James, Application for Reconsideration [2025] PBRA 246 (12 November 2025) [2025] PBRA 246

PBRA
James, Application for Reconsideration [2025] PBRA 246 (12 November 2025)
[2025] PBRA 246 · 2025-10-16
[1]This is an application by James (the Applicant) for reconsideration of a decision dated 16 October 2025 not to direct his release. The decision was made by a panel following an oral hearing.[2]Rule 28(1) of the Parole Board Rules 2019 (as amended) (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 decision, the dossier (consisting of 380 numbered pages), and the application for reconsideration. Background[4]On 31 January 1997, the Applicant was convicted of murder and received a mandatory life sentence with a minimum term of 15 years less time spent on remand. His tariff expired in March 2011.[5]The Applicant was 21 years old at the time of sentencing and is now 50 years old.[6]The Applicant has been released and recalled five times on this sentence, having been recalled in 2012, 2016, 2020, 2023 and, most recently, in 2024.[7]The Recall (Part A) Report (dated 21 November 2024) within the dossier states that the Applicant was recalled in connection with purported breaches of two additional licence conditions, namely: a) Entering an exclusion zone without prior approval; and b) Failure to co-operate the GPS Trail Monitoring as directed.[8]The Part A goes on to explain the rationale behind each purported breach: a) Police attended the address of the Applicant’s ex-partner after she reported that he had been outside her address with another male, shouting through the letter box and walking up and down the road outside her home. She said no direct threats were made and did not wish to provide a statement, but she wanted the Applicant to stop. b) On 14 November 2024, the Applicant appeared no longer to have his GPS tag on. He informed the Electronic Monitoring Service (EMS) that it came off while he was in the shower. He said he had called the Probation Service to report this, but there was no record of such calls.[9]The Post Recall Risk Management (Part B) Report (dated 12 December 2024) within the dossier notes the Applicant’s position in respect of the two purported breaches: a) The telephone call from his ex-partner to the police was taken out of context and it was the Applicant’s son that shouted through the letterbox rather than the Applicant himself. He also stated that he was walking along an adjacent road from which he was not excluded. b) The Applicant denied that his GPS tag came off and this must have been a mix up with a previous occasion on which his tag fell off. Request for Reconsideration[10]The application for reconsideration has been submitted by solicitors on behalf of the Applicant. It argues that the decision was irrational and/or contained an error of law.[11]The submissions are supplemented by written arguments to which reference will be made in the Discussion section below. Current Parole Review[12]The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) in December 2024 to consider whether to direct his release. This is the Applicant’s first parole review since his fifth recall.[13]The case proceeded to an oral hearing on 8 October 2025, before a two-member panel. The panel heard oral evidence from the Applicant, the Prison Offender Manager (POM), the Community Offender Manager (COM) and a forensic psychologist commissioned by HMPPS. The Applicant was legally represented throughout the hearing. There was no professional support for release.[14]The panel concluded that the statutory test for release was not met and made no direction for release. The Relevant Law[15]The Parole Board will direct release if it is no longer necessary for the protection of the public that the prisoner should be confined. Parole Board Rules 2019 (as amended)[16]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)).[17]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)).[18]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[19]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 (CA) 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.[20]In R(DSD and others) v Parole Board [2018] EWHC 694 (Admin) the Divisional Court applied this test to Parole Board hearings in these words (at [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 .”
