Pankewycz, Application for Reconsideration by, [2025] PBRA 221 (13 October 2025) [2025] PBRA 221
[1]This is an application by Pankewycz ("the Applicant") for reconsideration of a decision of a panel of the Parole Board ("the Panel"), at an oral hearing which took place on 1 September 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(c) that it is procedurally unfair.[3]I have considered the application on the papers. These are: · The dossier provided by the Secretary of State ("the Respondent") which now contains 374 numbered pages; · The Panel's decision letter dated 4 September 2025 ("DL"); · The application for Reconsideration ("the application") submitted on behalf of the Applicant by his solicitor dated 24 September 2025. Request for Reconsideration[4]Reconsideration is said to be sought on the basis of irrationality and I will consider the grounds put forward in support within the Discussion section of my decision. Background[5]The Applicant is now aged 35. On 30 April 2021 he received an extended determinate sentence of imprisonment for arson being reckless as to whether life would be endangered and stalking comprising a custodial element of 6 years and 9 months and an extended licence period of 5 years. The Parole Eligibility Date is given as 15 March 2025, the Conditional Release Date as being in June 2027 and the Sentence Expiry Date as being in June 2032.[6]The victim of the stalking offence was his former partner. When their short relationship of a few months broke down, the Applicant demonstrated signs of jealousy and controlling behaviour. He spied on the victim and her social media and was arrested and conditionally bailed. However, he repeatedly breached bail conditions in various ways online and in person and was re-arrested.[7]Subsequently, when the victim went on a holiday abroad with a male friend (with whom she had previously been in a relationship), the Applicant decided to firebomb the man's house and in the early hours of the morning of 11 September 2020 he threw three petrol bombs at the house not knowing whether it was occupied or not. He was found guilty of the offences after a trial.[8]The Applicant had no prior convictions and this was the first review of his case. Current parole review[9]The Applicant's case was referred to the Parole Board by the Respondent to consider whether or not it would be appropriate to direct his release. The case was allocated to a three-person Panel which comprised a specialist psychologist member and two independent members, one of whom chaired the Panel.[10]The Applicant was represented by his solicitor who sought a direction for release.[11]At the hearing evidence was given by: a) The Prison Offender Manager (POM); b) The Community Offender Manager (COM); c) The Applicant; d) A Psychologist instructed by HMPPS; e) A Psychologist instructed on behalf of the Applicant. The Relevant Law[12]The Panel correctly sets out in the DL the test for release.[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)). Irrationality[14]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.[15]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. "[16]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).[17]As was made clear by Saini J this is not a different test to the Wednesbury test. The interpretation, and application, of the Wednesbury test in Parole hearings as explained in DSD was binding on Saini J.[18]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.[19]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. Reconsideration as a discretionary remedy[20]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[21]B y email dated 1 October 2025 PPCS confirmed that the Respondent offers no representations in response to the application. Discussion[22]In dealing with the grounds for reconsideration, it is necessary to stress certain matters of basic importance. The first is that the Reconsideration Mechanism is not a process by which the judgement of the Panel when assessing risk can be lightly interfered with. Nor is it a mechanism in which the member carrying out the reconsideration is entitled to substitute his/her view of the facts in place of those found by the Panel, unless, of course, it is manifestly obvious that there was an error of fact of an egregious nature which can be shown to have directly contributed to the conclusion arrived at by the Panel.[23]The second matter of material importance is that when deciding whether a decision of the Parole Board was irrational, due deference has to be given to the expertise of the Parole Board in making decisions relating to parole.[24]Finally, where a Panel arrives at a conclusion, exercising its judgement based on the evidence before it and having regard to the fact they saw and heard the witnesses, it would be inappropriate to direct that the decision be reconsidered unless it is manifestly obvious that there are compelling reasons for interfering with the decision of the Panel.[25]I move now to consider the grounds based on irrationality put forward by the Applicant: (A) That the Panel relied heavily on the fact that he was pursuing an appeal and that this should not be a bar to his progression.