Lewis, Application for Reconsideration [2026] PBRA 136 (18 June 2026) [2026] PBRA 136

PBRA
Lewis, Application for Reconsideration [2026] PBRA 136 (18 June 2026)
[2026] PBRA 136 · 2026-05-25
[1]This is an application by Lewis (the Applicant) for reconsideration of a decision of an oral hearing dated 1 May 2026 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 decision; · the application for reconsideration dated 25 May 2026 and submitted by the Applicant's legal representative; and · the dossier, which now contains 571 numbered pages, ending with the decision. Request for Reconsideration[4]The grounds for seeking a reconsideration are as follows:(1) Procedural unfairness and/or error of law in the treatment of an allegation of murder in 2016 of which the Applicant was acquitted.(2) Procedural unfairness arising from the absence of a Psychological Risk Assessment (PRA) which had previously been directed.(3) Failure to give adequate reasons for departing from the professional opinions of the witnesses.[5]I discuss these, and the particulars given for them, below. Background[6]The Applicant was 29 years old in 2022 when he received an extended sentence of imprisonment of seven years' custody and five years' extended licence for an offence of aggravated burglary. He was one of a group of men who broke into a house being used as a cannabis-growing factory with a view to stealing the cannabis. To his knowledge one of the men was carrying a machete, which was accepted by the court to be a weapon constructed with a view to causing injury. The person running the factory was summoned by the nightwatchman (who had left the building just before the burglars arrived). The man with the machete stabbed the manager, who died. The man with the machete pleaded guilty to manslaughter. The prosecution accepted pleas of guilty to aggravated burglary from the Applicant and all but one of the other offenders: the remaining man pleaded guilty to assisting the others by driving them away from the scene.[7]The Applicant is now aged 35. His record of offending began when he was 15, and previous convictions include acquisitive offending, possession of Class A drugs with intent to supply, assaulting a police constable, possession of offensive weapons and violence. He was in the habit of carrying a knife. In 2012, when he was 20, he received a sentence of nine years' imprisonment for an offence of causing grievous bodily harm with intent, when he and others attacked another youth at a rave. While serving that sentence he was arrested in 2016, and in due course tried for, and acquitted of, murder. This was the allegation that lies behind Ground (1), and I discuss it below. Current parole review[8]In September 2024 the Secretary of State (the Respondent) referred the Applicant's case to the Parole Board for consideration of release. This is the Applicant's second review. His first oral hearing was listed for November 2025 but was adjourned for the preparation of a psychological risk assessment (PRA). Three months later the psychology team informed the parties that they had been unable to meet the deadline for that report due to a lack of resources. Nor could they confirm whether the PRA would be ready by 17 April 2026, the day of the adjourned hearing. Having received representations from the parties, the panel chair decided to continue without a PRA rather than delay the review further. It is this that forms the basis for Ground (2), and again I discuss it below.[9]The oral hearing took place on 17 April 2026. The panel consisted of two independent members and one specialist psychologist member of the Parole Board. The panel heard evidence from the Community Offender Manager (COM) the Prison Offender Manager (POM), and from the Applicant. The Applicant was legally represented throughout. The legal representative questioned the witnesses and made written closing submissions after the hearing. Both the POM and the COM gave professional opinions supporting release. This is the basis for Ground (3) of the application. The Relevant Law[10]The panel correctly sets out in its decision the test for release. Parole Board Rules 2019 (as amended)[11]Rule 28 of the Parole Board Rules provides the types of decision and sentence which are eligible for reconsideration. This is an eligible decision and sentence type. Irrationality[12]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.[13]In R (DSD and others) -v- the Parole Board [2018] EWHC 694 (Admin) ( Worboys ) 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. "
[14]In R (on the application of Wells) -v- Parole Board [2019] EWHC 2710 (Admin) ( Wells ) 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) .[15]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 Worboys was binding on Saini J.[16]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.[17]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[18]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.[19]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.[20]The overriding objective is to ensure that the Applicant's case was dealt with justly. Error of law[21]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.[22]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[23]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[24]Reconsideration is a discretionary remedy. That means that, even if an error of law, irrationality, or procedural unfairness is established, I am not obliged to direct reconsideration of the panel's decision. I 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[25]The Respondent has made no representations in regard to this application. Discussion[26]I deal first with Ground (2), the absence of a PRA. This was adumbrated by a Stakeholder's Response Form (SHRF) dated 19 February 2026. The Respondent drew the panel's attention to the problem in complying with the deadline and asked the panel to advise. In accordance with the usual practice applicable to such forms, the Applicant's legal representative made her comments before it reached the panel chair.[27]The legal representative's response was this:
"In light of the updated material now before the Board, the continued professional support for release from both COM and POM, and the absence of any clear timeframe for completion of the directed assessment, it is respectfully submitted that the Board is now invited to determine whether the available evidence is sufficient for it to proceed to determination without further delay. "
