Gallagher, Application for Reconsideration [2025] PBRA 267 (03 December 2025) [2025] PBRA 267
[1]This is an application by Gallagher ("the Applicant") for reconsideration of a decision of a Panel of the Parole Board ("the Panel"), at an oral hearing which took place on 3 October 2025, not to direct his 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.[3]I have considered the application on the papers. These are: · The dossier provided by the Secretary of State ("the Respondent") which now contains 577 numbered pages; · The Panel's decision dated 10 October 2025 ("DL"); · The application for reconsideration ("the application") submitted on behalf of the Applicant by his solicitor dated 5 November 2025. Request for Reconsideration[4]Reconsideration is said to be sought on the basis of irrationality and procedural unfairness and I will consider the grounds put forward in support within the Discussion section of my decision. Background[5]The Applicant is now aged 58. On 5 May 2015 he received, upon his guilty pleas, an extended determinate sentence of imprisonment for wounding with intent to do grievous bodily harm comprising a custodial element of 10 years and an extended licence period of 4 years. On the same occasion he received a concurrent determinate sentence of imprisonment of 3 years for sexual assault. The sentence expiry date is in July 2028.[6]The Applicant has had bouts of depression and a history of self-harm in addition to other mental health challenges. He also has a history of chronic alcohol abuse. He had been in a relationship with the victim of the index offences (DC) since 2009. The relationship was turbulent, and the Applicant was prone to bouts of paranoia and jealousy, particularly when in drink. He was alleged to have assaulted DC on 9 November 2013 during which she sustained a cut to her head. He was admitted to bail and committed the index offences whilst on bail.[7]In mid-June 2014 DC terminated their relationship and at the end of that month the Applicant committed an offence of harassment against her to which he subsequently pleaded guilty.[8]On the night of 12 July 2014, the Applicant went to the address of DC's mother armed with a large kitchen knife. When DC answered the door, he pushed her and stabbed her in the stomach. He then dragged her into the front room where her elderly mother was sitting and then into the kitchen. He threatened to rape her and stabbed her in the stomach before attempting to remove her clothing. The victim managed to push him out of the house and called 999.[9]She sustained four wounds and a laceration to the abdomen, as well as a wound to the groin. One of the wounds entered the abdominal cavity. She also sustained facial bruising and other injuries.[10]The Applicant was also made the subject of a restricted hospital order and was transferred to a psychiatric hospital from Court. Following completion of treatment, he was returned to the closed prison estate on 13 August 2018.[11]The Applicant had an extensive criminal record of previous convictions, from the age of 14, including for offences of violence and the Panel found that his risk factors included alcohol misuse, poor emotional regulation, jealousy, distorted views in relation to sexual offending, entitlement and attitudes towards women.[12]The Applicant was released automatically on licence in July 2024 and recalled in October 2024 as a result of a series of violations of his licence conditions.[13]This was his first review since recall. Current parole review[14]The Applicant's case was referred to the Parole Board by the Respondent to consider whether or not it would be appropriate to direct his release. The case was allocated to a three-person Panel which comprised a specialist psychologist member, an independent member and a judicial member who chaired the Panel.[15]The Applicant was represented by his solicitor who sought a direction for release.[16]At the hearing evidence was given by: a) The Prison Offender Manager (POM); b) The two Community Offender Managers who were co-working the case (COM); c) The Applicant; and d) A Psychologist instructed by HMPPS (the psychologist); The Relevant Law[17]The Panel correctly sets out in the DL the test for release.[18]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)). Irrationality[19]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.[20]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. "[21]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).[22]As was made clear by Saini J this is not a different test to the Wednesbury test. The interpretation, and application, of the Wednesbury test in Parole hearings as explained in DSD was binding on Saini J. Procedural unfairness[23]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.[24]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.[25]The overriding objective is to ensure that the Applicant's case was dealt with justly. Reconsideration as a discretionary remedy[26]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[27]By email dated 20 November 2025 PPCS confirmed that the Respondent offers no representations in response to the application. Discussion[28]In dealing with the grounds for reconsideration, it is necessary to stress certain matters of basic importance. The first is that the Reconsideration Mechanism is not a process by which the judgement of the panel when assessing risk can be lightly interfered with. Nor is it a mechanism in which the member carrying out the reconsideration is entitled to substitute his/her view of the facts in place of those found by the panel, unless, of course, it is manifestly obvious that there was an error of fact of an egregious nature which can be shown to have directly contributed to the conclusion arrived at by the panel.[29]The second matter of material importance is that when deciding whether a decision of the Parole Board was irrational, due deference has to be given to the expertise of the Parole Board in making decisions relating to parole.