Elue, Application for Reconsideration [2026] PBRA 124 (02 June 2026) [2026] PBRA 124

PBRA

Elue, Application for Reconsideration [2026] PBRA 124 (02 June 2026)

[2026] PBRA 124 · 2026-05-05

[1]This is an application by Elue (the Applicant) for reconsideration of a decision of an oral hearing dated 16 April 2026, making no direction for 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. These are as follows: · The dossier, totalling 548 pages. · The decision. · Submissions from the Applicant. Request for Reconsideration

[4]The application for reconsideration is dated 05 May 2026.

[5]The Applicant submits that the decision is irrational, procedurally unfair and contains an error of law. The substance of the grounds is included in the discussion section below. Background

[6]On 19 June 2018, the Applicant was convicted of wounding with intent to do grievous bodily harm, attempted malicious wounding, possession of a bladed article and possession of cannabis with intent to supply. He was sentenced to an extended determinate sentence of 13 years comprised of a nine year term of imprisonment and a four year extended licence.

[7]The offences were committed in the context of the Applicant being a drug dealer. When a customer did not attend a meeting, he challenged her brother. This escalated and he returned to the scene armed with a knife where he assaulted the victims.

[8]The Applicant was further convicted on two occasions during his index sentence: · 29 March 2019 of assaulting a constable, receiving a 20-week sentence. · 07 September 2023 of assault occasioning actual bodily harm, receiving a consecutive 20-month sentence. Both of these convictions related to assaults on female members of staff in prisons. Current parole review

[9]The Applicant's case was referred to the Parole Board on 09 July 2024. His case took a convoluted path, initially being determined at MCA before that decision was successfully set aside. His case was ultimately directed to oral hearing on 19 August 2025.

[10]The Applicant's oral hearing took place on 14 April 2026. The panel consisted of three members, all of whom were independent, non-specialist members. The panel considered a dossier of 530 pages, and heard oral evidence from the Applicant, his Prison Offender Manager (POM), and his Community Offender Manager (COM). The Applicant was legally represented throughout his oral hearing.

[11]There was a preliminary matter around an outstanding adjudication, however after hearing that the witnesses' professional opinions were not impacted by this, the hearing proceeded. During the hearing the COM then indicated that the outstanding adjudication did impact on her professional opinion. Adjournment was discussed, but the panel determined that neither the COM's professional opinion nor the outcome of the adjudication were essential to concluding the case. The Relevant Law

[12]The panel correctly sets out in its decision the test for release. Parole Board Rules 2019 (as amended)

[13]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)).

[14]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

[15]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.

[16]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. "

[17]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).

[18]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.

[19]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

[23]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.

[24]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

[25]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. Reconsideration as a discretionary remedy

[26]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 (the Respondent)

[27]The Respondent has submitted no representations in response to this application. Discussion

[28]The Applicant has set out his argument in support of reconsideration on five grounds. Ground 1- Irrationality on the basis of factual misattribution

[29]The Applicant submits that the panel misattributed to him an admission that he stepped towards staff during an incident in December 2025 (the outstanding adjudication noted in paragraph 11 above).

[30]There is some weight in this submission. I noted that the panel addressed the Applicant's evidence on this incident at paragraph 2.4 of the decision, where it is stated "He said he eventually took a step to go to his cell, but the staff mistook this for aggression and so he was placed in guiding hold." However, at paragraph 2.6 of the decision, the panel states "However, the panel took into account that [the Applicant] accepts that he was engaged in a verbal altercation with another prisoner, that he disobeyed orders of staff and that he stepped towards them whilst already engaged in a challenge with them causing them to fear for their safety."

[31]It does appear that the panel have misattributed an admission to the Applicant, his evidence being clear that he stepped towards his cell rather than towards staff. The Applicant submits that this is a material error which directly informed the panel's conclusions on this incident being offence-parallelling.

[32]In considering this submission, I must take into account the entirety of the panel's conclusions on this issue. The panel did conclude that this incident with staff, whilst awaiting adjudication, was offence-parallelling. In doing so they took into account the Applicant's acceptance that he had not dealt with the situation correctly and should not have attempted to negotiate with staff when directed to return to his cell, after having been involved in verbal aggression with another prisoner which necessitated the emergency bell being pressed.

[33]The panel did not make a finding of fact about whether the Applicant had deliberately assaulted staff, but concluded the following- "The panel is satisfied that [the Applicant] evidenced offence parallelling behaviour in this incident by engaging in a verbal disagreement, failing to consider the consequences of his actions and behaving in a way that caused harm to others. The panel therefore assessed this incident to represent ongoing evidence that [the Applicant] has yet to develop sufficient internal controls to prevent harm being caused to others."

[34]I am satisfied that the panel has misattributed the acceptance by the Applicant that he stepped towards the officers; he clearly indicated that he stepped towards his cell. However, I am also satisfied that in the context of the findings, this is not a matter of material significance. The panel do not mention it as a factor in their conclusion on the incident, which focuses on the Applicant's thought processes and internal controls. If I am wrong in concluding that the panel did not take the issue matter into account, I am in any event satisfied that it is a minor error, which was not material considering the incident as a whole. Ground 2- An illogical finding on evidential insufficiency

[35]With respect to the same outstanding adjudication, the Applicant submits that the panel acknowledged that it could not make a firm finding of fact but went onto make conclusions about the same incident. It is also suggested that the panel found the allegations to be proven. This is submitted to be internally inconsistent and therefore, irrational.

