Murrain, Application for Reconsideration [2026] PBRA 106 (13 May 2026) [2026] PBRA 106

PBRA
Murrain, Application for Reconsideration [2026] PBRA 106 (13 May 2026)
[2026] PBRA 106 · 2026-03-31
[1]This is an application by Murrain (the Applicant) for reconsideration of a decision of an oral hearing panel dated 31 March 2026. 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 application for reconsideration drafted by the Applicants legal adviser, the decision of the oral hearing panel and the representations by the Secretary of State (Respondent). Request for Reconsideration[4]The application for reconsideration is dated 20 April 2026.[5]The grounds for seeking a reconsideration are set out below: Background[6]The Applicant is serving an extended sentence of imprisonment. The custodial period was set at ten years and six months. The extension period is four years and six months. The Applicant was automatically released on 15 July 2024. He was recalled on 20 November 2024. The index offence was rape. The Applicant was aged 19 at the time of committing the offence. The offence was described by the sentencing judge as "a brutal and sustained stranger rape of the utmost gravity in a relatively poorly lit and quiet location". The Applicant attacked the victim who was a 27-year-old woman making her way home from work. He attempted to engage her in conversation. She declined and he then ran up behind her, put his arm around her neck and throat, and pushed her into a gated area of residential property. The victim was forced to the ground with threats to kill her if she did not comply. She was compelled to perform oral sex upon him. An attempt was made to digitally penetrate the victim. A further attempt was made to the vaginally penetrate the victim from behind, which was unsuccessful. The Applicant continued to issue threats throughout the incident and the victim was then forced to perform oral sex a second time. Local residents heard screams and interrupted the Applicant who then took the victim's bag and fled the scene. The Applicant pleaded guilty to two counts of rape and one count of sexual assault. As noted above the Applicant was recalled having been released automatically from his sentence. Current parole review[7]The referral from the Secretary of State requested the Parole Board to consider whether the Applicant should be directed for release. The Applicant was aged 31 at the time of the oral hearing.[8]The panel hearing took place on 20 March 2026. The Parole Board panel consisted of two independent members of the Parole Board and a psychologist member of the Parole Board. The panel heard evidence from a number of witnesses including a Police Community Support Officer, a Special Constabulary officer, a police constable, the Prison Offender Manager (POM), a prison instructed Psychologist, and the Community Offender Manager (COM). The Applicant was legally represented and gave evidence himself. A dossier was also considered. The Relevant Law[9]The panel correctly sets out in its decision letter dated 31 March 2026 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) 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;(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]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. "
[24]Omitting to put information before a panel is not a ground for procedural unfairness, as has been confirmed in the decision on the previous reconsideration application in Williams [2019] PBRA 7 . This is the case even where the information, had it been before the panel, would have been capable of altering its decision, or prompting the panel to take other steps such as putting the case off for an oral hearing where the new information and its effect on any risk assessment could be examined. This is because procedural unfairness under the Rules relates to the making of the decision by the Parole Board, and when making the decision the panel considered all the evidence that was before them. There was nothing to indicate that further evidence was available or necessary, and so there was nothing to indicate that there was any procedural unfairness. 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. Grounds and Discussion Ground 1 The Applicant's legal adviser submits that the panel's decision relating to the recall of the Applicant was procedurally unfair. It is submitted that the panel failed to undertake a fair and reasonable assessment of the evidence supporting the basis for the recall. Discussion This ground arises in circumstances where the Applicant was living in approved premises and in the community having been released on licence. A licence condition was to disclose contacts with females. The probation service received reports that the Applicant had been seen on two occasions in the street with a female. The Applicant had been seen by police personnel on two occasions. He had therefore been seen by two separate individual police personnel. When he was seen on the second occasion the police community support officer said that he recognised the Applicant and activated a body worn camera. The footage of the camera was available at the hearing but was not of the best quality. In addition to the two visual identifications. A police officer, who knew the Applicant as he had had a face-to-face interaction with him for 25 minutes in an earlier encounter, indicated that having viewed the footage he recognised the footage as being the Applicant. Various other identification attempts were made. Photographs of the Applicant were available to the panel. The Applicant's COM said that having seen the footage she was less than 100% certain it was the Applicant the POM told the panel that he did not believe that the man in the footage was the Applicant. The panel assessed the evidence. Part of the complaint by the Applicants legal adviser is that the panel failed to secure more evidence namely GPS tagging material which might have confirmed whether the Applicant was in the particular street at the time. The panel made an assessment of the evidence in the round. Having weighed the totality of the evidence the panel concluded that the two matters which were decisive were the fact that the police officer was able to make a firm identification, and the fact that the camera footage was taken in the street where the Applicant was living at the time. The panel found on the balance of probabilities that the Applicant was the man featured in the body worn footage in company with a female. Based upon that finding the panel found in accordance with the case of Calder that the recall of the Applicant was appropriate. In this case I am not persuaded that the panel acted with procedural irregularity. The panel called for evidence from the two police personnel who initially identified the Applicant. They heard evidence from the police officer who also confirmed the identification. They saw the body worn camera video evidence and heard evidence from the COM and POM as well as from the Applicant himself. The panel were entitled to reach a conclusion on the evidence. The test was the balance of probabilities and not the much higher test required in a criminal court. It is also of relevance that the appropriateness or otherwise of the recall is not a matter which impacts upon the referral by the Secretary of State. In Calder C App [2015] EWCA Civ 1050 it was noted at paragraph 40 that the Parole Board retained supervisory responsibility in relation to assessing the decision by the Secretary of State to recall as noted below .... Paragraph 40.......Sir Igor Judge PQBD in his short judgment (Gulliver [2007] EWCA Civ 1386 ) emphasised at paragraphs 43 and 44 the supervisory responsibility of the Parole Board over the Secretary of State's original decision and the process that led to it, in addition to making the recommendation on release. He made clear the importance of the supervisory responsibility in these terms:
"The supervisory responsibility provides a valuable check on the original decision-making process. The recall order is examined by an independent body, the recall Board. This provides a discouragement for the slovenly or the cavalier or the corrupt."
