Caines, Application for Reconsideration by the Secretary of State for Justice [2025] PBRA 263 (05 December 2025) [2025] PBRA 263

PBRA
Caines, Application for Reconsideration by the Secretary of State for Justice [2025] PBRA 263 (05 December 2025)
[2025] PBRA 263 · 2025-10-13
[1]This is an application by the Secretary of State for Justice (the Applicant) for reconsideration of a decision of an oral hearing panel dated the 13 October 2025. The decision of the panel was to direct the release of Caines (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 application for reconsideration drafted on behalf of the Secretary of State, the dossier consisting of 649 pages, the decision of the oral hearing panel, and the representations by the Respondent's legal adviser. Request for Reconsideration[4]The application for reconsideration is dated 6 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 the offence of murder. The Respondent was sentenced on 24 May 1995. He was aged 34 when sentenced. The Respondent was sentenced to a life sentence with a minimum term of 12 years. His tariff expired in March 2006. He was released on licence in September 2011 following a Parole Board hearing. He was recalled on 7 November 2024. This was his first review since recall. Details of the index offence are set out below. Current parole review[7]The Respondent's case was referred to the Parole Board by the Applicant to consider whether release should be directed. In the event of release not being directed the Parole Board were asked to consider whether a recommendation for transfer to open conditions should be made. The Respondent was aged 64 at the time of the review. An initial hearing had been adjourned to secure further information from the police as noted below.[8]The referral was considered by a Parole Board panel consisting of an independent chair of the Parole Board and a further independent member. Evidence was given by the Prison Offender Manager (POM), the Respondent's Community Offender Manager (COM) and a further probation officer. The Respondent was legally represented. The Applicant was not legally represented at the hearing. The Respondent gave evidence. The Relevant Law[9]The panel correctly sets out in its decision letter dated 13 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)[10]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)).[11]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)).[12]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[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]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.[25]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.[26]The Parole Board must recommend a move to open conditions only where it is satisfied that the two criteria are met.[27]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[28]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 prisoner[29]The reply on behalf of the Respondent is detailed below. Discussion Background[30]The Respondent in this matter is serving a sentence of life imprisonment for the offence of murder. The Respondent was sentenced in May 1995. His tariff expired in 2006, and he was released following a Parole Board decision, on licence in September 2011.[31]In 2023 the probation service suspended the supervision element of the Respondent's licence.[32]The victim of the index offence was a person concerned in business dealings with the Respondent and others. The Respondent's conviction was based on a joint enterprise criminal offence. The Respondent was found, by a jury, to have been involved in an incident which resulted in the fatal stabbing of the victim. The exact nature of the dispute, or the reasons for the murder, were never clearly ascertained. The Respondent's position was that he had been forced by (unidentified) armed men to take them to the home of the victim. The Respondent's position was that, under duress, he had taken the men to the victim's house but had not been involved in the attack and had left before the attack and murder occurred. There were records at the time indicating that the Respondent had lied to the police before and after the murder. He had explained those lies as fear that his dishonest business practices might be revealed and also fear of threats from those who committed the murder.[33]When discussing the index offence with the current (2025) panel, the Respondent accepted that he had been involved in legal and illegal business dealings with the victim, and that large sums of money were involved. He denied being directly involved in the murder. He maintained the position that he had been present when the victim was threatened by another person (who was never named). The Respondent maintained that he had intervened, to try and end the struggle between the victim and the other person but had left before the victim was murdered.[34]The (2025) panel considered that the Respondent's explanations, when discussing the index offence, lacked credibility. The panel took the view that the Respondent was not open or transparent in his description of the index offence or his role before, during and after its commission.[35]Risk Factors - The panel listed a number of risk factors which they identified as being attributable to the Respondent including; pro-criminal attitudes and a willingness to break the law for financial gain; a preparedness to embark upon questionable business risks to make money; associating with individuals with pro-criminal attitudes and those prepared to inflict violence and use weapons; beliefs supporting the use of violence and weapons; manipulative and deceitful personality traits; and lack of remorse.[36]The panel also noted that, in 2011, a panel of the Parole Board had received an assessment from a psychologist who had tested the Respondent against a tool for assessing psychopathic traits and behaviours. The assessment confirmed that the Respondent had a number of pervasive character traits associated with psychopathy including conning; manipulation; and to a lesser extent glib superficiality and pathological lying.[37]Release on licence - Following the Respondent's release from prison, his compliance was thought by the probation service to be good, and as noted above he remained on life licence, but, in March 2023, his regular supervision by a probation officer, was suspended.[38]Whilst in the community he established a property services and maintenance business. He told the panel that this business involved a number of aspects including project management and the sale of electrical goods and building materials.