Hart, Application for Reconsideration [2026] PBRA 117 (26 May 2026) [2026] PBRA 117

PBRA
Hart, Application for Reconsideration [2026] PBRA 117 (26 May 2026)
[2026] PBRA 117 · 2026-04-07
[1]This is an application by Hart (the Applicant) for reconsideration of a decision of a Parole Board panel of 7 th April 2026, following an oral hearing on 26 th March 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(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, which include:a. the dossier now containing 883 numbered pages including the decision, the subject of this application, and evidence from witnesses and written submissions on behalf of the Applicant sent in following the hearing.b. the request for reconsideration, dated 28 th April 2026. Request for Reconsideration[4]The grounds submitted in support of the request for reconsideration are lengthy. They are set out in summary below: SUBMISSIONS "IRRATIONALITY"17. It is submitted that the panel placed undue weight on the PRA [psychology risk assessment] and were irrational in apportioning weight to the OPD [offender personality disorder] pathway consultation without a clear reason. At paragraph 1.13 of the decision, the panel quotes a significant portion of the report and relies on it to describe [the Applicant's] approach to the world, as well as his risk factors and protective factors."18. Furthermore, at paragraph 2.47 of the decision, the panel again quotes a significant portion of the OPD pathway consultation, this sets out the interventions that [the Applicant] should complete. It is then stated within paragraph 2.49 that [the Applicant] is not eligible for Building Choices due to his personality traits. The decision also omits [the prison psychologist's] oral evidence that [the Applicant] would not be eligible for HSP (Healthy Sex Programme)."19. The panel accepts and adopts the findings of the OPD pathway consultation within the decision and applies no level of scrutiny to its findings or recognition of its limitations. The panel then provide no clear rationale for the departure from the professional opinion of [the prison psychologist]. It is stated by the panel in paragraph 4.4 that the PRA underestimates [the Applicant's] risk and that the professional opinion of the previous COM [community offender manager], newly allocated COM with the support of the OPD pathway consultation are preferred. There is no description of why this decision has been made or reasoning given as to why the panel prefer the view put forward in this report."20. The panel concluded that [the Applicant] should do further work in custody before release can be considered (paragraph 4.6), this conclusion is made despite clear evidence from [the prison psychologist] and [the stand-in prison offender manager (POM)] that [the Applicant] was not eligible for further work. This further demonstrates the reliance on flawed and incorrect findings within the OPD Pathway Consultation."21. Within its decision, the panel rationalise their departure from the PRA authors [sic] professional opinion with the OPD Pathway Consultation, however, the panel fail to rationalise why this is held in higher regard while placing little scrutiny or challenge on it despite clear errors found within it, which were discussed at the hearing."22. The panel in reaching this conclusion and attaching significant weight to it, failed to recognise the deficiencies with the report as well as the inability to challenge information within it. In taking this report at face value and favouring it over a detailed PRA which involved significant contact with [the Applicant] and access to information, the panel have acted irrationally which has led to an irrational decision that would not be reached by another panel reviewing the same evidence. PROCEDURAL UNFAIRNESS"23. It is submitted that it was procedurally unfair to permit a stand in POM to give evidence, for it to then to have less weight placed upon it due to the nature of the witness's attendance."24. There were clear issues with securing the attendance of an allocated Prison Offender Manager at the hearing, due to this, significant efforts were made to determine the knowledge that the stand in had of [the Applicant's] case. Following an update from the Prison Offender Manager, the head of the Offender Management Unit (OMU) was directed to attend the hearing to support the evidence of [the POM]."25. During the hearing, the head of OMU stated that they did not have knowledge of [the Applicant's] case. As [the POM] had given substantial evidence, the hearing continued."26. At paragraph 3.11 of the decision, [the POM's] recommendation for release is summarised, however, the panel also consider that this is set against this not being the recommendation of [the Applicant's] allocated Prison Offender Manager and that there had not been a discussion of their recommendations."27. Clear steps were taken to ascertain whether an effective hearing could take place, with no parties raising concerns over the suitability of [the POM] at the hearing."28. It is submitted that it was procedurally unfair to take evidence from [the POM], proceed with the hearing and not seek further clarification from the hearing while placing less weight on the professional recommendation put forward. CONCLUSION"29. Overall, it is submitted that the decision was irrational in that it failed to correctly rationalise the departure from the PRA, instead favouring a lesser report. The decision was also procedurally unfair by way of the professional opinion of a key witness being given less weight, with no clear reasoning as to why less weight should be attached or warning to [the Applicant] and his legal representative that the evidence be viewed as limited."30. In the light of the above, it is respectfully submitted that the Parole Board decision was irrational and procedurally unfair." Background[5]In December 2006 the Applicant, then aged 18, was sentenced to detention for public protection with a minimum term to be served of two years six months and 11 days for offences of wounding contrary to Section 18 of the Offences against the Person Act 1861 and conspiracy to pervert the course of justice. His "tariff" expired in June 2009. In December 2018 he was released on licence following direction by the Parole Board. 18 days later he was recalled following an incident in which he had held a wooden chair over his head in the Approved Premises in which he was living and made threats to staff. In September 2019 he was released on licence following a Parole Board decision in July of that year. While at liberty he formed a relationship with a woman with whom he had had twin children. He was seen in July 2023 pushing a pram with a woman and the children. More than a year later in August 2024 he revealed for the first time that the woman was his partner and the children were their children.[6]In September 2024, a report from the mother of a 17-year-old girl revealed the existence of a relationship between the Applicant and her daughter. The Applicant had not told Probation about the relationship because he was scared of being recalled to prison. In October 2024 his licence was revoked in respect of other matters and he was returned to prison. The Applicant had not disclosed either relationship to his COM/Probation, because he feared he would be recalled to prison if he did so. Current parole review[7]His case was referred to the Parole Board by the Secretary of State for Justice (the Respondent) in October 2024 and directed to oral hearing by a Parole Board member on 25 th June 2025. 