Saleem, Application for Reconsideration [2025] PBRA 251 (14 November 2025) [2025] PBRA 251
[1]This is an application by Saleem (the Applicant) for reconsideration of a decision of an oral hearing panel dated the 13 October 2025. The decision was 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 drafted by the Applicant’s legal adviser, the panel decision and the representations by the Secretary of State (the Respondent). Request for Reconsideration[4]The application for reconsideration is dated 31 October 2025.[5]The grounds for seeking a reconsideration are as set out below. Background[6]The Applicant is serving an extended sentence of imprisonment. The determinate period of the sentence is 13 years. The extension period is five years. The offences were wounding with intent to do grievous bodily harm (S18). There are also convictions for possessing an offensive weapon and assault occasioning actual bodily harm. The Applicant became involved in a physical altercation with a neighbour. During the course of that altercation, he used a weapon to stab the neighbour in the stomach causing serious injury. The Applicant was 38 years old at the time of sentence. He was 48 years old at the time of the oral hearing. The Applicant became eligible for release by the Parole Board on 24 September 2023. His conditional release date is January 2028. Current parole review[7]The Applicant’s case was referred to the Parole Board by the Respondent to consider whether the Applicant should be subject to a direction for release.[8]A note from the probation officer in this case indicated that the Applicants appeal against deportation had been refused and that no further permission to appeal had been sought by the Applicant. The Applicant had told the oral hearing panel that he intended to appeal.[9]The oral hearing took place on 6 October 2025. The oral hearing panel consisted of two independent members of the Parole Board including an independent chair of the Parole Board. The panel considered a dossier in this case as well as hearing evidence from a Community Offender Manager (COM), a Prison Offender Manager (POM) and a prison commissioned psychologist. The Applicant gave evidence. The Applicant was supported by an interpreter and was legally represented. The Relevant Law[10]The panel correctly sets out in its decision letter dated 13 October 2025 the test for release. Parole Board Rules 2019 (as amended)[11]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)).[12]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[13]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.[14]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. ”[15]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).[16]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.[17]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.[18]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[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.[20]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.[21]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. Other[24]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[25]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.[26]The Respondent offered no representations. Grounds and Discussion Ground 1[27]The Applicants legal adviser submits that the panel relied too heavily upon the views of the POM and the COM, both of whom were not recommending release; rather than relying on the views of the prison commissioned psychologist (who was recommending release). The argument adduced is that the POM and COM are not clinical specialists in the formulation of violence risk. It is therefore submitted that less weight should have been attached to their views and greater weight to the view of the psychologist because of the psychologist’s specialism. Discussion[28]The panel set out, in its decision, the progress made by the Applicant during the course of his prison sentence. The Applicant had a mix of both negative and positive reports about his behaviour generally in prison. On a number of occasions there had been concerns about misuse of drugs which was a risk factor in his case. There had also been instances of a lack of self-control and evidence that the Applicant had not been able to demonstrate an ability to manage his emotions in a way which would not lead to hostility and possibly violence. The panel set out at paragraph 4.5 of the decision the rationale for their conclusions. The panel acknowledged that the Applicant was hoping not to use drugs and had managed periods of abstinence, however the panel concluded that abstinence was highly dependent upon external support and the particular wing in the prison which supported his ability to remain abstinent. The panel took the view, upon the evidence that they heard, that the Applicant would struggle to manage his difficulties with drugs particularly as he was faced with a number of stressors concerning his ongoing immigration status, uncertainty about where he would live and whether he could obtain work and be financially supported. The panel view was that relapse remained a high possibility which would increase instability and the risk of harm.[29]The panel noted that the Applicant may be able to manage abstinence under the close monitoring of Approved Premises, however the panel were obliged to look at risk in the longer term and were not confident that he would be able to manage misuse of drugs in the longer term.[30]The panel also took the view that although the risk of serious harm was not assessed by the panel as imminent, the panel took the view that the potential to increase risk would occur quickly and without necessarily evident warning signs being demonstrated. The panel took the view that the identification of warning signs would be reliant upon self-disclosure and relied therefore upon internal controls. The panel’s overall view was that managing the Applicants risk would be highly reliant upon external controls and his own honesty. The panel had limited confidence that the Applicant had firmly embedded internal controls.[31]The panel also noted that the Applicant’s position generally was unstable because of the question of his immigration status and the fact that he was subject to a deportation order. This state of affairs, could lead to offending or conflict with others due to emotional instability. The panel took the view that this elevated the risk of serious harm in the light of the Applicant’s index offence and history.[32]The panel also noted in their decision the fact that the Applicant’s consequential thinking skills and ability to cope were questionable. The dossier revealed that the Applicant had been detected as using drugs at a time when he was emotionally upset. His emotional state had been as a result of his appeal against deportation being refused. In essence the panel took the view that the Applicant’s ability to manage his emotions and stress and to avoid drifting into drug misuse was extremely fragile, accordingly the panel took the view that this impacted upon the Applicant’s risk of serious harm.