Swindon, Application for Reconsideration [2026] PBRA 113 (19 May 2026) [2026] PBRA 113

PBRA
Swindon, Application for Reconsideration [2026] PBRA 113 (19 May 2026)
[2026] PBRA 113 · 2026-04-14
[1]This is an application by Swindon (the Applicant) for reconsideration of a decision of an oral hearing panel dated 14 April 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 Applicant's legal adviser, the decision of the oral hearing panel and the representations by the Secretary of State (the Respondent). Request for Reconsideration[4]The application for reconsideration is dated 7 May 2026.[5]The grounds for seeking a reconsideration are set out below. Background[6]The Applicant is serving a sentence of life imprisonment for the offence of murder. His tariff expired on 1 December 2005. He was sentenced on 11 May 1993. He was aged 26 at the time of sentence. He was aged 59 at the time of the oral hearing decision. The facts of the index offence were that the Applicant became involved in an altercation outside a nightclub in City A. He intervened in a fracas which did not concern him. He was knocked down by the victim and bit the victim's leg. He then drew a knife and repeatedly stabbed the victim resulting in his death. He also slashed the second victim causing him serious injury. He was convicted of wounding with intent to cause grievous bodily harm in relation to the second incident and received a sentence of five years imprisonment. There had been an earlier assault which resulted in a conviction for assault occasioning actual bodily harm and a sentence of 18 months imprisonment. He was also convicted of being in possession of offensive weapon and received 15 months imprisonment in relation to that conviction. The Applicant had been on bail for the possession of a knife when the index offence was committed. The Applicant was under the influence of alcohol and drugs at the time of committing the index offence. The Applicant had also been convicted of various offences prior to the commission of the index offence these offences included assault occasioning actual bodily harm, threats to kill, possession of ammunition, and threatening behaviour. The Applicant initially challenged the conviction but in later years has accepted full responsibility for the offences including the murder. Current parole review[7]The referral from the Respondent requested that the Parole Board consider whether the Applicant should be subject to a direction for release. If not directed for release whether there should be a recommendation that he be transferred to an open prison.[8]The oral hearing panel consisted of an independent chair, a further independent member and a psychologist member of the Parole Board. The panel hearing took place on 30 March 2026. Evidence was received from the Prison Offender Manager, a Community Offender Manager (COM) and a prison commissioned psychologist. The Applicant was legally represented and gave evidence to the panel. The Relevant Law[9]The panel correctly sets out in its decision 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)[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)).[12]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[13]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.[14]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. "[15]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).[16]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.[17]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.[18]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[19]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.[20]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.[21]The overriding objective is to ensure that the Applicant's case was dealt with justly. Error of law[22]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.[23]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[24]In the cases of Osborn v Parole Board [2013] UKSC 61 , the Supreme Court comprehensively reviewed the basis on which the Parole Board should consider applications for an oral hearing. Their conclusions are set out at paragraph 2 of the judgment. The Supreme Court did not decide that there should always be an oral hearing but said there should be if fairness to the prisoner requires one. The Supreme Court indicated that an oral hearing is likely to be necessary where the Board is in any doubt whether to direct one; they should be ordered where there is a dispute on the facts; where the panel needs to see and hear from the prisoner in order to properly assess risk and where it is necessary in order to allow the prisoner to properly put his case. When deciding whether to direct an oral hearing the Board should take into account the prisoner's legitimate interest in being able to participate in a decision with important implications for him. It is not necessary that there should be a realistic prospect of progression for an oral hearing to be directed. Transfer to Open Conditions[25]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) , 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.[26]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. "
