Crane, Application for Reconsideration [2026] PBRA 147 (29 June 2026) [2026] PBRA 147

PBRA
Crane, Application for Reconsideration [2026] PBRA 147 (29 June 2026)
[2026] PBRA 147 · 2026-05-13
[1]This is an application by Crane (the Applicant) for reconsideration of a decision on the papers dated 13 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 Decision. · The Reconsideration Application dated 25 May 2026 and signed by the Applicant's solicitors. · The dossier, which now consists of 324 numbered pages, the last document being the Decision. Request for Reconsideration[4]The grounds for seeking a reconsideration are that the panel chair was wrong to decide the case on the papers when the Applicant's legal representative had requested that the case be deferred. This is variously described as procedural unfairness, a failure to follow the applicable law (citing Osborn, Booth and Reilly v The Parole Board [2013] UKSC 610), and irrational. However it is described, the complaint is that the panel chair should have deferred the case rather than deciding it on the papers.[5]A further complaint is that the Decision does not separately consider the suitability of the Applicant for open conditions. Quite apart from the fact that a decision not to recommend transfer to open conditions cannot be the subject of a reconsideration application, this complaint is based on a misreading of the Secretary of State's (The Respondent's) Referral (dated 28 April 2024, though the year should, I think, be 2025). This directs the Parole Board to consider whether or not it would be appropriate to direct the Applicant's release. It goes on to invite the Board, if it does not consider it appropriate to direct release, to advise the Respondent " whether the prisoner, if in closed conditions, should be transferred to open conditions ". As the Decision points out, the Applicant was at the time of the Decision residing in an open prison. Therefore, the panel was entirely right to conclude its Decision by saying " As [the Applicant] currently resides in open conditions at HMP Sudbury, this panel has not considered his suitability for progression to open conditions ." The Respondent only invited the panel to advise whether the Applicant should be transferred to open conditions if he was not already there. The panel incorrectly stated in its Decision that the Respondent's referral was for consideration of release or open, a slight misstatement which is, perhaps, what led to the legal representative's error. Background[6]The Applicant was 45 years old in 2011, when he received a sentence of life imprisonment for murder, with a tariff expiry date of 23 September 2024. The sentencing judge described it as a " savage and senseless murder" of a 42-year-old vulnerable victim. The Applicant pleaded guilty, though he has since said, as he did to an oral hearing panel in November 2024, that it was not he who killed the victim, but his co-accused, who was acquitted after a trial. Current Parole Review[7]The details of the referral are set out above. The Applicant was 60 years old at the date of the decision.[8]A Member Case Assessment (MCA) on 22 August 2025 directed the case to an oral hearing. At that stage the Applicant had been in open conditions for three months. He had completed three accompanied releases on temporary licence (RoTLs). He had told his Prison Offender Manager (POM) that he did not wish to access overnight releases (RORs) to an approved premises (AP), but, after discussion, he told his Community Offender Manager (COM) that he would go to an AP, but was uncertain that he needed that support, as he could cope on his own. The COM's view at that stage was that the Applicant needed to complete RoTLs before a recommendation for release could be made. Once those were completed the COM would review the position.[9]The MCA member considered the case of Osborn (above) and concluded that " Oral evidence in relation to a number of risk-related areas is required to fairly conclude the review. These areas may include: the progress made by [the Applicant] following his transfer to open conditions, feedback from any RoTL undertaken, his current mental and physical health, and the impact this may have on his ability to engage and comply with the risk management plan. Information from Adult Social care as to whether he is able to access any support in the community ."[10]The MCA further noted that the Applicant had been assessed as having an IQ of around 65, and that the case would not be ready for listing until February 2026, to allow time for an adult social care assessment to be completed and the COM to have sight of it before completing an addendum report.[11]Following the MCA an adult social care assessment was carried out. It records the Applicant as having care needs in respect of nutrition and hydration, moving around the environment safely, and accessing facilities/services independently. A Healthcare report in January 2026 described his insight as fluctuating. He was finding it difficult to retain information and accept support with his mental health. He was awaiting a brain scan and appointment with the memory clinic. There was a suspicion that he had cognitive problems. The POM reported in February 2026 that the social care assessment " concluded that there was no social care eligible needs ". The POM included a report from the Senior Registered Mental Health Nurse. The Applicant was losing weight. His presentation and symptoms appeared to be indicating potential memory complications. It was clear he would require support when released. He has no family or friends in the community. He said he wanted his RoTLs to remain " on hold " until he knew what was going on. The nurse concluded by saying that " Overall, from a healthcare/ mental health point of view, it appears that [the Applicant] would be vulnerable going into the community for a number of reasons, confusion being one, lack of support from family/ friends, having spent many years inside a prison, difficulty managing his physical health ."