Berry, Application for Reconsideration by, [2025] PBRA 279 (23 December 2025) [2025] PBRA 279

PBRA

Berry, Application for Reconsideration by, [2025] PBRA 279 (23 December 2025)

[2025] PBRA 279 · 2025-11-15

[1]This is an application by Berry (the Applicant) for reconsideration of a decision of a paper panel of 15 th November 2025 following an oral hearing on 17 th 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

[3]I have considered the application on the papers. These are:a. The dossier now containing 466 pages including written representations on the Applicant's behalf following the hearing, and the decision, the subject of this application.

b. The application for reconsideration. Request for Reconsideration

[4]The application for reconsideration is dated 19 th November 2025.

[5]The grounds for seeking a reconsideration are as follows:

"It is submitted that the decision of the Parole Board dated 15 th November 2025 is open to reconsideration on the grounds of procedural unfairness. The process adopted by the Panel did not afford the applicant a fair and meaningful opportunity to respond to key material which formed a central basis of the refusal decision. "

In its decision letter, the Panel explicitly relied on findings that: ""His reasons for relapsing and reoffending are not well understood, and so at this stage are unlikely to be effectively addressed by standard offending behaviour programmes..." (para 4.1) ""A future panel would be assisted by a psychological risk-assessment (PRA)." (para 4.4)" 1. "These findings demonstrate that the Panel considered a psychological assessment essential for understanding the applicant's risk and relapse mechanisms. However, this expectation was raised for the first time at the hearing itself, and no adjournment was offered or considered. The applicant had not been given prior notice that suitability for release would depend on the availability of a psychological risk-assessment." 2 ."Additionally, after recall, the applicant had applied for the accredited Building Choices programme, but was advised by his POM that he was not suitable for that intervention and instead completed alternative non-accredited work. The Panel later placed weight on the lack of suitability for standard programmes, without offering adjournment or referral. "For these reasons, the decision is respectfully submitted for reconsideration on procedural fairness grounds." 3. "While procedural unfairness is the primary ground, it is submitted that the panel's reasoning also verges on irrationality. Having accepted that the applicant's relapse pathways and risk dynamics were not adequately understood, and that a psychological risk assessment would assist a future panel, it was unreasonable to use that lack of understanding as a determinative basis to refuse release, without adjourning or directing such assessment. In those circumstances, no reasonable panel, properly directing itself, would have refused release based on the absence of evidence which it simultaneously identified as necessary to properly assess risk." Background

[6]In January 2020 the Applicant, then aged 30, was convicted of offences of robbery, attempted robbery, affray, possession of an offensive weapon, assault on an emergency worker and criminal damage committed on different dates in May 2019. He was sentenced to an extended determinate sentence of 9 years (6 years custodial and 3 years extension period). He was released on licence in November 2023 and recalled to prison in February 2025. His sentence will expire in May 2028. Current parole review

[7]His case was referred to the Parole Board in March 2025.

[8]The case was decided by a single member panel as a paper review. The Relevant Law

[9]The panel correctly sets out in its decision letter the test for release. 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)). 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;

(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]It is possible to argue that mistakes in findings of fact made by a decision maker result in the final decision being irrational, but the mistake of fact must be fundamental. The case of E v Secretary of State for the Home Department

[2004] QB 1044

sets out the preconditions for such a conclusion:

" there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter; the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable; the appellant (or his advisors) must not have been responsible for the mistake; and the mistake must have played a material (though not necessarily decisive) part in the tribunal's reasoning."

See also R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions

[2003] AC 295

, which said that in order to establish that there was a demonstrable mistake of fact in the decision of the panel, an applicant will have to provide " objectively verifiable evidence " of what is asserted to be the true picture. 24.In Oyston

[2000] PLR 45

, at paragraph 47 Lord Bingham said:

" It seems to me generally desirable that the Board should identify in broad terms the matters judged by the Board as pointing towards and against a continuing risk of offending and the Board's reasons for striking the balance that it does. Needless to say, the letter should summarise the considerations which have in fact led to the final decision. It would be wrong to prescribe any standard form of Decision Letter and it would be wrong to require elaborate or impeccable standards of draftsmanship. "

Reconsideration as a discretionary remedy 25.Reconsideration is a discretionary remedy. That means that, even if an error of law, irrationality, or procedural unfairness is established, the Reconsideration Member considering the case is not obliged to direct reconsideration of the panel's decision. The Reconsideration Member can decline to make such a direction having taken into account the particular circumstances of the case, the potential for a different decision to be reached by a new panel, and any delay caused by a grant of reconsideration. That discretion must of course be exercised in a way which is fair to both parties. The reply on behalf of the Secretary of State 26.The Secretary of State responded to the application on 2 nd December 2025, stating that they had been unable to clarify the situation regarding training programmes with the Applicant's prison offender manager. Discussion 27.Procedural unfairness (grounds 1 & 2). a. Ground 1. The possible need for a psychological assessment. Negative decisions by Parole Board panels frequently contain suggestions as to the possibility of particular types of evidence for a future hearing in the light of gaps or failures identified at the instant hearing. This decision is a typical example. There is no basis in these cases for such possible guidance for a future panel being treated as a procedural irregularity. This case - and the quoted paragraphs (4.1 and 4.4) - are no exception to this rule. b. Ground 2. Building Choices. Paragraphs 2.18 - 2.19 of the decision refer to the evidence of the Community Offender Manager (COM) whose overall recommendation was that the Applicant should not be directed for release. The fact that one of the pieces of work - in addition to resolution of the contradictory accounts the Applicant would give concerning his "lapses and risky behaviour"- could possibly be carried out in the community did not persuade the COM that release was the best option. 28.Irrationality. Unfortunately, in particular in recent times, the Parole Board has found itself in this sort of position again and again. I have not found - and none has been cited - a case in which possible ways in which a future panel (and an offender) might be assisted has led to a successful application for reconsideration. Unsurprisingly no authority is cited to me in support of this proposition. This case was already eight months old by the time of the hearing. Decision 29.For the reasons I have given, I do not consider that the decision was either irrational or procedurally unfair and accordingly the application for reconsideration is refused. Sir David Calvert-Smith 23 December 2025