This submission does not seek to diminish the matters identified in the adjournment notice. Rather, it is made to ensure that [the Applicant] is not placed in an unfair position by reason of ongoing delay where compliance with the direction cannot presently be guaranteed."[28]Of course, no-one would suggest that in replying in this way the legal representative was trying to help the Applicant have his cake and eat it: saying, in effect, provided the panel decides to direct release, we have no objection to proceeding without a PRA. Absent such a reading of the response to the SHRF, the only meaning it can have is that the representative did not seek an adjournment of the case for a PRA to be obtained. The panel chair carefully and expressly balanced the desirability of a PRA against the undesirability of a further adjournment, with no clear understanding of when a PRA would be available, and decided to continue without a PRA, the panel doing its best to remedy any deficit in its information through other witnesses.[29]The Applicant cannot, in these circumstances, complain that the panel acted in a procedurally unfair way in deciding to proceed without a PRA.[30]Ground (3) asserts that the panel did not provide adequate reasons for not following the professional opinions of the POM and the COM in favour of release. The representations go into detailed argument to support this ground.[31]The application very properly acknowledges that the panel is entitled to go against professional recommendations, unanimous or not. Panels of the Parole Board are not obliged to adopt the opinions and recommendations of professional witnesses. It is their responsibility to make their own risk assessments and to evaluate the likely effectiveness of any risk management plan proposed. They must make up their own minds on the totality of the evidence that they hear, including any evidence from the Applicant. They would be failing in their duty to protect the public from serious harm (while also protecting the prisoner from unnecessary incarceration) if they failed to do just that. As was observed by the Divisional Court in Worboys , they have the expertise to do it.[32]However, if a panel does make a decision contrary to the opinions and recommendations of all the professional witnesses, it is important that it should explain clearly its reasons for doing so and that its stated reasons should be sufficient to justify its conclusions; see Wells .[33]The sensible way for me to deal with this complaint is to set out the panel's extremely careful analysis of the evidence and its explanation for its decision, which I consider to be of exemplary clarity and entirely sufficient to justify its conclusions, subject only to further consideration of the weight given to the 2016 murder allegation. "4.2. In reaching its decision, the panel balanced the circumstances of the serious index offence, the record of previous violence, his mixed prison behaviour with recent improvements in prison behaviour, the reduction in adjudications and the proposed risk management plan. The allegation of the murder of another prisoner in 2016 is also relevant to the panel's risk assessment and it considered the information provided: its source, the supporting information, context and contemporaneity when deciding what weight it should carry. [The Applicant] denies he stabbed the prisoner and recalls it was a fast-moving situation in a confined space with a lot of prisoners present. He denies any history of animosity over a mobile phone, as suggested by the police report but understood the victim to be looking for conflict with him. [The Applicant] accepts fighting with him, that there was his blood on [the Applicant] but denies that he saw or touched the knife. "4.3. There remains no clear explanation why his DNA was on the knife and the police report is clear that it was. The panel considered that [the Applicant's] explanation about transference of DNA lacked credibility. What is clear is that the victim collapsed soon after the fight and died from a stab wound, a knife was found near to where the pair were fighting with his DNA on and the victim's blood. It would be unfair to make any finding of fact about the allegation on the basis of the information provided but on the balance of probabilities, the panel is satisfied that [the Applicant] was involved in a violent altercation with the victim, involving a weapon. The panel also took into account that [the Applicant] was at that time serving a lengthy sentence for serious violence and had previous convictions for possession of a weapon. The panel therefore places significant weight on this incident when assessing [the Applicant's] risk of serious harm and conclude that in the past, when he felt threatened and faced with a confrontation there is an increase in risk. Balanced against this, is that the incident is 10 years ago and there has been no further similar behaviour since, despite [the Applicant] being in prison for much of this period. "4.4. This was a very lengthy hearing when considerable evidence was taken in order to fill gaps in information that a PRA would have provided. The panel note that [the Applicant's] history of offending has demonstrated both instrumental and emotionally driven violence and he has a pattern of minimising and justifying his offending behaviour. This pattern of minimising and justification was evident in his explanation for much of his violent offending and for some of his negative and non-compliant prison behaviour, but it is noted that there has been no evidence of violence since 2022. "4.5. The panel do not place significant weight on the security Intell about his influence on the wing and accepts the evidence from the POM about his character and its subjectivity. It is also harder to place weight on threats to staff and other prisoners in the absence of confirmed sanctions. But there have been proven adjudications over the last 12 months, a pattern of negative and positive behaviour and a pattern of frequent security intelligence. This shows that he is still willing to push boundaries and disregard rules. Compliance is a concern shared by all the witnesses, but both the POM and COM do not consider that this behaviour or the risk of future noncompliance is linked with a risk of serious harm. "4.6. The panel took a differing view to the witnesses because despite his increased insight, maturity and high level of motivation to change he has been unable to resist breaking rules for his own personal gain. His recent use of cannabis and links with phones despite sanctions, wing moves, and loss of trusted positions suggests he still lacks consequential thinking skills. The panel do not accept his account of the recent finding in his cell that the