Gould, Application for Reconsideration [2025] PBRA 240 (07 November 2025) [2025] PBRA 240

PBRA
Gould, Application for Reconsideration [2025] PBRA 240 (07 November 2025)
[2025] PBRA 240 · 2025-09-22
[1]This is an application by Luke Gould (the Applicant) for reconsideration of a decision of an oral hearing panel dated the 22 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(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 are the oral hearing decision, the dossier consisting of 1365 pages, the application for reconsideration and the recording of the hearing. Request for Reconsideration[4]The application for reconsideration is dated 6 October 2025. It has been drafted by legal representatives on behalf of the Applicant. It submits that the decision was irrational, contained errors of fact and was procedurally unfair.[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 life sentence with a minimum tariff of 6 years on 4 May 2016 following his guilty pleas to a series of robberies with concurrent sentences for assault and possession of an imitation firearm with intent.[7]The Applicant was 19 years old at the time of sentencing and is now 29 years old. Current parole review[8]The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) in April 2023 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 Secretary of State whether the Applicant should be transferred to open conditions.[9]The case proceeded to an oral hearing via videoconference on 16 September 2025. The panel consisted of three independent members. It heard oral evidence from the Applicant together with his Prison Offender Manager (POM), his current Community Offender Manager (COM), previous COM and Key Worker. 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 22 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. 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. Error of law[22]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.[23]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 24.The Respondent has submitted no representations in response to this application. Discussion Ground 1 - Procedural Unfairness 25.It is submitted that the Applicant was restricted in his questioning of the previous COM and was warned that his questions should relate to risk and not to the complaint against the COM, it is submitted that showed impartiality on the part of the panel, and it is argued that the treatment of the Applicant in respect of the conduct and changes of COM affected his mental health. It is further argued that the Applicant’s representative was prevented from questioning her own client. 26.The panel was aware of its primary duty to assess the Applicant’s risk and consider if he could be safely released into the community. The difficulties the Applicant had expressed regarding his previous COMs and the changes of COM were known to the panel and reported by the panel at the beginning of their decision. It was not the duty of the panel to investigate complaints, nor would it have been properly equipped to do so. Far from being procedurally unfair, it was the correct and fair way for the panel to act and did not mean that the panel were not impartial. The Applicant was not restricted in his questioning of the previous COM in so far as it related to the question of risk. If the difficulties with his previous COM had affected his mental health, it was always open to his representative to seek an adjournment for a report. That was not done. In the absence of supporting evidence the panel could not be expected to proceed on the basis that there was an unidentified causal link regarding his mental health of which it could not have been aware. 27.The difficulties of the Applicant, which affected risk, were set out in detailed written submissions sent to the panel post-hearing and considered by the panel. I can find no procedural unfairness in the way the panel handled the case, considered the evidence and reached its conclusions. The Applicant’s case was dealt with properly and fairly by the panel. 28.There is no merit in the claim that the panel unfairly did not give the representative an opportunity to question the Applicant. In many hearings panel chairs may inadvertently fail to call on a panel member or advocate to question a witness and have to be reminded to do so. Having listened to the recording that is what would appear to have happened in this case. When the panel chair appeared to be moving on the representative correctly and courteously asked to question the Applicant. She was not refused the opportunity to do so and there was no procedural irregularity on this ground. Ground 2 - Error of Fact 29.It is submitted that the panel was in error in concluding that there was outstanding core risk reduction work to be undertaken, that the panel was in error in stating that the Applicant accepted the GPS data, that there was dispute regarding recall and the risk management plan, and that the panel was in error regarding the visit to the Applicant’s home. 30.I do not find that the matters raised were errors of fact or that if they were errors they were material to the overall conclusion. Having listened to the recording, the Offender Manager can be heard to say that there was work outstanding, Building Choices, which could be undertaken in the community or in closed conditions but in her opinion the Applicant should undertake it whilst in custody. With regard to the GPS data, the panel I believe were reflecting that whilst the Applicant did not challenge the readings given, he did not accept the interpretation of those readings by the Offender Manager; the panel states that the Applicant “ continued to maintain he was out walking despite the high readings ”. With regard to the visit, whether or not the accommodation had been checked would not make any material difference to the panel’s conclusions which were based on many other factors. Ground 3 - Irrationality 31.The submissions take issue with the panel’s consideration of recall and Snapchat evidence. These were both matters dealt with in some detail at the hearing and in the decision letter. The Applicant’s disagreement with those conclusions amount to an attempt to re-argue issues with which he does not agree. The panel’s conclusion that the Applicant has returned to his previous lifestyle was not a claim that he had returned to violent robberies but rather that he had returned to a life of criminality. Nor is it right to say, as the application does, that taking without consent, the new offences, causes no harm to individuals. The panel’s conclusions are clear and reasoned. The application does not state in what way the conclusions are irrational. The bar for irrationality is a high one which this case does not meet. Decision 32.For the reasons I have given, I do not consider that the decision was irrational or procedurally unfair and accordingly the application for reconsideration is refused. Barbara Mensah 07 November 2025