[12]The POM reported that the Applicant was saying that, unless he was sent to his home area when he was released, he would not comply with his licence conditions to reside as directed, rather he would attend a police station in the hope of being recalled to custody, or he would be street homeless in his chosen area. He had an unaccompanied RoTL in September 2025. He got lost and had to ask a member of the public which bus he needed to help him return to prison. The POM arranged for him to be accompanied on further RoTLs. In December 2025, he said he no longer wanted to undertake RoTLs. When the POM said she would cancel his RoTLs, he said that was a weight off his mind. The POM could not support release.[13]In her addendum report, also in February 2026, the COM said the Applicant had told her he did want to continue with RoTLs, but not until the weather improved: he finds cold weather affects his breathing. He had told her he wanted to be released, but only if he could go back to his home area, but he was now saying that he did not want to go back to his home area as that is where his victim's family live and he would be in danger. The COM did not support release. It was not clear what support the Applicant would need if released. The COM would refer the Applicant for a new adult social care assessment and make appropriate references for support in the community depending on the diagnosis.[14]In Panel Chair Directions (PCDs) dated 19 February 2026, the panel chair noted these post-MCA developments and invited representations from the Applicant's legal representative as to whether the Applicant still wished to proceed with the oral hearing listed for 8 April 2026, or to invite the panel to conclude the case on the papers. The solicitors responded on 11 March 2026, asking for the case to be deferred, on the basis that " It is clear that a full risk assessment cannot be fairly undertaken at the oral hearing given the outstanding assessments which remain pending. These assessments are relevant to risk, manageability in the community, as well as the proper formulation and development of a risk management plan in the event of release ." The solicitor did not propose a timetable for the deferment.[15]The panel chair issued an adjournment notice on 31 March 2026, saying that " Given the likely timescale of the work to be completed, the panel chair has concluded that a deferral would not be appropriate. The Parole Board guidance states that adjournment or deferral will not be appropriate where the prisoner is about to commence an intervention, which is unlikely to be completed with post-intervention documentation and submission of follow-up reports within four months. In that context, the panel chair is minded to conclude [the Applicant's review] under Rule 21(1)(a) of the Parole Board Rules 2019 (amended 2026). " She invited representations from both parties by 15 April 2026. This was the proper, and procedurally correct, course of action.[16]The Applicant's legal representative responded on 14 April 2026, asking that the case be deferred. The Public Protection Case Section of the Ministry of Justice responded on 16 April 2026, suggesting that " In the light of the timescales likely to be involved in undertaking the required assessments and obtaining the subsequent reports, it may be beneficial to conclude the current review to avoid a protracted parole review. "[17]I discuss the arguments below. On 13 May 2026 the panel chair issued the Decision. The Relevant Law[18]The panel correctly sets out in its decision the test for release. Parole Board Rules 2019 (as amended)[19]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)). This is an eligible decision and an eligible sentence type.[20]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[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 ( Wednesbury ) 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- the Parole Board [2018] EWHC 694 (Admin) ( Worboys ), 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. "
[23]In R (on the application of Wells) -v- Parole Board [2019] EWHC 2710 (Admin) ( Wells ) 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) .[24]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 Worboys 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. 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[30]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.[31]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[32]In the cases of Osborn and others v Parole Board [2013] UKSC 61 , the Supreme Court comprehensively reviewed the basis on which the Parole Board should consider applications for an oral hearing. Their conclusions are set out at paragraph 2 of the judgment. The Supreme Court did not decide that there should always be an oral hearing but said there should be if fairness to the prisoner requires one. The Supreme Court indicated that an oral hearing is likely to be necessary where the Board is in any doubt whether to direct one; they should be ordered where there is a dispute on the facts; where the panel needs to see and hear from the prisoner in order to properly assess risk and where it is necessary in order to allow the prisoner to properly put his case. When deciding whether to direct an oral hearing the Board should take into account the prisoner's legitimate interest in being able to participate in a decision with important implications for him. It is not necessary that there should be a realistic prospect of progression for an oral hearing to be directed.