However, despite the Board's supervisory responsibility, whether the Applicant had been recalled appropriately or not, the panel were required to independently consider the referral by the Respondent. The panel were obliged consider the entirety of the evidence relating to risk, and to reach a fresh conclusion about whether the Applicant's risk could be safely managed in the community. The reality therefore is that the panel were obliged by virtue of the case of Calder to make a finding (for the reasons articulated by Sir Igor Judge). The finding did not, however, affect the duty of the panel to look afresh at the entirety of the evidence and to reach a conclusion relating to risk (applying the public protection test). I am not therefore persuaded that this ground amounts to procedural irregularity. Firstly, I am not persuaded that the panel were obliged to secure further evidence in relation to the decision. The panel made reasonable enquiries and tested the available evidence. Secondly, by virtue of rule 28 of the Parole Board Rules 2019 (as amended) reconsideration decisions apply only to a decision by a panel as to whether the prisoner is either suitable for release or unsuitable for release (see paragraph 25 of the rules). Reconsideration is not therefore engaged in relation to decisions concerning the appropriateness or otherwise of an initial recall by the Respondent. Ground 2 In the light of the finding above, I have considered generally whether the panel appropriately addressed and applied the test for release. As noted above the Applicant is serving an extended sentence in connection with a serious offence of rape upon a stranger. In their decision the panel noted positive developments so far as the Applicant was concerned (at paragraph 4.4 of the decision ) these developments were listed which included :improved behaviour in prison; completing a behavioural programme in 2015; evidence that the Applicant was not misusing substances; evidence that the Applicant was working regularly inside the prison and also the fact that all three professionals (POM ,COM ,and Psychologist) recommended release. Balanced against these positive factors the panel found that the Applicant demonstrated evidence of continuing sexual preoccupation during the time that he spent in the community before his recall. The Applicant was reportedly using pornography, his preoccupation had not been disclosed to those supervising him, the panel found that the evidence of sexual preoccupation echoed the circumstances immediately prior to the index offence. The Applicant had also had a number of negative interactions with staff in the Approved Premises and displayed a negative attitude towards police supervision. There had also been an incident in the prison (after recall) where he had been told to adjust his clothing and had reacted poorly to the request by staff. The panel in general took the view that the Applicant remained an individual who would be reluctant to engage fully or meaningfully with supervision and restrictions in the community. The panel's overall view was that the risk management plan was reasonably robust, but that the Applicant had not demonstrated evidence that he had the internal controls, and ability to adhere to the restrictions and supervision which form the risk management plan. The panel concluded that the Applicant had insufficient insight and understanding of the need to engage with supervisors to ensure that his risk was safely managed in the community. The panel also noted a conviction for assault. The assault occurred in April 2024 (a short time before his automatic release). He had assaulted another prisoner on two occasions. The matter was serious enough to require a referral by the prison to the police and court proceedings. The Applicant was convicted of battery arising from the assault. This conviction led the panel to conclude that further work was necessary to develop the Applicant's consequential thinking and problem-solving skills particularly in conflict situations. The panel therefore concluded that the Applicant's risk of serious harm was relatively imminent, and that if released, warning signs would be unlikely to be detected. It was determined by the panel that the risk of offending similar to that which led to the conviction might occur without an ability for those supervising to intervene. For these reasons the panel concluded that the Applicant's risk could not be safely managed in the community at the time of the oral hearing. Having considered the basis of the decision of the panel, I am satisfied that the panel adhered to the requirements of the case of Wells . This was a case where professionals were recommending 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 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. However, where a panel makes a decision contrary to the opinions and recommendations of professional witnesses, it is important that it should explain clearly its reasons for doing so and it stated reasons should be sufficient to justify the conclusions as per R (Wells) . As noted above in my determination the panel adequately explained its reasons for the decision and for not adopting the opinions and recommendations of the professional witnesses. For that reason, I do not find a basis for directing reconsideration in this case. Decision 47. 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. HH Stephen Dawson 13 May 2026