[21]In R(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 the Divisional Court in R(Secretary of State for Justice) v Parole Board [2022] EWHC 1282 (Admin).[22]As was made clear by Saini J in Wells, 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.[23]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.[24]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. Error of law[25]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/orf. improperly delegates decision-making power.[26]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 Respondent[27]The Respondent has advised no representations will be offered in response to this application. Discussion[28]The Applicant first submits that the panel made an error of law in its assessment of the appropriateness of the recall. Reference is drawn to R(Calder) v Secretary of State for Justice [2015] EWCA Civ 1050 .[29]Calder sets out two conditions developed by case law which the Respondent must satisfy to establish the lawfulness of the recall. First, the Respondent must establish that he could on reasonable grounds conclude that the prisoner was in breach of his licence conditions (at [21]). Second, that recall was necessary in all the circumstances (at [27]).[30]It is argued that the panel identified Calder as the correct authority, but then applied a subjective “ precautionary ” standard stating that it could “ understand why probation felt a need to be cautious ”.[31]The panel’s reasoning is set out in paragraph 4.2 of its decision as follows: Having reviewed the written and oral evidence, the panel considered recall to be appropriate, given the further allegation of domestic abuse, and the information shared by police that [the Applicant] may have removed his tag. The panel accepted that the issue with the tag was subsequently established to be inaccurate. However, given severity of the index offence and the pattern of allegations relating to domestic concerns which had featured in all previous recalls, the panel could understand why probation felt a need to be cautious and act swiftly given the information provided by the police, which was directly relevant to perceived risk.[32]In this paragraph, the panel does not explicitly set out its reasons against each limb of Calder . Although not doing so makes the job of determining the panel’s application of the law less straightforward, the panel does not have to name either limb of the Calder test, provided it is clear from its reasons that it has applied the test correctly to each of the purported breaches of licence advanced at the time of recall.[33]With regard to the first limb, I find that the panel did properly consider the evidence before the Respondent at the time of recall , specifically that there was evidence of an issue with the Applicant’s GPS tag (albeit one that was later shown to be incorrect), and that this was enough for the Respondent reasonably to conclude that the GPS tag condition had been breached. The evidence relating to the purported breach of exclusion zone was less compelling. The panel did not address the exclusion zone allegation discretely, and its reasoning on that aspect cannot readily be discerned.[34]While the panel was plainly aware of Calder , its reasoning does not explicitly demonstrate that it applied the two-limb test required. The panel’s endorsement of probation’s “ cautious ” approach does not address the core question of whether recall was necessary in the sense required by Calder , that is, whether no lesser response could safely manage risk.[35]Of course, in reaching this conclusion, I may be doing the panel a grave disservice. It may have been that it considered Calder thoroughly and correctly in determining the appropriateness of the recall. It may have been that it used “ cautious” to mean “ necessary in all the circumstances, particularly given the Applicant’s history of multiple recalls” . Unfortunately, that is not immediately apparent on the face of its reasons, and therefore I cannot be satisfied that it applied Calder correctly. This would constitute an error of law. This conclusion does not imply that recall was necessarily unlawful, but that the panel's reasoning did not demonstrate the structured legal approach required under Calder . I find this to have been an error of law.[36]However, it does not invariably follow that if there is an error of law in a decision then an application for reconsideration will be granted.[37]Section 31(3D) of the Senior Courts Act 1981 provides that the High Court must refuse permission to apply for judicial review if it appears to the Court highly likely that the outcome for the applicant would not have been substantially different even if the conduct complained of had not occurred (unless there is an exceptional public interest in doing so). Reconsideration, like judicial review, is a discretionary remedy and, applying the same principles, if I am satisfied that an error did not make a substantial difference to the outcome for the Applicant, then the application is likely to fail.[38]Putting the matter of the panel’s application of Calder to one side, its overall decision not to direct release did not, in substance, turn on the appropriateness of recall. In any event, even if the panel found the recall to have been inappropriate, it does not inexorably follow that the panel must direct release. The decision records further areas of concern, together with the unanimous view of all witnesses that the Applicant had core risk reduction work outstanding. As it does not seem to me that the decision would be highly likely to have been substantially different even if the error that I have identified above had not occurred, and as I can see no exceptional public interest in directing reconsideration, I decline to do so.[39]The Applicant also argues that the panel’s decision was irrational largely mirrors the asserted error of law and depends upon the same factual basis.[40]The threshold for irrationality is high. The question is whether the decision was one which no reasonable panel, properly directing itself on the law and the evidence, could have reached. Having reviewed the decision in full, I am satisfied that the panel’s conclusion was one that was rationally open to it. The panel heard oral evidence from all key witnesses, evaluated the credibility of the competing accounts, and explained its reliance on patterns of concern and professional assessments in determining that risk remained too high for release. Although its reasoning on the lawfulness of recall was erroneous in law, its overall conclusion that the Applicant had not yet demonstrated sufficient progress or stability to meet the statutory test was plainly supported by the evidence. The decision was therefore not irrational. Decision[41]For the reasons set out above, I am satisfied that the panel’s decision remains lawful and sustainable on the evidence before it . The application for reconsideration is therefore refused. Stefan Fafinski 12 November 2025