Matthews, Application for Reconsideration [2026] PBRA 118 (21 May 2026) [2026] PBRA 118

PBRA

Matthews, Application for Reconsideration [2026] PBRA 118 (21 May 2026)

[2026] PBRA 118 · 2026-04-17

1. This is an application by Matthews (the Applicant) for reconsideration of a decision of an oral hearing panel dated 17 April 2026. The decision of the panel was not to direct release .

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

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

The application for reconsideration is dated 7 May 2026.

The grounds for seeking a reconsideration are set out below.

Background

The Applicant is serving a sentence of imprisonment for public protection. The sentence was imposed on 22 June 2007. The Applicant's tariff expired on 29 November 2009. The Applicant was aged 39 at the time of sentence. He was 58 at the time of the oral hearing.

The index offence was robbery. The Applicant approached the victim of the robbery on a footpath demanding money. He then grabbed the chest of the victim and pointed a knife directly at him. The victim described being petrified and handed over his wallet. During the robbery the victim's finger was cut by the knife. The Applicant was arrested nearby.

Current parole review

The referral from the Respondent requested the Parole Board to consider whether the Applicant should be subject to a direction for release. If not released the Parole Board were asked to consider whether there should be a recommendation that the Applicant be transferred to an open prison. The Applicant had been transferred to an open prison on two occasions but returned to closed prisons following difficulties in relation to behaviour.

The panel hearing took place on 9 April 2026. The Parole Board panel consisted of an independent chair of the Parole Board accompanied by two further members both of whom were psychologist members. Evidence was adduced at the hearing from the Applicant's Prison Offender Manager (POM), the Applicant's Community Offender Manager (COM) and a prison commissioned psychologist. The Applicant was legally represented and gave evidence himself.

The Relevant Law

The panel correctly sets out in its decision dated 17 April 2026 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)

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)).

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)).

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

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.

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. "

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).

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.

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.

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

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.

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

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. "

The reply on behalf of the Secretary of State

The Respondent offered no representations.

Discussion

Ground 1

The Applicant's legal adviser submits that the Parole Board panel relied upon allegations of poor behaviour and non-compliance in reaching its conclusion that the Applicant did not meet the test for release. It is submitted that the allegations did not meet the threshold of serious harm and therefore the decision is irrational and procedurally flawed. It is also submitted that the individual incidents were not particularised and put to the Applicant individually for comment.

Discussion

This submission is in the context of evidence received at the panel hearing and within the dossier, that there had been various incidents of concerning behaviour in the period before the panel hearing. There had been a court conviction for assault relating to an incident (in the prison) in 2023. The panel also identified recorded instances of a failure to control anger and manage emotions with reports of verbal aggression and rule breaking.

The concerns were articulated in reports on the dossier. The POM's report, for example, indicated that the Applicant had spent five days in the segregation unit before being subject to a prison transfer as he had threatened to "seriously hurt someone" if he was returned to the main wing following an adjudication, the adjudication itself being for disobeying a lawful order. There had also been two adjudications for possessing unauthorised articles, there had been various negative behaviour warnings including being rude and argumentative towards members of staff and taking an item from the waste management unit without permission. Also on the dossier was a security report which listed a number of concerns relating to disputes with other prisoners and making threats towards a member of staff.

The submission on behalf of the Applicant appears to be that these matters were not specifically and individually put to the Applicant at the panel hearing. I note within the decision the panel addressed the evidence presented by the Applicant in a number of paragraphs between paragraphs 2.14 and 2.22. It is clear from the written narrative that a substantial amount of evidence was given by the Applicant in response to questions from the panel and others. The Applicant clearly had a full opportunity to present his case and to comment upon any matters which he wished to raise. The issue of making threats was specifically put to the Applicant and he explained his reasons for behaving in that way (the Applicant said that he had acted in this way to trigger a change of prison).

As noted above the Applicant both had the opportunity himself, and was legally represented and therefore had the opportunity through his legal adviser, to adduce any evidence that he wished in relation to the various negative matters which appeared on the dossier. Much of the evidence had been agreed by the Applicant in conversations with his POM. I am not persuaded that it is incumbent upon a Parole Board panel to rehearse all negative matters which appear on the dossier. Panels of the Parole Board start from an informed position based upon the dossier. There will be numerous matters which do not require amplification, particularly if they appear to be uncontested. Any important uncontested matters can clearly be addressed by the Applicant himself or by his legal representative during the course of the panel hearing. I am not therefore persuaded that this ground amounts to evidence of procedural irregularity or irrationality.