[39]The panel attempted to investigate the structures and organisation of the Respondent's businesses. The panel secured a limited amount of information. It is clear that the Respondent had formed a large number of companies which were to an extent interlinked. The panel took the view that in general terms the Respondent was not overly candid or forthcoming about the trading arrangements in which he was involved. The panel particularly felt that the Respondent was far more experienced in business than he sought to present at the panel hearing. The panel took the view that the Respondent's approach was to provide as little information as he could, and that he was deliberately vague about his business activities. The panel found that the historical assessment of manipulative and cunning traits were evident at the panel hearing.[40]The Respondent was recalled to prison (in November 2024) following an alert from a police force who were investigating the Respondent's business activities. An investigation had apparently been ongoing for some time, although the probation service had not been alerted to it until some years after the initial police interest.[41]The probation service were told that there was a live investigation taking place and that it was alleged that the Respondent had a number of bank accounts for " fake businesses " that he had set up in his name. The businesses did not appear to have any identifiable online presence although the bank accounts relating to these businesses apparently had large amounts of money being transferred between them. A substantial amount of money was said to be transferred to the UAE and a second large amount transferred between accounts both operated by the Respondent. The overall allegation appeared to be that, because of the receipt of cash deposits which did not seem to be connected with genuine business arrangements, the Respondent's activities amounted to evidence of potential money laundering. There was also evidence of large funds being transferred between accounts and funds being sent to third parties.[42]The probation service considered these allegations in the light of the index offence, and the fact that the Respondent had been involved in serious offending which was associated with business and financial crime. Accordingly, the probation service took the view that the Respondent's risk could no longer be managed in the community, and he was recalled.[43]By the time the matter came before a Parole Board panel there had been a number of developments. The major development was the fact that the police investigation ceased and was not pursued. Efforts were made, by the panel, to secure information about the background to the police being involved initially. The police were not prepared to disclose the source of any intelligence which might have led to the launching of the investigation. The police were also reluctant to provide information generally. The position appeared to be that the police indicated that they were in receipt of intelligence (they remarked that they received a great deal of similar intelligence regarding business dealings) however the police had concluded that they did not have the " capacity to investigate " each referral. The police indicated that they had concluded that on the basis of the available evidence and intelligence, a decision was made not to investigate further. It appears therefore that a definitive decision had not been made as to whether criminal or fraudulent activity had taken place, however the matter was not further investigated by the police.[44]The oral hearing panel clearly retained a duty to apply the public protection test and to consider whether the test was met. The panel then made efforts to secure further information via the probation service from the police. Some information was uploaded to the dossier, including some physical bank statements, as well as comments and representations from the Respondent's probation officer.[45]The Respondent's probation officer candidly admitted that detailed investigation of company accounts was not within the ambit of probation supervision. As noted above, the panel itself attempted to secure information from the Respondent but found him to be vague and evasive. The panel indicated that the Respondent provided simplistic and implausible responses to questions about his financial dealings.[46]The probation service were asked about supervision in the future. The Respondent's probation officer indicated that there would not be an active review of the Respondent's business bank statements as this was clearly a matter for investigation by the police. The Respondent's probation officer told the panel that she would alert the police to any suspicions that she might have and would also focus upon any business associates and the nature of any business relationships. The Respondent's probation officer took the view that the key area of risk was business associates and lifestyle, however the probation officer was aware of the index offence and similarities between business dealings associates and the risk of harm.[47]Both the Respondent's probation officer and the POM recommended release, subject to the Risk Management Plan (RMP) that had been drafted by the Respondent's probation officer.[48]The panel assessed the RMP. There had been some additional licence conditions which included an obligation to provide details of bank statements, credit cards and other financial information if requested. The panel also suggested that the Respondent's probation officer or others within the probation service should strive to secure a basic understanding of the Respondent's business activities. It was suggested that information of this sort could be secured from accountants and others involved in the Respondent's businesses. The panel took the view that the probation service needed to be proactive and to refer any concerns to the specialist police units dealing with criminal financial activity.[49]The panel also considered that the Respondent had developed internal controls. They took the view that the Respondent had avoided associating with highly risky and pro-criminal individuals who might be prepared to use violence in the area of financial dispute. There had been no evidence of involvement in violence since the index offence. He had also been apparently compliant with his licence conditions until November 2024, when the police alerted the probation service to the issue relating to his financial affairs.