Giscombe, Application for Reconsideration [2026] PBRA 14 (16 January 2026) [2026] PBRA 14

PBRA
Giscombe, Application for Reconsideration [2026] PBRA 14 (16 January 2026)
[2026] PBRA 14 · 2025-11-20
[1]This is an application by Giscombe (the Applicant) for reconsideration of a decision of a panel of the Parole Board made at an oral hearing. The hearing was conducted on the 20 November 2025. The decision was dated 1 December 2025. The decision was 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 dossier, the decision of the panel, the representations made on behalf of the Applicant by the Applicant's legal adviser and the representations by the Secretary of State (the Respondent). Request for Reconsideration[4]The application for reconsideration is dated 22 December 2025.[5]The grounds for seeking a reconsideration are as set out below. Background[6]The Applicant is serving an extended sentence of imprisonment comprising of a determinate period of eight years and three months and an extension period of one year. He was sentenced on 6 October 2017. He was aged 61 the time of sentence. He was aged 69 at the time of the oral hearing decision. This was the first review since recall. The Applicant had been recalled on 6 May 2025. The Applicant had been initially released automatically on licence on 7 April 2025. His sentence expires in April 2026.[7]The index offences were the sexual assault by penetration of a child under 13; the causing of a child under 13 to engage in sexual activity and the production of a controlled drug (cannabis). The offences were committed against a child in a family situation. The Applicant was aged 60 when he committed the index offences. The victim was 12 years old and was particularly vulnerable as she had learning difficulties. Prior to the index offence the Applicant had been convicted of offences in 1972 which included an assault on a 23 year old woman, and indecent assault of a 49 year old woman and an attempt have intercourse with a girl under 13 and further assaults. He was later convicted of the offence of attempted rape in 1972. He had forced the female into bushes at knifepoint and committed the offence of rape having removed clothing. In 1975 he was convicted of a further offence of rape and commercial burglaries. The victim was a householder in a property that the Applicant was burgling. A further offence was noted in 1989 which included fraud, possession of cannabis and assault occasioning actual bodily harm. The victim of the assault was reportedly a 17 year old female who had been detained at his flat and seriously assaulted. Current parole review[8]The referral by the Respondent requested the Parole Board to consider whether the applicant should be released.[9]The panel consisted of three members of the Parole Board. The panel received evidence from the Applicant's Prison Offender Manager (POM) and his Community Offender Manager (COM). The Applicant himself gave evidence and was legally represented. The Relevant Law[10]The panel correctly sets out in its decision dated 1 December 2025 the test for release. Parole Board Rules 2019 (as amended)[11]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)).[12]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[13]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.[14]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. "
[15]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).[16]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.[17]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.[18]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;(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. 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[24]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[25]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.[26]The Respondent offered no reply. Discussion Ground 1 It is submitted on behalf of the Applicant that the panel failed to properly take account of the risk reduction work which the Applicant had completed. It is submitted that the Applicant had told the panel that he had learnt a great deal from the behavioural intervention he had undertaken. It is therefore submitted that this factor was directly relevant to risk assessment and was not properly considered by the panel. Discussion The panel acknowledged at paragraph 2.14 that the Applicant had completed a behavioural intervention programme in 2022. However, the Applicant had been recalled following a breach of his licence conditions. That breach related to the Applicant locating himself near a children's playground which was precluded by the terms of his licence. It is clear therefore that the Applicant demonstrated inadequacies in his learning so far as risk was concerned by the fact of his licence condition breach. It was also submitted in the panel hearing, by the Applicant's COM, that it was thought by the probation service that the Applicant needed to undertake further behavioural work in order to address his risk issues. It was acknowledged that there was likely to be insufficient time until the Applicant's automatic release for him to undertake any further work, however the belief of the COM was that this work was essential to manage risk in the community. The particular concern of the panel was that the Applicant, in the view of the panel, was reluctant to be open and honest with professionals about risky and inappropriate thoughts or situations. He was reluctant to talk about his index offences. The panel took the view that this reluctance to address his offending was likely to undermine the effectiveness of any management of risk by the probation service in the community. The view of the panel was that the Applicant had further behavioural work to undertake to demonstrate appropriate learning to manage his risk in the community. Ground two It is submitted by the Applicant's legal adviser that the panel failed to give adequate weight to the acceptance by the Applicant of his responsibility for the behaviour that led to his recall. It is also submitted that the recall arose in relation to a breach of licence conditions rather than further offending. Discussion In the panel decision the panel dealt in some detail with the circumstances of the recall. The Applicant did not entirely accept the basis of the recall. He had been alleged to have been seen looking at children. He said that those allegations were "fabricated" . So far as the allegation of passing near to a children's park was concerned, the Applicant had told the panel that he had to pass by the children's park because he needed to go to a shop to buy food for his evening meal. The panel noted that although the Applicant accepted that he had been in the sight of a children's park which was in breach of his licence conditions, he laid blame for the problems upon probation hostel staff because they had given directions to the local shop. The panel took the view that the Applicant had minimised responsibility for placing himself in an inappropriate area and that he had not taken the initiative himself to stay away from children's parks which was the basis of the licence condition. The panel accepted that the Applicant had not committed any offences or been involved with the police following his release on licence. I am not persuaded by the argument that the panel should have given any greater weight to the fact that the Applicant accepted the basis upon which he had been recalled. It was clearly crucial that the Applicant complied with the licence conditions. The condition relating to children's play areas was directly associated with the potential risk of serious harm posed by the Applicant and for that reason it was incumbent upon him to ensure that he complied with that condition. Additionally a failure to comply clearly raised, in general terms, issues as to the manageability of the Applicant's risk in the community. This ground does not in my view engage reconsideration. Ground 3 It is submitted on behalf of the Applicant that he gave evidence to the panel that in future he would take personal responsibility for compliance in the community regardless of any advice from others. He also said that on any future release he would make his own decisions and not place himself in situations that risk a breach of licence conditions. Discussion The panel's assessment of the Applicant, who gave evidence at his hearing, was that the Applicant " avoided answering questions about his index offending, became annoyed that his COM was not supporting release, minimised his behaviour on release by blaming AP staff for the directions which led him to pass a children's park (without doing anything about avoiding this on subsequent occasions), and was not able to provide the panel with confidence that he had an appropriate plan for dealing with any risky / inappropriate sexual thoughts other than telling those thoughts to "go back where they came from"". The panel took the view that the Applicant's reluctance to discuss his offending with his COM meant that he could not be open and honest with professionals about risky or inappropriate sexual thoughts that he may be having. The panel also took the view that the evidence indicated that the Applicant had a lack of internal controls and therefore an inability to manage his risk in the longer term. Decision[34]For the reasons I have given, I do not consider that the decision was irrational and accordingly the application for reconsideration is refused. HH S Dawson 16 January 2026