Howe, Application for Reconsideration by, [2025] PBRA 289 (30 December 2025) [2025] PBRA 289

PBRA

Howe, Application for Reconsideration by, [2025] PBRA 289 (30 December 2025)

[2025] PBRA 289 · 2025-12-01

[1]This is an application by Howe (the Applicant) for reconsideration of a decision of an oral hearing panel dated the 1 December 2025 the decision 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

[3]I have considered the application on the papers. The dossier, the decision of the oral hearing panel, the application for reconsideration drafted by the Applicant's legal adviser and the representations from the Respondent. Request for Reconsideration

[4]The application for reconsideration is dated 4 December 2025.

[5]The general grounds for seeking a reconsideration are that the panel failed to take account of the recommendations of the professional witnesses and failed to explain the basis upon which they decline to direct release. Background

[6]The Applicant is serving an extended sentence of imprisonment consisting of a custodial period of six years and an extended period of four years. The index offence was robbery. The Applicant had taken illicit substances. He entered a fish and chip shop from the rear. He had apparently worked in the premises at some stage. He took hold of two knives and approached an employee pressing the knife into the employees back. The employee was pushed to the front of the shop and demands were made for cash. The Applicant then waved the knife towards another young employee slashing his hand between the thumb and index finger causing injury. The Applicant took money from the till. As he was leaving the shop the Applicant punched an employee. The Applicant was 32 years old when sentenced he is now 40 years old. The Applicant was released automatically in July 2022 and recalled in May 2023. He was release once again by the Parole Board in June 2024 and was recalled for a second time in February 2025. The Applicant had a history of offending. The offences had been committed while under the influence of illicit substances and had involved violence. The Applicant also had a history of persistently offending against intimate partners. Current parole review

[7]The referral from the Secretary of State requested the Parole Board consider whether the Applicant should be directed for release. The panel hearing took place on 25 November 2025. The panel considered the dossier and heard evidence from the Applicant's Prison offender Manager (POM), his Community Offender Manager (COM), a prison governor and an IOM manager. The Applicant was legally represented. The Relevant Law

[8]The panel correctly sets out in its decision dated 1 December 2025 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)) 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) 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 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;

(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]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

[24]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 (the Respondent)

[25]The Respondent offered no representations.

[26]The Applicant's legal adviser argues that the decision in this case was irrational. The argument is that the panel acknowledged that the professional witnesses all supported release. That the professional witnesses indicated that risk reduction work could be completed in the community. That the Applicant was very well thought of in the prison and had positive reports from prison staff. That the proposed risk management plan would be sufficient to manage the Applicant's risk in the community. It is therefore argued that the panel's decision lacked evidential justification for declining to release. General Discussion

[27]The panel noted that the Applicant had a history of violent behaviour most of which was also associated with the use of illicit substances. The panel noted generally that the Applicant had a capacity to cause serious harm to the public and a propensity to use weapons when causing harm.

[28]In addition to the risk to the general public the panel noted that the Applicant had a record of previous offending in relation to domestic abuse. He was noted as having persistently offended against intimate partners with a number of victims noted in the dossier. He had also offended in the presence of children.

[29]The Applicant had been released on licence on two previous occasions. He had been automatically released in July 2022 but was recalled in May 2023. This recall occurred in circumstances where the Applicant had been arrested by the police and was alleged to be involved in a burglary matter. During the course of the arrest, he assaulted a police officer by ripping an earring from the officers ear, and spitting at the officer. The burglary allegations did not proceed however, the Applicant pleaded guilty to assault of the police officer and received a short custodial sentence. It is also noted that he had been taking illicit substances while in the community.

[30]He was released, on the second occasion, on licence, by a Parole Board panel in June of 2024. He was recalled five months later. He had remained substance free for a period of time following the second release but had relapsed. There were concerns about contact with his then partner and children because of his increasing drug use.

[31]The background to the recall was that following the Applicant's relapse there had been concerns about his then partner who had children. The partner was reluctant to associate with the Applicant because of his increasing drug use. An incident occurred where the police were called to his accommodation, witnesses were present. The Applicant had "smashed" objects in the house and threatened to end his life. The incident had caused a support worker and the Applicant's partner to lock themselves in a room for their own safety. Probation was informed by the police that the Applicant had allegedly assaulted his partner. The report of the incident also indicated that the partner's children were in a car and had observed an altercation. The altercation involved allegations of violence towards the partner in front of the children. The incident also included reports of striking a car which, (it was said), could have resulted in harm to the children who were in the car. These allegations did not proceed to charges as the victim was not minded to support any prosecution.

