Farrell, Application for Reconsideration [2026] PBRA 139 (22 June 2026) [2026] PBRA 139

PBRA

Farrell, Application for Reconsideration [2026] PBRA 139 (22 June 2026)

[2026] PBRA 139 · 2026-06-01

[1]This is an application by Farrell (the Applicant) for reconsideration of a decision dated 1 June 2026 not to direct his release. The decision was made by a panel following an oral hearing.

[2]Rule 28(1) of the Parole Board Rules 2019 (as amended) (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 the decision, the dossier (now consisting of 367 numbered pages), and the application for reconsideration. Background

[4]On 19 October 2023, the Applicant was sentenced following conviction for sexual assault (intentionally touch female, no penetration). He received an extended sentence consisting of imprisonment for four years followed by four years on extended licence. On the same occasion he received a further determinate sentence of 28 months concurrent for causing a child under 13 to watch a sexual act and a four week concurrent determinate sentence for failing to surrender to custody. He pleaded guilty to failing to surrender but not guilty to the sexual offences.

[5]The Applicant was 36 years old at the time of sentencing and is now 38 years old. Request for Reconsideration

[6]The application for reconsideration has been submitted by solicitors on behalf of the Applicant. It argues that the decision was procedurally unfair and/or irrational and/or contained an error of law.

[7]The submissions are supplemented by written arguments to which reference will be made in the Discussion section below. Current Parole Review

[8]The Applicant's case was referred to the Parole Board by the Secretary of State (the Respondent) in April 2025 to consider whether or not it would be appropriate to direct his release. This is the Applicant's first parole review.

[9]His review proceeded to an oral hearing on 21 May 2026 before a three-member panel. Oral evidence was taken from the Applicant, the Prison Offender Manager (POM), the Community Offender Manager (COM), and a forensic psychologist commissioned by HMPPS. The Applicant was legally represented throughout.

[10]The panel noted that the Applicant had an extensive and diverse offending history, including violence, acquisitive offending, drug misuse, non-compliance and the index sexual offences. The panel accepted that he had completed offending behaviour work and that all professional witnesses supported release but considered that his continued maintenance of innocence meant that the motivation and triggers for the index offending had not been meaningfully explored.

[11]The panel also relied on custodial concerns, including a proven adjudication for fighting and adverse security intelligence. It did not treat that material as proven further offending but considered it relevant to the reliability of the Applicant's self-report. That concern was reinforced by the extent to which professional assessments of family support as protective also depended on the Applicant's own account.

[12]The proposed risk management plan contained substantial controls, including residence at designated accommodation, monitoring, testing, safeguarding and victim protection measures. The panel's concern was that the most intensive oversight would be time-limited and that, after the initial period in designated accommodation, effective management would depend materially on the Applicant disclosing difficulties, relationship developments, changes in family support or other potential signs of escalating risk.

[13]Although all professional witnesses supported release, the panel was ultimately not satisfied that the Applicant presented no more than a minimal risk of further offending causing serious harm. It therefore concluded that the statutory public protection test was not met and made no direction for release. The Relevant Law

[14]The Parole Board will direct release if it is no longer necessary for the protection of the public that the prisoner should be confined. Parole Board Rules 2019 (as amended)

[15]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)).

[16]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)).

[17]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

. 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;

(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. Irrationality

[21]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

(CA) 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.

[22]In R(DSD and others) v Parole Board

[2018] EWHC 694 (Admin)

the Divisional Court applied this test to Parole Board hearings in these words (at [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 ".

[23]In R(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 the Divisional Court in R(Secretary of State for Justice) v Parole Board

[2022] EWHC 1282 (Admin)

[24]As was made clear by Saini J in Wells, 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.

[25]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.

[26]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. Error of law

[27]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.

[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. The reply on behalf of the Respondent

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

[30]The representations are not always easy to disentangle. They rely on procedural unfairness, irrationality and error of law, but the substance of the challenge is that the panel gave insufficient weight to the evidence favourable to release, placed excessive weight on adverse material, and failed adequately to explain why it did not accept the unanimous professional recommendation. I have considered each ground, but the grounds must be kept distinct. A disagreement with the panel's evaluative judgement is not, without more, procedural unfairness or an error of law.

[31]Although procedural unfairness is pleaded, the representations do not identify any procedural defect in the conduct of the hearing. The Applicant was legally represented at the oral hearing. The representations do not allege any unfairness in the way in which evidence was received or submissions were considered. The complaint is, in substance, about the panel's reasoning and the weight it gave to competing features of the evidence. That is properly considered under the irrationality ground. No separate procedural unfairness is made out.

