Whitehead, Application for Reconsideration [2026] PBRA 148 (25 June 2026) [2026] PBRA 148

PBRA
Whitehead, Application for Reconsideration [2026] PBRA 148 (25 June 2026)
[2026] PBRA 148 · 2026-05-26
[1]This is an application by Whitehead (the Applicant) for reconsideration of a decision of an oral hearing panel dated 26 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 10 June 2026.[5]The ground for seeking a reconsideration is set out below. Background[6]The Applicant is serving a sentence of life imprisonment for the offence of murder. The offence occurred when the Applicant was aged 18. The Applicant with a large number of youths approached the victim who was also a young person. The victim was being attacked by a number of youths. The victim had emerged from his home with a sword or knife, the sword or knife was eventually taken from the victim by the Applicant. The Applicant then stabbed the victim three times causing the death of the victim. The Applicant's tariff expired on 17 May 2014. The Applicant has been released on six occasions and subsequently recalled. Current parole review[7]The referral from the Respondent requested the Parole Board to consider whether the Applicant should be directed for release. If not directed for release whether there should be a recommendation that the Applicant be transferred to an open prison. The Applicant was aged 40 at the time of the oral hearing. There had been adjournments in this case to gather information relating to the allegations which led to the Applicants recall.[8]The panel hearing took place on 21 May 2026. The panel consisted of an independent panel chair of the Parole Board and a further independent member of the Parole Board. Evidence was received from the Prison Offender Manager (POM) and the Community Offender Manager (COM). The Applicant gave evidence and was legally represented. A dossier consisting of 643 pages was considered. The Relevant Law[9]The panel correctly sets out in its decision 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]It is possible to argue that mistakes in findings of fact made by a decision maker result in the final decision being irrational, but the mistake of fact must be fundamental. The case of E v Secretary of State for the Home Department [2004] QB 1044 sets out the preconditions for such a conclusion:
" there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter; the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable; the appellant (or his advisors) must not have been responsible for the mistake; and the mistake must have played a material (though not necessarily decisive) part in the tribunal's reasoning."
See also R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] AC 295 , which said that in order to establish that there was a demonstrable mistake of fact in the decision of the panel, an Applicant will have to provide " objectively verifiable evidence " of what is asserted to be the true picture.[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. "
Reconsideration as a discretionary remedy[27]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.[28]The Respondent offered no representations. Ground and Discussion Ground[29]The primary basis for the application for reconsideration by the Applicant in this case is that the Parole Board panel inappropriately addressed the allegations that led to the recall in this case. Those allegations were that the Applicant was observed by the police in a " crack den " and to be involved in what appeared to be a drug dealing scenario. The Applicant's legal adviser submits that the panel applied an " overly precautionary approach centred on the statements of two police officers with no factual evidence ". Discussion[30]As noted above the Applicant is serving a sentence of life imprisonment for the offence of murder. He was sentenced in 2004. Since his sentence he has been released and recalled on six occasions. The panel in its decision set out a summary of the incidents which had (in the past) led to recalls. Those allegations range from involvement in an incident which led to a violent confrontation with the partner of the Applicant's ex-wife at the time. There had been an assault with a glass bottle. The Applicant was subsequently acquitted on the basis that the jury accepted self-defence. The subsequent recalls were associated with relapse into drug misuse and amassing drug debts which led to threats. There were also concerns in relation to recalls relating to abuse towards partners including emotional harm and manipulative behaviour. The Applicant's recall in 2024 occurred after he tested positive for cocaine and there were concerns about a partner who had not been declared. It was also noted that the Applicant had unexplained control of substantial amounts of cash.[31]The recall being considered by the panel (2025) came about as a result of a police intervention. Police officers had attended a residential address which was believed to be a " crack den ". Police officers observed the property from the rear, and identified the Applicant in the house, as someone who was packing bags of white rocks (believed to be drugs) in the kitchen. The police believed that the drugs were then disposed of before they were able to gain entry. Police intelligence indicated that it was believed that the Applicant was " heavily involved in the dealing of crack and a hallucinogenic drug. He had been exploiting vulnerable people selling them drugs and then stealing from them ." The Applicant was also believed to be " dealing crack from his car with a female ".[32]The Applicant explained to the panel that he had no involvement with drugs or the " crack den " and that he had gone to the address (in breach of his curfew) in order to collect a set of car keys. He gave a slightly different account to his POM. He also spoke about the incident to his COM. The panel reported that both of these professionals doubted the credibility of the Applicant's explanation.[33]Following an investigation the police did not pursue the matter relating to drugs. The reason for not pursuing the matter was that the evidence relied solely upon police observations. The police search of the premises, after they had gained entry, did not result in any substantive collateral evidence save for an empty snap pack in a sink and a snap pack in a bedroom which contained suspected class A drugs.[34]As noted above, the Applicant, at the panel hearing, told the panel that he was collecting car keys from the address. He accepted that the address was " scruffy " and dark. He accepted it looked like a " crack den " from the inside but said it looked like a " nice property " from the outside. He denied doing what the police said that he was doing and told the panel that he had never sold drugs.