Grady, Application for Reconsideration by the Secretary of State for Justice [2025] PBRA 261 (16 December 2025) [2025] PBRA 261

PBRA
Grady, Application for Reconsideration by the Secretary of State for Justice [2025] PBRA 261 (16 December 2025)
[2025] PBRA 261 · 2025-10-12
[1]This is an application by the Secretary of State (the Applicant) for reconsideration of a decision of an oral hearing panel. The date of the oral hearing decision was 12 October 2025. The hearing took place on 24 September 2025. The decision of the panel was to direct the release of Grady (the Respondent).[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 consisting of 521 pages, the application for reconsideration drafted by the Applicant, the decision of the oral hearing panel and representations drafted by the legal adviser acting for the Respondent. Request for Reconsideration[4]The application for reconsideration is dated 5 November 2025.[5]The grounds for seeking a reconsideration are set out below. Background[6]The Respondent is serving a sentence of life imprisonment for offences of murder and attempted murder. The minimum tariff set by the judge was 15 years. The Respondent was 43 years old when sentenced. He was 57 years old at the time of the oral hearing. This was the second review of his sentence. The facts of the index offence were that the Respondent, during the period of suffering depression, alcohol misuse and domestic family difficulties was taking children to school by car. During the course of the journey, he deliberately entered a field near to the river Avon and then drove into the river. One child died and another was seriously injured. The Respondent escaped injury. Current parole review[7]The oral hearing panel consisted of an independent chair of the Parole Board, a psychologist member of the Parole Board, a judicial member of the Parole Board and a further independent member of the Board. The panel considered a dossier and evidence from a prison commissioned psychologist, a Community Offender Manager (COM), and a Prison Offender Manager. The Relevant Law[8]The panel correctly sets out in its decision letter dated 12 October 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)[9]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)).[10]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)).[11]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[12]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.[13]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. "[14]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).[15]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.[16]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.[17]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[18]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.[19]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.[20]The overriding objective is to ensure that the Applicant's case was dealt with justly. Error of law[21]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.[22]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[23]The test to be applied when considering the question of transfer to open conditions is the subject of a well-established line of authorities going back to R (Hill) v Parole Board [2011] EWHC 809 (Admin) and including R (Rowe) v Parole Board [2013] EWHC 3838 (Admin) , R (Hutt) v Parole Board [2018] EWHC 1041 (Admin) . The test for transfer to open conditions is different from the test for release on licence and the two decisions must be approached separately and the correct test applied in each case. The panel must identify the factors which have led it to make its decision. The criteria are now set out in the Secretary of State's Directions to the Parole Board of the 1 August 2023.[24]Before recommending the transfer of a prisoner to open conditions, the Parole Board must consider all information before it, including any written or oral evidence obtained by the Board and whether the following criteria are met: · the prisoner has made sufficient progress during the sentence in addressing and reducing risk to a level consistent with protecting the public from harm (in circumstances where the prisoner in open conditions may be in the community, unsupervised under licensed temporary release); and · the prisoner is assessed as presenting a low risk of abscond.[25]The Parole Board must recommend a move to open conditions only where it is satisfied that the two criteria are met.[26]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[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's legal adviser has submitted representations. The legal adviser submits that the decision was made by an experienced Parole Board panel. That the witnesses were supportive of release and gave evidence as to the reasons for recommending release rather than a transfer to an open prison. It is argued that the merits of the case were fully explored at the hearing by way of examination of witnesses. It is therefore argued that there is no ground for reconsideration in this case. Discussion Ground 1[29]The Applicant submits that it was irrational for the Parole Board to direct release " straight into the community ", whilst also stating within the decision that professionals had reservations about the Respondent's ability to cope in the Category D estate. Discussion[30]The Applicant, in submissions, acknowledges that all professional witnesses took the view that a period in open conditions would not be indicated or necessary for the Respondent to progress into the community.[31]However, it is submitted (by the Applicant) that the fact that professional witnesses took the view that the Respondent might be destabilised by moving to an open prison, should have been a consideration to be applied to the question of stabilisation within the community. In particular, the Applicant submits that the professional witnesses were concerned that the Respondent would be potentially vulnerable to bullying in the open estate (as had occurred during his prison sentence because of the nature of his offending). It is further submitted that because of the posited vulnerability (to bullying) highlighted by the professional witnesses, similar concerns would apply in the community.[32]It is suggested that the Respondent, while in Approved Premises, would be in similar circumstances to an open prison (among potentially hostile other prisoners) and would thus be liable to be affected by bullying, a situation which might lead to decompensation and an escalation of the Respondent's risk. The complaint indicates that the panel failed to identify, in sufficient detail, how the Respondent would manage issues such as bullying if directly progressed to the community.