Smith, Application for Reconsideration by, [2025] PBRA 287 (30 December 2025) [2025] PBRA 287

PBRA

Smith, Application for Reconsideration by, [2025] PBRA 287 (30 December 2025)

[2025] PBRA 287 · 2025-12-03

[1]This is an application by Smith (the Applicant) for reconsideration of a decision of an oral hearing dated the 20 th November 2025.

[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

[3]I have considered the application on the papers. These are:a. The dossier now containing 930 pages including the 27-page final submissions on the applicant's behalf (and the single page attachment) and the decision, the subject of this application.

b. Reconsideration representations dated 3 rd December 2025. Request for Reconsideration

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

"Ground One: Irrational Approach to [the Applicant's] Relationship with Former Officer [SK] "

Relevance of Relationship Between [the Applicant] and Former Officer [SK] "5. The central issues in this case, as set out by the panel 'is [the Applicant's] inappropriate relationship with SK and how this relates to his future risk of causing serious harm and his manageability on licence in the community' (CD/922, paragraph 49). From now on, the legal representative will refer to the inappropriate relationship and its relevance to the risk of serious harm as the 'central issue'. "6. [The Applicant] therefore submits that it is uncontroversial to assert that of all the issues in the review, the 'central issue' required the most careful and thorough analysis. "Inconsistent Approach to Mitigating Circumstances in Respect of the 'Central Issue' "7. [The Applicant] submits that the panel adopted an inconsistent approach to analysing the 'central issue' as it initially recognised several mitigating factors relating to [the Applicant's] decision to enter into the relationship but then disapplied those mitigating factors when reaching its final conclusion on the 'central issue'. The panel also failed to explain to explain why it took such an approach when making the decision. "8. [The Applicant] asks the reviewing member to carefully consider paragraphs 4.8-4.10.6 (CD 922-924) of the decision which is the section where the panel explained its position in respect of the 'central issue'. "9. [The Applicant's] position is set out at paragraph 4.9:

'His relationship with [SK] occurred out of exceptionally unfortunate circumstances for [the Applicant], and whilst he has some agency, responsibility overwhelmingly lies with [SK] and HMP [X]". He further submits that the circumstances should be regarded as exceptional and unlikely to be mirrored in the community. [The legal representative says] that [the Applicant's] behaviour is not a true reflection of how he would behave on licence in the community regarding the disclosure of relationships'. "10. The panel's position regarding this issue appears to be set out at paragraph 4.10.2 CD/922-923 '

The panel heard a lot of evidence as to whether or not [the Applicant] was a victim. He presents himself as the victim placing responsibility for the relationship overwhelmingly on SK. The panel does not accept this simplistic characterisation of the situation which is far more nuanced. It is accepted that there was a power imbalance and that SK raised issues of domestic abuse and potential suicide that would have been sensitive and potentially triggering for [the Applicant], but this does not absolve him of responsibility for a relationship that continued for five months. The panel is firmly of the view that both parties had agency and that he knew what he was doing was wrong and that he made poor decisions for which he must accept responsibility'. "11. However, [the Applicant] would submit that the panel's analysis of the 'central issue' is inconsistent. On the one hand it accepted that there were mitigating circumstances in respect of [the Applicant's] decision to enter a relationship, namely that there was a power dynamic between [the Applicant] and [SK] and that she was discussing triggering subjects with him (CD/923, paragraph 4.10.3) however they then go on to discuss the relationship between [the Applicant] and [SK] as if there were no mitigation and that there were absolute parity between both parties. "12. If the reviewing member goes through paragraphs 4.10.1-4.10.6 the key errors made by the panel are:

"a. The panel discuss [the Applicant's] culpability for his relationship with [SK] in absolute terms. For example: "i. At paragraph 4.10.3 the panel describe [the Applicant] as 'willing to breach rules'. This description of [the Applicant's] actions is absolute, in that his actions are describes as if he was full control over the situation. However, the panel had already recognised that there was a power dynamic between [the Applicant] and [SK], so the panel has seemingly disapplied the mitigating context; "ii. At paragraph 4.10.6, the panel state that '[the Applicant] prioritised pursuing the inappropriate relationship with SK over his own rehabilitation' and that [the Applicant] only accepts that to some extent. [The Applicant's] position is set out at paragraph 35(b) where it is stated that he accepts that is the position to some extent, but that must be seen in the context of [SK] having exploited [the Applicant's] emotional vulnerabilities. It has already been noted that the panel accepted that there was a power dynamic between [the Applicant] and the former officer but the panel also accepted that she was discussing 'potentially triggering subjects' with him (CD/923, para 4.10.2). Nevertheless, the panel conduct their analysis of this matter in absolute terms, without considering the mitigation it already accepted had existed. "b. At paragraph 4.10.5, the panel found that [the Applicant] lacked insight for relying on mitigating factors which it already accepted existed. In paragraph 4.10.5 the panel held that [the Applicant's] argument that professionals were placing excessive weight on the 10-day gap in disclosure showed his potential lack of insight. [The Applicant's] position is set out in paragraph 113 on CD/879 which sets out the difficulties he had in making a disclosure because of the power dynamic between [the Applicant] and [SK]. The panel accepted that such a power dynamic existed at paragraph 4.10.2 and still proceeded to find that [the Applicant's] reliance on such an argument, showed a lack of insight. "c. It was open to the panel to set out why, in spite of those mitigating factors, it considered that [the Applicant's] actions in respect of the 'central issue' meant that the test for release was not met. However, the panel did not do this at any stage. Instead, it has repeatedly disapplied the mitigating factors it had already accepted existed with respect of [the Applicant's] decision to enter into a relationship, and analysed [the Applicant's] actions in absolute terms. "13. Per J Saini in R(on the application of Wells) -v- Parole Board 2019 EWHC 2710 (Admin) the test for the reviewing member is "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)". "14. It is submitted that the panel's disapplication of mitigating factors it had already accepted existed in respect of the 'central issue', its decision to use [the Applicant's] reliance on those same mitigating factors to demonstrate he lacked insight and its failure to explain why, in spite of those mitigating factors, [the Applicant] did not meet the test for release means that the decision is not safely justified which in turn renders this decision irrational. "

Ground Two: Irrational Approach to the Witness Evidence "Panel's Approach to this Question "15. The reviewing member is directed to paragraph 2.54 of the decision letter, found at CD/908. In it, the panel considered the submission that the witness evidence of the Prison Offender Manager (POM) and [the prison instructed psychologist] could have been influenced by the actions of Deputy Governor [C] as part of this Parole review. Earlier in the decision the panel had concluded that they had no doubt that Deputy Governor [C] 'was trying to be of assistance' to the panel (CD/907, para 2.41). "16. The panel rejected the argument that the recommendations of the POM and [the prison instructed psychologist] might have been included by Deputy Governor [C] as there was 'nothing in the content of their oral evidence which supported this assertion' and that both individuals 'were professionals who gave evidence in a competent manner' (CD/909, paragraph 2.54). "Inconsistent Conclusions Regarding the Impact of Deputy Governor [C] on [the Applicant's] Parole Review "17. [The Applicant] asks the reviewing member to consider the following from the decision letter:

"a. The explanation at paragraph 2.54 of the decision does not reject the notion that Deputy Governor [C's] actions could have reasonably caused concern for both the POM and [the prison instructed psychologist] that if they were seen to undermine the credibility of HMP [X] as part of this process they could face disciplinary action. What the panel rejected was the notion that such a concern actually influenced the evidence of the POM and [prison instructed psychologist]. "b. Deputy Governor [C] claimed in his letter at CD/347 that as part of the investigation into the relationship between [the Applicant] and [SK], that she was coerced into the relationship with him but that she only raised that argument once 'it was identified as part of the investigations'. Over the course of Deputy Governor [C's] extensive evidence, Deputy Governor [C] never produced any evidence to support this position. Thus, the panel concluded it could 'find no evidence to support the allegation and therefore gives it no weight'(CD/902). "c. Deputy Governor [C] gave evidence twice. During the second period of evidence Deputy Governor [C] claimed that [the Applicant] had 'manipulated and conditioned' CM [S] who is the author of the reference found at CD/634-635. Deputy Governor [C] explained that as a consequence of the reference, CM [S] was subject to ongoing misconduct proceedings, but he had already resigned from the prison. Likewise, Officer [H], the author of the reference found at CD/636-637 had resigned when faced with a similar investigation. The panel concluded that 'it was not unusual for prison officers to write references for prisoners' and that 'based on the evidence before it the panel does not conclude on the balance of probabilities that in the case of CM [S] and Officer [H] that they were manipulated or conditioned by [the Applicant]'. "d. [The Applicant] submitted that it appeared that he had been given a known corruptor alert in breach of prison policy. At paragraph 2.25, the panel advised that this was not a matter for the Parole Board. However, the Counter Corruption and Reporting Wrongdoing Policy Framework, which, at page 8, confirms that definition of an actual corruptor 'as an individual who has received an adjudication or criminal justice outcome related to corrupting staff' (page 8, paragraph 2.14). Although the panel did not want to comment on the decision to give [the Applicant] an actual corruptor status, at no point in their decision do they state that they have seen any evidence of [the Applicant] corrupting staff. "18. The panel thus found, that on at least three, and possibly four occasions, if Deputy Governor [C] was involved in [the Applicant's] Known Corruptor classification, that he has made unfounded claims that [the Applicant] was corrupted by staff. These were very serious claims that Deputy Governor [C] persisted with making and are not consistent with the analysis that Deputy Governor [C] was 'was trying to be of assistance' to the panel. "19. Thus, in concluding that Deputy Governor [C] was trying to be of assistance to the panel, the panel's position was inconsistent with its other findings and as a consequence the panel rendered wholly unable to fairly analyse the question of whether the Deputy Governor's actions could have influenced the recommendations of his own staff members. "20. [The Applicant] also wishes to emphasise that Deputy Governor [C] never disclosed to the panel that the POM and [the prison instructed psychologist] were witnesses in a gross misconduct hearing against CM [S], even when asked by the specialist member whether there was any more information he thought was relevant to the review at the end of his second spell of evidence. It was only through the questioning of [the POM] by the legal representative that it was established that [the POM] and then [the prison instructed psychologist] were witnesses in CM [S's] proceedings. This omission significantly undermines the credibility of Deputy Governor [C's] evidence on this matter. The panel does not discuss this omission by Deputy Governor [C]; [the Applicant] would submit that was a serious matter and needed to be considered in the decision. "21. [The Applicant] acknowledges the argument made by the panel that the POM and [the prison instructed psychologist] are professional individuals and that they saw no evidence of the POM and [the prison instructed psychologist] being influenced in such a manner. However: "a. In respect of [the POM], [the Applicant] submits the panel cannot simply ignore the argument raised at CD/872, paragraph 66. In it, is was noted that the first thing [the POM] did in evidence was attempt to absolve himself of responsibility for providing the references from CM [S] and Officer [H] to the Parole Board, even though the panel never asked [the POM] to provide such an explanation. He then proceeded to repeatedly bring the issue up in the hearing. The reviewing member need only listen to the first minute of [the POM's] evidence to hear that is exactly what occurred. The issue was clearly playing on [the POM's] mind and the investigation into these officers coincided with [the POM's] reliance, on paper, on the security information, which he then distanced himself from in the hearing; "b. In respect of [the prison instructed psychologist], the panel will see that the legal representative offered the same criticism of [the prison instructed psychologist's] evidence as that which is raised in Ground 1 of this application, at CD/884, paragraph 132 of the decision letter. Similarly to the panel, [the prison instructed psychologist] recognised the existence of mitigating factors regarding the relationship between [the Applicant] and [SK], yet persisted with analysing [the Applicant] conduct in absolute terms. Her analysis, was consistent with the position advanced by the unnamed Deputy Governor as part of the PPO investigation at CD/824; and "c. In his evidence, Deputy Governor [C] specifically omitted to mention that both the POM and the psychologist were witnesses against CM [S] as part of his gross misconduct proceedings and suggested that investigations into which prison employees handed the references to the Parole Board were ongoing. "22. In respect of the evidence of Deputy Governor [C], [the Applicant] submits that the panel failed to comply with the requirement of R(on the application of Wells) -v- Parole Board 2019 EWHC 2710 (Admin) by Saini J to provide a safe justification for its conclusion as the panel decided to treat Deputy Governor [C] as a credible witness, whilst never rejecting the notion that his actions as part of this Parole review could reasonably cause staff members at HMP [X] to fear disciplinary action if they were seen by Deputy Governor [C] to undermine the credibility of HMP [X]. "

