Hunter, Application for Reconsideration [2025] PBRA 247 (12 November 2025) [2025] PBRA 247

PBRA
Hunter, Application for Reconsideration [2025] PBRA 247 (12 November 2025)
[2025] PBRA 247 · 2025-09-25
[1]This is an application by Hunter (the Applicant) for reconsideration of a decision of the Parole Board, following a hearing on 25 th September 2025, not to direct his 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. The papers comprise:a. The dossier comprising 408 pages including the decision, the subject of this application.b. Grounds dated 20 th October 2025 submitted on behalf of the Applicant. Request for Reconsideration[4]The application for reconsideration of the case submitted by the Applicant’s legal representative can be summarised as follows:a. Paragraphs 3-26 are concerned with the issue of the correctness or otherwise of the recall.b. Paragraphs 27-34 are concerned with the rationality of the decision. Background[5]The Applicant is now 32 years old. In November 2009 when he was 16 years old he was convicted of a number of offences including aggravated vehicle taking, robbery, inflicting grievous bodily harm, and causing death by dangerous driving, committed on different dates in April of the same year. He was sentenced to Detention for Public Protection with a minimum term of 2 years and 55 days. His “tariff” expired in August 2012. Since then he has been released on licence on a number of occasions and recalled (or further sentenced) to prison. Most recently his release was directed by the Parole Board in June 2024. After a number of alleged breaches of the terms of his licence he was recalled once again. Current parole review[6]The case was referred to the Parole Board by the Secretary of State on 14 January 2025.[7]After the hearing in September 2025 the panel did not direct his re-release but recommended to the Secretary of State for Justice that he be transferred to open conditions. The Relevant Law Parole Board Rules 2019 (as amended)[8]Rule 28(1) of the Parole Board Rules provides the types of decision which are eligible for reconsideration. This is an eligible decision. Irrationality[9]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.[10]In R(DSD and others) -v- the Parole Board 2018 EWHC 694 (Admin) the Divisional Court set out the test for irrationality to be applied in judicial reviews of Parole Board decisions. It said, 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. ”
[11]This test was set out by Lord Diplock in CCSU v Minister for the Civil Service [1985] AC 374 . The Divisional Court in DSD went on to indicate that in deciding whether a decision of the Parole Board was irrational, due deference had to be given to the expertise of the Parole Board in making decisions relating to parole. The Board, when considering whether or not to direct a reconsideration, will adopt the same high standard for establishing “irrationality”. The fact that Rule 28 contains the same adjective as is used in judicial review shows that the same test is to be applied.[12]The DSD case is an important case in setting out the limits of a rationality challenge in parole cases. Since then another division of the High Court in R (on the application of Secretary of State for Justice v Parole Board [2022] EWHC 1282 Admin) (the Johnson case) adopted a “more modern” test set out by Saini J in R (Wells) v Parole Board [2019] EWHC 2710 (Admin) .[13]In the Wells case Saini J set out ”a more nuanced approach” at paragraph 32 of his judgment when he said “ A more nuanced approach in modern public law is 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”[14]It must be emphasised that this is not a different test to the Wednesbury reasonableness test. In the Wells case Saini J emphasised at paragraph 33 that “this approach is simply another way of applying” the Wednesbury irrationality test.[15]What is clearly established by all the authorities is that it is not for the reconsideration member deciding an irrationality challenge on a reconsideration - or a judge dealing with a judicial review in the High Court - to substitute his or her view for that of the panel who had the opportunity to see the witnesses and evaluate all of the evidence. It is only if a reconsideration member considering the application decides that the decision of the panel did not come within the range of reasonable conclusions that could be reached on all of the evidence, that he or she should allow the application.[16]Panels of the Board are wholly independent and are not obliged to adopt the opinions or recommendations of professional witnesses. The panel’s duty is clear and it is to make its own risk assessment and to evaluate the likely effectiveness of any proposed risk management plan. That will require a panel to test and assess the evidence and decide what evidence they accept and what evidence they reject.[17]Once that stage is reached, following the guidance provided by such cases as Wells, a panel should explain its reasons whether or not they are going to follow or depart from the recommendation of professional witnesses.[18]The giving of reasons by a decision maker is “one of the fundamentals of good administration” ( Breen v Amalgamated Engineering Union [1971] 2 QB 175). When reasons are provided, they may indicate that a decision maker has made an error or failed to take a relevant factor into account. As I understand the principles of public law engaged in deciding this application, an absence of reasons does not automatically give rise to an inference that the decision maker has no good reason for the decision. Neither is it necessary for every factor to be dealt with explicitly for the reasoning to be legally adequate in public law.[19]The way in which a panel fulfils its duty to give reasons will vary depending on the facts and circumstances in any particular case. For example, if a panel is intending to reject the unanimous evidence of professional witnesses then detailed reasons will be required. In Wells at paragraph 40 Saini J said:
“The duty to give reasons is heightened when the decision maker is faced with expert evidence which the panel appears, implicitly at least, to be rejecting.”
