Edwards, Application for Reconsideration [2025] PBRA 191 (10 September 2025) [2025] PBRA 191

PBRA

Edwards, Application for Reconsideration [2025] PBRA 191 (10 September 2025)

[2025] PBRA 191 · 2025-07-18

[1]This is an application by Edwards (the Applicant) for reconsideration of a paper decision of a Parole Board member pursuant to a Member Case Assessment (MCA). The decision was not to direct release. The decision is dated the 18 July 2025.

[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

[3]I have considered the application on the papers. These are the dossier, the representations by the Applicants legal adviser, the decision of the Parole Board member and the representations by the Secretary of State (the Respondent). Request for Reconsideration

[4]The application for reconsideration is dated 18 August 2025.

[5]The grounds for seeking a reconsideration are set out below. Background

[6]The index offence in this case was rape. The Applicant approached an 18 year old victim in the street at night. The rape took place in an alleyway. The Applicant had a background of offending which included possession of offensive weapons, assault and racially threatening behaviour. The Applicant had been diagnosed with a dissociative and emotionally unstable personality disorder. The Applicant was 29 years old when sentenced. He was 41 years old at the time of the decision of the MCA member. The Applicant was sentenced in November 2012. He was sentenced to an indeterminate sentence of imprisonment for public protection. The minimum term set by the judge was 2 years and 201 days. The Applicant’s tariff expired in June 2015. Current parole review

[7]The Applicant’s case was referred to the Parole Board to consider whether there should be a direction for release. If not release the Parole Board were asked to consider whether the Applicant should be recommended for transfer to an open prison.

[8]The referral was considered by a single MCA panel member. The decision was a “paper” decision. The panel decision was issued on 20 July 2025. The Relevant Law

[9]The panel correctly sets out in its decision letter dated 18 July 2025 the test for release and the issues to be addressed in making a recommendation to the Secretary of State for a progressive move to open conditions. Parole Board Rules 2019 (as amended)

[10]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)).

[11]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)).

[12]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

[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) 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;

(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. Error of law

[22]An administrative decision is unlawful under the broad heading of illegality if the panel: a) misinterprets a legal instrument relevant to the function being performed; b) has no legal authority to make the decision; c) fails to fulfil a legal duty; d) exercises discretionary power for an extraneous purpose; e) takes into account irrelevant considerations or fails to take account of relevant considerations; and/or f) improperly delegates decision-making power.

[23]The task in evaluating whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring the duty or power upon the panel. The instrument will normally be the Parole Board Rules, but it may also be an enunciated policy, or some other common law power. Other

[24]The test to be applied when considering the question of transfer to open conditions is the subject of a well-established line of authorities going back to R (Hill) v Parole Board

[2011] EWHC 809 (Admin)

and including R (Rowe) v Parole Board

[2013] EWHC 3838 (Admin)

, R (Hutt) v Parole Board

[2018] EWHC 1041 (Admin)

. The test for transfer to open conditions is different from the test for release on licence and the two decisions must be approached separately and the correct test applied in each case. The panel must identify the factors which have led it to make its decision. The four factors the panel must take into account when applying the test are:(a) the progress of the prisoner in addressing and reducing their risk;

(b) the likeliness of the prisoner to comply with conditions of temporary release

(d) the benefit the prisoner is likely to derive from open conditions.]

[25]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. "

[26]Omitting to put information before a panel is not a ground for procedural unfairness, as has been confirmed in the decision on the previous reconsideration application in Williams

[2019] PBRA 7

. This is the case even where the information, had it been before the panel, would have been capable of altering its decision, or prompting the panel to take other steps such as putting the case off for an oral hearing where the new information and its effect on any risk assessment could be examined. This is because procedural unfairness under the Rules relates to the making of the decision by the Parole Board, and when making the decision the panel considered all the evidence that was before them. There was nothing to indicate that further evidence was available or necessary, and so there was nothing to indicate that there was any procedural unfairness. Reconsideration as a discretionary remedy

[27]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

[28]The Respondent offered no representations. Grounds and Discussion Ground 1

[29]It is submitted on behalf of the Applicant that the panel member making the paper decision not to direct the Applicant’s release, failed to take account of representations which the Applicant and his then legal advisers wished to submit for consideration. Discussion

[30]The background to this application was that the Applicant’s case was referred by the Secretary of State to the Parole Board to consider whether the Applicant should be subject to a direction for release. If not directed for release the Parole Board were asked to consider whether there should be a recommendation that the Applicant be transferred to an open prison. The referral was dated 20 December 2024. Pursuant to rule 18 (1) (a) of the Parole Board Rules 2019 (as amended in 2024), representations by parties must be received by the Parole Board within four weeks of a referral by the Secretary of State. The Applicant was therefore required to make representations pursuant to that rule.

