Fogo, Application for Reconsideration by, [2025] PBRA 204 (23 September 2025) [2025] PBRA 204

PBRA

Fogo, Application for Reconsideration by, [2025] PBRA 204 (23 September 2025)

[2025] PBRA 204 · 2025-08-05

[1]This is an application by Fogo (the Applicant) for reconsideration of a decision of an oral hearing panel dated 5 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 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 659 pages and the application for reconsideration. Request for Reconsideration

[4]The application for reconsideration is dated 25 August 2025 and has been drafted by legal representatives on behalf of the Applicant.

[5]The grounds for seeking a reconsideration are that the decision was irrational and procedurally unfair in that the panel placed undue weight on unproven allegations and security information. Background

[6]The Applicant received a sentence of life imprisonment for murder on 6 December 2005. His tariff was set at 16 years less time spent on remand and expired on 29 May 2021.

[7]The Applicant was 19 years old at the time of sentence and is now 38 years old. Current parole review

[8]The Applicant's case was referred to the Parole Board by the Secretary of State (the Respondent) in February 2024 to consider whether or not it would be appropriate to direct his release. If the Board did not consider it appropriate to direct release, it was invited to advise the Respondent whether the Applicant should be transferred to open conditions.

[9]The case proceeded to an oral hearing via videoconference on 1 August 2025. The panel consisted of two independent members and a psychologist member. It heard oral evidence from the Applicant, together with his Prison Offender Manager (POM) and his POM at his previous prison, his Community Offender Manager (COM), a prison commissioned psychologist and a prisoner commissioned psychologist. The Applicant was legally represented throughout the hearing. The Respondent was not represented by an advocate. 10.The panel did not direct the Applicant's release nor make a recommendation for open conditions. It is only the release decision that is open for reconsideration. The Relevant Law 11.The panel correctly sets out in its decision letter dated 5 August 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)

[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)).

[14]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 15.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. 16.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. " 17.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). 18.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. 19.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. 20.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

[21]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.

[22]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.

[23]The overriding objective is to ensure that the Applicant's case was dealt with justly. The reply on behalf of the Secretary of State

[24]The Respondent has submitted no representations in response to this application. Discussion 25.The grounds of the application seek to re-argue matters presented to the panel in submissions and already carefully and properly considered by the panel. 26.The application submits that there was no evidence to support the panel's finding that the Applicant escalated the situation, that the panel disregarded the Applicant's evidence and the video footage which showed him to be compliant. It is clear that the panel took into account all the matters raised in the application but as they made clear, their finding that he had likely escalated the situation was based on his response to the officers, his rigid thinking and his sense of injustice. Those were matters which the panel who had the benefit of considering the video footage and hearing from the Applicant had taken into consideration in reaching its findings. There was nothing irrational in that conclusion which was properly open to the panel on the evidence presented. 27.The application submits that none of the " 5 high graded intelligence entries " relating to drug supply resulted in any sanction against the Applicant. The fact that there is no sanction does not prevent the panel having regard or attaching weight to the entry. 28.The application refers to the panel statement that the adjudication of 9 April 2025 w as not proceeded with due to " evidential issues /administrative error ", whereas the reports report that the matter was not proceeded with due to " lack of evidence ". It is difficult for me to see what this complaint amounts to as a lack of evidence is an evidential issue. There is no irrationality in the panel's use of those words. 29.The application submits that the amount of cannabis found was small and not consistent with drug dealing. The panel noted that there were two separate packages of cannabis in his single cell and therefore the conclusion that the quantities, separately presented, were consistent with drug dealing was not an irrational one. 30.It is submitted that the professionals agreed that there was no core risk reduction work outstanding and there was a sufficiently robust risk management plan in place. It does not follow that completion of all available risk reduction work means 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 that, despite having completed such work, the Applicant continued to display evidence of non-compliance and violence. Completing a programme is not the same as demonstrating evidence of having internalised the learning from that programme . In those circumstances the risk management plan will not be robust enough to manage the risk. That is not an irrational or unfair conclusion. 31.The grounds do not identify any procedural unfairness in the panel's consideration of the case and in my judgment there is no indication that the panel dealt other than fairly with the Applicant and the evidence presented. The panel set out its reasons for disregarding the recommendations of the professionals. There was plainly material before the panel justifying its conclusions. It was not irrational according to the tests outlined above. There was no injustice in the result. Their reasons and reasoning in refusing release or any recommendation for open conditions was logical, rational and far short of being in any way unreasonable in the circumstances as set out. Decision 32.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 23 September 2025