Kerr, Application for Reconsideration [2026] PBRA 140 (22 June 2026) [2026] PBRA 140

PBRA
Kerr, Application for Reconsideration [2026] PBRA 140 (22 June 2026)
[2026] PBRA 140 · 2026-05-05
[1]This is an application by Kerr (the Applicant) for reconsideration of a decision of an oral hearing panel dated 5 May 2026. The decision of the panel 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 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[4]The application for reconsideration is dated 26 May 2026.[5]The grounds for seeking a reconsideration are set out below. Background[6]The Applicant is serving an extended sentence of imprisonment. The custodial period of the sentence is five years and the extension period is four years. The index offences were robbery, wounding contrary to section 18 and common assault. The Applicant was aged 18 at the date of sentence. He was 22 at the date of the oral hearing.[7]The index offences were a series. The first offences in time were robbery and common assault. The Applicant approached a female employee working in a shop alone. He approached the female holding a knife and demanded money. The employee refused. The Applicant then forced his way into the till area while being pushed back by the staff member. The Applicant was swinging his knife towards the shop employee. A small amount of cash was stolen.[8]Some months later the Applicant was in central Brighton. The Applicant was with two women. The victim approached the two women and playfully waved the length of foam that he was holding. The Applicant became annoyed and hostile towards the victim. The Applicant started to walk away but then turned back and pushed a pint glass into the victim's face causing the glass to smash on impact. The victim lost an eye as a result of the offence. Current parole review[9]The referral from the Respondent requested the Parole Board to consider whether the Applicant should be subject to a direction for release.[10]The panel hearing took place on 21 April 2026. The panel consisted of an independent chair of the Parole Board accompanied by two further independent members of the Parole Board. Evidence was received from a Prison Offender Manager (POM) and a Community Offender Manager (COM). The Applicant gave evidence and was legally represented. The Relevant Law[11]The panel correctly sets out in its decision the test for release. Parole Board Rules 2019 (as amended)[12]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)).[13]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)).[14]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[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) 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).[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.[19]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.[20]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[24]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.[25]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[26]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. "
[27]Omitting to put information before a panel is not a ground for procedural unfairness, as has been confirmed in the decision on the previous reconsideration application in Williams [2019] PBRA 7 . This is the case even where the information, had it been before the panel, would have been capable of altering its decision, or prompting the panel to take other steps such as putting the case off for an oral hearing where the new information and its effect on any risk assessment could be examined. This is because procedural unfairness under the Rules relates to the making of the decision by the Parole Board, and when making the decision the panel considered all the evidence that was before them. There was nothing to indicate that further evidence was available or necessary, and so there was nothing to indicate that there was any procedural unfairness. Reconsideration as a discretionary remedy[28]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[29]The Respondent offered no representations. Grounds and Discussion[30]The Applicant's legal adviser in this case sets out a number of detailed comments relating to the basis of the application for reconsideration. In essence, however, the application is based upon the argument that the panel failed to take sufficient account of the positive views of the COM and POM in this case and the acknowledged progress that the Applicant had made in prison including completing a thinking skills course. It is argued that the panel placed greater emphasis upon negative factors which were before the panel at the panel hearing and failed to give sufficient weight to the positive factors which the Applicant's legal adviser argues pointed towards a release decision. Discussion[31]As is accepted by the Applicant's legal adviser, 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 (RMP) 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. This principle was clearly enunciated by the Divisional Court in DSD .[32]However, where a panel makes a decision contrary to the opinions and recommendations of all professional witnesses it is important that it should explain clearly its reasons and that its stated reasons should be sufficient to justify its conclusions as per R (Wells) .[33]In considering the future risk in this case the panel were entitled to consider the basis upon which the Applicant had been convicted. The Applicant had committed a series of serious offences of violence. Those offences had a background of misuse of alcohol and drugs.[34]The panel also identified the Applicant's risk factors which included alcohol and substance misuse causing disinhibition and the potential for violence. The panel also identified poor problem-solving skills and impulsiveness and historically a willingness to resort to violence and threatening violence to others.[35]The Applicant himself admitted that in the early years of his sentence he had struggled to cope and acted in an immature way. He had engaged in a number of negative behaviours and accepted before the panel that he would resort to cannabis misuse "as a coping strategy" .