McKenna, Application for Reconsideration [2025] PBRA 239 (31 October 2025) [2025] PBRA 239

PBRA
McKenna, Application for Reconsideration [2025] PBRA 239 (31 October 2025)
[2025] PBRA 239 · 2025-09-25
[1]This is an application by McKenna (the Applicant) for reconsideration of a decision of an oral hearing panel dated the 25 September 2025. The panel made no direction for release and no recommendation for open conditions.[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. This is an eligible case, and the application was made in time.[3]I have considered the application on the papers. These were, the dossier, the application for reconsideration drafted by the Applicant's legal adviser, and the response by the Secretary of State (the Respondent). Request for Reconsideration[4]The application for reconsideration is dated 16 October 2025.[5]The grounds for seeking a reconsideration are set out below. The application for reconsideration was in a narrative format. I have reflected the grounds based upon the narrative format. Background[6]The Applicant is serving a sentence of life imprisonment with a minimum term of four years and one day. His tariff expired in November 2004. He was 31 years old at the time of sentence. He was 56 years old at the time of the oral hearing. He was released on licence by the Parole Board in November 2019 and recalled in March 2020. The index offence was wounding with intent, contrary to section 18 of the Offences against the Person Act 1861. The Applicant attacked the victim of the index offence at his home. The Applicant went to the victim’s home armed with a Stanley Knife. He assaulted the victim, severely wounding him in the wrist, shoulder and thigh. The background to the attack was reportedly a view taken by the Applicant that the victim was exploiting a female acquaintance of the Applicant.[7]The recall occurred in circumstances where the Applicant was involved in an incident where he threatened a fellow resident in the accommodation he was living. The threat was accompanied by the Applicant having a weapon in his hand.[8]The Applicant had a pre-existing history of offences. In 1989 the Applicant was convicted in Scotland of the offence of culpable homicide relating to the stabbing of a member of his family. The sentence for that offence was a probation order. The Applicant also had a substantial number of convictions for acquisitive offending involving theft and burglary. Current parole review[9]The referral from the Respondent requested that the Parole Board consider whether the Applicant should be directed for release. If not directed for release the Parole Board were asked to consider whether the Applicant should be recommended for transfer to an open prison.[10]The oral hearing panel consisted of an independent chair of the Parole Board and a psychologist member. The oral hearing took place on 29 August 2025. Oral evidence was received from the Applicant’s previous and current Community Offender Managers (COM), the Applicant’s previous and current Prison Offender Managers, a prison commissioned psychologist and a psychologist commissioned on behalf of the Applicant. The Applicant was legally represented. The Relevant Law[11]The panel correctly sets out in its decision letter dated 25 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.[20]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[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;(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.[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. Other[26]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 criteria are now set out in the Secretary of State’s Directions to the Parole Board of the 1 August 2023.[27]Before recommending the transfer of a prisoner to open conditions, the Parole Board must consider all information before it, including any written or oral evidence obtained by the Board and whether the following criteria are met: · the prisoner has made sufficient progress during the sentence in addressing and reducing risk to a level consistent with protecting the public from harm (in circumstances where the prisoner in open conditions may be in the community, unsupervised under licensed temporary release); and · the prisoner is assessed as presenting a low risk of abscond.[28]The Parole Board must recommend a move to open conditions only where it is satisfied that the two criteria are met.[29]It is possible to argue that mistakes in findings of fact made by a decision maker result in the final decision being irrational, but the mistake of fact must be fundamental. The case of E v Secretary of State for the Home Department [2004] QB 1044 sets out the preconditions for such a conclusion:
“ there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter; the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable; the appellant (or his advisors) must not have been responsible for the mistake; and the mistake must have played a material (though not necessarily decisive) part in the tribunal's reasoning.”
See also R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] AC 295 , which said that in order to establish that there was a demonstrable mistake of fact in the decision of the panel, an Applicant will have to provide “ objectively verifiable evidence ” of what is asserted to be the true picture.[30]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. " Reconsideration as a discretionary remedy[31]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.[32]The Respondent offered no representations. Discussion Ground 1[33]It is submitted on behalf of the Applicant that the panel failed to take account of the fact that the Applicant’s poor health was intrinsically linked with his ability to cause serious harm. Discussion[34]The background to this submission was the fact that, as noted by the panel, the Applicant had various health issues. He used a wheelchair in prison, although he was able to walk short distances and use crutches and was not therefore entirely wheelchair dependent. The panel decision also noted that there appeared to be some ambiguity as to exactly the nature and seriousness of the Applicant’s health conditions. For example (at paragraph 2.33 of the decision), there appeared to be evidence, seen by one of the professionals, (the prison commissioned psychologist) that the Applicant’s self-reported episode of suffering a stroke (which was said to have happened at the time of the Applicant’s recall into custody), was not evidenced as a recorded medical diagnosis attributable to the Applicant.[35]The Applicant himself challenged this view, however there were concerns about the Applicant’s level of credibility in connection with his medical conditions. It is also clear, from the oral hearing panel decision, that the panel concluded that there was no indication that the Applicant suffered from any medical barrier to causing serious harm. The position appears to be therefore that the panel accepted that the Applicant had various diagnosed conditions including coronary heart disease and ulcerative colitis. However, the panel were not persuaded, on the evidence, that the Applicant’s medical condition precluded any possibility of causing serious harm.[36]Although the evidence relating to the Applicants medical conditions was ambiguous, in my determination the panel were entitled to look to issues beyond medical diagnosis in terms of assessing risk. The panel noted that the Applicant had a history of violent behaviour in the past. He had been released on licence from the discretionary life sentence and then was recalled as a result of threatening a fellow resident in the accommodation that he was allocated. The major consideration for the panel was that, despite efforts by the prison to persuade him to do so, the Applicant had not undertaken any meaningful behavioural interventions.