[30]Finally, where a panel arrives at a conclusion, exercising its judgement based on the evidence before it and having regard to the fact they saw and heard the witnesses, it would 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.[31]The Applicant's solicitors submit that the Panel's decision should be reconsidered on the grounds of both irrationality and procedural unfairness.[32]The argument in relation to irrationality is essentially based on the assertion that the Panel's decision not to direct the Applicant's release was in " direct contrast " and "complete contradiction " to the evidence of the two COMs and the psychologist.[33]In approaching this submission I remind myself that, when applying the relevant principles set out above, the reconsideration panel will not substitute its view of the evidence for that of the panel who heard the witnesses and, 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.[34]The Panel acknowledged that the Applicant's prison behaviour had been good with no security concerns or adjudications. He had received a number of positive entries since his recall but no negative ones.[35]The COMs were of the opinion that he had made progress in custody, had completed all available work in a custodial setting and had made sufficient progress to be released back into the community.[36]The Panel also noted the view of the psychologist that, if the Applicant were in the community, he would present as a low to moderate risk of violent reoffending, a low to moderate risk of intimate partner violent reoffending and a low to moderate risk of sexually violent reoffending and that his risks would be manageable.[37]However, the Panel were concerned that the Applicant had expressed the view that he did not have an alcohol or substance misuse problem and that, while he did accept that alcohol was a risk factor, he did not accept that he had any sort of issue with alcohol when in the community. In addition, the Panel found that the Applicant had declined to engage with the substance misuse service in prison and that he did not have insight as to the way his risk would rise should he have emotional issues and use alcohol as a coping strategy.[38]Although the psychologist told the Panel that she thought the Applicant was sufficiently able to manage his own risk factors, the Panel considered that this was an optimistic view and found that the evidence of his behaviour in the community following his release in July 2024 was that he did not manage his alcohol use and had been untruthful about this to his COM and also to the Panel.[39]The Panel accepted the results to be derived from the statistical risk assessment tools which placed the Applicant into the group of offenders who pose a high risk for violent offences and the Panel's own assessment was that there was a high risk of serious harm should the Applicant use alcohol in the community and be in an "emotionally raised state".[40]The Panel recorded that there was, in its view, "guarded" support for release from the COMs and the psychologist while the POM, having requested to be allowed to listen to the other evidence, stated that her concerns remained and that she could not say that there was no more than a minimal risk that the Applicant would commit a further offence which would cause serious harm.[41]The Panel made a number of risk-related findings including that the Applicant's lack of openness with professionals was equivalent to avoidance or disengagement, that some elements of the risk management plan (RMP), such as in relation to move-on accommodation, were not fully formed and, in particular, that the RMP was heavily reliant on external controls. Finally, in the Panel's view, the Applicant's lack of openness and honesty with the COM in the community was not indicative of his internal controls being reliable.[42]The Panel applied the codified public protection test and concluded the DL by setting out, in detail, the factors which had led it to find that the Applicant did not meet the test for release despite the professional support for this on the basis of the RMP.[43]The Panel's conclusions are set out fully in para. 4.6 of the DL and I do not need to repeat them here.[44]I find that in essence the Applicant through his solicitors is inviting me to take a different view of the evidence to that of the Panel and, in particular, to prefer the professional evidence (which was not unanimous) over that of the Panel. This is, I fear, to misunderstand my role and the test which I must apply when considering an application for reconsideration based on the ground of irrationality.[45]The Panel, I find, considered the written and oral evidence before it and carefully set out its findings and explained in detail their reasons for differing from the evidence of some of the professional witnesses and for concluding that, applying the appropriate test, it was not satisfied that it is no longer necessary for the protection of the public that the Applicant should be confined and did not direct release.[46]The Panel attributed weight where appropriate (which is a matter pre-eminently for the Panel) and arrived at its findings following an exercise of its judgement in concluding that the Applicant did not meet the test for release.[47]As to the suggestion that there was procedural unfairness, I can find no evidence of this nor are any arguments put forward on behalf of the Applicant to support this submission. The Applicant had the benefit of a full oral hearing, was legally represented throughout and the Panel obviously bore in mind the closing legal submissions made on his behalf which, it appears, did not raise any issue of procedural unfairness. Decision[48]The reconsideration process is not an appeal against the original decision and I find that the Application is without merit and, for the reasons I have given and applying the appropriate test, I do not consider that the decision was irrational or that there was any procedural unfairness and, accordingly, the application for reconsideration is refused. Peter H. F Jones 3 December 2025