[35]On the basis of the police observations the panel were entitled to consider whether there was evidence to support a general allegation that the Applicant was involved in drug misuse or drug dealing. The panel applied the Parole Board Guidance on Allegations which is based upon the case of Pearce.[36]Of importance is the fact that the panel were obliged to test the evidence on the balance of probabilities. The panel set out in detail the basis upon which they reached their conclusions. They decided that:[37]The Applicant had not been truthful about his reasons for being at the address and it was more likely than not that he was there in relation to drugs.[38]The panel accepted that the observations by the police were accurate and therefore that the Applicant had been packing up drugs in a kitchen. In the light of the observations the panel were also satisfied that the intended recipients were likely to be others outside the address.[39]Based upon the description by the police the panel were also satisfied on balance that the Applicant had been involved in obstructing the entry by the police into the property which would have enabled the drugs and paraphernalia to be disposed of.[40]The panel's conclusion was also supported by the fact that the panel took the view that the Applicant's account lacked plausibility.[41]The Panel's view was also supported by the conclusions of the POM and COM who had spoken to the Applicant about these issues independently and had reached a similar conclusion - namely that the Applicant's explanation lacked plausibility and that he was highly likely to be involved in drug dealing.[42]The panel were content to rely upon the police statements which were provided by two police officers who identified the drug dealing activities within the house and identified the Applicant as being involved in those drug activities.[43]The panel took account of the Applicant's history of drug misuse and involvement with drug associates. The panel also took account of the fact that the Applicant had been (during an earlier recall) subject to a " threat to life " notice issued to the Applicant which related to a suspected drug debt.[44]The panel in my view appropriately applied the test set out in the case of Pearce. They took account of the evidence relating to the incident at the " crack den " including taking account of the evidence of the Applicant. I am not persuaded that the panel's conclusions could be characterised as irrational or unreasonable. There was a substantial amount of evidence, on the basis of the observations by the police, that the Applicant was not only involved in the taking of illegal substances but was also associated with the distribution of those substances.[45]The panel were not only concerned about the fact that the Applicant appeared to be involved in drug misuse activities, but also that such involvement was indicative of an absence of evidence that the Applicant had any incentive to change his behaviour and to take account of the learning which he had been said to have acquired in behavioural programmes undertaken in prison.[46]The panel findings were that there was a high likelihood of further offending leading to the elevation of risk and serious harm. Taking into account the panel's finding, that the Applicant was involved in the drug culture and in supplying drugs, the panel's concern was that the Applicant would be involved in networks where violence, weapons and the exploitation of others can occur. This clearly impacts upon the risk of serious harm to others.[47]The panel took the view that the findings that they had made, coupled with the historical evidence of poor behaviour on licence, demonstrated the presence of active risk factors including risks associated with his lifestyle and associates, with drug misuse, with unhelpful attitudes and a lack of compliance. The panel took the view that the arrest in the " crack den " demonstrated an escalation of risk, and a greater risk than had been evidenced in earlier recalls. The panel also concluded that the Applicant had not been honest and open to his probation officer about his involvement in nefarious activities and therefore no intervention action was able to be taken by those who were involved in his management in the community.[48]The panel also took account of the fact that the COM and POM in this case recommended that the Applicant should be released. The basis of the professional recommendations appeared to be that there have been no convictions or evidence of violent offending prior to the current recall. The panel were unimpressed by this rationale on the basis that it was highly likely that violence and criminality would have escalated in the light of the Applicant's involvement in the drug misuse culture.[49]Although the panel took account of the external controls which were being suggested in relation to the risk management plan, the panel took the view that the plan could only be effective if the Applicant was open and honest about his lifestyle and was prepared to commit himself to a prosocial lifestyle. The panel indicated that they were not convinced that the Applicant had a desire to change and therefore had the necessary motivation to apply past learning and to adhere to the risk management plan. The panel therefore found that the professionals underestimated the serious ramifications of the involvement in drug misuse and of the background to the recall.[50]In my determination the panel gave a clear and lucid account of the basis upon which they had reached their conclusion that the Applicant's risk of serious harm could not be managed in the community. The panel applied the principles of the case of Wells above to explain the reasons why they did not follow the recommendations of professionals. The decision also explained the reasons for reaching their conclusion. The content of the decision indicates that the panel applied anxious scrutiny to all aspects of the evidence and ensured that they had applied reasonableness and fairness to the assessment of the evidence upon which they reached their conclusion in relation to risk.[51]In the circumstances therefore I am not persuaded that this is a case which engages reconsideration. Decision[52]For the reasons I have given, I do not consider that the decision was irrational accordingly the application for reconsideration is refused. HH Stephen Dawson 25 June 2026