So far as the second point is concerned, it is submitted that the individual incidents which were cited by the panel did not meet the threshold of serious harm. It is commonly understood that the risk of serious harm is measured in various ways. One frequent measure is the ability of a prisoner to demonstrate stability and compliance. That demonstration is often seen as the possession of internal controls which combined with the external controls of a Risk Management Plan are holistically considered when making a decision based on the codified public protection test. The panel in their decision indicated that their concern was the evidence of behaviour during the course of the Applicant's prison sentence of aggression, substance misuse and emotionally driven behaviour. There had also been rule breaking and threats to cause harm. The panel were not arguing that these individual instances of behaviour amounted to examples of serious harm, the point being made by the panel was that the nature and quality of these instances of negative behaviour were indicative of an inability to manage emotions and internalise learning that should have taken place from interventions. Given the Applicant's propensity, albeit many years ago, to act violently and cause serious harm, the panel in my determination were justified in assessing whether the Applicant had demonstrated internal controls and an ability to be managed safely in the community. The panel clearly concluded that the examples of poor behaviour were indicative of an inability to adhere to licence conditions and manage the potential for serious harm. Again, I am not persuaded that this argument amounts to irrationality or procedural irregularity as set out above.

Ground 2

The Applicant's legal adviser submits that the panel failed to provide clear reasons for the decision not to release and the assessment of risk.

Discussion

The panel set out its conclusions in the panel decision. In those conclusions the rationale for the decision was set out. The panel took account of the very serious nature of the index offence, which was committed at a time when the Applicant was struggling to cope and resorting to negative and harmful behaviour. The panel also took account of the previous criminal history of the Applicant which demonstrated risk to various potential victims. The panel also took the view that despite undertaking behavioural work, the Applicant had struggled to manage emotions, control his anger and distance himself from past negative patterns of behaviour. The panel particularly noted the criminal conviction in 2024 for assault. The panel further noted that the Applicant had twice been to an open prison and had been sent back to the closed estate as a result of rule breaking and deterioration of behaviour. The panel took the view that with this background the risk of serious harm could escalate quickly if the Applicant were outside the rigours of a custodial setting. The panel also noted that their views were supported by the professional witnesses, none of whom were recommending release. In the circumstances, it appears clear that the panel set out the basis upon which they reached their decision that the Applicant did not meet the codified public protection test. I am not therefore persuaded that this ground amounts to procedural unfairness.

Ground 3

The Applicant's legal adviser submits that it was irrational to conclude that the Applicant did not meet the test for release.

Discussion

The Applicant's legal adviser submits that the panel attributed more weight to incidents of negative behaviour in the past than was applied by an earlier panel in 2024. It is further argued that the Applicant had not displayed physical violence for over two years.

As is acknowledged by the Applicant's legal adviser, panels of the Parole Board are required to make an assessment of risk at the time of the panel hearing. Panels will not ignore the previous decisions of Parole Board members. Previous decisions routinely appear on the dossiers and are often indicators of the progress of a prisoner through the parole process. However, panel hearings are context specific and take account of the position as seen by panel members at the time of the hearing. It is of note that the 2024 panel, cited by the Applicant's legal adviser, took the view that the Applicant's risk could not be safely managed in the community and did not direct release (although they did recommend that the Applicant be transferred to an open prison). The current 2026 panel came to a similar conclusion but did not recommend a transfer to an open prison. As noted above, the (current) 2026 panel set out in some detail the reasons for their decision. I am not persuaded that those reasons amount to an irrational decision.

It is further submitted by the Applicant's legal adviser that, although the panel acknowledged that they had a duty to "scrutinise ever more anxiously whether the level of risk is unacceptable" , the panel did not in fact identify how they applied the scrutiny that was required.

In this case the panel set out in a 15 page decision the basis upon which they assessed risk, and concluded that the Applicant's risk could not be safely managed in the community. It is clear from the decision that the panel adduced a substantial amount of evidence from the professional witnesses and from the Applicant himself. They made reference to issues within the dossier. They affirmed within the decision itself, that they were aware of their duty to apply anxious scrutiny to the decision in this case in the light of the length of time that the Applicant had been incarcerated after his tariff expired. The panel made it clear that they concluded that the Applicant's continuing instability and difficulties in managing emotional regulation and compliance were substantial factors in reaching their conclusion. The panel acknowledged that the Applicant had made some progress in managing his risk. The professionals in this case took the view that the Applicant would benefit from a period of time on a specialist wing or at a specialist prison which could assist him in managing his day-to-day emotional dysregulation and assist him in preparing for the possibility of living in the community in the future.

The decision in this case was a substantial and careful analysis of the Applicant's current position and risk. Whilst the panel were obliged to apply anxious scrutiny to their decision, they were also required to adhere to their primary duty which was the considerations relating to public safety and the risk of serious harm. I am not persuaded that this ground amounts to a basis for reconsideration as suggested by the Applicant's legal adviser.

Decision

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 S Dawson

21 May 2026