[26]It is not clear what this relates to. There does not appear to have been any appeal against conviction or sentence although there is a reference in the solicitor's closing submissions to the Applicant appealing against his transfer out to another prison in April 2024. The Panel in the DL makes no reference to, and does not rely on, any "appeal" in reaching its decision. (B) That the Applicant made efforts to ensure that he completed all necessary work and that not enough weight was attached to his protective factors such as his support network, his accommodation and the work that he intends to continue to do with Veteran's charity upon release .[27]The Panel sets out in some detail what it considered to be positive factors including the Applicant's extended period of Enhanced IEP status, negative drug tests and constructive engagement with a therapy course and completion of work to improve victim empathy. He has taken on a number of positions of responsibility and been of assistance in the prison in a number of ways. He has contact with friends and family, particularly his mother, and has received several visits from her.[28]The Panel also records the view of the psychologist instructed on his behalf that there are sufficient protective factors in place to reduce his risk and its imminence.[29]The Panel was also aware of the Applicant's proposals for accommodation in the community and had sight of a letter from the charity referred to.[30]However, the Panel also received evidence from professionals which, for the reasons it set out in considerable detail, it accepted that the Applicant had outstanding core risk reduction work, that the factors underpinning his stalking and the arson remain insufficiently understood and addressed and that he had continued to display offence ‑ paralleling behaviour and paranoid ideation in custody.[31]The Panel was in addition " firmly of the view " that there were significant unaddressed risk issues which required treatment, which was not available in the community, prior to release. (C) That the Panel dismissed the complaints that he had submitted in relation to the conduct alleged towards the female staff at HMP Erlestoke to challenge the point that his behaviours were not parallel to the index offence.[32]The wording of this submission does not make its meaning particularly clear but, according to the Panel, prison case notes from 2022–2024 disclosed a sustained pattern of breaching boundaries through attempts to contact a female staff member and other inappropriate conduct towards her. The Applicant told staff there was an " emotional connection ".[33]This caused the staff member in question to raise complaints and led to the Applicant being placed in segregation and transferred out to another prison.[34]The POM reported that the Applicant demonstrated ongoing paranoia and perceived that female staff were attracted to him.[35]In his evidence to the Panel the Applicant acknowledged that he developed feelings for the staff member but said that this was mutual and that she had reported his behaviour in order to " cover her back ". He also suggested that female staff flirted with him.[36]The Panel found that the Applicant posed a high risk of causing serious harm to the public, a known adult and staff, as well as posing a high risk of future offending in the context of domestic violence. (D) The Panel were over speculative of his future relationships and risk factors.[37]This final submission (as does that at (B) above) invites me, in essence, to take a different view of the evidence to that of the Panel, which is to misunderstand my role and the test which I must apply when considering an application for reconsideration based on the ground of irrationality.[38]I find that the Panel gave proper consideration to the evidence before it and the analyses and recommendations of the professional witnesses, carefully explaining why it preferred the conclusions of the prison psychologist to that of the psychologist instructed on behalf of the Applicant and, in particular, declining to accept that the offending behaviour could properly be described as a response to a particular set of circumstances which are unlikely to repeat themselves.[39]The Panel found that the Applicant did not demonstrate insight into his problematic attitudes, would not be compliant if he thought he was " in the right " and that risk could escalate quickly if he were in the community at the present time.[40]I am satisfied that the Panel gave careful consideration to the evidence before it, attributed weight where appropriate (which is a matter pre-eminently for the Panel) and arrived at its findings, which it set out in appropriate detail, following an exercise of its judgement in concluding that the Applicant did not meet the test for release. Decision[41]The reconsideration process is not an appeal against the original decision and I find that the Application is without merit and, for the reasons I have given and applying the appropriate test, I do not consider that the decision was irrational and, accordingly, the application for reconsideration is refused. Peter H. F Jones 13 October 2025