Mbuku-Sengua, Application for Reconsideration [2025] PBRA 264 (02 December 2025) [2025] PBRA 264

PBRA
Mbuku-Sengua, Application for Reconsideration [2025] PBRA 264 (02 December 2025)
[2025] PBRA 264 · 2025-10-24
[1]This is an application by Mbuku-Sengua (the Applicant) for reconsideration of a decision dated 24 October 2025 not to direct his release. The decision was made by a panel following an oral hearing.[2]Rule 28(1) of the Parole Board Rules 2019 (as amended) (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.[3]I have considered the application on the papers. These are the decision, the dossier (consisting of 380 numbered pages), and the application for reconsideration. Background[4]On 3 April 2018, the Applicant was convicted after trial of possessing a firearm with intent to cause fear of violence. He received an extended sentence consisting of seven years in custody with a three year extension.[5]The Applicant was 21 years old at the time of sentencing and is now 29 years old.[6]His conditional release date passed in July 2024 and his sentence ends in July 2027.[7]He was released on licence in February 2023 prior to his conditional release date following an oral hearing. His licence was revoked in January 2025 and he was returned to custody 13 days later in February 2025.[8]The Request for Recall (Part A) report within the dossier states that the Applicant had " displayed concerning patterns of behaviour in relation to his intimate relationship, drug escalation and violent behaviours to members of the public, including carrying a weapon. Specifically, he has disclosed his recent intention to harm a member of the public with a knife, and was only deterred by the CCTV in the area ". Request for Reconsideration[9]The application for reconsideration has been submitted by solicitors on behalf of the Applicant. It argues that the decision was irrational and procedurally unfair.[10]The submissions are supplemented by written arguments to which reference will be made in the Discussion section below. Current Parole Review[11]The Applicant's case was referred to the Parole Board by the Secretary of State (the Respondent) to consider whether to direct his release. This is the Applicant's first parole review since recall.[12]After an adjournment resulting from unavailability of a witness, the case proceeded to an oral hearing on 20 October 2025, before a two-member panel. The panel took oral evidence from the Applicant, the Prison Offender Manager (POM), and the Community Offender Manager (COM). The Applicant was legally represented throughout the hearing.[13]The panel accepted that the Applicant had shown some recent positives. These including a period without adjudications, enhanced IEP status, and constructive roles in custody. However, it concluded that these improvements did not outweigh the seriousness of the index offence, which involved firing a loaded firearm towards a child in a public place. The Applicant's history of violent offending, emotional instability, and longstanding patterns of poor compliance continued to cause concern.[14]The panel considered his behaviour both in the community before recall and during his current custodial period. In the community he displayed escalating cannabis use, emotional volatility, threatening behaviour, and an incident involving posturing with an implied weapon. In custody there were multiple high-graded intelligence reports and incidents indicative of ongoing emotional instability. Crucially, he had not completed any core risk-reduction work despite being a dangerous offender, and he continued to display limited insight into his risks, including his stated intention to continue using cannabis and his unclear understanding of the impact of alcohol.[15]Although the COM and POM supported release, the panel judged the proposed risk-management plan insufficient. Concerns included the absence of a placement in designated accommodation, uncertainty around his immigration status (which could remove all external controls), and the lack of evidence that he had developed the internal strategies needed to manage his risk. Given the persistence of emotional instability, poor decision-making, and unresolved treatment needs, the panel was not satisfied that he posed no more than a minimal risk of causing serious harm. It therefore concluded that continued confinement remained necessary for public protection and consequently made no direction for release. The Relevant Law[16]The Parole Board will direct release if it is no longer necessary for the protection of the public that the prisoner should be confined. Parole Board Rules 2019 (as amended)[17]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)).[18]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)).[19]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[20]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 (CA) 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.[21]In R(DSD and others) v Parole Board [2018] EWHC 694 (Admin) the Divisional Court applied this test to Parole Board hearings in these words (at [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 ."