[33]It is well established that Parole Board panels, when considering a referral from the Applicant, must initially consider whether the prisoner meets the statutory test for release. If that test is not met the panel must then go on to consider, in an appropriate case, whether the Respondent should be recommended for transfer to an open prison. The panel, in their decision, make reference to a number of matters which, in their view, were indicative of the Respondent's ability to manage emotions and by extension bullying and other poor behaviour by others. The Respondent had completed a four-year period in a Democratic Therapeutic Community at a previous prison. He had completed a substantial amount of work addressing emotional management relationships and coping. He had then moved to a prison which was a progressive regime.[34]The Applicant's guidance in relation to progressive regimes indicates as follows " 1.3 The purpose of a PR is to re-introduce the responsibilities, tasks and routines associated with daily life in the community, to test prisoners' readiness to respond appropriately to the trust placed in them, and to actively pursue activities and relations which support rehabilitation ."[35]Whilst at the progressive regime the panel noted, at paragraph 2.2 of their decision, that the Respondent was in the third stage of the regime. That third stage is applicable to prisoners who have a clear understanding of their risk factors and how to manage them. Also, the third stage is appropriate for prisoners who demonstrate an understanding of risk and are proactively managing and challenging their own thoughts and behaviour by utilising emotional management skills; self-management and using healthy coping skills; utilising effective problem-solving skills; recording achievements; positive thinking style; and managing relationships (including, but not limited to, intimate relationships).[36]The Respondent had also indicated to the panel that whilst at the progressive regime he felt he had learnt to build positive relationships and to be a positive role model for others. Those relationships would in part have been with other prisoners.[37]The Respondent had also, in the past, completed problem-solving diaries to consolidate treatment and continued to record problems where they occurred.[38]The prison instructed psychologist took the view that the Respondent had built resilience and was able to use consequential thinking to manage his emotions. He had also adopted strategies to address low self-esteem and mental health and understood the consequences of his actions. He was assessed to be able to rationalise thoughts and was able to give an example of dealing with a verbal altercation earlier in the year.[39]Whilst it is clear that the professionals sought to make a case for immediate release rather than a transfer to an open prison, the panel, appropriately in my determination, did not seek to make such a comparison. The panel addressed the progress of the Respondent in terms of behavioural work and general conduct and set that against the issue of risk and the test for release.[40]The panel's approach to the assessment of the Respondent's emotional resilience was not, therefore, on the basis of a comparison between coping within the community and coping in an open prison.[41]It is not unreasonable for the Applicant to suggest that the fears of the professionals regarding the Respondent's ability to manage issues (such as bullying in the community) were issues which the panel could not ignore. However, I am persuaded that the panel in this case adequately addressed those issues by setting out in detail the Respondent's progression through various prison regimes and behavioural undertakings.[42]The underlying reality in this case would be that because of the notoriety and seriousness of the offence (which involved the death of a young child) the Respondent would at all times be liable to negative reactions, bullying and other negative behaviour from some of those with whom he had contact.[43]The panel, in my view, focused upon the ability of the Respondent to manage risk in circumstances where he was emotionally challenged. The panel clearly set out in their decision the holistic assessment of strategies and learning which the panel concluded would enable the Respondent to manage risk in the community.[44]The panel made a careful assessment of both the internal controls the Respondent would be likely to harness, as well as referencing the substantial external controls by way of initial residence in Approved Premises and a substantial number of licence conditions associated with supervision.[45]I am not therefore persuaded that it can be said to be irrational for the panel to have directed release into the community rather than recommending transfer to an open prison.[46]Firstly, the panel were, as indicated above, required to consider release initially and to consider whether the Respondent's risk could be safely managed in the community so that he met the test for release.[47]Secondly, the panel could justifiably take account of the fact that the Respondent had been in a prison which is specifically designed as a regime to prepare prisoners for immediate release into the community. The progressive regime environment was devised by the prison service to enable certain categories of prisoner to progress in the final years of their sentence in a regime other than an open prison. It appears that the progressive regime was initially focused upon prisoners who were ineligible for transfer to an open prison, however eligibility is wider than that sector of the prison population. The progressive regime environment is designed as a mirror to an open prison without the advantages of temporary leave.[48]The Respondent was therefore residing with prisoners at a similar stage of sentence, and potential release, to those residing in an open prison. In the light of the fact that the Respondent appeared to progress well in that environment, I am not persuaded the panel were irrational in concluding that the Respondent had the necessary skills and resilience to manage risk even in situations where he may be subject to bullying or bad behaviour from prisoners or others.[49]The panel addressed the Applicant's reference in the correct sequence, namely focusing initially upon the question of release. In circumstances where a panel is satisfied that the criteria for release is met and that the prisoner's risk can be safely managed in the community without the potential for serious harm the panel are clearly bound to direct release. The direction would be obligatory even in circumstances where the panel might have felt that the prisoner himself may have benefited from a slower or phased process of release.