Devine, Application for Reconsideration by, [2025] PBRA 281 (22 December 2025) [2025] PBRA 281

PBRA
Devine, Application for Reconsideration by, [2025] PBRA 281 (22 December 2025)
[2025] PBRA 281 · 2025-10-10
[1]This is an application by Devine (the Applicant) for reconsideration of a decision of an oral hearing panel dated the 10 October 2025. The decision of the panel was not to direct release.[2]Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2025) (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, the decision of the oral hearing panel, the application for reconsideration drafted by the Applicant's legal adviser and the representations by the Secretary of State (the Respondent). Request for Reconsideration[4]The application for reconsideration is dated 24 November 2025.[5]The grounds for seeking a reconsideration are set out below. Background[6]The Applicant is serving a sentence of imprisonment for public protection (IPP). The index offence was wounding with intent to cause grievous bodily harm. The facts of the index offence are set out below. The Applicant was 22 years old at the time of the wounding. He had 19 previous convictions, a large proportion of which were for violence. The Applicant is now aged 40. The minimum term set by the judge in relation to the IPP sentence was two years and six months. The tariff expired in 2010. The Applicant was released from prison on four separate occasions in 2016, 2020, 2021, and 2022. He had been recalled after these prison releases. Current parole review[7]The referral from the Respondent requested that the Parole Board consider whether the Applicant should be directed for release. If not directed for release whether there should be a recommendation for transfer to an open prison. The Parole Board panel consisted of a judicial chair and two independent members. Evidence was received from a Prison Offender Manager (POM), a prison instructed psychologist and a Community Offender Manager (COM). The Applicant gave evidence and was legally represented. The Relevant Law[8]The panel correctly sets out in its decision dated 10 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). 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. 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. 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 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. 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. 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) , and 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 four factors the panel must take into account when applying the test are:(a) the progress of the prisoner in addressing and reducing their risk;(b) the likeliness of the prisoner to comply with conditions of temporary release(c) the likeliness of the prisoner absconding; and(d) the benefit the prisoner is likely to derive from open conditions.[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 Respondent offered no representations. Discussion Grounds of Application[27]The Applicant's legal adviser has drafted a narrative form of application for reconsideration. The Applicant's legal adviser submits that the panel failed to give sufficient weight to the fact that the recommendation of the Applicant's COM (who had managed the Applicant for 10 years) was that there should be a direction for release. This was also the recommendation of the POM and the prison commissioned psychologist. It is argued, by the Applicant's legal adviser, that there should be a "striking error of appreciation of the facts" to warrant a decision by a panel not to follow the recommendations of all the professional witnesses.[28]It is further argued that the rationale for the decision, which revolved mainly around the fact that the Applicant had continued to regularly use illicit substances in prison, was flawed. The basis of the argument being that the proposed risk management plan and licence conditions would be likely to manage the risk of substance misuse in the community.[29]The second limb of the argument, in favour of the application for reconsideration, was the fact that although the Applicant had been taking illicit drugs both in the community before his recall, and in prison, there had been no convictions for violent behaviour, and therefore his risk of serious harm was manageable. Discussion[30]The factual background to this application is that the Applicant is serving an IPP. The sentence was imposed in 2008. The Applicant's tariff expired in 2010. Since then the Applicant has been released from prison on four occasions. His first three recalls were within a few months of release. The Applicant's final recall occurred a year after his release in 2022.[31]The index offence was wounding with intent to cause grievous bodily harm. The Applicant, while heavily under the influence of alcohol, heroin, Valium, magic mushrooms and cocaine broke into the flat of a neighbour. He understood the neighbour may have had drugs in his accommodation. The victim was woken by the Applicant who was standing over the victim holding a 14-inch bladed weapon and a hammer. The victim was attacked by the Applicant and serious injuries were caused.