[27]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[28]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[29]The Respondent offered no representations. Discussion Ground 1[30]The Applicant's legal adviser submits that the Parole Board failed to undertake a fair and reasonable review of the Applicant's case because they did not await the outcome of a medical scan (a CT scan) which relates to assessments being made as to whether the Applicant is suffering from dementia. Discussion[31]This ground arises in circumstances where ongoing medical enquiries were being conducted in relation to the Applicant's memory. The panel noted in the written decision that the Applicant was to undergo a CT scan at some stage. The scan would assist in reaching a conclusion about the possibility of the onset of dementia. The panel's role in responding to the referral by the Respondent was to consider the question of the risk of serious harm in the community. The panel had a considerable amount of evidence both written and oral presented at the oral hearing. The panel also noted that the Applicant had a number of medical conditions. It is clear from the panel's decision that the question of whether or not the Applicant was suffering from dementia was not a material consideration in terms of the assessment of risk. The panel set out in the decision, the factors which led them to reach their conclusion. It was noted that the panel concluded having heard evidence that the Applicant did not know what were the risks and triggers which led to his historical offending. The panel also had little confidence that the Applicant had demonstrated an ability to avoid illicit drugs, and negative associates were he in the community. Albeit these have been avoided in the custodial environment for many years. The panel also noted that the Applicant was heavily reliant upon the concept of avoidance in relation to managing risks. The Applicant was not able to articulate proactive thinking and problem solving which would be relevant to managing risk in the community. The panel also took account of the fact that the Applicant had remained in a high security prison and indicated that there was doubt as to whether the Applicant could manage his risks following a direct transfer to the community.[32]Whilst a CT scan will be helpful to the Applicant in understanding and possibly explaining difficulties with memory, I am not persuaded that the presence or absence of a CT scan or a diagnosis or otherwise of dementia were material factors in the assessment of risk. It may be that if the Applicant is suffering from dementia than the risk considerations would be magnified, however it is clear that the panel made no judgement as to the issue of memory or dementia in reaching their conclusion upon the referral. For this reason, I am not persuaded that this ground amounts to either a procedural irregularity or irrationality. Ground two[33]The Applicant's legal adviser makes a number of comments and submissions relating to the categorisation of the Applicant and the apparent concerns about the management of re-categorisation by the Respondent. Discussion[34]The issue of the categorisation of a prisoner is entirely in the hands of the Respondent. The Parole Board have no involvement or mandate in relation to decisions about categorisation. For this reason, I am not therefore persuaded that the issue of categorisation is a matter which engages reconsideration. Ground three[35]The Applicant's legal adviser requests the Parole Board to adjourn the decision to await the outcome of a CT scan and possibly ongoing issues relating to re-categorisation. Discussion[36]The rules relating to reconsideration are set out in the Parole Board rules 2019. The rules do not include a power to adjourn proceedings as suggested by the Applicant's legal adviser. The role of the reconsideration panel is to consider the decision of the panel in the light of the law relating to irrationality, unlawfulness and procedural unfairness. A summary of the legal position is set out in the notes above. Ground four - General considerations[37]I have considered the decision of the panel in this case. The panel made an independent assessment of risk and of any progress made by the Applicant to address that risk. The panel noted that one of the three professionals giving evidence (the COM) was arguing for a transfer to open conditions. None of the professionals were recommending a direction for release. The panel were not bound by the professional recommendations. The panel indicated that they attached weight to the fact that the Applicant had been incarcerated for a substantial period of time and was post tariff. The panel were bound to consider the seriousness of the index offence albeit the commission of the offence was many years ago. As noted above, the panel took the view that the Applicant showed minimal understanding of his risks and triggers and in any event took the view that the historical risks were no longer relevant. The panel took account of the fact that the Applicant appeared to have limited coping skills in terms of managing his risks save for avoidance. The panel took the view that there was a need for proactive thinking skills and problem solving in order to manage risks in the community. The panel also were bound to take account of a relatively recent incident of violence within the prison.[38]The panel also took account of the fact that the Applicant remained firmly convinced (possibly obsessed) that a person (a man apparently well known for his gangland activities in City A) was bribing prison officers to make threats to him and was involved in various plans to cause the Applicant harm. The panel were bound to conclude that the issue relating this person may well lead to violence in the future, if the representations made by the Applicant about the person have any cogency.[39]Having considered the panel's decision and taken account of the requirements of the case of Wells , which direct that the panel making a decision should explain clearly its reasons for doing so and it stated reasons should be sufficient to justify its conclusions I determine that the panel decision meets the requirements of the case of Wells . This is not therefore a case for reconsideration. Decision[40]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 19 May 2026