White, Application for Reconsideration [2026] PBRA 115 (19 May 2026) [2026] PBRA 115

PBRA

White, Application for Reconsideration [2026] PBRA 115 (19 May 2026)

[2026] PBRA 115 · 2026-03-23

[1]This is an application by White (the Applicant) for reconsideration of a decision of a Parole Board panel dated the 23 rd March 2026, following an oral hearing in February 2026, not to direct his 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 and by listening to relevant parts of the recording of the hearing. The papers are:a. The dossier now running to 1856 pages including the decision the subject of this application.

b. The grounds submitted on the Applicants behalf by a legal representative. Request for Reconsideration

[4]The application for reconsideration is dated 20 th April 2026. I received the papers on 28 th April 2026 and the recording of the hearing on 14 th May 2026.

[5]The grounds for seeking a reconsideration are set out in 82 paragraphs and complain of irrationality and procedural irregularity.

[6]Irrationality. In summary it is submitted that:a. The decision failed to explain rationally why it rejected the " more favourable " parts of the psychologist witness' evidence.

b. The decision failed to take proper account of the Applicant's work and conduct at Prison A.

c. The decision reached findings on " insight, disclosure and current risk " in terms stronger than were justified by the evidence in the dossier.

[7]The grounds go on to cite:a. Rule 28(1) of the Parole Board Rules 2019 (as amended) concerning the grounds for ordering reconsideration; and

b. Rule 24(9) concerning the prisoner's opportunity to address an oral hearing following the conclusion of the evidence alleging that that opportunity was not properly afforded to the Applicant.

[8]The Applicant also cites the cases of: Goldsmith

[2021] PBRA 148

Osborn v The Parole Board

[2013] UKSC 61

R (DSD and others) v the Parole Board

[2018] EWHC 694 (Admin)

[9]The grounds go on to summarise matters which the panel " relied heavily upon " in reaching its conclusion.

[10]They continue to:a. summarise " evidence favourable to release or relevant to current risk ", and

b. suggest that while the psychologist witness did not recommend release the decision failed to reflect properly the favourable aspects of her evidence.

[11]The alleged procedural irregularity stems from the procedure adopted at the end of the hearing when the Applicant addressed the panel in person and then gave way to his legal representative who also addressed the panel. It is submitted that pressure applied to the Applicant by the panel chair to leave the 'final word' to his representative and, if necessary, to submit written representations following the hearing, amounted to a procedural irregularity. Background

[12]The Applicant is now 62 years old. In 2008 he was convicted of offences of rape, buggery and indecent assault and sentenced to life imprisonment. The offences had been committed in 1991. In 2008 and 2012 he spent some time at a hospital. The " tariff " element of his sentence expired in February 2012. In 2019 a Parole Board (PB) panel recommended that he be transferred to open conditions, but the recommendation was not accepted by the Secretary of State (the Respondent). Current parole review

[13]The case was referred to the PB in August 2022. A hearing fixed for September 2023 was adjourned following an application on behalf of the applicant. The hearing was then fixed for 29 th January 2024. On 25 th January 2024 the hearing was deferred at the request of the applicant's legal representative because of the previous connexion of a panel member with the case in a professional capacity. The case was again adjourned following a hearing in October 2024 when evidence was taken from witnesses and a decision taken by the panel following the hearing that further evidence should be obtained and a hearing on 7 th February 2025 was adjourned on the day for the production of a fresh psychological report. A hearing on the 4 th February 2026 was adjourned on the day for an updated report from the Community Offender Manager (COM). Following the hearing on that day more documents were received - in particular a 2 nd Addendum Psychological Report and an Approved Premises Assessment.

[14]The panel heard from the Prison Offender Manager, two Forensic Psychologists, the COM and the Applicant. At the conclusion of the hearing, unusually, both the Applicant and his legal representative addressed the panel. The Relevant Law

[15]The panel correctly set 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)

[16]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).

[17]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)).

[18]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

[19]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.

[20]In R(DSD and others) -v- the Parole Board

2018 EWHC 694

(Admin) a Divisional Court applied this test to PB 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. "

[21]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).

[22]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.

[23]It follows from those principles that in considering an application for reconsideration the reconsideration panel will not substitute its own view of the evidence for that of the panel which heard the witnesses.

[24]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 assessments. The panel must however make clear in its reasons why it is disagreeing with the assessment of the witnesses. Procedural unfairness

[25]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.

[26]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; or

(b) they were not given a fair hearing; or

(d) they were prevented from putting their case properly; or

(e) the panel did not properly record the reasons for any findings or conclusion; and/or

(f) the panel was not impartial.

[27]The overriding objective is to ensure that the Applicant's case was dealt with justly.

[28]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.