[22]In R(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 the Divisional Court in R(Secretary of State for Justice) v Parole Board [2022] EWHC 1282 (Admin).[23]As was made clear by Saini J in Wells, 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.[24]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.[25]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[26]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.[27]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; and/or(e) the panel was not impartial.[28]The overriding objective is to ensure that the applicant's case was dealt with justly. The reply on behalf of the Respondent[29]The Respondent has advised that no representations will be submitted in response to this application. Discussion[30]The Applicant argues that the panel's decision was irrational and/or procedurally unfair. Immigration status[31]The decision states (at para. 3.11) that " [The Applicant] is subject to a deportation order, and should his appeal be unsuccessful, his ongoing risk could not be monitored outside the UK" . It is argued that the panel could not fairly reach that conclusion based on the evidence before it.[32]Reference is made to page 343 of the dossier which contains a note from the Home Office which states that the Applicant lodged an appeal on 18 September 2025 against the deportation order issued on 29 September 2022. The Home Office note concludes " Any appeal will have to be concluded before deportation can take place" .[33]Moreover (at para. 1.4) the decision notes that " The Congo is not believed to hold reciprocal arrangements with the UK for the management of offenders" and (at para. 4.6) " the panel was very concerned that should [the Applicant] be deported, his risk will not be managed [overseas]".[34]It is argued that the panel should not have relied on the existence of the deportation order, nor drawn inferences about the absence of supervision abroad, without first adjourning for an immigration officer to attend. It is further argued that the panel's concern that risk may not be managed if the Applicant were deported amounted to impermissible speculation.[35]The Applicant's immigration position was not in dispute before the panel. The dossier confirms, and the Applicant accepts, that a deportation order has been issued and remains in force pending appeal. That factual position was properly recorded within the decision. The panel was therefore required to consider the manageability of the Applicant's risk in any jurisdiction in which he might be released. The statutory framework obliges panels to assess risk not only in the community of England and Wales but also in any location to which a prisoner may lawfully be removed. The existence of an outstanding appeal does not preclude deportation; it simply suspends its immediate effect. The possibility of deportation was therefore a live and relevant consideration. The panel was not required to assess the probability of deportation; it was sufficient that deportation was a lawful and realistic possibility on the Applicant's sentence plan, which the panel was obliged to take into account.[36]The panel was not required to adjourn for an immigration officer. Such a step would be appropriate only where there is uncertainty or dispute about the Applicant's immigration position, or where specialist evidence is necessary to resolve a fact in issue. Nothing of that nature arose in this case. The panel did not seek to interpret immigration legislation, predict the outcome of the appeal, or make findings about the likelihood of removal. They simply recognised the uncontested reality that, if deported, the Applicant would not be supervised on licence by the Probation Service, would not have access to the elements of the proposed risk management plan, and would not be subject to the proposed licence conditions. Assessing the implications of that scenario falls squarely within the panel's role. It was not speculative; it was a proper and necessary component of risk assessment.[37]The comment that the Congo is not believed to have reciprocal arrangements for offender supervision does not render the process unfair. It was not presented as a determinative finding, nor was it the basis of the panel's conclusion. Rather, the panel's reasoning rests on the simple and incontrovertible fact that licence supervision cannot operate as effectively outside England and Wales as it can within it. The possible absence of equivalent overseas frameworks reinforces a point the panel was entitled to make; specifically, that unmonitored release in another jurisdiction may carry increased risk. That conclusion was open to the panel on the evidence before it and does not suggest any material misunderstanding of the Applicant's rights or status.[38]In the circumstances, there is no basis upon which I can conclude that the panel's consideration of immigration issues was procedurally unfair. Calder[39]The Applicant submits that the panel misapplied the test set out in R(Calder) v Secretary of State for Justice [2015] EWCA Civ 1050 when considering the appropriateness of recall. It is argued that the panel relied solely on the information available to the Respondent at the time of recall, and failed to take proper account of the additional explanations and probation evidence provided at the hearing, particularly concerning PTSD, programme non-attendance, and the current COM's view that recall was unnecessary. The Applicant also contends that the panel's reliance on the "posturing" incident was irrational because no weapon was used and no harm occurred.