[32]The recall of the Applicant occurred in circumstances where he was observed in a street incident. The Applicant had been on licence and there had been relapses into drug misuse which had resulted in the probation service referring him to a substance misuse team. The recall incident, which occurred in August 2023, was one where males were seen fighting in the street with weapons. The Applicant was identified as being in possession of an axe. The Applicant was seen chasing others with an axe around the streets. At trial, the basis of a plea of guilty by the Applicant to the offence of affray was that he was attacked initially by a male in possession of an axe. The Applicant sustained an injury to his back and his hand. The attacker was said to have dropped the axe. The Applicant then picked up the axe and joined in an affray (a threat of unlawful violence) by chasing others. The basis of the Applicant's plea of guilty was that there was no physical assault by the Applicant but he accepted the offence of affray. The Applicant later told professionals that he had been associating with an acquaintance, however he was not entirely clear as to how he had become involved in the offending. There were vague references to a financial loan linked with the associate. He told the panel that he had not taken drugs on the day in question.[33]There had been various delays and adjournments before the Applicant's case eventually came before the Parole Board panel. In the time between his recall and the oral hearing there had been concerns about the Applicant's prison conduct. He had received prison adjudications relating to being under the influence of drugs and a further matter where he became frustrated and smashed a television. In addition to adjudications there had been a number of observations of the Applicant being under the influence (of illicit drugs) in the six months before the oral hearing, the last observation being on the day before the oral hearing. The Applicant had not been tested, but accepted in evidence at the oral hearing that he was using illicit drugs in custody. He explained that his reason for doing so was that he was becoming "stressed" waiting for a parole hearing, and that he was bored and was ruminating. The drug misuse did not lead to any violence in custody, and the panel noted that there had been positive prison reports about the Applicant, in particular his pastoral support for other prisoners.[34]The Applicant told the panel that he took drugs in prison in order to cope. However, he said that in the community things would be different, and he would have opportunities to engage with services and ask for help. He told the panel that although he was on the Incentivised Substance Free Living Wing (ISFLW), the wing was "awash with drugs" . He said that spice was readily available and that he was able to acquire drugs without having to pay for them. He told the panel that he could not say "no" all of the time, although he had tried to desist. He told the panel that this was his means of coping.[35]He told the panel that within the community he would be able to stop taking drugs and that he only took drugs (in the community) for "recreational purposes".[36]Although the panel sympathised with the fact that the Applicant had indicated that he felt burdened by the pressure of the IPP sentence, the panel took the view that the Applicant's decision to resort to illicit drugs in custody was entirely negative. The panel were concerned that the Applicant had not endeavoured to secure more help from drug support professionals in relation to his drug misuse in custody.[37]As indicated above the Applicant's COM knew the Applicant well, and recommended release. The risk management plan, suggested by the COM, included initial residence at a specialist drug informed probation hostel, as well as curfews and regular drug testing. There would also be input from housing and living support services.[38]The prison instructed psychologist, who was also supporting release, had indicated that, if in the community, there would be warning signs of increasing risk - in particular evidence of a chaotic antisocial lifestyle; association with antisocial peers; a relapse into regular substance misuse; not attending appointments and possibly becoming indebted. It was suggested that the identification of these warning signs would enable professionals to intervene and therefore manage risk.[39]Whilst the panel understood the rationale for the specialist probation accommodation, the panel found difficulty in identifying evidence that the Applicant's pattern of drug misuse in prison would change. The Applicant had told the panel that when under stress, he could not cope, and used drugs. The panel's view was that it was highly likely that the Applicant, as presenting at the hearing, would breach the (hostel) rules on drug usage very quickly and if under pressured circumstances (of a potential recall) might abscond thereby elevating risk. The panel noted that the Applicant had absconded from probation premises in the past.