Smith, Application for Reconsideration [2025] PBRA 235 (03 November 2025) [2025] PBRA 235

PBRA

Smith, Application for Reconsideration [2025] PBRA 235 (03 November 2025)

[2025] PBRA 235 · 2025-09-26

[1]This is an application by Smith (the Applicant) for reconsideration of a decision of an oral hearing decision dated 26 September 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 oral hearing decision (the Decision) · The Reconsideration Application (the Application), which is undated but probably served on 12 October 2025 · The Dossier, which currently consists of 213 numbered pages, ending with the Decision Request for Reconsideration

[4]The grounds for seeking a reconsideration are as follows:

“That the hearing was procedurally unfair towards [the Applicant] due to the lack of attention given to the neurodiversity needs which in turn impacted the evidence given by [the Applicant].”

Background

[5]The Applicant was 21 years old in 1999, when he received a sentence of detention for life on his second conviction for an offence against s18 of the Offences Against the Person Act . The specified minimum term was 3 years, expiring on 10 August 2002. The Applicant was on licence for the first s18 wounding when he committed the later offence of causing grievous bodily harm with intent. He already had a significant record for violent and bullying behaviour.

[6]Parole Board panels directed the Applicant’s release in 2004 (recalled 2006), 2009 (recalled 2012), 2013 (recalled 2016), 2017 (recalled 2018), and 2020 (recalled January 2025). This hearing was the first since the most recent recall.

[7]The reasons for the recalls included the Applicant’s return to cocaine and alcohol consumption, concealing relationships from his supervisors, and concerns about those relationships being volatile and reportedly violent, resulting in police callouts. Current parole review

[8]The Secretary of State’s (the Respondent’s) Referral to the Parole Board was prepared on 5 February 2025. It invited the Board to consider release or a recommendation for a transfer to open conditions. The hearing took place on 25 September 2025. The Applicant was then 47 years old.

[9]The panel consisted of two independent members of the Board. The witnesses were the Community Offender Manager (COM) and the Prison Offender Manager (POM), and the Applicant. The Applicant was represented throughout by a solicitor, who had the opportunity to question each of the witnesses, including the Applicant, and make representations to the panel. The hearing took place remotely. Only the POM was present in the room with the Applicant. The Relevant Law

[10]The panel correctly sets out in its decision 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)

[11]Rule 28(1) of the Parole Board Rules provides the types of decision which are eligible for reconsideration. This is an eligible decision.

[12]Rule 28(2) of the Parole Board Rules provides the sentence types which are eligible for reconsideration. This is an eligible sentence.

[13]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

. Procedural unfairness 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 focuses on the actual decision. 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. The overriding objective is to ensure that the Applicant’s case was dealt with justly.

[17]Reconsideration is a discretionary remedy. That means that, even if an error of law, irrationality, or procedural unfairness is established, I am not obliged to direct reconsideration of the panel’s decision. I 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

[18]The Respondent has made no submissions in response to this application. Discussion

[19]Only one issue is raised:

“That the hearing was procedurally unfair towards [the Applicant] due to the lack of attention given to the neurodiversity needs which in turn impacted the evidence given by [the Applicant].”

[20]Neither the Applicant’s solicitor, nor the Applicant, nor anyone else, raised any issue about this during the hearing. The complaint comes about because the Applicant expressed concerns to the POM after the hearing. The POM put the matter thus, in an email to the Applicant’s solicitor:

“ The hearing did not go particularly well and [the Applicant] feels, and I would agree that his neurodiverse needs were not met. Initially we were late to the hearing and [the Applicant] was only allowed 15 minutes with his legal adviser. In addition, he was visibly emotional discussing certain incidents in his life and in hindsight, we should have requested regular breaks after these incidents .”

[21]The Application does not suggest that the legal representative wanted more time with his client but was not allowed it. The Application does not suggest that anyone at the time saw the need for breaks in the Applicant’s evidence, or that any such break was requested and refused. The Application attributes the Applicant’s failure to request breaks to the Applicant’s “ neurodiversity and IQ issues ”. The legal representative who prepared the Application gives no explanation for the failure of the legal representative at the hearing to request breaks. The panel, like the legal representative, no doubt, was fully aware of the psychological report dated 2019, at p174 in the dossier, which referred to the Applicant’s verbal abilities being poor, and his speed of processing being much lower than his peers’.

[22]The failure of the legal representative to intervene at the time strongly suggests that there was nothing in the course of the hearing by this highly experienced panel to indicate to the panel any need for it to conduct the hearing otherwise than it did. It is not procedurally unfair for a panel not to grant an application that has not been made.

[23]Furthermore, the panel’s decision is not based on an assessment of the Applicant’s demeanour, nor on any finding that he was not genuine in his desire to do better on release than he has in the past. It is based on the panel’s assessment of the Applicant’s behaviour in the community while he has been on licence, and how far, notwithstanding his avowed (and genuine) intent to improve his behaviour, he could be relied on to exercise internal controls and maintain compliance and honesty. In the circumstances it is not easy to see how the taking of breaks could have improved his position on the issues on which the panel focused.

[24]A failure to take properly into account “ neurodiversity and IQ issues ” in the conduct of a hearing may well give rise to procedural unfairness; arguably, even if it did not affect the outcome. I cannot find any evidence of such a failure in this case. The POM’s belief that “ we should have requested regular breaks ” after the Applicant became emotional does not amount to evidence of procedural unfairness. There is no suggestion that the Applicant’s evidence would have been any different had he been given regular breaks.

[25]I should add that, despite having searched for relevant words, I can see nothing in the dossier that refers to neurodiversity as it is usually understood. The evidence relates to cognitive issues. Decision

[26]For the reasons I have given, I do not consider that the decision was procedurally unfair and accordingly the application for reconsideration is refused. HH Patrick Thomas KC 3 November2025