Chislett, Application for Reconsideration by, [2025] PBRA 211 (01 October 2025) [2025] PBRA 211

PBRA

Chislett, Application for Reconsideration by, [2025] PBRA 211 (01 October 2025)

[2025] PBRA 211 · 2025-08-01

[1]This is an application by Chislett (the Applicant) for reconsideration of a decision of a single member Member Case Assessment (MCA) panel dated the 1 August 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

[3]I have considered the application on the papers. These are the dossier consisting of 263 pages, the representations drafted by the Applicants legal adviser and the representations by the Secretary of State (the Respondent). Request for Reconsideration

[4]The application for reconsideration is dated 11 September 2025.

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

[6]The Applicant is serving a sentence of life imprisonment for the offence of murder. His tariff expired in August 2011. This was the eleventh review of his sentence. The facts of the index offence were that the Applicant together with others were in the process of committing a burglary upon a dwellinghouse. The victim returned to his home and disturbed them. The victim chased the offenders. There was a physical altercation between the Applicant and the victim. The Applicant stabbed the victim in the chest with a knife he was carrying causing a fatal wound. A few days before the index offence the Applicant committed a dwellinghouse burglary where there had been a confrontation with the householders and where the Applicant held a knife to their throat. The Applicant received concurrent sentences for the offences of aggravated burglary, burglary and wounding with intent in relation to these earlier offences. The Applicant was aged 17 at the time of the offending. He is now aged 45. Current parole review

[7]The Parole Board received a referral from the Respondent requesting that the Board consider whether the Applicant should be directed for release and if not whether there should be a recommendation relating to a transfer to an open prison.

[8]The referral was dealt with by a single panel member at the MCA stage of the referral. The decision was made on 1 August 2025 the panel member considered a dossier consisting of 240 pages. Following the initial decision of the MCA member, an application (pursuant to rule 20 of the Parole Board Rules 2019 as amended) was made for the matter to be heard at an oral hearing. Representations were considered and the application for an oral hearing was refused. The Relevant Law

[9]The panel correctly sets out in its decision letter 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) 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) .

[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

[19]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.

[20]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.

[21]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]In the cases of Osborn v Parole Board

[2013] UKSC 61

, the Supreme Court comprehensively reviewed the basis on which the Parole Board should consider applications for an oral hearing. Their conclusions are set out at paragraph 2 of the judgment. The Supreme Court did not decide that there should always be an oral hearing but said there should be if fairness to the prisoner requires one. The Supreme Court indicated that an oral hearing is likely to be necessary where the Board is in any doubt whether to direct one; they should be ordered where there is a dispute on the facts; where the panel needs to see and hear from the prisoner in order to properly assess risk and where it is necessary in order to allow the prisoner to properly put his case. When deciding whether to direct an oral hearing the Board should take into account the prisoner's legitimate interest in being able to participate in a decision with important implications for him. It is not necessary that there should be a realistic prospect of progression for an oral hearing to be directed.

[25]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.

[26]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. "

[27]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

[28]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

[29]The Respondent indicates that the Applicant was advised of the Parole Board review process on 2 December 2024. A copy of the document being on the dossier. It is submitted that the Applicant was told that the review would commence in April 2025 and the target months for consideration was also given to the Applicant. Discussion Ground 1

[30]It is submitted, by the legal representative of the Applicant, that the Applicant was not able to engage with his initial review by the Parole Board because he was not informed that a paper review would take place and therefore, he made no formal representations to the Parole Board. Discussion

[31]The following are extracts from the Generic Parole Process Policy Framework which governs the procedural requirements relating to preparations for a Parole Board decision.

[32]" 3.6.21 PPCS is responsible for collating the Secretary of State's evidence and formally referring the case to the Parole Board via an electronic dossier on PPUD. The prison and [Community Offender Manager (COM)] will also receive an automatic notification."

[33]"3.6.22 Upon receipt of the PPUD automatic notification, the prison must ensure that a copy of the full dossier is disclosed to the prisoner immediately upon completion and that the prisoner is given the opportunity to discuss their case with their legal representative either on a legal visit, on the telephone or via video."

[34]"3.6.23 Where the prisoner is not represented, prisons must ensure that the prisoner's personal representations are uploaded to PPUD immediately upon receipt and added to the dossier."

[35]As is noted above the responsibility for advising the prisoner of the referral by the Secretary of State and of ensuring that the prisoner receives the dossier and has an opportunity to make representations lies with the prison service. As noted above the Applicant was advised by letter on 2 December 2024 of the forthcoming parole process.

[36]Whilst it may be that the Applicant identifies no distinction between responsibilities relating to information provision, it is clear that the responsibility in relation to advising the prisoner about the right to make representations lies with the prison.

[37]It is also the case that the dossier contains an " easy to read " booklet which sets out (in simple and clear terms) the rights of a prisoner to make representations.