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)) 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)). This case qualifies for reconsideration under both Rule 28(1) & (2). 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. Procedural unfairness 17.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.[18]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.[19]The overriding objective is to ensure that the applicant's case was dealt with justly. The reply on behalf of the Secretary of State 20.The Respondent has informed me that he will not be submitting a response to the application. Discussion 21.It is worth setting out in summary the relevant events leading up to the substantive hearing.a. The Applicant was first released on licence following a direction from the Parole Board in December 2018. He was recalled to prison within three weeks of that release.b. He was again released on licence following a direction from the Parole Board in July 2019. He was again recalled to prison in October 2024. Later that month the Secretary of State referred his case to the Parole Board for a decision on release and in the event of no decision for release, for a decision whether to recommend his transfer to open conditions.c. In January 2025 the case was adjourned for a large number of actions to be completed. The case was again adjourned in April 2025. In June 2025 the Applicant's legal representative submitted that no further adjournment should be permitted bearing in mind the delay already suffered by the application.d. In June 2025 the Parole Board directed a large number of further actions to be completed by August 2025.e. Before a hearing fixed for November 2025 could take place the Applicant was convicted of further offences. I set out a summary of the helpful chronology submitted by the Applicant's legal representative concerning events between November 2025 and the substantive hearing. "8. On 11 November 2025, [the Applicant] was sentenced to 12 weeks custody for making an indecent image of a child. Due to his conviction, [the Applicant] was transferred from [prison A] to [prison B]. "9. On 18 November 2025, legal representations were submitted to the panel requesting an adjournment on the basis that [the Applicant] had been convicted of a new offence which required exploration in order for an effective oral hearing to take place. The request was refused on 20 November 2025. "10. On 27 November, [the Applicant's] hearing was adjourned on the day in order for a PRA to be completed, this was due to one being requested by both the POM and COM as they felt it would be of benefit. "11. Following the adjourned hearing, [the Applicant] was transferred to [prison C]. On 12 February 2026, the PRA was submitted... "12. On 20 February 2026, [the Applicant's] newly allocated POM at [prison C] submitted a SHRF stating that it was planned that he would move back to [prison A] and that she would not be attending the hearing. This was opposed by [the Applicant's] legal representative and the request to revoke attendance was refused by the panel. "13. This was followed by an undirected report by the POM being submitted on 23 February 2026. This contained details of [the Applicant's] custodial behaviour and comes to a conclusion on [the Applicant's] engagement based on their experience of [the Applicant]. "14. The attendance of [the Applicant's] POM was subsequently revoked, with [the stand-in POM] being permitted to attend as a witness on 6 March 2026. It was directed that [the Applicant's] legal representative submit further representations setting out points of dispute and any clarification needed based on the submitted. "15. These representations were submitted on 12 March 2026... "16. Prior to the hearing taking place on 26 March 2026, the OPD pathway consultation was added to the dossier on 25 March..." 22.It can thus be seen from the chronology that approximately 18 months had elapsed between the referral of the case to the Parole Board and the substantive hearing. With this in mind two days before the hearing the Applicant's representative had helpfully, and understandably, indicated that in spite of the very recent changes in personnel concerned with the case the hearing should go ahead and any application for further adjournment made - if necessary - at the hearing itself (dossier p823). In the event no such application was made. 23.I deal with the grounds in summary in the order in which they were presented. 24.The first complaint on behalf of the Applicant amounts to a submission that while the panel was entitled to conclude that it favoured the conclusions reached by the COM and the psychologist it failed to explain properly why it had done so. The reasons for rejecting those conclusions are clearly set out at paragraphs 2.28, 2.34, 3.3, 4.3 and 4.4 of the decision. Clearly the recent events concerning the Applicant discussed at paragraphs 2.22-2.29 played a significant part in the panel's decision. There was nothing irrational in the way in which the panel approached those events or in the conclusion it reached on the weight to be attached to them. Understandably perhaps the grounds do not refer to incidents in January and March 2026 which are summarised in the decision at paragraphs 2.42-2.44 and which clearly were also relevant to the assessment of risk posed by the Applicant when faced with frustrating circumstances whether inside or outside prison. 25.The panel's reasoning - in particular the reasoning applied to the evidence of the previous and recently appointed COMs - is clear and 'rational'; see e.g. paragraphs 2.12-2.14. The grounds come close to suggesting that whatever the degree of risk posed by an offender, if there is no immediately available programme within the prison system which may reduce an offender's risk sufficiently to allow safe release a direction for release should follow automatically. Such a suggestion is wrong. The Parole Board must make decisions based on the degree of risk it assesses to be presented by an offender irrespective of the existence or availability of interventions which might reduce that risk sufficiently to allow release. 26.The events which led to the recall of the Applicant in 2024 and his subsequent conviction together with his recorded behaviours since recall were all relevant factors - and clearly set out as such (see paragraph 3.5) - in persuading the panel that a direction for release was not the right option in this case. 27.The panel, in addition to reading the reports of, and hearing from, the professional witnesses, heard the evidence of the Applicant and reached factual conclusions - which it clearly set out - concerning the events leading to the recall and subsequently while in prison. The decision sets out clearly and rationally - at paragraphs 4.2-4.5 - why it concluded that the risk currently presented by the Applicant was not at a level to permit a direction for release. Decision 28.For the reasons I have given I do not consider that that the decision was irrational or procedurally unfair and accordingly the application is refused. Sir David Calvert-Smith 26 May 2026