[33]The panel noted the view of the prison instructed psychologist which appeared to be that drug misuse, in the view of the psychologist, did not correlate with violent behaviour. The view of the psychologist was that a return to drug misuse might lead to acquisitive criminal behaviour but not necessarily to violence. The POM and COM in this case took the view that relapse into drug misuse would increase the likelihood of reoffending which would lead to potential conflict situations and impaired judgement and thinking. Accordingly, the view of the POM and COM was that there was a link between a deterioration in abstinence from drugs and a potential risk of violence. The prison instructed psychologist took a different view and indicated that in her determination the drug misuse by the Applicant was not a catalyst for violence but was a form of “ self-harming ” behaviour. The psychologist took the view that the Applicant had good insight into the triggers for his substance misuse and also had the ability to manage conflict.[34]The Applicant’s legal adviser argues that greater weight should have been applied to the views of the prison commissioned psychologist on the basis that the psychologist had more expertise than the COM and POM.[35]The assessment of risk is a holistic enterprise. I am not persuaded that there is a hierarchy of expertise so far as assessing the risk of violence in the future is concerned. The assessment requires an analysis of a number of factors. Expertise is offered by psychologists particularly in the realm of Structured Professional Judgement and the use of psychological tools as well as extensive experience in providing recommendations and reports. However other experts such as probation officers and prison officers also have extensive experience of the managing and handling of prisoners and the assessment of their potential for violence. Equally the panel itself has such experience and is required to balance the competing views of various professionals and to reach their own assessment. In this case the panel acknowledged that the decision relating to risk was finely balanced. Such decisions are often finely balanced and rely upon the panel to carefully analyse the various competing views and take account of the Applicant’s evidence and submissions by the Applicants legal adviser.[36]The panel had the advantage of an extensive dossier of reports and other material they also had the advantage too, of seeing and hearing the Applicant as well as the witnesses. They also had the advantage of submissions from the Applicant’s legal adviser. Where there is a conflict of opinion it is plainly a matter for the panel to determine which opinion they preferred, provided the reasons given are soundly based on evidence, as well as rational and reasonable at least not so outrageous in the sense expressed above - it would be inappropriate to direct that the decision be reconsidered unless it is manifestly obvious that there are compelling reasons for interfering with that decision.[37]Panels of the Parole Board are not obliged to adopt the opinions and recommendations of professional witnesses. It is their responsibility to make their own risk assessments and to evaluate the likely effectiveness of any risk management plan proposed. They must make up their own minds on the totality of the evidence that they hear, including any evidence from the Applicant. They would be failing in their duty to protect the public from serious harm (while also protecting the prisoner from unnecessary incarceration) if they failed to do just that - it was observed in DSD that panels have the expertise to undertake this task.[38]The panel were obliged to explain clearly its reasons for its decision. In my determination the panel explained clearly why they had concluded that the Applicant’s risk of serious harm remained at a level where it was necessary to protect the public by continuing confinement.[39]I am not persuaded that the panel’s decision could be characterised as being so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it. The decision was explained by the panel and based upon credible evidence contained within the dossier and elicited from the witnesses. For that reason, I do not direct reconsideration on this ground. Ground 2[40]It is submitted on behalf of the Applicant’s legal adviser that the panel failed to give appropriate weight to the professional clinical judgement of the prison instructed psychologist and that this amounted to procedural unfairness because the decision-making process did not treat the expert risk assessment as the primary source of evidence regarding violence risk. Discussion[41]As indicated above I do not recognise that there exists a hierarchy of expertise in relation to assessing the risk of violence. The assessment remains a holistic exercise and requires the consideration of a number of factors including the use of psychological assessment tools and structured professional judgement by a psychologist. Psychologists will also offer extensive practical experience in the assessment of risk. However, the assessment also takes account of the evidence of the COM and POM both of whom have expertise in the area of managing risk and assessing violence. As noted above Parole Board panels also have experience of the assessment of risk.[42]The essential requirements of a panel’s decision is elucidated in the case of Wells, namely that the panel are obliged to ensure that account was taken of the totality of the evidence adduced by both parties. The panel’s decision must be explained clearly, and its reasons should be supported by credible evidence justifying its conclusions. In my determination the panel in this case explained clearly the reasons why they had reached their conclusion and that conclusion was reached upon the basis of credible and rational evidence. Ground 3[43]It is argued by the Applicant’s legal adviser that the panel relied too heavily upon the need for internal controls to manage risk. It is argued that the test for release does not require internal coping skills to be “ fully developed ” before release. It is argued that the panel applied a higher than statutory threshold namely the need for both internal and external controls which does not reflect the statutory test for release. Discussion[44]It is well established that the fundamentals for the assessment of risk will rely upon both internal and external controls. External controls such as licence conditions, supervision and the input from external agencies will invariably be reflected in the written risk management plan.[45]However, there will also be reliance upon a prisoner’s internal controls - such as honesty and openness, learning from behavioural programs and any adjustments in thinking and approach to violence or other offending, demonstrated by a prisoner. In my determination an essential of assessing future risk is a careful analysis of both internal and external controls as well as issues such as reintegration into the community and development of a non-offending identity.[46]I am not persuaded that the panel acted irrationally in making a careful assessment of the presence of both external and internal controls in reaching their final conclusion relating to risk. In my determination the decision set out the basis upon which the panel made their analysis of internal and external risk indicators. The panel in my determination appropriately considered the presence or absence of those controls in reaching a determination as to the risk of serious harm relating to the Applicant. I am also not persuaded that there was undue weight based upon the need for internal controls. This was a case where it was essential that the Applicant was able to control his emotions and to avoid the circumstances which could lead to an elevation of risk similar to that which was reflected in the index offending. I do not determine therefore that this ground amounts to irrationality in the sense set out above. Decision[47]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. HH Stephen Dawson 14 November 2025