Newsome-McLaren, Application for Reconsideration [2026] PBRA 145 (25 June 2026) [2026] PBRA 145

PBRA
Newsome-McLaren, Application for Reconsideration [2026] PBRA 145 (25 June 2026)
[2026] PBRA 145 · 2026-05-19
[1]This is an application by Newsome-McLaren (the Applicant) for reconsideration of a decision of an oral hearing panel dated 19 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 7 June 2026.[5]The grounds for seeking a reconsideration are set out below. Background[6]The Applicant is serving a sentence of imprisonment for public protection. The index offences were threats to kill which were made while the Applicant was in custody following convictions for serious violence against the same victim who was a former partner. In 2006 the Applicant had been convicted of inflicting grievous bodily harm upon the victim of the threats to kill. He had beaten her repeatedly and caused internal injuries. The victim had reportedly suffered physical emotional, mental and sexual abuse during the relationship. The Applicant had also been convicted of Manslaughter in 2000 and received a sentence of four years in a Young Offenders Institution. The deceased victim in this case had been attacked with an aluminium ladder while the Applicant was drunk. The Applicant was aged 30 at the time of the conviction for threats to kill. He was aged 46 at the time of the oral hearing. Current parole review[7]The referral from the Respondent requested the Parole Board to consider whether the Applicant should be released. If not released whether the Applicant should be subject to a recommendation for transfer to an open prison.[8]The panel hearing took place on 11 February 2026. The panel consisted of an independent chair, a further independent member and a psychologist member of the Parole Board. Evidence was received from the Prison Offender Manager POM, the prison instructed psychologist and the Community Offender Manager COM. The Applicant gave evidence and was legally represented. The Relevant Law[9]The panel correctly sets out in its decision dated the test for release and the issues to be addressed in making a recommendation to the Respondent for a progressive move to open conditions. Parole Board Rules 2019 (as amended)[10]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)).[11]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)).[12]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[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[19]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.[20]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.[21]The overriding objective is to ensure that the Applicant's case was dealt with justly. Error of law[22]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.[23]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 Transfer to Open Conditions[24]The test to be applied when considering the question of transfer to open conditions is the subject of a well-established line of authorities going back to R (Hill) v Parole Board [2011] EWHC 809 (Admin) and including R (Rowe) v Parole Board [2013] EWHC 3838 (Admin) , R (Hutt) v Parole Board [2018] EWHC 1041 (Admin) . The test for transfer to open conditions is different from the test for release on licence and the two decisions must be approached separately and the correct test applied in each case. The panel must identify the factors which have led it to make its decision. The four factors the panel must take into account when applying the test are:(a) the progress of the prisoner in addressing and reducing their risk;(b) the likeliness of the prisoner to comply with conditions of temporary release(c) the likeliness of the prisoner absconding; and(d) the benefit the prisoner is likely to derive from open conditions.[25]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[26]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[27]The Respondent offered no representations. Discussion Ground 1[28]The Applicant's legal adviser submits that the panel took account of evidence which may have been to the detriment of the Applicant (but was not), in a " neutral " fashion. Discussion[29]This submission arises in circumstances where the panel had heard evidence that the Applicant had (in June 2022) absconded from an open prison. When the Applicant was rearrested and brought back to prison there was evidence that the Applicant had been in an area where a former partner, who was the victim of the index offences, (threats to kill and of allegations relating to domestic violence ) was thought to live. The Applicant had maintained that he had not absconded in order to access his former partner.[30]The Applicant's legal adviser indicates in the application for reconsideration that the panel had (after the oral hearing), adjourned the proceedings in March 2026, in order to secure a summary of the prosecution evidence relating to absconding from the open prison. It is submitted, by the Applicant's legal adviser, that the purpose of securing this information was to ascertain further information. In particular, whether there existed any evidence that the Applicant had attempted to make contact with or attempted to access the victim of the index offence.[31]It appears that material was provided to the panel and uploaded to the dossier. The panel made no detrimental comment within the decision relating to the potential contact with the victim. The argument adduced by the Applicant's legal adviser is that the panel (having received no evidence that the Applicant had attempted to contact the partner) inappropriately treated this issue " neutrally ".[32]In my determination the panel were entitled to make enquiries regarding any issue which they thought may have raised concerns about risk. The panel approached the issue by requesting further information to enable them to reflect upon it. Having received material from the police, it appears that the panel were satisfied that the evidence did not raise issues which impacted upon their assessment of risk. Accordingly, within the panel decision, there was no reference to this issue as being a matter of concern relating to the risk assessment.