[29]It is possible to argue that mistakes in findings of fact made by a decision maker result in the final decision being irrational, but the mistake of fact must be fundamental. The case of E v Secretary of State for the Home Department

[2004] QB 1044

sets out the preconditions for such a conclusion:

" there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter; the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable; the appellant (or his advisors) must not have been responsible for the mistake; and the mistake must have played a material (though not necessarily decisive) part in the tribunal's reasoning."

See also R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions

[2003] AC 295

, which said that in order to establish that there was a demonstrable mistake of fact in the decision of the panel, an Applicant will have to provide " objectively verifiable evidence " of what is asserted to be the true picture.

[30]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

[31]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

[32]The Respondent offered no representations. Discussion

[33]Procedural irregularity, said to be the " principal ground ". I have listened to the recording of the final stages of the hearing. Unusually, uniquely in the experience of the writer, the Applicant, who was legally represented, was allowed by the panel chair to address the panel in advance of the final submissions on his behalf by his legal representative. Before he did so the panel chair suggested to the Applicant that written representations might be the best way of putting his case forward but did not prevent him from addressing the panel. The Applicant then did so for some six minutes and made seven different points which he asked the panel to consider in his favour, before thanking the Chair for allowing him to do so and giving way to his legal representative who addressed the panel for another 10 minutes. The panel Chair had at no time intervened to stop him speaking. There is nothing in this ground.

[34]Irrationality. (The decision whether or not to recommend transfer to open conditions is not subject to the reconsideration procedure).a. The decision sets out its consideration of the psychological evidence at paragraphs 2.20-2.27. At the hearing neither psychologist witness supported release. One of the witnesses had never done so in any previous report, the other had supported release but modified her recommendation to a recommendation for transfer to open conditions at the hearing. The decision - at paragraph 2.25 records the recommendation originally made by one of the psychologists but not maintained at the hearing. There is nothing in this ground.

b. Prison A. There is no requirement for a decision to summarise all the evidence given on a particular topic or concerning a particular period. In any event the panel summarises the work done at this prison at paragraphs 2.14-2.15.

c. " Insight, disclosure and current risk ". As the grounds suggest this is something of a 'makeweight' ground. The decision deals with the question of risk thoroughly and rationally at paragraph 4.1-4.7. "4.1. The panel carefully considered all the written and oral evidence. It took into account closing submissions from the legal representative. It noted that the COM and PPCS Psychologist did not feel [the Applicant] met the test for release, highlighting his long period in prison creating a risk of destabilisation. All four witnesses agreed a period in open conditions was necessary and appropriate for testing and for gradual reintroduction into the community. [The prisoner commissioned psychologist] agreed but also commented that, in her opinion, he did meet the test for release. It should be noted that she last saw him in August 2024. "4.2. In reaching its decision, the panel took into account the fact that [the Applicant] was a life sentence prisoner 14 years over tariff. It had regard to not only the index offences but also his other sexual convictions forming a pattern of attacking and raping lone women. "4.3. It is also necessary to examine [the Applicant's] conduct in prison. There are many examples of inappropriate conduct towards female staff over the years but these seem to have diminished in recent times. "4.4. All the witnesses commented on [the Applicant's] improved conduct since arriving at [Prison A]. He has been there for two years without incident. He has contact with female staff without complaint. This is very much to his credit but this is of limited assistance in that the secure custodial environment cannot replicate the situation in the community. There is concern that his good behaviour is because he is getting what he wants and being out of the high security estate. To put this in context, this better behaviour has occupied 2 years out of 32 years (less 2 days) in one form of custody or another. "4.5. Although he has spent time in high and medium security establishments, [the Applicant] has been diagnosed with personality disorders but not with a mental illness. He is not currently taking medication. "4.6. [The Applicant] has been out of the community for 32 years less 2 days. His lifestyle when he was offending was unstable. Witnesses have pointed to a risk of destabilisation should he be released directly into the community. In his case, with instability could come serious offending, particularly if he has relapsed into drug use. On closely questioning [the Applicant], he did not display sufficient insight into his current risks. He did not regard himself as a risk to women. A combination of these factors indicates a currently untested risk. For those reasons, panel did not agree with [the prisoner commissioned psychologist's] opinion that [the Applicant's] risk of serious harm in the community was no more than minimal. "4.7. For the foregoing reasons, having conducted an independent risk assessment, the panel is satisfied that it remains necessary for the protection of the public that [the Applicant] should remain confined and so does not direct his release. There is no evidence of a sufficient reduction of risk. There is more than a minimal risk of serious harm."

[35]These paragraphs set out clearly the benefits but also the limitations of the progress the Applicant has made since in Prison A.

[36]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. Sir David Calvert-Smith 19 May 2026