[32]The Applicant was not arrested at this time. He was told by the probation service that he would not be immediately recalled as he was making efforts to find alternative accommodation. However, following this preliminary decision by the probation service, it is reported that, during the course of telephone exchanges, the Applicant displayed aggressive behaviour directed towards both probation staff and to a senior probation officer. The Applicant was then recalled.

[33]The panel assessed these allegations in the panel hearing. The panel acknowledged that there was insufficient evidence relating to the specific allegations to reach a definitive conclusion (on the balance of probabilities), however the panel concluded that a holistic assessment of the allegations indicated that they involved potentially risky behaviour. The Applicant had admitted that he was under the influence of illicit substances, that he had banged the car with children inside it, that there were relationship difficulties and that he had caused the victim and a support worker to retreat to a room as they were in fear.

[34]The panel therefore applied the principles of the case of Pearce and concluded that the Applicant had lapsed into drug misuse and returned to risk associated behaviour. Applying the principles of Pearce the panel concluded that the allegations as a whole were relevant to the overall risk assessment.

[35]The Applicant's legal adviser indicates that the evidence supporting the incident was insufficient to justify the panel taking account of the incident in assessing risk. In my determination the panel appropriately addressed the allegations. It is clear that the Supreme Court decision indicates that a panel are entitled to take account of risk related incidents even in circumstances where the incidents cannot be proven on the balance of probabilities. The panel were entitled to take account of the acceptance by the Applicant that he was misusing drugs, was emotionally upset, had banged a vehicle containing children and that there was evidence that his partner and an independent person had feared for their safety.

[36]During the course of the oral hearing, the panel were told by professionals and prison staff that the Applicant was well thought of. There had been drug tests in custody, and they had produced negative results. He had not used substances while in prison. He was thought to be open and honest with staff in prison and with his COM.

[37]The Applicant's POM and COM both supported a direction for release. Both acknowledged that the Applicant's risk factors were associated with substance misuse, relationships and risks to partners and children, emotional resilience, employment and lack of finances, accommodation and an absence of consequential thinking. There had been no violent behaviour while in custody.

[38]It is also noted by the panel, and by the professionals, that the Applicant had not undertaken any recognised behavioural work to address the risk factors which had been identified. The panel noted that there had been no accredited work in relation to violence and specifically to address hostile or violent behaviour within relationships. The panel took the view that the Applicant's main risk factors had not been addressed in such a way as to persuasively indicate that the risk of harm would be manageable in the community. The Applicant's COM had acknowledged that the risk of violence required to be addressed, however the COM took the view that any interventions could be appropriately undertaken in the community.

[39]The panel disagreed with this view. The panel took the view that the Applicant's risk of violence (particularly in relation to partners) had to be addressed prior to release to prevent serious harm being caused to known adults and children and possibly the public. The particular concern of the panel was the propensity for the Applicant to return to misusing substances and the danger that that would result in serious harm. In essence the panel took the view that there remained unaddressed areas of risk particularly in the use of violence in relationships and relating to thinking skills and consequential thinking. In essence the panel found an absence of evidence that the Applicant had the capacity or tools to manage his recognised risk factors when in the community.

[40]The panel noted that it was the view of professionals that the Applicant was unable to complete accredited work due to medical difficulties. As noted above the suggestion was that the Applicant could address the risk factors in the community.

[41]The panel acknowledged that a risk management plan had been presented at the hearing. The panel also acknowledged that the risk management plan was robust in terms of external controls and licence conditions.

[42]The panel's major concern was the absence of evidence of the Applicant having internal controls sufficient to manage risk. The panel noted that the index offence itself had involved the use of gratuitous and planned violence. The Applicant had been recalled twice following concerns relating to substance misuse and the managing of his emotions.

[43]The panel acknowledged that the Applicant behaved extremely well while in custody and had positive reports. However, it was clear that, in the view of the panel, there was insufficient evidence that the Applicant could address or manage his active risk factors in a community setting. Reflecting upon the details of the Applicant's recalls, the panel took the view that risk could escalate very quickly, and have serious consequences upon future victims (particularly partners and children).

[44]This application for reconsideration engages the case of R(on the application of Wells) -v- Parole Board

2019 EWHC 2710

(Admin) in that case the judge 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).

[45]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.

[46]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.

[47]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.

[48]The Applicant's legal adviser argues that the panel failed to address a number of factors and that the decision not to direct release was not supported by the evidence.

[49]Medical difficulties - A substantive argument addressed by the Applicant's legal adviser was that the Applicant had medical difficulties which made undertaking behavioural work in custody difficult or impossible. It is therefore argued that the decision by the panel was unfair in that the Applicant was being required to demonstrate risk reduction but did not have the capacity to undertake suitable work to demonstrate such a risk reduction.

