibility that the allegation might be true, giving meticulously and detailed reasons for that conclusion. The Applicant was therefore afforded a fair opportunity to address the allegation, and the panel explained its reasoning in a transparent manner.[36]Although the Applicant argues that fairness required an adjournment for further enquiries, the panel was entitled to conclude that there was no utility in doing so, given the absence of CCTV, the unavailability of the reporting officer, and the fact that the matter had not proceeded to adjudication. In those circumstances, the manner in which the allegation was handled cannot be said to have been procedurally unfair. Decision[37]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 01 September 2025