[40]At paragraph 4.6 of the decision the panel listed the detailed considerations that it had taken into account in reaching its conclusion. The panel acknowledged that there had been no application of violence by the Applicant observed in recent times and that the index offences took place many years ago. However, the panel were bound to acknowledge that the Applicant reverted to drug misuse when under emotional stress in custody. When in the community, he told the panel that he used cocaine on a recreational basis. This caused concern for the panel as it appeared to show little insight as to how risk might be elevated by the use of illicit substances, even if the aim was to use for recreational purposes.[41]The panel also set out its views about the circumstances that might occur in the community where risk would be elevated. These had been summarised by the prison instructed psychologist and included the risk of the Applicant taking up a weapon in circumstances where he felt threatened, but which could in the longer term lead to serious harm. The panel were clearly referring to the conviction for affray where the Applicant had taken up a weapon which had been discarded and had been seen to be chasing people.[42]The panel also posited that a risk scenario would be more likely to arise were the Applicant to become indebted to antisocial associates who would be more likely to be associated with a lifestyle around violence and risky behaviour. The scenarios were based upon the more recent offence committed by the Applicant. However, the panel noted that the circumstances of violence associated with antisocial peers and weapons, were all features of the Applicant's previous (historical) offending.[43]The panel identified the Applicant's drug taking as a pattern of behaviour rather than individual lapses. The Applicant himself had accepted that this was the case.[44]The panel disagreed with the professional's view that there were no core risk management factors outstanding and that all that remained, in terms of risk management, was consolidation in the community. The panel took the view that emotional management (without resorting to illicit drugtaking) remained a core risk related issue. The panel took the view that the Applicant's pattern of drug use, to manage emotional issues, would be highly likely to transfer to the community, thus elevating risk.[45]In summary the panel's view was that they acknowledged the fact that the Applicant struggled to manage his emotions in custody and therefore turned to illicit drug misuse. The panel understood the professionals' concern about the Applicant's personal welfare; however the panel's sole consideration was risk to the public.[46]The panel took account of the views of the professionals, and acknowledged that there was unanimous support for release, however it is well understood that panels of the Parole Board are not obliged to adopt the opinions and recommendations of professional witnesses. It is their responsibility to make their own risk assessments and to evaluate the likely effectiveness of any risk management plan proposed. They must make up their own minds on the totality of the evidence that they hear, including any evidence from the Applicant. They would be failing in their duty to protect the public from serious harm (while also protecting the prisoner from unnecessary incarceration) if they failed to do just that, and as was observed by the divisional Court in DSD they have the expertise to do it.[47]However, if the panel makes a decision contrary to the opinions and recommendations of professional witnesses, it is important that it should clearly explain its reasons for doing so and that its stated reasons should be sufficient to justify its conclusions, as per Wells above .[48]The fundamental question therefore, in terms of reconsideration, is whether the panel clearly explained its reasons for diverting from the views of the professional witnesses, and whether those reasons were justified by evidence. As noted above the panel set out in some detail the arguments adduced in favour of the Applicant's release. The panel also set out the reasons why they have concluded that the Applicant's risk could not be safely managed in the community. The key issue in this case was the fact that the Applicant, even in the controlled atmosphere of a specialist drug wing of a prison, had demonstrated an inability to manage his need to address emotional difficulties by illicit drugtaking. It was highly likely that the Applicant would face even greater challenges in the community, and the Applicant was unable to demonstrate how he would manage emotional dysregulation and therefore his risk of serious harm, by means other than illicit drug use leading inevitably to an elevation of that risk.[49]I am not therefore persuaded that this is a case for reconsideration. Whilst the panel were sympathetic to the struggles faced by the Applicant in attempting to address his ingrained drug misuse difficulty, the panel appropriately indicated that they were bound by the duty of public protection rather than the welfare of the Applicant. The panel, in my determination, appropriately applied the public protection test to the evidence that had been adduced within the hearing. Decision[50]For the reasons I have given, I do not consider that the decision was irrational and accordingly the application for reconsideration is refused. HH S Dawson 22 December 2025