[32]The representations refer to R (Pearce) v Parole Board of England and Wales

[2020] EWHC 3437 (Admin)

. That authority is relevant to the panel's treatment of allegations or disputed material. It does not prevent a panel from considering such material altogether. The question is whether the panel made findings of fact about allegations or intelligence without sufficient evidence, or whether it used them cautiously and for a permissible risk-assessment purpose. Here, I do not read the decision as making unsupported findings that all adverse intelligence was proved. The panel referred to custodial concerns, including a proven adjudication and adverse security intelligence, as relevant matters bearing on the reliability of the Applicant's self-report. That was a permissible use of the material.

[33]The central submission is that all professional witnesses supported release. That was plainly an important feature of the case. The decision records that the POM, COM and commissioned psychologist supported release, that no core risk reduction work was said to be outstanding, and that the proposed risk management plan was supported by the professional witnesses. The panel was therefore aware of the professional evidence and of its significance. A panel is not bound to accept professional recommendations, even where they are unanimous, but must explain why it does not do so. The issue is therefore whether the panel gave legally sufficient reasons for not accepting that evidence.

[34]The panel's concern about the Applicant's maintenance of innocence was not treated as an automatic bar to release. The panel expressly approached the case on the basis that the Applicant had been properly convicted. Its concern was that, because the Applicant maintained his innocence, the motivation and triggers for the index offending had not been meaningfully explored. That was material to the panel's assessment of risk formulation and community manageability. The panel was entitled to consider that the absence of a clear understanding of those matters reduced confidence in the extent to which warning signs could be identified and risk could be managed.

[35]The panel did not rely on historical offending alone. It considered the Applicant's extensive offending history, including violence, acquisitive offending, drug misuse, non-compliance and the index sexual offences, alongside more recent evidence of change. It accepted that the Applicant had completed offending behaviour work and that there was positive evidence in his favour. It nevertheless identified recent custodial concerns, including the proven adjudication for fighting and adverse security intelligence, as matters relevant to the reliability of the Applicant's self-report. That was a rational connection for the panel to draw.

[36]The representations submit that the panel gave disproportionate weight to custodial misconduct and failed to distinguish it from the risk of serious harm in the community. I do not read the decision in that way. The panel did not treat custodial misconduct as a freestanding or determinative bar to release. It treated the custodial concerns as part of a wider assessment of whether the Applicant's reported progress was reliable, whether the professional witnesses had placed too much reliance on his own account, and whether risk could be managed safely after release. Weight was a matter for the panel, provided the reasoning was rational. The reasoning on this issue was rationally open to it.

[37]The same point applies to family support. The representations rely on the proposed community support and risk management plan. The panel did not ignore that evidence. It was concerned that the professional assessment of family support as protective had not been independently corroborated and depended substantially on the Applicant's self-report. That was not a peripheral matter. It was directly relevant to the strength of the proposed protective factors and to the panel's confidence in the risk management plan.

[38]The panel also considered the proposed external controls. Those included residence in designated accommodation, monitoring, testing, safeguarding and victim protection measures. The panel's concern was not that there were no controls. Its concern was that the most intensive oversight would be time-limited, and that after the initial period in designated accommodation effective management would depend materially on the Applicant disclosing difficulties, relationship developments, changes in family support or other potential signs of escalating risk. Given the panel's concerns about self-report, that was a legitimate concern.

[39]The reference in the decision to the absence of polygraph testing does not render the decision irrational. The panel did not treat polygraph testing as a legal requirement or as a condition precedent to release. It recognised the proposed controls, but considered that the absence of that additional form of monitoring reduced confidence in the risk management plan in circumstances where reliance on self-report was already a central concern. That was part of the panel's overall evaluative assessment of manageability, not an error of law.

[40]Nor do I accept that the panel failed to engage with material evidence pointing the other way. The decision records the professional support for release, the Applicant's completion of offending behaviour work, his engagement in custody, his enhanced status, the absence of outstanding core risk reduction work, and the proposed risk management plan. The fact that the panel did not give those matters the weight urged on the Applicant's behalf does not mean that it failed to consider them. The panel explained why, notwithstanding those matters, it was not satisfied that the statutory test was met.

[41]The error of law submission adds nothing separate. The panel identified the correct statutory public protection test. The complaint is that the panel applied the correct test to the evidence in a way with which the Applicant disagrees. That may be advanced as an irrationality challenge if the evaluative judgement was not reasonably open to the panel, but it is not, without more, an error of law.

[42]Read fairly and as a whole, the decision explains why the panel did not accept the professional recommendation for release. It identified the correct test, considered the evidence favourable to release, addressed the proposed risk management plan, and explained why it remained concerned about risk formulation, reliance on self-report, the extent of verified protective factors, and community manageability. The representations seek, in substance, a reweighing of the evidence. That is not the function of reconsideration. The panel's conclusion was reasonably open to it, and its reasons were legally sufficient. The decision was not procedurally unfair or irrational, and contained no error of law. Decision

[43]The application for reconsideration is refused. Stefan Fafinski 22 June 2026