[36]The Applicant however had made progress during his sentence. He had in particular undertaken a thinking skills course which the Applicant himself felt had helped him to improve his decision-making.[37]Following his improved behaviour and the completion of the thinking skills course the Applicant was moved by the prison service to an open prison. The Applicant admitted to the panel that he became "stressed" in the open estate and began misusing cannabis. He accepted that this was a poor coping strategy particularly in the light of having fairly recently completed a thinking skills course. The Applicant was also well aware of the fact that a primary risk factor in his case was the misuse of substances and alcohol.[38]Whilst in the open prison he had also been in possession of a mobile phone which was a breach of the prison rules.[39]There had also been a number of items found in the Applicant's cell while in the open prison. The items were pills believed to be cocaine, needles, sim cards charging cables and an improvised tool. The discovery of the mobile phone had led to an adjudication although the other items did not result in formal adjudication. The Applicant explained to the panel that these items had been left in his cell by a former prisoner. The Applicant accepted that it was wrong to retain these items. He described their retention as a "bad judgement call" .[40]As a result of these difficulties in the open prison the Applicant was transferred back to the closed estate.[41]The Applicant admitted that after this transfer he had used cannabis on several occasions.[42]Whilst living in the open prison the Applicant had undertaken some periods of time in the community including overnight stays in approved premises.[43]This was therefore a case where the prisoner had made progress in the sense that his early negative behaviour in prison had reduced. He had undertaken a thinking skills course, and he had made some progress whilst in an open prison. He had also more recently engaged with substance misuse services and had been observed by the panel (in the course of oral evidence) as having retained some of the learning from the thinking skills course. The Applicant's legal adviser argues that insufficient weight was placed upon the positive indicators in this case.[44]The panel's role therefore was to consider the evidence holistically. This was not a case where the panel entirely rejected the positive indicators that were cited by the Applicant's legal adviser. However the fundamental issues for the panel were set out in the panel decision.[45]The panel placed greater emphasis upon the Applicant's continuing use of cannabis despite being in the closed prison. In the light of the fact that the Applicant's offences were closely associated with disinhibition and substance misuse I am not persuaded that this was an irrational view. This was also the view of the Applicant's COM who agreed that substance misuse was a critical risk factor.[46]The panel also placed emphasis upon the fact that despite having recently completed a thinking skills course, and being transferred to an open prison in preparation for release, the Applicant became involved in cannabis misuse and possessing items which he clearly accepted would be a breach of prison rules. The panel were entitled to assess whether the Applicant's behaviour provided an evidential basis for an argument that the Applicant's risks were reduced and could be managed. The panel clearly took the view that resorting to cannabis misuse, possessing a mobile telephone and retaining items which should not be retained in an open prison were clear indicators that the Applicant was not able to demonstrate that the learning relating to thinking skills had been embedded.[47]An added risk factor in the case of the Applicant was impulsivity. Resorting to rule breaking within the open prison was again an indication of the potential for the Applicant to act without thought and impulsively and not to use the skills which he was thought to have acquired with the behavioural undertaking.[48]In the decision itself the panel clearly set out the basis of their determination. The panel placed much greater weight upon rule breaking and cannabis misuse than did the two professionals who supported release. The COM and POM in this case appeared to have taken the view that, despite ongoing difficulties with cannabis misuse and rule breaking within the prison, the RMP would nevertheless be sufficient to manage risk. The panel disagreed.[49]Although there was a substantial RMP (as acknowledged by the panel), the RMP would only be an effective external control in circumstances where the Applicant himself was committed to adhering to rules and rejecting the use of substances. Neither of those basic criteria were demonstrated by the Applicant on the basis of the evidence at the oral hearing.[50]The Applicant's legal adviser appropriately indicates that cases of this sort require a panel to consider the weight that will be applied both to positive factors (pointing towards release) and to negative factors (pointing towards the risk of serious harm in the community).[51]In my determination the panel made clear in their decision the basis upon which they had reached their conclusion and the reasons for rejecting the views of the professionals which were clearly based upon a view that despite the rule breaking and cannabis misuse the Applicant's risk was manageable.[52]As noted above the test for ordering reconsideration 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 the light of the evidence adduced at the oral hearing and the reasoning set out by the panel in the concluding remarks of the decision I am not persuaded that this decision meets the test set out above and for that reason the application for reconsideration is refused. Decision[53]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 22 June 2026