[33]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 Respondent[34]The Respondent has made no response to this application. Discussion[35]The complaint, as I said above, is that the panel should not have decided the case on the papers but should have deferred it. The argument is put in a number of different ways. a) The case was not ready for hearing because further assessment was required, in order to assess the current position with regard to the Applicant's cognitive stability and how that could be managed going forward. Parole Board Guidance, as the panel chair pointed out, is that " adjournment or deferral will not be appropriate where the prisoner is about to commence an intervention which is unlikely to be completed with post-intervention documentation and submission of follow up reports within four months ." The Applicant's representative argues that this is not a case where the Applicant would be undertaking any intervention relating to risk reduction or work that would require a post-intervention report: no intervention has even been planned. The representative says the proposed assessments are relevant to risk-assessment and needed to be obtained before any oral hearing. An oral hearing without them would be unfair, as further evidence was required. b) The result of the panel chair's decision not to defer is that the Applicant was deprived of the opportunity to put his case effectively to the Parole Board, thereby failing to follow Osborn . c) Before deciding not to defer, the panel chair should at least have waited for the outcome of the brain scan and any follow-up neurological report. Not to do so was irrational and procedurally unfair. d) The decision to conclude the papers was not justified on any of the grounds set out in Rule 21 (1); not the interests of justice, nor effective case management (which was the reason given), and the panel chair did not specify what other reason she considered appropriate, in particular, she did not consider whether the provision of the neurological assessment would in fact provide the necessary further evidence.[36]The Application stresses that the Applicant is a post-tariff indeterminate sentenced prisoner, and his case therefore called for more than usually anxious scrutiny: see Osborn §2(vi). Reading the Decision, I am satisfied that the panel chair gave the appropriate level of scrutiny.[37]However it is expressed, the complaint is that the decision to conclude the case on the papers was one to which no reasonable tribunal, considering all relevant facts and acting fairly, could have come.[38]In my judgement the real point here is that there was no indication as to when the material would be available to enable a panel to consider all the evidence relevant to a risk assessment and a decision as to release. The Applicant was due to see a psychiatrist on 18 March 2026. I cannot find in the dossier or the Application any proposed date for the brain scan that everyone agreed was necessary.[39]It was well understood by all concerned that releasing the Applicant into the community would have to be done carefully. A further adult social care assessment would have to be prepared in the light of the neurological findings. In reality, much would turn on how the Applicant coped with the outside world on RoTLs. He was unwilling to undertake unaccompanied RoTLs, and it must be expected that a number of overnight RORs in an appropriate AP would be likely to be necessary before release, particularly given the concerns about coping that exist in this case. This, therefore, was a process that would inevitably take a significant time and had not even started at the date of the decision to conclude on the papers. The COM's view, based on evidence outlined above, was that the Applicant does not currently have the ability to cope in the community without extra support. " It also means that his ability to cope and manage his own risk in the community cannot be assessed at this stage ." Further, his attitude towards the area to which he may be released is such, the COM thought, that there was a significant risk of his becoming homeless, which would increase the risk of alcohol use and therefore the risk of offending and harm, and he might display offending behaviour in order to be returned to custody if he were not housed in his chosen area. The panel chair was entitled to take the view that, when she considered the application for a deferment, there was no reasonable prospect of a fully informed hearing as to risk and risk management in the community being possible within a reasonable time. That being the case, a decision not to defer and then not to direct release was the only sensible outcome.[40]There were so many unresolved issues at the time of the decision whether or not to grant the application for a deferral, with so little certainty as to when they would be resolved, that it cannot be said that the decision not to defer, but to conclude on the papers, was one to which no reasonable panel could properly have come. However it is expressed, this was a decision that was neither irrational, nor procedurally unfair, nor unlawful. Decision[41]For the reasons I have given, I do not consider that the decision was irrational, procedurally unfair or unlawful, and accordingly I refuse the application for reconsideration. HH Patrick Thomas KC 29 June 2026