[33]The Parole Board published guidance on allegations which follow the case of Pearce [2023] UKSC 13 , sets out the legal position relating to the Parole Board and allegations. In my determination the panel followed the legal requirements and the published guidance. The panel investigated the potential for an allegation that the Applicant had absconded in order to make approaches to the victim. Those enquiries had led the panel to accept that there was no supporting evidence to reach a conclusion in this regard. The panel therefore appropriately did not rely upon it in terms of their risk assessment. This was not a case of the panel treating the evidence neutrally. The panel correctly applied no weight to the potential allegation because of the absence of evidence. I am not therefore persuaded that this ground amounts to irrationality or procedural irregularity. Ground 2[34]The Applicant's legal adviser submits that the panel gave disproportionate weight to an issue which arose during the course of the Parole Board process (and after the oral hearing). The panel were advised that the Applicant had received a proven adjudication for being in possession of pieces of paper which tested positive for buprenorphine (also known as Subutex). The Applicant had accepted that he had purchased the illegal drug in prison. His explanation was that he had purchased it in order to self-medicate for a tooth problem. He was reportedly unable to obtain pain relief medication through the medical facilities in the prison. The Applicant's legal adviser also suggests that the panel should have reconvened the matter for a further adjourned oral hearing to hear evidence in relation to this topic. Discussion[35]The panel approached this further information by requesting that the parties and the COM and POM provide any further written representations and any view as to whether the adjudication made a difference to their initial recommendations. The POM was supporting release and the COM suggesting open conditions. Neither professional indicated that the adjudication made any difference to their recommendations.[36]The panel invited representations from the Applicants legal adviser in writing and considered those representations. It does not appear that the Applicant or his legal adviser requested that the matter be reconvened as an oral hearing. Where a prisoner is legally represented it is expected that the representative will make appropriate representations in relation to any issues which arise. The Applicant's legal adviser did just that. In my determination the panel correctly and fairly approached the issue of the receipt of representations from the various parties.[37]In the concluding remarks the panel addressed the issue of the adjudication. The panel noted that, in their view, the Applicant had reverted to maladaptive coping strategies when he was struggling to cope. It was also the case that he was not reaching out for help as he indicated he would do. Accordingly, the panel took the view that, if he were in the community, he may not be open and honest and reach out to professionals if he was struggling. The panel also noted that when the Applicant absconded from the open prison, he had provided a positive drug test immediately before absconding. I am not therefore again persuaded that the panel addressed this issue with an inappropriate weighting. The panel were entitled to look at the Applicant's historic behaviour and to consider how the Applicant could make a decision to take illicit substances during the course of the Parole Board process. This is not a matter which engages reconsideration. General[38]It is well understood 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 assessment 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. However, where a panel makes a decision contrary to the opinions of some or all of the professional witnesses it is important that the panel should explain clearly its reasons for doing so and it's stated reasons should be sufficient to justify the conclusions as per R (Wells).[39]In this case the panel helpfully set out in list format (at paragraph 4.5) the reasons why they had concluded that the Applicant did not meet the test for release and their reasons for not supporting the views of the POM and prison instructed psychologist relating to release. In brief those reasons were;[40]Firstly, a concern that the Applicant's absconding from prison and remaining in a place near to the last known residence of the victim of his index offence was clearly a matter which caused concern despite the fact that there was no evidence that the Applicant made contact with the victim.[41]Secondly, the panel were also concerned by the remark which was recorded by an earlier COM that the Applicant had said he returned to the area where the victim had lived " to finish off what he had started ". The Applicant had given two explanations for this comment either(1) that the comment was misheard and that he had actually said that he had not returned to finish off what he had started or(2) that this comment was referring to collecting money and visiting his family rather than any reference to the victim.[42]Thirdly, the panel took the view that the decision to purchase buprenorphine was evidence of maladaptive coping strategies and the Applicant struggling to cope. It was also (in the view of the panel) evidence of the Applicant failing to reach out for help. The panel were concerned that, in the community, the Applicant may well approach problems in a similar fashion thereby elevating risk.[43]Fourthly the panel took the view that professionals had underestimated the potential difficulties associated with the misuse of substances by the Applicant. The panel particularly referenced the fact that on two earlier occasions there had been difficulties with substance misuse leading on one occasion to being returned to the closed estate and on another to the Applicant absconding from an open prison.[44]Finally, the panel took the view that there was insufficient evidence that the Applicant had been tested in the community by way of temporary leave as would be available from an open prison. The panel noted that the Applicant had not completed significant periods in the community from the open estate despite the fact that he had been in an open prison on four occasions.[45]The panel therefore set out with some clarity the various issues which were considered and which led to the decision that the Applicant's risk could not be safely managed in the community at the time of the oral hearing. As indicated above I am not persuaded that this is a case which engages reconsideration and I therefore make no order. Decision[46]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 Stephen Dawson 25 June 2026