[50]The panel took a realistic and robust view of the Respondent. The panel thought that the Respondent had not been forthcoming about his financial dealings and it was highly likely that there was a basis for the police intervention. The panel were clearly hampered by the fact that the police were not prepared to either investigate or disclose in any detail the background to the intervention. As noted above the panel assessed that the Respondent gave inadequate and misleading responses to the panel's questions about financial affairs. The panel thought him to be vague and avoidant so far as questions about his business affairs were concerned.[51]In an overall assessment of the referral the panel assessed that despite the lack of openness by the Respondent he had not, for a period of 13 years following release, been detected as being involved in violence or financial criminal gang activity or organisations therefore it could be hypothesised that he had apparently used (pro social) skills to manage that area of risk.[52]The panel therefore determined that the Respondent's risk could be safely managed in the community and directed his release. The Application for Reconsideration Ground 1[53]The Applicant submits that the panel placed insufficient weight on the evidence suggesting that the Respondent remains dishonest and evasive and the panel failed to fully consider the impact of these behaviours on the efficacy of his RMP. Discussion[54]As noted above, the oral hearing panel, in this case, made every effort, consistent with its duty to protect the public and to ensure fairness to the Respondent, to secure information and evidence relating to risk. There was clearly a potential area of risk associated with the Respondent's grave index offence and its association with business activities. The panel delivered directions and requests to the police who had initiated concerns about the Respondent's business activities. Those directions requested information, in particular relating to the intelligence which might indicate that the Respondent was involved with criminal associates or in criminal activity. Whilst there was clearly a substantial amount of suspicion around the Respondent's business activities and with the Respondent's own evasive explanations, the panel's requests for information from the police bore no, or very little fruit. Importantly the police made clear that they did not intend to undertake an investigation. This decision, whilst not negating the likelihood of the Respondent being involved in illegal activity, left the panel in a position where it had little or no clear evidence of the Respondent committing offences or of associating with negative peers, factors highly relevant to elevated risk.[55]The panel also made substantial efforts to secure information through the Respondent's probation officer. The Respondent's probation officer indicated a limited ability to investigate in any depth the Respondent's business activities; however, the Respondent's probation officer was alert to the potential for him becoming involved in illegal business activities and expressed an intention to refer any concerns to the police.[56]Turning to the Applicant's submissions under this ground, it is clear from the panel's decision that the panel engaged seriously with the issue of the Respondent's behaviour and business activities. The panel pursued as many avenues as were open to them. The panel were in no doubt that the Respondent retained many of the negative attributes which had been assessed many years ago in relation to psychopathy. In particular; manipulation; evasiveness, and conning activities. However, the panel's duty was to assess risk. That risk may or may not be associated with negative traits. The panel were not undertaking an assessment of the Respondent's negative traits in isolation but were obliged to consider those traits and behaviour in the context of his risk of serious harm in the community.[57]In terms of management of the Respondent's risk. It was clear that not only the panel, but the Respondent's probation officer and others were well aware of the negative traits and evasive behaviour demonstrated by the Respondent. There could be no doubt that managing the risk of a person with the Respondent's negative traits was likely to be challenging.[58]The panel however took the view that the fact that the Respondent's probation officer and the probation service generally, were alerted to the Respondent's negative traits, was a factor which would allow for more intensive and possibly intrusive management of his risk in the future. In particular the panel had noted the inclusion of licence conditions relating to delivery of business and bank details, and the possibility of contact with accountants dealing with the Respondent's businesses.[59]In reality probation officers are no doubt faced on a daily basis with avoidant, evasive and manipulative responses. By the very nature of the probation service clientele, it is highly likely that a large proportion of those clients will exhibit a propensity to avoid openness and honesty. The expectation of the public, and indeed of the Parole Board, would be that probation officers possess the necessary tools and skills to engage with evasive and negative traits and to ensure that positive and challenging engagement is a constituent part of the supervision process.[60]In this case the panel accepted the presence of negative traits which have been pervasive throughout the Respondent's life. The issue for the panel was whether those traits were indicative of an existing risk of serious harm. The panel in my view appropriately balanced the concerning features of the Respondent's personality, with the effectiveness of external controls and supervision. The panel also considered internal controls of harmful behaviour to be present, which to an extent was evidenced by the fact that the Respondent had not been detected as being involved in violent behaviour for many years.