[37]Added to this concern was the fact that the Applicant had self-reported that he had memory difficulties which could prevent him from being able to retain any learning from behavioural work.[38]The panel had doubts about the Applicant’s difficulties with memory, however inevitably a difficulty with memory created added concerns relating to risk. The Applicant would not, if his concerns about memory were correct, be in a position to use any recalled skills to manage emotional difficulty and risk in the community. He may also not have the ability to recall licence conditions or indeed advice and support from his probation officer in the community.[39]For these reasons I am not persuaded that the panel acted irrationally in concluding that despite the Applicant’s self-reported medical issues the risk of serious harm still remained. I am not therefore persuaded that this ground amounts to an irrational decision by the panel. Ground 2[40]It is submitted by the Applicant’s legal adviser that the psychological scoring in relation to the probability of offending and the risk of serious harm was indicative of the fact that he would not pose a risk of serious harm in the community. Discussion[41]Within the dossier it is noted that the probation service assessment of the Applicant’s risk of serious harm to the public in the community was set as high and his risk of serious harm to known adults was also rated as high. The probability scores calculated statistically by the probation service set the probability of reoffending at medium and the probability of violent reoffending at low. The psychologists, using slightly different criteria, suggested that the Applicant’s risk of serious harm should be set at medium.[42]Although statistical and psychological scoring in relation to the risk of harm is of assistance in an overall assessment of risk, the panel, as is usual, took account of a variety of considerations in determining whether the test for release was met. The panel took account of the Applicant’s historical behaviour and issues relating to violence in the past, the more recent issue relating to recall, the views of professionals, the fact that there had been no engagement in offence related work since he returned to custody, the fact that the panel detected limited insight into risk and a limited view as to how risk could be managed by the Applicant himself, and the fact that the Applicant indicated within the oral hearing that he had not recalled meeting his COM, and that the Applicant appeared to be unclear as to what the role of his COM would be in the community.[43]An assessment of risk therefore must be based on a holistic view of a number of issues relating to a prisoner. The overall scoring (by the probation service), in relation to the Applicant was that his risk of serious harm was set at high, which meant that, to direct release, the panel would have to have been convinced that the Applicant’s internal controls together with the external controls of the risk management plan would be sufficient to protect the public from serious harm. In this case the panel were not so convinced and set out the reasons for their decision in some detail in the concluding paragraphs of the decision. In my determination the panel correctly took account of the various predictors in relation to the risk of serious harm but also took account of a number of other factors in reaching a holistic decision about the risk of serious harm to the community and therefore any decision about release. Ground 3[44]The Applicant’s legal adviser submits that the Applicant denies that he attacked a resident at a hostel where he was living prior to being recalled. This being the incident which led to his recall. By inference it is submitted that relying upon the incident at the hostel (in terms of risk assessment) was irrational. Discussion[45]The panel addressed the issue of the recall with the Applicant at the oral hearing. The Applicant told the panel that he remembered living at the hostel. On the day of the incident, he remembered visiting a number of public houses, but was not drunk. He returned to the accommodation, had chest pains and a headache and informed the staff he required an ambulance. He received medication and remembered little after that. The panel noted the Applicant’s account of the incident. The panel indicated that they concluded that the Applicant had a vague memory of the incident.[46]The position appears to be therefore that, at the oral hearing, the Applicant had little or no memory of the incident which led to the recall, and which was an incident alleging a threat to another resident. The Applicant appears to have subsequently instructed his legal adviser that there was no attack, that there was a door between the Applicant and the other party. That there were threats made but no assault.[47]It is apparent that there is a conflicting account provided by the Applicant as to exactly what occurred leading to recall. However, the incident was observed by staff members at the residential accommodation. Those staff members reported that the Applicant had threatened a resident when passing him and was then later observed standing behind a glass door with something in his hand. He appeared then to be preparing to attack the resident. The resident was placed into an office area, and the police were called.[48]In my determination on the basis of the evidence from staff members which was available in the dossier the Applicant acted in a threatening and hostile manner. He appeared to have a weapon, and the incident was serious enough for the police to be called. The panel were therefore entitled to take account of this incident in a general assessment of risk.[49]However, it is clear that the panel’s decision was based upon a wider series of concerns which are noted above. These concerns included; the absence of offence focused work since the Applicant’s return to custody; the limited insight which the Applicant appeared to have in relation to his risk; how he could manage potential risk in the community, and the inevitable heavy reliance upon external management controls in the light of the apparent lack of insight demonstrated by the Applicant. The panel also noted the absence of a professional relationship with his COM.[50]I do not therefore determine that the panel relied entirely upon the incident which led to recall. As indicated above the panel decision clearly indicates consideration of issues of risk. For this reason, I do not find that this ground amounts to irrationality in the sense set out above. Memory issues[51]Although sympathetic to the Applicant’s memory issues, the panel’s mandate was to consider risk to the community. The Applicant’s apparent memory difficulties were clearly issues which could elevate risk in the sense that the Applicant could not easily draw upon any memory of learned behavioural work undertaken in the past. The Applicant also appeared to have little memory of circumstances which might lead to serious harm (by way of example the recall incident). It is apparent, therefore, that the Applicants memory difficulties were a relevant issue in terms of the overall assessment of risk and that the panel were not irrational in taking account of the Applicant’s memory deficits in terms of an overall assessment of risk. Decision[52]For the reasons I have given, I do not consider that the decision was irrational and accordingly the application for reconsideration is refused. HH Stephen Dawson 31 October 2025