Shikhey, Application for Reconsideration [2025] PBRA 190 (05 September 2025) [2025] PBRA 190

PBRA

Shikhey, Application for Reconsideration [2025] PBRA 190 (05 September 2025)

[2025] PBRA 190 · 2025-07-30

[1]This is an application by Shikhey (the Applicant) for reconsideration of a decision of an oral hearing panel dated 30 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 oral hearing decision, the dossier consisting of 834 pages and the application for reconsideration. Request for Reconsideration

[4]The application for reconsideration is undated, it has been drafted on behalf of the Applicant although the application did not indicate by whom it was drafted.

[5]The grounds for seeking a reconsideration are that the decision was irrational and was procedurally unfair.

[6]It is submitted that the conclusions reached by the panel were not supported by and were contrary to the evidence presented and that the panel “failed to properly take into account relevant evidence and, relied on speculative or unsubstantiated assertions, and did not afford the Applicant an opportunity to address or rebut certain adverse points that were material to the outcome”. The grounds submit that “no reasonable panel, properly directing itself, could have reached the decision made in this case”. Background

[7]The Applicant received an extended sentence of 12 years imprisonment on 6 April 2018 following conviction for engaging in conduct in preparation for terrorist acts. The sentence comprised 8 years custody extended by 4 years on licence. The Applicant was 38 years old when sentenced, he is now 45 years old. His parole eligibility date was 30 July 2023, his conditional release date March 2026 and his sentence expiry date January 2031. Current parole review

[8]The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) in November 2022 to consider whether or not it would be appropriate to direct his release.

[9]The case proceeded to an oral hearing via videoconference on 23 July 2025. The panel consisted of a judicial member, a psychologist member and an independent member. It heard oral evidence from the Applicant, together with his prison offender manager (POM), community offender manager (COM), a prison forensic psychologist, a police service detective constable and a Desistance and Disengagement Programme (DDP) theological mentor. The Applicant was legally represented throughout the hearing and assisted by an interpreter. The Respondent was not represented by an advocate. 10.The panel did not direct the Applicant’s release. The Relevant Law

[11]The panel correctly sets out in its decision letter dated 30 July 2025 the test for release. Parole Board Rules 2019 (as amended)

[12]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)).

[13]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

[14]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.

[15]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. ”

[16]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).

[17]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.

[18]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.

[19]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;

(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. The reply on behalf of the Secretary of State 23.The Secretary of State has submitted no representations in reply to this application. Discussion 24.Ground 1 - Irrationality. The application submits that the panel's finding that there would be ‘little to no monitoring’ in the Netherlands was contrary to the unchallenged evidence presented by the COM and the police witness and amounted to speculation. The application further submits that all professionals favoured release and that the panel failed to give reasons for rejecting their positions. It is submitted that disproportionate weight was attached to the sentencing judge’s remarks in contrast to the Applicant’s current risk profile following successful completion of interventions and changes in attitude. 25.The panel carefully considered all the evidence presented and the decision letter sets it out in helpful detail. The Applicant is subject to deportation proceedings to the Netherlands. The panel was obliged to consider risk beyond the end of the sentence expiry date, as it correctly noted:

“ The panel needs to consider future risks in the community based on [the Applicant] possibly remaining in the UK as well as a likely return to the Netherlands following deportation ”

. It is not correct, as the application claims, that the panel’s finding of monitoring Netherlands was speculative. The panel noted the informal and alternative forms of monitoring reported by the witnesses, none of the witnesses suggested any formal monitoring. The COM’s evidence was that “ there would be no formal supervision by Probation in the Netherlands or any licence conditions ”. This position was also echoed by the police witness and accepted in the written submissions on behalf of the Applicant. The panel could not rely on anything less, nor does the submission suggest that it should have done so. There was no irrationality therefore in the panel’s conclusion which was clearly based on accepted evidence. 26.Panels of the Parole Board are not obliged to adopt the opinions and recommendations of professional witnesses. It is their responsibility to make their own risk assessments and to evaluate the likely effectiveness of any risk management plan proposed. They must make up their own minds on the totality of the evidence that they hear, including any evidence from the Applicant. They would be failing in their duty to protect the public from serious harm if they failed to do just that. In departing from the opinions and recommendations of the professional witnesses, it is important that the panel should explain clearly its reasons for doing so and that its stated reasons should be sufficient to justify its conclusions. In this case the panel did just that. In particular the panel noted that “ all the professionals had some doubts as to the balance between the Applicant’s naïveté and terrorist intentions; in the absence of clarity on this difficult question, the panel considers that [the Applicant’s] risk to the public remain an active and ongoing concern ”. Again, this conclusion clearly based on an analysis of the evidence presented is logical, rational and sustainable. 27.It is a matter for the panel the weight to which it gives the evidence presented. Completion of risk reduction work does not mean that a prisoner must be released. If that were the case, then there would be no need for a parole hearing. The panel was concerned as to how far the Applicant’s true motives and intentions had been explored and disclosed. Completing a programme is not the same as demonstrating evidence of having changed attitudes. In the light of all the evidence received the panel was not persuaded that the completion of programmes was sufficient to overcome the risk posed. 28.In my judgment there was clearly material that the panel had which justified the decision that the panel made and it cannot be properly described as irrational within the meaning set out above. The reasons for their decision are clearly set out in the decision and were supported by evidence . This ground therefore fails. 29.Ground 2 - Procedural Unfairness There is much overlap between this ground and the first ground. The Applicant submits that the panel’s approach gave rise to procedural unfairness in multiple respects. It is submitted that the contention that there would be “little to no monitoring” in the Netherlands was “never squarely put to the Applicant or his representatives during the hearing” , thus depriving the Applicant of the opportunity to address or correct misconceptions about the Dutch arrangements. It is submitted that the panel failed to properly consider the protective effect of the Applicant’s immigration detention. It is further submitted that the panel failed to take into account the Applicant’s success on interventions or to provide reasons for concluding that the successful completion was not sufficient to reduce risk. 30.These submissions misunderstand the panel’s duties. The Applicant was represented throughout the hearing. The panel heard evidence about the position regarding monitoring in the Netherlands; if the Applicant wished to challenge the evidence of the police witness it was open to his representative to question him further. He was not deprived of any opportunity to present evidence. It was not for the panel to question him to ascertain whether or not he disagreed or had additional evidence to present. 31.It is difficult to understand how the Applicant’s detention is a protective factor to be considered by the panel in the application for release. The failure to consider it as an alternative release placement does not amount to procedural unfairness. It is not the panel’s role to consider, as an alternative to release, detention in a different facility - in this case detention under immigration control. 32.The panel took into account the Applicant’s completion of the interventions but also took into account the Applicant’s idealism to live under Sharia law and was not satisfied that the Applicant’s true intentions and motives had been disclosed and explored. In those circumstances the panel could not be satisfied that the risk management plan was sufficiently robust. Reasons were clearly given and no procedural unfairness identified in the application. 33.Having carefully considered the decision I am not satisfied that anything in it could be described as irrational or that anything in it points to procedural unfairness. Neither of the grounds raise arguments that could lead to a successful claim for reconsideration and the application is refused. Decision 34.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. Barbara Mensah 05 September 2025