[61]Whilst the entirely proper concerns of the Applicant relating to the candidness or otherwise of the Respondent are understood. In my determination the panel also fully understood the need for caution in assessing evidence from the Respondent and about his business affairs. The panel, in my determination, properly addressed both the negative and positive features relating to risk in this case. The panel were fully aware of the Respondents limitations and risks, but appropriately in my view balanced those negative risks against the test for release. For this reason, having considered the decision I am not persuaded that the approach by the panel was irrational and therefore do not find irrationality in relation to this ground. Ground 2[62]It is submitted by the Applicant that the panel relied too heavily upon the external controls offered by the RMP to manage the Respondent's risk in the community, despite the fact that the COM acknowledged that she lacked expertise to investigate his financial accounts, and taking account of the lack of openness and honesty from the Respondent, traits which could also undermine the RMP. Discussion[63]In this case the COM candidly accepted that she did not have the capacity to analyse business accounts herself during the course of supervision. In reality there will be many specialist areas of potential risk where a probation officer will need to seek external expert support. The role of supervision is to use the skills of understanding and challenging individuals about their lifestyle and activities, and if necessary, drawing upon external skills to manage issues which require specialist knowledge. Probation officers will often draw upon the skills of drug agencies, psychiatric agencies and others who will have specialist skills to complement the supervision. As was noted in the decision letter, the COM in this case indicated that any preliminary concerns (about financial business issues which required specialist knowledge) would be referred to the police or possibly to managers within the probation service to ensure that the duty to protect the public was being fulfilled.[64]The Applicant points out that the risk factors, listed by the panel, included being involved in illegal or questionable financial activity; over committing himself financially and not being open and honest about lifestyle and financial affairs. The Applicant argues that these are current and live factors which are directly linked to the Respondent's risk of serious harm. It is submitted that they were not properly considered by the panel when reaching its decision to direct release.[65]As noted above the concerns relating to the Respondent's business activities demonstrated a substantial amount of suspicion and concern, however the matters were not pursued further by way of investigation or indeed charging by the police. Whilst the Parole Board panel are fully entitled to look at concerning factors and behaviour well beyond that which results in a criminal conviction, the panel is also bound to weigh with care the available evidence relating to risk and financial dealings. Whilst in this case there was potential evidence of questionable financial activity, the linkage and association of that questionable financial activity to harm and violence was less evident.[66]It is clear, from the panel's written decision, that the panel had little confidence in the credibility and candidness of the Respondent, however the panel were obliged to set that concern against the risk of serious harm. The index offence was clearly a pointer, however the panel in my determination were entitled to, in the absence of any recent association with either violence or antisocial peers, to conclude that the Respondent's risk could be safely managed, subject to the supervision of the probation service and the RMP.[67]The panel in this case had the advantage of an extensive dossier of reports and other material. They had the advantage to of seeing and hearing the Respondent as well as hearing evidence from the witnesses. Where a panel arrives at the conclusion, exercising its judgement based upon the evidence before it and having regard to the fact they saw and heard the witnesses it will be inappropriate to direct that the decision be reconsidered unless it is manifestly obvious that there are compelling reasons for interfering with the decision of the panel. As noted above therefore I am not persuaded that the panel's approach in this case could amount to irrational decision making.[68]Absence of violence - The Applicant argues that the panel's reliance on the absence of violence may have been misplaced. The argument adduced is that the Respondent had no convictions for violence before committing the index offence of murder and therefore had been absent of any evidence of violence before committing a serious offence. Whilst this argument has merit, the panel set out at paragraph 2.26 the risk assessments using tools. In all categories relating to violence the Respondent was placed (by static measures) in the lowest category of risk.[69]Of some relevance was the fact that the index offence was the Respondent's first conviction, he was clearly not subject to any form of supervision at that time (before the index offence was committed). He is now subject a life licence and supervision. A direct comparison between the circumstances (and risk) immediately prior to the commission of the index offence, and the circumstances of the Respondent in the community on life licence has limited value.[70]So far as dynamic risk assessment was concerned the COM, had assessed the Respondent's risk as a medium risk of serious harm defined as having (the 'potential to cause serious harm but is unlikely to do so unless there is a change in circumstances'). A panel will not rely exclusively upon risk assessment tools however the combination of the risk assessment tools together with the assessment of the RMP and the licence conditions indicate that the panel considered with care the potential risk posed by the Respondent and the sequence of offending which led to the index offence.[71]I am not persuaded that the panel acted irrationally in their assessment of the potential risk by taking account of the lengthy period of time that he had been absent of evidence of violent behaviour. Representations on behalf of the Respondent[72]I have considered the detailed submission by the solicitor acting on behalf of the Respondent. I have not dealt individually with the factors set out in that submission but have incorporated them within the bulk of the decision above. Decision to recall[73]It is noted that the panel concluded that the decision to recall, applying the test in Calder, was considered to be inappropriate. A decision regarding Calder is not, in my determination, within the scope of reconsideration and I have not therefore considered the matter further. Decision[74]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 05 December 2025