[40]I do not accept these submissions. First, the panel correctly directed itself to the proper test. The panel is required to consider the appropriateness of recall based on the information before it at the hearing, including material not available to the Secretary of State at the time of the recall. That is precisely what the panel did. The decision records, in detail, the Applicant's explanation of the events preceding recall, his account of emotional dysregulation, his use of cannabis, and his description of the street confrontation. Importantly, the panel also set out at paras. 2.12–2.14 the current COM's evidence, including her view that the recall was unnecessary and that PTSD may have influenced programme non-attendance. It is therefore plain that the panel took this material into account.[41]The panel was, however, not required to accept the COM's view or the Applicant's explanations. Weight is a matter for the panel alone. The decision demonstrates that the panel considered the new material in context but concluded that the pattern of non-compliance, escalating cannabis use, emotional instability, threatening behaviour, and the admitted posturing of a weapon all pointed to a level of risk that could not safely be managed in the community. The panel's conclusion that recall was appropriate was a judgment reasonably open to it. The Applicant's submissions in reality amount to disagreement with the weight the panel afforded to competing pieces of evidence, which is not a basis for reconsideration.[42]Neither is there merit in the suggestion that the panel's treatment of the posturing incident was irrational. The panel did not find that the Applicant was in possession of a weapon; rather, they accepted his own account that he placed his hands down his trousers in response to another male doing the same. Given his index offence involving a firearm, his previous violence, his acknowledged emotional instability, and the inherently volatile nature of the confrontation, the panel was entitled to regard the behaviour as a risk-relevant indicator. The absence of actual violence or police involvement does not reduce its significance. The Calder test concerns the risk that would have persisted had the Applicant remained in the community on licence, not the outcome of the event.[43]In light of the above, there is no foundation for concluding that the panel misapplied the Calder test, failed to consider relevant material, or reached conclusions that were irrational or procedurally unfair. The panel's approach reflects a proper application of the guidance and a rational assessment based on the totality of the evidence before it. Weapon use[44]Finally, the Applicant argues that the panel acted irrationally in relying on the street incident involving "posturing" related to carrying a weapon. It is submitted that because the Applicant did not possess a knife, no violence occurred, and the police were not involved, the panel's finding that the behaviour " could have led to conflict and serious harm " was speculative and unfair. The Applicant contends that this aspect of the decision improperly elevated a non-event into a risk factor.[45]I do not accept this submission. The panel's reasoning on this point was firmly grounded in the Applicant's own account. The Applicant explicitly acknowledged that he placed his hands inside his waistband in response to another male doing the same. The panel did not make a finding that the Applicant possessed a weapon; on the contrary, it accepted his denial. The panel's concern was not about weapon possession but about a form of confrontational signalling in circumstances where the Applicant believed the other male to be armed. That behaviour is inherently risk-relevant and falls squarely within the panel's remit to assess.[46]Further, the panel was entitled to interpret this incident against the Applicant's wider history. The index offence involved the use of a loaded firearm discharged in public. He has previous convictions for violence and offensive weapon possession. He has a documented pattern of emotional volatility, impulsivity, and poor situational judgement. Within that context, the display of posturing behaviour in a real-world confrontation is not neutral. The panel's concern that this encounter " could have led to conflict and serious harm but for CCTV " was a rational, evidence-based inference. Panels are not required to wait for actual harm to occur before recognising behaviour that increases the risk of it.[47]The absence of police involvement does not undermine the panel's reasoning. The statutory test concerns the risk of serious harm, not the fact of harm. A panel may properly identify a behaviour as elevating risk even where an incident resolves without violence. Panels routinely assess risk based on dynamic behaviours, patterns of escalation, emotional dysregulation, and situational reactions, all of which were present here, even if the police were not.[48]In the circumstances, the panel's treatment of the street incident was plainly within the range of reasonable evaluative judgments available to it. There is no basis on which to conclude that this aspect of the decision was irrational or procedurally unfair. Decision[49]For the reasons set out above, I am satisfied that the panel's decision was neither irrational nor procedurally unfair. The application for reconsideration is therefore refused, and the decision of 24 October 2025 not to direct release becomes final. Stefan Fafinski 02 December 2025