[38]So far as the MCA procedural requirements are concerned, the requirements are set out in the published Parole Board MCA Guidance document. The MCA member is dependent upon the dossier and ensuring that it is complete. The member is required to focus on what is essential to determine or progress the case.

[39]In this case, it is clear that the MCA member had a complete dossier to consider. It is often the case that representations are not received from prisoners or their representatives at the MCA stage. The absence of representations cannot be a bar to an MCA member proceeding to consider the referral. As is noted above, procedural unfairness relates to a procedural impropriety or unfairness resulting in the proceedings being fundamentally flawed and therefore producing a manifestly unfair, flawed or unjust result. The MCA member in this case proceeded on the basis of the referral and the material contained in the dossier all of which followed the procedural requirements reflected in Parole Board guidance.

[40]It is also of note that the Applicant had a meeting on 10 April 2025 with his COM. It is clear, from the report of the COM, that the Applicant was aware that the parole process was in train. The Applicant was specifically told by his COM that if he required any information about the parole process and release plans he could make contact with his COM through his Prison Offender Manager (POM). The Applicant said that he would make such contact if needed.

[41]Having considered the representations relating to this ground, I am not persuaded that the decision of the MCA member can be characterised as procedurally irregular in the sense set out above. The Applicant was clearly aware of the Parole Board process from at least December 2024 and further advised in April 2025. He had opportunities to make contact with both his prison POM and his COM to assist with representations, if he wished to make such representations. The Applicant had also undertaken similar processes in the past. A similar paper decision had been made in September 2024.

[42]Reconsideration relates to the decision made by the Parole Board member. The decision was based upon the material before the member. As indicated above, the decision in my determination, was made in accordance with the procedural requirements set out in Parole Board guidance. I do not find evidence of procedural irregularity under this ground. Ground 2

[43]It is submitted by the Applicant's legal adviser that the Parole Board relied entirely upon the evidence of professionals and failed to investigate the recommendations and views of the professionals sufficiently. Discussion

[44]The context of this submission is that the dossier in this case contained a report from a psychologist, indicating that the Applicant's case had been reviewed in March 2025. The psychology note indicated that there had been, since 2020, three psychological risk assessments.

[45]It was also noted (in the dossier) that the Applicant had been sent back from an open prison following an allegation of assault in 2021. The psychology note indicated that the Applicant's behavioural difficulties and violence had demonstrated an inability to consistently apply the skills that the Applicant should have learned through offending behaviour work.

[46]In terms of a sentence plan, the Applicant was identified (following the behavioural concerns) as being suitable for a high-intensity programme, however it was also indicated (in the psychology note) that the Applicant required time to stabilise, before being able to undertake structured group work activity.

[47]The psychology advice note indicated that various pathways were being suggested to the Applicant, however due to the Applicant's continuing instability the criteria for undertaking the suggested pathways were not met.

[48]It is well understood that 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. They would be failing in their duty to protect the public from serious harm (while also protecting the prisoner from unnecessary incarceration) if they failed to do just that.

[49]What is important is that the panel, if relying on recommendations and assessments of professionals, should explain clearly its reasons for so doing, and its reasons should be sufficient to justify its conclusions as per R(Wells) v Parole Board

2019 EWHC 2710

. In this case the assessment of risk, and the potential pathways for addressing risk were clearly set out by professionals in the dossier. The panel clearly considered those assessments (as they were entitled to do). The decision of the panel clearly reflected an acceptance of the views of the professionals, those views were credible and well grounded. The position of the panel mirrored the findings of the last parole review.

[50]Accordingly, I am not persuaded that the decision, by the panel, to rely upon the reports and recommendations of the professionals in this case could amount to irrationality in the sense set out above. Ground 3

[51]It is submitted that the decision of the panel on this occasion would impact upon the Applicant's next review. It is argued that the panel did not exercise powers to direct further actions by the prison service or reports by professionals. Discussion

[52]The Applicant's legal adviser does not make clear what further actions by the Parole Board would be anticipated. Nor is it indicated what further reports it was thought would be ordered by a Parole Board panel. As indicated above, pathways for the Applicant were set out in psychological reports. The Applicant was offered opportunities to engage with possible interventions and opportunities to progress. However, the precondition to progression was stability and the Applicant's consent to take up offers relating to progression. The dossier also indicates that the Applicant had in mind commissioning an independent psychological report, which would be entirely permissible, if he chose so to do (the Applicant appeared to have differing views from professionals about progression). A Parole Board panel, in the future, would clearly assess progress based upon the historical decisions, and upon the Applicants prison progress since the last hearing. If required a future Parole Board panel would be at liberty to all of further reports. Equally the Applicant would be at liberty to present any evidence or reports independently commissioned at any further hearing.

[53]I am not persuaded that this ground amounts to evidence of an irrational decision in the sense set out above. Decision

[54]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 Stephen Dawson 01 October 2025