phone was not his. "4.7. To his credit he is open about his use of cannabis to cope with feeling low, but the panel also note that the index offence was committed to steal cannabis plants when he was without income and he felt low. The panel assess that his risk of continued drug use is high and this could bring him into contact with other criminals and a risk of debt leading to an increase in the risk of re-offending and harm through confrontations. It gives the panel lack of confidence that he will comply and live a pro social life on release. "4.8. The panel give him credit for undertaking the Building Choices programme and engaging in therapy work, his insight has improved but the panel are not convinced that the recent changes he has made are genuine and long lasting. The panel conclude that he needs more time to develop and practice new skills and learn ways of coping without using drugs and a period of consolidation of these skills is required in the panels' view. "4.9. The RMP is very robust and whilst at the AP there would be close monitoring, but the panel are concerned that beyond the AP there would be reliance on internal controls and his willingness to comply and even with the protective factors identified the panel are not satisfied that his high risk of harm to others can be managed outside of prison. "4.10. On the available evidence, 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 more than a minimal risk of serious harm."[34]Looking at the foregoing, and the detailed complaints set out in the application, each and every one of the latter is covered by the panel. It is impossible for me, or, I would suggest, any dispassionate onlooker, to accept that the panel has failed in its duty to explain its reasons for disagreeing with the professional opinions of the witnesses.[35]Out of respect for a well-argued application, I take as an example what I think is the core complaint (see Paragraphs 37 and 38 of the application), that the panel " risks collapsing custodial non-compliance into unmanageable risk of serious harm in the community without sufficiently explaining the evidential bridge between the two ." The panel looked at recent and continuing non-compliance in custody (phones, cannabis), and found a lack of consequential thinking skills. For somebody with the Applicant's record of serious violence, arising for multiple reasons, including gain (the index offence) and revenge (the s18 offence), that lack of thinking skills must be a significant, and existing, risk factor, and the risk is of serious harm to the public. Paragraphs 4.5. to 4.8. of the decision explain this very clearly.[36]The panel included as a significant element of its decision the facts found with regard to the murder allegation in 2016 of which the Applicant was acquitted. Because of the way the panel expressed itself, I think it might well follow that, if the panel's approach to this allegation was wrong, its decision might be impugned as unreasonable. For that reason, in order to make clear the context, and the significance of this, I have left consideration of Ground (1) until last. I comment that a less forthright panel might have burked this issue.[37]The panel had the benefit of a remarkably detailed police report into the death of the prisoner who was killed in 2016. That report contains some tendentious comments about possible reasons for the jury's verdict, but there is no indication that the panel paid any attention to those. Although the Applicant was charged with and tried for murder arising out of this man's death, he said nothing to the police and did not give evidence at his trial. To the panel, the Applicant said that the other man attacked him, as was the prosecution case, but not for the reasons given in evidence. He admitted that the two of them fought. He agreed that his DNA was found on the murder weapon, seemingly on the improvised handle. He said it was only a trace, but the panel accepted, as it was entitled to, that it was sufficient for a full profile to be obtained. He accepted that the other man's blood was found on his clothing after the fight. The evidence in the police report is that this was a contact stain, that is, not throw-off or spattering.[38]In analysing this evidence, the panel used the language of the leading case of Pearce ( R (on the application of Pearce) v Parole Board [2023] UKSC 13 ), though it did not directly cite it. It is plain that the panel had that case in mind, and followed its approach. The panel specifically, and correctly, said that the Parole Board does not make findings of guilt, but can (indeed must) make findings of fact, on the balance of probabilities, where possible, and then decide what weight is to be attached to them. The panel's findings of fact are clearly set out in the extract from the decision set out above.[39]The findings of fact set out by the panel were clearly open to them on the available evidence, including that of the Applicant. Even without those findings, it was open to the panel to decide that weight had to be given to the allegation of murder, notwithstanding the acquittal, because the evidence was assessed by the Crown Prosecution Service as passing the test for criminal proceedings to be brought, and then went all the way to the jury without an argument that there was no case to answer succeeding (if one were made at the close of the prosecution case, as to which the evidence is, I think, silent). There was, therefore, demonstrably, a case to answer, a prima facie case.[40]Once a panel decides, as it did correctly in this case, that weight must be given to facts found in respect of an allegation, then how much weight it gives is a matter for its judgement. Where a panel arrives at a conclusion, exercising its judgement based on the evidence before it and having regard to the fact that the panel saw and heard the witnesses, it would be inappropriate to direct that the decision be reconsidered unless it is manifestly obvious that there are compelling reasons for interfering with the decision of the panel. Another panel might, perhaps, have taken a different view of the relevance to risk of these facts, though not, in my view, of the need for some weight to be attached to them in assessing risk, but that does not mean that this panel's decision on this aspect of the case was irrational, procedurally unfair or amounted to an error of law. Decision[41]For the reasons I have given, I do not consider that the decision was irrational, procedurally unfair or unlawful, and accordingly the application for reconsideration is refused. HH Patrick Thomas KC 18 June 2026