Foster, Application for Reconsideration [2026] PBRA 141 (23 June 2026) [2026] PBRA 141

PBRA
Foster, Application for Reconsideration [2026] PBRA 141 (23 June 2026)
[2026] PBRA 141 · 2026-05-06
[1]This is an application by Foster (the Applicant) for reconsideration of a decision of an oral hearing panel dated the 6 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 oral hearing decision, the dossier consisting of 370 pages and the application for reconsideration. Request for Reconsideration[4]The application for reconsideration is dated 1 June 2026. It has been drafted by legal representatives on behalf of the Applicant. It submits that the decision was irrational in reaching a conclusion not reasonably open to it on the evidence or that the reasoning "involved material logical gaps and a disproportionate elevation of one discrete issue into a determinative barrier to release" .[5]The submission is supplemented by arguments to which reference will be made in the Discussion section below. Background[6]The Applicant received a sentence of life imprisonment on 26 November 2004 following conviction for murder. He also received concurrent sentences for causing grievous bodily harm (seven years) and common assault (three months). His tariff was set at 17 years and expired in November 2021.[7]The Applicant was 24 years old at the time of sentencing and is now 46 years old. Current parole review[8]The Applicant's case was referred to the Parole Board by the Secretary of State (the Respondent) in June 2025 to consider whether or not it would be appropriate to direct his release. If the Board did not consider it appropriate to direct release, it was invited to advise the Secretary of State whether the Applicant should be transferred to open conditions. At the time of the referral the Applicant was in open conditions and remains so.[9]The case proceeded to an oral hearing via videoconference on 28 April 2026. The panel consisted of three independent members. It heard oral evidence from the Applicant together with his Prison Offender Manager, Community Offender Manager and a prison psychologist. The Applicant was legally represented throughout the hearing. The Respondent was not represented by an advocate. 10.The panel did not direct the Applicant's release. The Relevant Law[11]The panel correctly sets out in its decision dated 6 May 2026 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. 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. The reply on behalf of the Respondent 20.The Respondent has submitted no representations in response to this application. Discussion 21.It is stressed throughout the application for reconsideration that all the professionals in the case recommended release and that the panel accepted much of the evidence concerning the Applicant's progress, behaviour and compliance. 22.That emphasis in the application makes it important to bear in mind that 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. 23.The grounds submit that the decision was irrational in treating as determinative "one late disclosure issue" whilst acknowledging that "in a case involving assessed risk to known children in family or relationship contexts, disclosure of child related information is important" . In those circumstances the panel was entitled to attach great weight to the Applicant's failure to disclose the birth of two children in his close family. This was a case in which the Applicant had been convicted of the murder of a 14 month old child, had pleaded guilty to assaults of the child, and had been found to have deliberately caused injury to another child which had not resulted in a prosecution. The panel records the description of his behaviour as having "abused and tormented the infant victim" including using "gratuitous violence" and prior assaults of "placing her in a bag and under a duvet, thus distressing her" and acknowledging doing so "as 'play' for his own amusement" . Children's Social Care had viewed him as "a very high risk individual to the safety of any child and should not have any form of contact with his grandchildren" . His minimisation of his actions, lack of empathy with victims and limited insight calling into question his ability to be open, transparent and honest were all serious considerations for the panel and reasons why considerable or determinative weight needed to be considered in respect of the late disclosure. There was no irrationality in their analysis or conclusions. 24.The failure to disclose in a case in which risk to children is high, suggests at best that he did not understand or appreciate the seriousness of his own risk factors or at worst that he was deliberately hiding information from those who would be responsible for overseeing his compliance with his licence conditions. The panel would have been failing in its duty to assess risk if they had not placed the weight they did on this failure. 25.The grounds submit that the panel treated disclosure of family pregnancies as a fundamental requirement without identifying any clear obligation to do so. The application is correct in identifying that there is no express licence condition requiring disclosure of pregnancies. With the index offence in mind, and with his identified risks in mind, the licence conditions prohibit residence in the same household or unsupervised contact with any child under 16. In those circumstances he could be expected to inform his supervising officer of the impending arrival of a newborn, rather than wait to take his supervising officer by surprise and with no notice for the officer to ensure that protections were in place. While not explicitly set out as a condition it was clearly to be implied from the risks the Applicant poses and the risk management plan that the impending arrival of a baby should be disclosed to the supervising officer. I see no suggestion in the papers that the Applicant does not understand the licence conditions or the necessity for them, nor the need to be open and honest with his supervising officer. But even if the panel were not correct in treating the failure to disclose a pregnancy as a licence condition, they were entitled to treat it as a serious factor in the decision not to direct release. 26.The grounds submit that the overall evidential balance being described as "finely balanced" should not have departed from the unanimous professional view in favour of release in the light only of a late disclosure. Whatever the panel may have meant by "finely balanced" , the fact remains that the subject of the late disclosure was fundamental to the panel's consideration of the risk assessment where the information not disclosed went to the heart of the risk that the professionals would be guarding against. It went to questions of openness, honesty and trust, it was important for questions of whether or not he had the insight to identify risk and treat it seriously and report it to his supervising officer. The approach, the analysis and the conclusions could not be described as irrational. Decision 27.For the reasons I have given, I do not consider that the decision was irrational and accordingly the application for reconsideration is refused. Barbara Mensah 23 June 2026