Conclusion "23. The panel have taken an irrational approach to its analysis of the 'central issue' in this case as well as the impact Deputy Governor [C's] actions had on proceedings. "24. [The Applicant] is concerned that there was a reticence of the panel to explore his valid and substantive concerns regarding the internal politics of HMP [X]. "25. [The Applicant] maintains that there appears to be a pattern of senior management at HMP [X] attempting to shift blame from the prison on to [the Applicant] for the relationship between [the Applicant] and [SK], by portraying [the Applicant] as a coercive and manipulative individual. This has culminated in a potentially unlawful known corruptor alert being recorded against [the Applicant]. The panel needed to consider this apparent attempt to shift blame, in order to full any fairly assess [the Applicant's] culpability in respect of his relationship with [SK]. Instead, the panel did not substantively consider the actions of senior management at HMP [X] when coming to its decision." Background

[5]On 19 th January 2018 the applicant was sentenced to 10 years imprisonment with an extension period of 5 years for offences of rape, coercive and controlling behaviour, and assaults. He was 26 years old at the time of those convictions. Current parole review

[6]The case was referred to the Parole Board by the Secretary of State for Justice (SoSJ) in May 2023. The case was listed and adjourned on a number of occasions. The substantive hearing began on 2 nd and 3 rd September 2025 and was adjourned to and concluded on 10 th November 2025.

[7]The panel of three, containing two independent members and a psychologist, heard evidence from the Applicant, Prison Offender Manager (POM), Community Offender Manager (COM), two forensic psychologists, a deputy prison governor, and a security and intelligence manager. The Relevant Law

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

[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)). Irrationality

[11]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.

[12]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. "

[13]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).

[14]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.

[15]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.

[16]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. Reconsideration as a discretionary remedy

[17]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

[18]The SoSJ has not submitted representations. Discussion

[19]This was an unusually long hearing spread over three days and lasting well over 13 hours. I have listened to parts of the recording - including those suggested within the grounds of appeal. The hearing included a lengthy statement from the applicant read into the record as well as oral evidence from him. Only one of the four professional witnesses to give evidence and to express an opinion at the hearing - the psychologist called on behalf of the applicant - recommended release. It is against this background that the applicant's submissions have to be considered.

[20]The issue described in the grounds and within the decision as the "central issue" , concerns the relationship between the applicant and a (now former) female prison officer and in particular the way in which, if at all, it impacted on the risk which might attach to a decision to release. I have listened to the evidence from the hearing concerning this and have focused as requested on paragraphs 4.8-4.10.6 of the decision.

[21]Lulling a member of staff into a false estimation risk of harm. He denied the relationship ten days before he disclosed it to another member of staff. One witness described his attitude as amounting to obfuscation. The witnesses stressed that with an offender with the applicant's background frankness and a lack of obfuscation was essential if the risk to the public was to be managed properly.

[22]The applicant expressed the view that he was being held back by the "establishment". The panel had to consider his previous - and very recent and possible future - ability or inability to cope with strong negative emotions. It was bound to look back at previous convictions including the index offences, and including while carrying out a rehabilitative programme such as Kaizen.

[23]The panel was entitled to come to the view it did concerning the credibility or otherwise of the witnesses generally and as to particular pieces of the evidence after this lengthy hearing and its clear analysis and assessment of the evidence.

[24]In particular I find no inconsistency between the passages cited from paragraphs 2.41 and 2.54 of the decision.

[25]Neither Ground 1 - the alleged inconsistency in the panel's consideration of the "central issue" - nor Ground 2 - the alleged irrational approach to the evidence of witnesses - is made out.

[26]While it may be that other panels faced with similar issues raised during the lengthy hearing might 'reasonably' have reached different conclusions as to individual matters of fact, this panel was certainly entitled to reach the conclusions it did and has rationally explained in the decision how and why it reached them. In any event the matters accepted by the applicant concerning the "central issue" would themselves have justified a conclusion that the already significant level of risk posed by the applicant in view of the index offences and the subsequent history was sufficient to prevent a direction for release.

[27]To repeat the summary set out at paragraph 19 above, a high degree of irrationality would be necessary to render a decision which followed the recommendations of all but one of the professional witnesses qualified to express an opinion 'irrational'. This is certainly not such a case.

[28]No doubt the authorities will be considering the evidence summarised in the decision at paragraph 4.15 concerning the future placement of the applicant. Decision

[29]For the reasons I have given, I do not consider that the decision was irrational and accordingly the application for reconsideration is refused. Sir David Calvert-Smith 30 December 2025