Croston, Application for Reconsideration [2025] PBRA 238 (07 November 2025) [2025] PBRA 238

PBRA

Croston, Application for Reconsideration [2025] PBRA 238 (07 November 2025)

[2025] PBRA 238 · 2025-09-16

[1]This is an application by Croston (the Applicant) for reconsideration of a decision of an oral hearing panel dated the 16 September 2025.

[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 of 18 September 2025 and the dossier consisting of 349 pages. Request for Reconsideration

[4]The application for reconsideration is dated 8 October 2025. It has been drafted by legal representatives. It submits that the decision is unreasonable and irrational.

[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 imprisonment for public protection for wounding with intent to cause grievous bodily harm. The tariff, set at 2 years 76 days, expired on 27 July 2010.

[7]The Applicant was 28 years old at the time of sentencing and is now 46 years old. Current parole review

[8]The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) in January 2025 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 Respondent whether the Applicant should be transferred to open conditions.

[9]The case proceeded to an oral hearing via videoconference on 16 September 2024. The panel consisted of a psychologist member and two independent members. It heard oral evidence from the Applicant together with his Prison Offender Manager (POM) and Community Offender Manager (COM). 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 18 September 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. 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 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. 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; (c) they were not properly informed of the case against them; (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. The reply on behalf of the Secretary of State 23.The Respondent has submitted no representations in response to this application. Discussion 24.The application submits that the Applicant gave genuine and honest evidence regarding the issue of compliance. It is submitted that the panel unfairly attached more weight on the requirement for consolidation work in closed conditions, arguing that the work could be completed in the community. It is submitted that the risk management plan is robust and the only fair way to test its robustness is for the Applicant to be released into the community. The Applicant notes that he was in the community for a significant period before recall and submits that he would not fail to comply again if released. Finally, it is submitted that there are inconsistencies in the decision in that too much weight was placed on the opinions of the professional witnesses. For those reasons the application seeks a rehearing of the case. 25.The panel arrived at a conclusion, exercising its judgement based on the evidence before it and having regard to the fact that it 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. There are none in this case. 26.There was no professional support for release; the Applicant had not been open and honest during his previous release and there was outstanding risk reduction work which had to be undertaken in closed conditions. He had been released and recalled four times on this sentence and refusing to direct his release for him to complete work in the community in circumstances where he still presented a risk was not an irrational decision. The panel considered the evidence from the professional witnesses and carefully and thoroughly set out its own cogent reasons as to why it is necessary for public protection that the Applicant remains confined and completes risk reduction work. The grounds are an attempt to re-argue those matters. 27.The panel, in a very thorough, full and fair decision, gave supportable reasons for the conclusion that the risk management plan was not sufficiently robust to manage the Applicant’s risks in the community. The panel considered the legal submissions made on the Applicant’s behalf, most of which are repeated in this application. The test for release is first and foremost about public protection and not about giving the Applicant a further opportunity to prove his compliance and engagement. 28.There were no inconsistencies in the panel’s decision, the question of weight to be attached to evidence was a matter for the panel’s consideration having seen and heard the witnesses. The panel took into consideration that the Applicant had spent over 12 months in the community prior to recall but also noted that it was his lack of openness and non-disclosure which had led to his recall. 29.The grounds amount to a disagreement with the panel’s decision and do not disclose any unreasonableness, unfairness or irrationality. The legal test for irrationality sets a high bar which this case does not meet. Decision 30.For the reasons I have given, I do not consider that the decision was irrational or unfair and accordingly the application for reconsideration is refused. Barbara Mensah 07 November 2025