[50]For these reasons therefore I am not persuaded that the panel's decision could be characterised as irrational in the sense set out above. Ground 2[51]It is submitted by the Applicant that the panel failed to explore the benefits of a more phased approach to release offered by an open prison and with a more structured access to the community. It is submitted that the panel should have assessed the benefits of the Respondent having time to develop future plans within the open prison environment. Discussion[52]As noted above, panels of the Parole Board are obliged to approach a referral from the Applicant by firstly addressing whether the prisoner's risk can be safely managed in the community, applying the test for release. The panel would be at fault if they were to begin their deliberations by considering the advantages of a slow process of release through an open prison rather than considering whether the Respondent's risk could be safely managed in the community. A reading of the decision indicates that the panel appropriately addressed the requirements of the referral by the Applicant. It is conceded that there is often a credible argument that a slow process of release, particularly for prisoners who have served a substantial period of time, may be beneficial to the prisoner and possibly to the public. Whilst an attractive argument, as indicated above, the requirements placed upon the Parole Board are specifically to approach the question of release and risk before turning to any potential advantages of an open prison. In reality the decision to recommend a transfer to an open prison cannot be engaged unless the panel have made a firm decision that the Respondent's risk cannot be safely managed in the community at the time of making the decision. It is clear in this case that the panel conscientiously assessed the Respondent's risk and concluded that the statutory test for release was met. Ground 3[53]It is submitted by the Applicant that the panel failed to consider the Respondent's risk in the longer term particularly in the light of the fact that the Approved Premises placement would only be for a period of 4-6 months. It is submitted that this is of particular concern because of the fact that professionals took the view that the Respondent would benefit from a period of psychologically informed support and stability following release. Discussion[54]The panel in their decision indicated that it would be preferable for a period in excess of the maximum of six months to be offered to the Respondent if he were to be released. However, it is a reality that pressures upon accommodation in the community no doubt indicated that a further period could not be guaranteed. The panel however did address the Respondent's future plans. The Respondent had demonstrated an interest in leisure activities. He was able to play the guitar and was involved in art and fitness within the prison and was intending to continue with those interests in the community. He had also been employed as a welder in the prison and was described as having " a passion for welding ". He had hoped to develop this interest into employment in the community. The Respondent had also completed a number of educational and vocational qualifications and had been working with an organisation to prepare a CV and resettlement plans.[55]I am therefore persuaded that the panel made a reasonable assessment of the Respondent's longer term arrangements in the community. In the current housing and employment environment, plans by prisoners are inevitably aspirational and somewhat limited. However, in my determination, there was relevant and sufficient evidence of resettlement arrangements suitable to ensure that risk was managed in the community. For this reason, I do not find that the panel acted irrationally by accepting that the resettlement plans which were proposed would be sufficient, on balance, to manage risk in the community. Ground 4[56]It is submitted by the Applicant that there remains an aspect of limited insight by the Respondent into the rationale for the offending behaviour. It is also submitted that the Respondent's claim, that the offence occurred without premeditation, lacks credibility and thus issues relating to risk still remain. Discussion[57]The Applicant cites a comment by the COM in this case namely that the Respondent " still struggles to understand why it happened ". This state of affairs, it is submitted impacts upon insight and challenges the Respondent's contention that his behaviour was lacking in premeditation.[58]It is of note, in this case, that the issue of premeditation and any rationale behind the grave offending has been the subject of discussion from the point of the conviction and were addressed in the judge's sentencing remarks. The sentencing judge, who clearly heard the trial, indicated that the sentence was imposed on the basis that the crimes committed by the Respondent were not planned over a lengthy time. The judge took the view, on the basis of all that had been adduced in the trial, that the intention to commit the offences appeared to have occurred at the very last moment, after the Respondent had driven with his children into a field by a river and just prior to his decision to drive his vehicle into a river causing the death and injuries which occurred.[59]In the light of the fact that the sentencing judge had reached a conclusion in relation to premeditation, there appears to be limited scope for speculating further. The conviction, as indicated by the judge, necessarily indicates an intention to murder the two children and possibly for the Respondent to end his own life. Inevitably the nature of the offending which involved a grossly criminal act resulting in the death and injury of children is unlikely to ever be explicable in logical and rational terms. However as noted above the panel took account of the substantial number of years that the Respondent had spent undertaking various therapeutic interventions aimed at understanding his offending and more particularly managing his risk in the future. The Applicant argues that the Respondent still demonstrates a lack of insight into the offending and that therefore the panel acted irrationally in concluding that direct release into the community was appropriate and again it is argued the panel should have considered a transfer to an open prison. Again, I am not persuaded by this argument, namely that a transfer to an open prison would have advanced any further understanding of the Respondent's insight. The panel in this case were clearly obliged to ensure that the Respondent's risk (which would include a level of insight) was at a level that would protect the public from serious harm. Having considered the decision and the dossier as a whole, I am satisfied that the panel considered the issue of insight and were satisfied that there was sufficient evidence to demonstrate that (accepting the limitations of self-report) there was an understanding of the Respondent's likely behaviour in the community which was sufficient to enable them to conclude that the Respondent's risk could be safely managed in the community. For this reason, I decline to order reconsideration in this case. Decision[60]For the reasons I have given, I do not consider that the decision was irrational and accordingly the application for reconsideration is refused. HH Stephen Dawson 16 December 2025