[36]I can deal with this ground briefly. As noted above, the panel did indicate it could not make a finding of fact on whether the Applicant deliberately assaulted staff. No finding of fact was made on this issue.

[37]However, this did not preclude the panel from making other findings of fact based on the evidence that was available. The Applicant had accepted that he should not have dealt with the incident as he did. It was open to the panel to conclude that the incident raised concerns and was offence-parallelling, without having to make a finding on whether a deliberate assault took place.

[38]There is no internal inconsistency in these conclusions, and they cannot amount to irrationality on that basis. Ground 3- Unsupported conclusions on offence-parallelling behaviour

[39]This relates to the same issues as the previous two grounds. The Applicant submits this incident cannot amount to offence-parallelling behaviour; there must be a meaningful behavioural, motivational or functional similarity between the offending behaviour and the conduct in question. He further submits that characterising a verbal disagreement between prisoners as offence-parallelling in relation to his index offence, which involved premeditated violence with a weapon would be irrational. The mere fact that verbal conflict preceded the index offence cannot, without substantially more analysis, render every subsequent verbal disagreement offence-parallelling.

[40]I would agree with the thrust of the Applicant's argument on this ground. It would clearly be irrational to conflate every verbal disagreement as offence-parallelling with respect to serious violence. However, that is not what the panel have done.

[41]As noted in the previous grounds, the panel did not consider this a mere verbal disagreement. The panel also considered the Applicant's response to the incident when challenged by staff, and his refusal to comply with reasonable directions which resulted in harm being caused. They considered this was indicative of a lack of internal controls.

[42]The panel's reasoning for finding this incident as offence-parallelling goes well beyond a simple verbal disagreement. I am satisfied this was not an irrational finding. Ground 4- Failure to engage with adequately with the Applicant's Autism Spectrum Condition (ASC)

[43]The Applicant submits that the panel erred in concluding that he had " failed to consider the consequences of my actions" and had "behaved in a way that caused harm to others." He suggests that this presupposes he had the ability for conscious deliberation and volitional control over his actions, and that, in fact, the application of a guiding hold had resulted in an autistic meltdown. He goes on to suggest the panel failed to adequately engage and address this matter in their conclusions, applying an inappropriate standard of behavioural accountability. These were errors that amounted to irrationality.

[44]In my view, the Applicant's submissions fail to address the incident in its entirety. As repeated in the conclusions on the preceding grounds, no conclusion was made on whether the Applicant deliberately assaulted staff. The panel's primary conclusions relate to the Applicant's actions and decision making before the application of the guiding hold. Prior to that action, the Applicant could not be suggested to have entered an autistic meltdown, and it is at that point where the Applicant can properly be considered to have failed to consider the consequences of his actions.

[45]Equally, knowing that he is susceptible to such a meltdown due to his condition, the Applicant can fairly be considered to have acted in a way that caused harm to others; he failed to disengage and escalated a situation which he should have recognised had the potential to escalate and cause harm. The Applicant accepted he should not have tried to negotiate in those circumstances.

[46]Furthermore, the panel did acknowledge the Applicant's position on the meltdown, albeit they placed weight on his actions leading up to that point.

[47]I am satisfied that this cannot amount to irrationality. Ground 5- Procedural unfairness and failure to comply with the public sector equality duty

[48]The Applicant makes two distinct arguments under this ground: · The panel failed to discharge the public sector equality duty (PSED) under section 149 of the Equality Act 2010 in assessing his case (an error of law); · Procedural unfairness, in that the panel applied an unfair standard of behavioural culpability, characterised an autistic meltdown as offence-parallelling and failed to obtain a clinical assessment of the Applicant's ASC.

[49]With respect to the PSED, Schedule 18, paragraph 3(1) of the Equality Act 2010 disapplies section 149 to the exercise of judicial functions. The Parole Board and its panels when making decisions related to the potential release of prisoners are exercising a judicial function. Therefore section 149 is not applicable.

[50]With respect to the Applicant's submissions on procedural unfairness, this has been substantially addressed in previous grounds. The panel did not apply an unfair standard of behavioural culpability, nor did they characterise an autistic meltdown as offence-parallelling; the culpable conduct found by the panel related to the Applicant's decision making, failure to disengage and his escalation of the situation before he was touched and entered the autistic meltdown. As regards the need to obtain further clinical information about the Applicant's ASC, I do not consider this can be considered procedurally unfair.

[51]Firstly, the Applicant was legally represented, and no suggestion was made by his legal representative that such a report was necessary in the circumstances. Secondly, and for substantially the same reasons as outlined previously, the panel's conclusions related to the behaviour prior to the autistic meltdown. If the panel had wished to engage in greater depth with the actions after the meltdown had commenced, then this point may have had more force. However, the panel, sensibly in my view, confined themselves to matters in advance of it. In those circumstances, failure to obtain additional clinical information around the Applicant's ASC cannot amount to procedural unfairness. Conclusions

[52]Considering the proceeding conclusions, I do not consider that the Applicant has shown the decision was in any respect irrational. Similarly, I find no error of law nor any procedural unfairness. Decision

[53]For the reasons I have given, I do not consider that the decision was irrational, procedurally unfair or contained an error of law and accordingly the application for reconsideration is refused. John Marley 02 June 2026