[20]When considering whether this decision is irrational, I will keep in mind that it is the decision of the panel who are expert at assessing risk; importantly it was the panel who had the opportunity to question the witnesses and to make up their own minds what evidence to accept. As I have already observed, it is extremely important that I do not substitute my judgment for theirs. My function is to decide whether the panel in this case erred in law or reached a decision that was Wednesbury unreasonable and/or procedurally unfair in some respect. 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. Other[24]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.[25]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. " The reply on behalf of the Secretary of State (the Respondent)[26]The Respondent has offered no representations in respect of this application. Discussion[27]Ground 1 is not one which can be considered for the purposes of a reconsideration application . Rule 28(1) of the Parole Board Rules makes it clear that the only decision amenable to the reconsideration procedure is the decision to recommend/not recommend release.[28]I set out Ground 2 in full: Ground 2: The decision not to direct release is unreasonable. 27. The Panel’s concluding remarks (beginning in section 4) emphasise from the outset that the risk assessment in this case is being approached with “caution”. The reason given for this is that this is [the Applicant’s] third recall and that he has been convicted of driving offences since the index offence. The Panel appear to be articulating from the outset a presumption against release. The fact the Panel rely on the third recall to justify applying a more cautious standard to the risk assessment emphasises the materiality of the flaws in its review of the recall decision set out in ground 1. 28. In fact, throughout the decision letter, there is evidence of an imbalanced application of the standard of proof.a. At 2.1, the Panel derive from a single incident relating to [the Applicant] listening to loud music in the bath a “general tendency” on his part to “to assume that the parameters of his supervision and licence should be set to suit him rather than the requirements of public protection.” There is simply no sufficient evidence to posit such a “general tendency” based on the facts at issue in the recall (nor in his custodial behaviour since recall). The decision letter does not disclose sufficient reasons for the positing of this general tendency.b. At 3.5, the Panel express concerns about the fact that [the Applicant] stated he would rely on support from his Evolve key worker, and provided a spontaneous ‘ordering’ of whom he would turn to if he needed help in the community. The Panel was concerned that probation was in the third position (after his Evolve Keyworker and his mother) in this spontaneous ordering. The Panel’s resulting concerns about “possible manipulation and/ or splitting” lack foundation. [The Applicant’s] COM herself suggested that she would rely on the expert support of Evolve key workers, who are themselves probation officers. The Panel cast what is in fact a positive point indicating reduced risk, i.e., [the Applicant’s] motivation to work with Evolve and get additional support from them, as a negative point suggestive of manipulative attitudes with probation. This is unreasonable and contrary to the weight of the evidence presented at the hearing and in the dossier. In order to disagree with the professional witnesses on such a crucial issues, it was incumbent on the Panel to provide clear reasons for doing so, which it failed to do in its decision letter.c. At 3.7, the Panel indicates that it is not “certain” that the risk management plan would be sufficient to manage [the Applicant’s] risk. It sets its lack of certainty on this issue against the evidence of the professional witnesses in attendance at the hearing. That is the wrong approach. The statutory test is to be applied on the civil standard—weighing the evidence and deciding on the balance of probabilities. The Panel was not required to be sure or certain before being satisfied that the plan would manage risk, nor should it have applied a more cautious approach than usual because of the prior recalls.[29]Taken in the round, the decision displays an unreasonable tendency to register points detrimental to [the Applicant’s] case on the barest of factual bases and despite the contradictory evidence given at the hearing, coupled with the application of an unjustified level of scepticism and excessively high standard of proof (i.e., seeking “certainty”) with regards to positive points, as evidenced by the Panel’s scepticism about the risk management plan presented at the hearing, which had the support of all the professional witnesses. All of this within what is expressly stated to be a “cautious” risk assessment, which statement is tantamount to articulating a strong presumption against release in the Panel’s approach to this case. This is not a reasonable approach to a Parole Board risk assessment. 29. As to paragraph 27 of the application: The panel was not just entitled but required to consider the past behaviour of the offender when assessing the risk to the public, if any, of directing the offender’s release. A “cautious” approach was entirely justified by the previous history of offending and non-compliance with conditions.[30]As to paragraph 28a: The panel did not reach its conclusion based on the single incident referred to. At paragraph 2.2-2.4 of the Decision Letter (DL) it lists a number of matters which concerned the panel, and deals fairly and clearly with the points no doubt well expressed on his behalf by his legal representative as well as the evidence given by the Applicant to the panel and the possible mitigation afforded by the ”difficulties” he was having with his then Community Offender Manager (COM).[31]As to Paragraph 28b: The panel was entitled to reach the conclusion it did on the question of the “ordering” of persons to whom he would turn for help if he needed it. While another panel might have come to a different view the panel’s conclusion was carefully explained and reasoned. The fact that the COM would consult the other two persons herself in the event that the offender came to her for help in the community cannot render the panel’s conclusion “irrational” on this topic. And even if it did a minor “irrationality” concerning the order in which an offender would or should prioritise his requests for help would not render the ultimate decision “irrational”.[32]As to Paragraph 28c: This ground comes close to suggesting that if the professional witnesses in a given case favour release, a direction to that effect should follow automatically. The passage quoted from paragraph 3.7 of the DL does not indicate that the burden and standard of proof in parole cases was misapplied. Paragraph 4.2. of the DL carefully sets out its reasons for its conclusion and the standard it has to apply. The Parole Board has to be satisfied - as set out in paragraph 4.2 of the DL - that there is “no more than a minimal risk that, were he to be released, he would commit a further offence the commission of which would cause serious harm.” The fact that a different panel might have come to different conclusions on one or more of the three particular matters set out in the grounds cannot of itself render a decision “irrational”. The eventual decision was carefully reasoned and passes the test set out above in the judgment of Saini J quoted at paragraph 19 of this decision, and thus falls far short of passing the test of “irrationality”. Decision[33]For the reasons I have given, I do not consider that the decision was irrational and accordingly the application for reconsideration is refused. David Calvert-Smith 12 November 2025