El-Hassan, Application for Reconsideration by, [2025] PBRA 216 (07 October 2025) [2025] PBRA 216

PBRA

El-Hassan, Application for Reconsideration by, [2025] PBRA 216 (07 October 2025)

[2025] PBRA 216 · 2025-08-11

[1]This is an application by El-Hassan (the Applicant) for reconsideration of a decision of an oral hearing panel dated 11 August 2025 not to direct her 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 718 pages and the application for reconsideration. Request for Reconsideration

[4]The application for reconsideration is dated 3 September 2025. It has been drafted by representatives on behalf of the Applicant.

[5]The grounds for seeking reconsideration are that the decision contained errors of law, was irrational, disclosed inadequate reasons and was procedurally unfair.

[6]In particular it is argued that the panel failed to give adequate reasons for its decision, relied on the Applicant's denial as the sole reason for not directing release, was irrational in rejecting the assessment of the professionals and was procedurally unfair. Background

[7]The Applicant received an extended determinate sentence of 17 years comprising a custodial element of 12 years and extended licence of five years. Her sentence followed conviction with a co-defendant for an offence of engaging in conduct in preparation for terrorist acts. Her sentence expiry date is December 2033.

[8]The Applicant was 33 years old at the time of sentencing and is now 41 years old. Current parole review

[9]The Applicant's case was referred to the Parole Board by the Secretary of State (the Respondent) in April 2024 to consider whether or not it would be appropriate to direct her release. 10.The case proceeded to an oral hearing via videoconference on 19 June 2025. The panel consisted of judicial member, a psychologist member and an independent member. It heard oral evidence from the Applicant, together with her Prison Offender Manager (POM), Community Offender Manager, an Imam, a prison appointed forensic psychologist, and an Applicant appointed forensic psychologist.

[11]The panel did not direct the Applicant's release. The Relevant Law 12.The panel correctly sets out in its decision letter dated 11 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)

[13]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)).

[14]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)).

[15]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 16.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. 17.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. " 18.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). 19.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. 20.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. 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. Error of law 24.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. 25.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. The reply on behalf of the Secretary of State 26.The Respondent has submitted no representations in response to this application. Discussion 27.Ground 1 - Errors of law. The application submits that the panel made no finding as to the level of the Applicant's risk and that the refusal was solely on account of her denial and failed to take into account other factors which indicated a reduction of risk. 28.Many of the grounds argued are seeking reasons for reasons and are repeated under different headings. There was no error of law identified by the application in the panel's decision. The panel's clear finding was that the level of risk was such that release could not be directed. This was so even taking into account the positive factors which are clearly noted in the decision letter. 29.The submission that the panel relied largely, impermissibly, unfairly or erroneously on the Applicant's denial is a theme that runs through the application under various grounds. In addressing it here I do not propose to repeat it in the consideration of other grounds raised. The panel attached weight to the denial of guilt as they were entitled to do. In certain cases the denial of guilt may be a significant even determinative factor. In this case, whilst the panel attached considerable weight to the denial, they did not treat it as conclusive against the grant of parole. Their reasons indicate their other concerns relating to risk. There is no evidence that the panel adopted or applied considerations contrary to the principles in Oyston. The denial of guilt did not operate as an automatic bar to release as the grounds appear to suggest. The application sets out in some detail a list of matters which it is argued that the panel did not consider. It was not necessary for the panel to set out all those matters, there were sufficient reasons to justify its conclusions and none amounted to an error of law. 30.I am satisfied that there were no errors of law identified in this decision. 31.Ground 2 - Irrationality. The application submits that the decision is irrational as it discloses inadequate reasons for rejecting the professionals' assessment and refusing to direct release. 32.The decision letter sets out in detail the evidence of the professionals and notes their support for release. However, the panel gives reasons for not agreeing with the conclusions, for example concerns about the Applicant's insight and sincerity were matters on which the panel attached weight. The panel was concerned that the Applicant was able to conduct her relationship and communication with her co-defendant in secret and not admit any wrongdoing, the panel took into account the POM's concerns regarding the Applicant's insight and attached weight to the Applicant's evidence regarding her citizenship. 33.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. They must make up their own mind 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. The panel had the expertise to make the assessment. In making the decision contrary to the opinions and recommendations of the professional witnesses, the panel explained its reasons for doing so and those reasons, set out above, were sufficient to justify its conclusions. 34.The Applicant's further arguments on the details of the departure of the panel from the conclusions of the professionals' amount to disagreement with the panel and an attempt to reargue matters already carefully considered. The grounds submit that reasons were not given; they certainly were and submit that the panel did not record the evidence of the COM; it certainly did (paragraph 3.11 and following paragraphs of the decision letter). Disagreement with the panel is not enough to establish irrationality in law. 35.The panel did not misconstrue the sentencing judge's remarks nor ignore the position of the psychologists who could not have proceeded on any other basis than that the Applicant was correctly convicted. If a prisoner has pleaded guilty, or after conviction accepted their guilt, the prisoner will be in a better position to address the factors that led to their offending. By contrast, a prisoner who continues to deny their guilt is less likely to express contrition or remorse or sympathy for any victim and will be less likely to engage in programmes designed to address the causes of the underlying behaviour. All of these matters are relevant to the assessment of risk of re-offending. They were matters which will have been in the panel's consideration in applying the caselaw to the facts of this case as they are reflected in the reasons and decision. 36.The application submits that the panel did not refer to the evidence that the Applicant was appealing her sentence until November 2022. There was no need for the panel to do so nor to agree or disagree with that evidence. The more important point which the panel noted was that there had been an appeal against the conviction which had been dismissed in 2019. It is the conviction which carries the element of culpability which is relevant to the question of risk. 37.The application submits there are " evidential gaps or leaps " in the decision and lists 10 in particular. Having carefully considered them I am satisfied that they are matters which have been dealt with in the decision letter or did not need to be dealt with by the panel. Read as a whole the decision letter clearly considered the evidence properly and fully. It gave sound and sustainable reasons for its conclusions. The fact that, having done so, it did not deal with every point presented is not a reason in itself to grant reconsideration. 38.The legal test for irrationality sets a high bar which this case does not meet and this ground must therefore fail. 39.Ground 3 - Failure to give adequate reasons. This ground is a repetition of submissions made in earlier grounds. In particular the ground raises again the argument that the panel did not give sufficient reasons for rejecting the evidence of the professional witnesses. 40.The panel gave reasons for its decisions, including reasons for departing from the conclusions of the professionals. I have identified and set out those reasons in paragraph 32 above and do not repeat them again here. This ground cannot succeed. 41.Ground 4 - Procedural unfairness. The application submits that there were no concerns amongst the professional witnesses regarding the issue of the Applicant's citizenship and that the issue was referred to " only tangentially at the oral hearing ". In those circumstances the grounds argue that it was procedurally unfair for the panel to rely on this in reaching a decision regarding satisfaction of the public protection test. 42.During the hearing a question was asked by a panel member about citizenship, the Applicant's representative should and certainly could have asked follow-up questions of that or any other witness. The failure to do so cannot now be used as a basis for claiming procedural unfairness. In any event the panel did not use this issue as a basis for its conclusions. The highest it was put by the panel was that the issue " may need careful monitoring " in respect of managing risk. There was no procedural unfairness in that or any other aspect of the panel's consideration of this case. Decision 43.For the reasons I have given, I do not consider that the decision was irrational, procedurally unfair or contained errors of law and accordingly the application for reconsideration is refused. Barbara Mensah 07 October 2025