Grant, Application for Reconsideration [2025] PBRA 249 (21 November 2025) [2025] PBRA 249

PBRA
Grant, Application for Reconsideration [2025] PBRA 249 (21 November 2025)
[2025] PBRA 249 · 2025-09-01
[1]This is an application by Grant (the Applicant) for reconsideration of a decision of a Member Case Assessment (MCA) panel member dated 1 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 dossier, the application for reconsideration submitted by the Applicant's legal adviser and the representations 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.[6]I requested further information in this case from the Parole Board in relation to any request for representations from the Applicant or his legal adviser which had been sent by the Board. The Board administrators responded with details of the request sent by them. Background[7]The Applicant is serving a sentence of life imprisonment. His tariff expired in October 2006. He was 20 years old when sentenced. He was 43 years old at the time of the panel decision. There are two index offences. The first was rape. The Applicant approached the victim at a bus stop, threatened her with a kitchen knife, and committed the offence of rape at knifepoint. Two hours later he targeted the second victim. This was a young woman who was walking home. He grabbed her by the wrist and pulled her down a bank at the side of a road. She was able to break free and escape.[8]This was the tenth review of the Applicant's sentence. Current parole review[9]The referral from the Secretary of State requested that the Parole Board consider whether the Applicant should be released.[10]The matter was considered by a single Parole Board member in the MCA process. The single member considered the dossier. The single member concluded that this was a matter which could be determined on the papers. The single member noted that the Applicant had been in an open prison for a fairly short period of time and was likely to be undergoing testing relating to the management of risk whilst he was in the open prison. The Relevant Law[11]The panel correctly sets out in its decision letter dated 1 September 2025 the test for release. 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)). Irrationality 14.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. 15.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. " 16.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) . 17.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. 18.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. Procedural unfairness 19.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 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. Other[24]In the cases of Osborn v Parole Board [2013] UKSC 61 , the Supreme Court comprehensively reviewed the basis on which the Parole Board should consider applications for an oral hearing. Their conclusions are set out at paragraph 2 of the judgment. The Supreme Court did not decide that there should always be an oral hearing but said there should be if fairness to the prisoner requires one. The Supreme Court indicated that an oral hearing is likely to be necessary where the Board is in any doubt whether to direct one; they should be ordered where there is a dispute on the facts; where the panel needs to see and hear from the prisoner in order to properly assess risk and where it is necessary in order to allow the prisoner to properly put his case. When deciding whether to direct an oral hearing the Board should take into account the prisoner's legitimate interest in being able to participate in a decision with important implications for him. It is not necessary that there should be a realistic prospect of progression for an oral hearing to be directed.[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. "
[26]Omitting to put information before a panel is not a ground for procedural unfairness, as has been confirmed in the decision on the previous reconsideration application in Williams [2019] PBRA 7 . This is the case even where the information, had it been before the panel, would have been capable of altering its decision, or prompting the panel to take other steps such as putting the case off for an oral hearing where the new information and its effect on any risk assessment could be examined. This is because procedural unfairness under the Rules relates to the making of the decision by the Parole Board, and when making the decision the panel considered all the evidence that was before them. There was nothing to indicate that further evidence was available or necessary, and so there was nothing to indicate that there was any procedural unfairness. Reconsideration as a discretionary remedy[27]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 Respondent[28]The Respondent indicates that the Applicant's Prison Offender Manager (POM) in this case has reported to the Respondent that, at the outset of the referral, a copy of the Parole Board dossier was offered to the Applicant, but that the Applicant declined to accept the copy as he indicated that he did not need one.[29]The Applicant's POM has further indicated to the Respondent that the written MCA decision, by the Parole Board member, was given to the Applicant on 3 October 2025. The Secretary of State indicates that the POM had been on annual leave. Hence the delay in sharing the decision with the Applicant.