[31]The Parole Board received representations by the Applicant’s instructed solicitors on 30 April 2025. The representations requested an oral hearing and indicated that the Applicant was seeking to apply for a transfer to open conditions.

[32]The panel member responsible for this case considered the representations and the matter generally. The panel member then issued an adjournment notice on 16 May 2025 adjourning the matter to 27 June 2025. This was to enable further information to be secured relating to behavioural work being undertaken by the Applicant and also invited any further representations to be submitted by legal advisers on behalf of the Applicant.

[33]The Applicant’s solicitors, on 25 June 2025, submitted a note which was uploaded to the dossier. The note indicated that a video link conference was scheduled to take place between the Applicant and his legal advisers on 25 June 2025. The Applicant’s legal advisers indicated that they had attended the video link meeting but had been informed that the Applicant had chosen not to attend. The Applicant’s legal advisers requested a further short adjournment to allow a further opportunity to take instructions from the Applicant.

[34]No further representations were received. The panel member responsible for the matter then considered the evidence and a decision was issued on the 20 July 2025. The panel member did not direct release or a transfer to open conditions. The reasons for the decision were set out in the decision letter.

[35]It later transpired that the Applicant had instructed a fresh firm of solicitors. Representations from this firm were received by email on 18 July 2025 at 5:30 pm.

[36]The matter was then referred to a second Parole Board member. That second Parole Board member treated the legal representations as a request for an oral hearing following the preliminary decision (not to release), being issued. The procedure being pursuant to rule 20 (1) of the Parole Board rules. The matter was reviewed in its entirety by the second Parole Board member. That member concluded that the criteria for an oral hearing was not met in this case and declined to order an oral hearing.

[37]It is apparent from the chronology that the (MCA) paper decision by the panel member was made pursuant to the Parole Board rules. The panel member was obliged to complete the referral from the Secretary of State. The panel member had given time for any further representations to be submitted. The panel member was not informed of any change of legal adviser. In particular, the Applicant had rejected an opportunity (by not attending the scheduled video meeting) to advise the first firm of solicitors instructed that he had made a decision to instruct a second firm of solicitors.

[38]Although the Applicant’s freshly instructed solicitors acted as promptly as they could, the decision had been made by the single member by the time the freshly instructed solicitors had sent over representations. In my determination the decision was properly made, pursuant to the Rules, and the remaining option for the Applicant was to request an oral hearing pursuant to rule 20 (1) of the Rules.

[39]Having considered the background to this ground I am not persuaded that there is evidence of procedural irregularity in the sense set out above. The matter was conducted in accordance with the procedure laid down by the Parole Board Rules. The panel member acted fairly in offering a further opportunity for the Applicant to make submissions. Ground 2

[40]It is submitted on behalf of the Applicant that he is now receiving the correct medication for his mental health condition and that is custodial behaviour has improved. Accordingly, it is submitted on behalf of the Applicant that the decision (not to direct release) should be reconsidered. Discussion

[41]In considering the decision of the panel member it is noted that the panel member’s decision was based upon the fact that there had been no substantive risk reduction work completed by the Applicant and that there was a clear treatment pathway set out in the dossier. The panel member also noted that problems with substance misuse, which were linked to the Applicant’s offending history, remained a concern. The panel member also noted negative entries relating to substance misuse, assault and a protest.

[42]The panel member noted that the Applicant had engaged with psycho education work and had completed some Dialectical Behaviour Therapy (DBT). The panel member also noted that there were plans to undertake work in relation to schemas. That work was yet to begin. The risk reduction work was required in the context of the seriousness of the index offence and risk factors including difficulties with problem solving and conflict resolution. Also noted were difficulties with the Applicant’s attitude towards women, including concerns relating to domestic violence and emotional control in intimate relationships.

[43]There was no professional support for a direction for release.

[44]In considering the test for irrationality I have reflected upon whether the 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” . Applying the test, I am not persuaded that the decision in this case was irrational and therefore I decline to direct reconsideration. Decision

[45]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. HH S Dawson 10 September 2025