Sadler, Application for Reconsideration by, [2025] PBRA 205 (23 September 2025) [2025] PBRA 205

PBRA
Sadler, Application for Reconsideration by, [2025] PBRA 205 (23 September 2025)
[2025] PBRA 205 · 2025-07-25
[1]This is an application by Sadler (the Applicant) for reconsideration of a decision of an oral hearing panel dated 25 July 2025 not to direct 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(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 the oral hearing decision, the dossier consisting of 701 pages and the application for reconsideration. Request for Reconsideration[4]The application for reconsideration is dated 27 August 2025. It has been drafted by legal representatives on behalf of the Applicant. It submits that the decision contains errors and inaccuracies which have led to an irrational decision.[5]The submission is supplemented by written arguments to which reference will be made in the Discussion section below. Background[6]The Applicant received a sentence of life imprisonment on 13 July 2017 following guilty pleas to conspiracy to commit robbery, possession of an imitation firearm and theft. His tariff was set at 6 years and 9 months and expired in April 2024.[7]The Applicant was 41 years old at the time of sentencing and is now 49 years old. Current parole review[8]The Applicant's case was referred to the Parole Board by the Secretary of State (the Respondent) in July 2023 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 Secretary of State whether the Applicant should be transferred to open conditions.[9]The case proceeded to an oral hearing via videoconference on 8 July 2025. The panel consisted of an independent member and two psychologist members. It heard oral evidence from the Applicant together with his Prison Offender Manager (POM), Community Offender Manager (COM), a prison appointed psychologist, a prisoner commissioned psychologist, an inclusion recovery worker and a security manager. 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 25 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)[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. Error of law[21]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.[22]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.[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. 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 submit that the panel was incorrect in its conclusions regarding the Applicant's supposed ongoing use of drugs and incorrect regarding the evidence of relapse and silent regarding the question of warning signs to increasing risk. The grounds further state that the panel was wrong to suggest that the witness from the New Connections programme had informed the panel that she could not attend, it was the Applicant who had applied to stand her down as the presence of the COM could deal with the matters raised in her report and that she was not a risk assessor. 26.In short the application is concerned about the panel's conclusion that risk of causing serious harm is aligned with misusing substances, that the relapse/use has not been recent and the panel in concluding that the Applicant needed to show a longer period of abstinence and stability had erroneously taken into consideration that his abstinence was only in the last 12 months when it had in fact been for a far longer period. 27.Having carefully considered these submissions I am not persuaded that they provide a basis for reconsideration on either grounds of irrationality, unfairness or error of law. 28.The Applicant may not have left prison in 2016 with an active drug problem but the fact remains that he did at some later stage use drugs again. 29.The Key Worker may have corrected her evidence regarding most recent relapse, the panel recorded that the evidence of the keyworker of relapse was in 2023, that is more than 12 months ago. With regard to the mandatory drug test (MDT) result in 2025 the keyworker reported that the result of that test had been dismissed. Although the decision letter speaks of the use of substances as less than 12 months ago, it is clear from reading the letter as a whole that that may simply have been a slip as the keyworker's evidence is correctly recorded. In addition, even if the panel had concluded that the Applicant had last lapsed just 12 months ago, the panel have noted the evidence of the prisoner commissioned psychologist that she would wish to consider just 12 months stability as sufficient. 30.I have carefully considered whether the case should be reconsidered on the basis of this finding but have concluded that it should not. Read as a whole it is clear that the panel's decision is not solely based on longer period of abstinence from drug use. The panel expressed concerns about the robustness of the Applicant's coping mechanisms, being prone to make poor decisions and not consider consequences, his tendency to be complacent about rules, the over reliance on external measures rather than his own internal measures to manage risk, the lack of testing outside the custodial environment and his risk of abscond restricting that opportunity to be tested in open conditions. 31.The decision letter makes it clear that relapse into drug use, whilst of concern, was not the only or main reason for finding the test for release had not been met. 32.The decision letter states that the New Connections programme officer who had been listed as a witness, had informed the Parole Board in advance that she would not be able to attend. The Applicant's claim that he had applied for her to be stood down prior to the hearing is not a ground for reconsideration and even if correct, that is to say even if the panel's report on this is incorrect, it adds nothing to the panel's approach or assessment of the case and the question of risk. Decision 33.For the reasons I have given, I do not consider that the decision was irrational, procedurally unfair or contained any error of law and accordingly the application for reconsideration is refused. Barbara Mensah 23 September 2025