[50]In my determination this is a perfectly understandable argument adduced on behalf of the Applicant, however the argument does not address the test which is required to be applied by the Parole Board and a panel. The panel were obliged to focus entirely upon public risk and the risk of serious harm. The codified test is not contingent upon the capacity of a prisoner to undertake interventions to manage risk. A Parole Board panel are obliged to be satisfied on balance that the test for release is met before directing release.

[51]The test is clearly dependent upon the prisoner demonstrating that the risk of serious harm has reduced and that active risk factors can be managed in the community. A Parole Board panel cannot direct behavioural work or programmes, although it is reasonable for a panel to identify the basis upon which they have concluded that risk cannot be managed. As indicated above the panel took the view that there was insufficient evidence of the Applicant having the capacity to manage his risk of serious harm. As appropriately noted by the Applicant's legal adviser, the undertaking of behavioural work and programmes is not a necessary precondition for a direction for release. However, the panel properly indicated that there was an absence of evidence that the Applicant was capable of managing his potential for violence associated with drug relapse and emotional difficulties. A committed and successful undertaking of a behavioural programme can be a powerful evidential indicator of the ability of the prisoner to manage risk in the community. However other indicators could also be of relevance for instance one-to-one work with prisoners or periods of time spent on specialist progressive wings.

[52]The panel failing to follow the recommendations of professionals -it is submitted on behalf of the Applicant that the panel failed to take proper account of the unanimous view of the professionals that, on the basis of the risk management plan and undertaking behavioural work in the community, the Applicant's risk of serious harm could be managed in the community.

[53]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. As was observed by the divisional Court in DSD panels have the expertise and duty to undertake this task.

[54]However, as noted above, if the panel makes a decision contrary to the opinions and recommendations of professional witnesses, it is important that the panel explain clearly the reasons for doing so and that it stated reasons should be sufficient to justify its conclusions see Wells above.

[55]I am satisfied that the panel in this case made a careful assessment of the risk related issues. The panel acknowledged the fact that the Applicant is capable of demonstrating excellent behaviour while in the prison environment. The Applicant had a number of positive references from the prison staff and is clearly well thought of. However, the panel were obliged to consider the issue of risk for the foreseeable future and in particular risk in the community.

[56]The panel indicated that their major concern was the history of the Applicant's failure to manage his emotions, his propensity to relapse into drug misuse and importantly the fact that following relapses the Applicant very quickly demonstrates hostile and aggressive behaviour. This behaviour can be towards the public as in the index offence, or (more recently) in relation to partners and the children of partners. The panel, in my determination, explained why they did not support the views of professionals. The professionals placed substantial weight upon the fact that the Applicant behaved well in prison and was drug-free. Weight was also placed upon the fact that the Applicant, if released into the community, could in the course of time undertake programmes to assist him in managing his risk.

[57]The panel focused upon the Applicant's ability to manage his own risk in a community setting. The panel also expressed concern about the fact that the Applicant had not addressed the concerns about his propensity to react with hostility and relapse into drug misuse when emotionally challenged. As noted above the panel did not accept the assessments by the professional witnesses. The panel took the view that the risk of serious harm had not been fully addressed and that there was insufficient evidence to indicate that the Applicant had the internal controls and capacity to manage his risk of serious harm if in the community. The panel therefore explained, in my determination, the reason why they disagreed with the assessment of the professional witnesses.

[58]The panel failed to acknowledge protective factors -the Applicant's legal adviser submits that there were a number of protective factors which the panel failed to acknowledge in particular social support, the fact that there had been a maintenance of negative drug tests in custody, the fact that the Applicant had engaged with substance misuse support in custody, and the Applicant's positive behaviour in prison.

[59]Within the decision the panel acknowledged the positive factors which were adduced in evidence in the hearing. However as noted above the panel's major concern was the fact that the Applicant's history of managing risk in the community was poor. There was no doubt that the Applicant managed well in the structured environment of the prison. However, also as noted above, the Applicant's ability to manage both emotions and the potential for relapse followed by hostile behaviour was the fundamental reason why the panel took the view that, as presenting at the panel hearing, the Applicant's risk of serious harm could not be safely managed in the community.

[60]Having considered the representations by the Applicant's legal adviser, set against the explanation by the panel for their decision, I am not persuaded that this is a matter where the panel's decision could be described as so outrageous in its defiance of logic or accepted moral standards that no sensible person could have arrived at it. Inevitably decisions relating to risk require a balance of considerations and as evidenced in this case there are differing views. However, I am not persuaded that this is a case which engages the tests for directing reconsideration and I therefore refuse the application for reconsideration. Decision

[61]For the reasons I have given, I do not consider that the decision was irrational or procedurally unfair and accordingly the application for reconsideration is refused. Stephen Dawson 30 December 2025