[30]The Respondent also indicates that the decision letter had been issued to the POM and the Offender Management Unit (OMU), by the Parole Board, on 1 September 2025 by email. The Respondent indicates however that the decision was not given to the Applicant because of the absence of the POM. The Respondent acknowledges that the opportunity for the Applicant to apply for an oral hearing had passed by the time the Applicant had been given the decision (the date by which any application for an oral hearing had to be made was 29 September 2025). Discussion Ground[31]The Applicant's legal adviser submits that the Parole Board proceedings in this case were procedurally flawed because the Applicant was not provided with a dossier by the prison, and the Applicant was not aware of the review of his case by a Parole Board member in the course of the Member Case Assessment (MCA) procedure. Discussion[32]On 28 March 2025 the Secretary of State referred this case to the Parole Board to consider whether the Applicant should be directed for release. If not directed for release the Parole Board were asked to consider whether there should be a recommendation that the Applicant be transferred to an open prison.[33]I have made enquiries of the Parole Board in relation to any request for representations. On 18 July 2025 an email was sent by the Parole Board to the prison indicating that the Parole Board were preparing to refer this matter to a Parole Board member to begin the MCA process. The Parole Board indicated that the Applicant (or his legal adviser) should make any representations by 15 August 2025. The email also indicated that if no representations were received the matter would be dealt with through the MCA process on the basis of the existing information on the dossier.[34]I have not been informed whether that email (sent on the 18 July) was passed by the prison to the prisoner.[35]The Applicant's legal adviser indicates that the Applicant (the client) contacted his legal adviser on 30 September 2025 to discuss the review of his case which was thought to be forthcoming. I am not advised as to what contact, if any, occurred between the Applicant and his legal adviser between 18 July 2025 and 30 September 2025.[36]On 6 October 2025 the Applicant's legal adviser indicates that the Applicant contacted his legal adviser. He informed his legal adviser that he had been told by the POM at the prison (on 3 October 2025) that the Parole Board had completed the MCA procedure and that there was to be a forthcoming oral hearing. This information, if provided by the POM, would have been incorrect.[37]On 6 October 2025 the Applicant's legal adviser contacted the Applicant's POM and indicated that the Applicant had not been provided with a copy of his dossier by the prison. The Applicant's legal adviser also said that no request for representations had been received from the Parole Board (as noted above, the request for representations had been sent, by email, by the Parole Board to the prison on the 18 July 2025).[38]On 7 October 2025 the Applicant's POM wrote to the Applicant's legal adviser to say that the Applicant had received a decision of the Parole Board. He had had not been made aware of it until the decision had been finalised, accordingly the period available to make representations (arguing for release or an oral hearing) had lapsed.[39]As noted above, subsequent to the submission of this application for reconsideration, the Respondent has indicated that the Applicant was apparently offered a copy of his Parole Board dossier (by the POM) but declined to accept it on the basis that he did not need a copy (I am not advised of the date that the dossier was offered).[40]The Respondent also submits that the Applicant was informed by the prison, on 3 October 2025, of the decision of the Parole Board. The decision, as noted above, had been received by the prison on 1 September 2025. The prison has indicated that the Applicant's allocated POM was on annual leave. The prison had received the decision of the Parole Board by email on 1 September 2025, however the prison, because of the POM being on leave, had failed to promptly convey the decision to the prisoner.[41]The opportunity to challenge the Parole Board decision, in accordance with the Parole Board Rules, by way of requesting an oral hearing had expired on 29 September 2025. The Applicant was therefore not able to submit an application for a review of the decision.[42]Rule 18 of the Parole Board Rules 2019 governs the procedure relating to representations to the Parole Board. A party wishing to make representations to the Board must serve them on the Board within four weeks of the case being referred to the Board. It is apparent therefore that the procedural requirements so far as the Parole Board were concerned were to allow the parties a four week period in order to make representations. That four week period was granted as is noted above.[43]Whilst having some sympathy with the Applicant, the position relating to the Parole Board is clear. Procedural unfairness under the rules relates to the making of the decision by the Parole Board. When making that decision the panel had received no representations from the Applicant and considered all the evidence that was before it. There was nothing to indicate that further representations or evidence would be available or required and there was therefore nothing to indicate any procedural unfairness. The Parole Board had complied with the rules, as there had been a request for representations, and a four week period pursuant to the rules.[44]The Parole Board correctly requested representations at an early stage and gave sufficient time for those representations to be submitted. The Parole Board received no representations and therefore the panel member proceeded on the basis that no representations had been received. That basis was procedurally correct.[45]In the circumstances therefore I do not determine that the Parole Board or the MCA panel member acted with procedural unfairness in this case and accordingly the application for reconsideration is declined. Decision[46]For the reasons I have given, I do not determine that the decision was procedurally unfair and accordingly the application for reconsideration is refused. HH S Dawson 21 November 2025