Cadman, Application for Reconsideration [2026] PBRA 149 (25 June 2026) [2026] PBRA 149

PBRA
Cadman, Application for Reconsideration [2026] PBRA 149 (25 June 2026)
[2026] PBRA 149 · 2026-05-27
[1]This is an application by Cadman (the Applicant) for reconsideration of a decision of an oral hearing panel dated 27 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 12 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. His tariff expired on 12 March 2014. The index offences were aggravated burglary, burglary, robbery and a further burglary. There were also matters taken into consideration. The robberies were directed towards elderly victims. The judge indicated that the Applicant was "prone to sudden spells of violence" . The Applicant had threatened victims with a knife. The aggravated burglary involved kicking or smashing doors to gain entry when occupants were present and threatened. The Applicant was said to be under the influence of drugs and alcohol when committing offences. The Applicant was aged 24 at the time of sentence. He was aged 41 at the time of the oral hearing. The Applicant had been released and recalled to prison on five occasions since sentence. Current parole review[7]The referral from the Respondent requested that the panel consider whether the Applicant should be subject to a direction for release. If not released the panel were requested to consider whether the Applicant should be subject to a recommendation for transfer to an open prison.[8]The panel hearing took place on 12 January 2026. The panel consisted of an independent chair, a further independent member and a psychologist member of the Parole Board. The panel considered a dossier and evidence given orally by a Prison Offender Manager (POM), a prison instructed psychologist, and a specialist prison psychologist. Evidence was also given by the Community Offender Manager. A report by the Applicant's independently instructed psychologist was also considered. The Applicant gave evidence and was legally represented. 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 Secretary of State 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 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[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[24]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[25]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[26]The Respondent indicated in representations that the Applicant is receiving appropriate medication and that his POM is liaising with the psychology department to consider possible further intervention work. Grounds and Discussion Ground 1[27]The Applicant's legal adviser submits that the panel in this case incorrectly asserted that the Applicant had assaulted a person in a public house on 17 September 2024 and that the panel relied unfairly and disproportionately upon this incident in their decision. Discussion[28]The background to this ground relates to the Applicant's recall. One of the reasons for the Applicant's recall was reports about the Applicant's negative behaviour. The reports were received by his supervising probation officer. One of those reports was of an incident in a public house. The incident was reported to the police as an "ongoing fight between a set of males with two injured" . There was CCTV of the incident which was reviewed by the police. The police observed hostile behaviour between the parties but took a decision not to charge any of the parties with any offences.[29]During the course of the oral hearing the panel asked the Applicant about the incident in the public house. At paragraph 2.73 of the decision, the panel set out the Applicant's answer which was given by him in the oral hearing. The Applicant said that he was in a public house. He saw a man headbutt his friend, and so he "threw a punch" . The Applicant then said that another man grabbed his ankle and he then kicked this man in the stomach to get him off. He then told the panel that a bar staff member intervened, and the Applicant left the public house. The Applicant's view was that he had " no control " over what happened and that the whole incident " had nothing to do with him ".[30]The Applicant's legal adviser indicates that the position of the Applicant is that "he did not assault anyone" . It appears from the panel decision that the Applicant, upon his own admission, had punched one man and kicked another. The Applicant may have taken the view that he was justified in using physical force in the circumstances, however I am not persuaded that the panel were acting unfairly or disproportionately in taking account of this incident. The panel were concerned with the risk of serious harm arising from incidents such as this. The Applicant had a history of alcohol misuse and of violence. This incident was a perfectly reasonable example of the potential behaviour of the Applicant and therefore a reasonable basis upon which the panel could draw evidence. The fact that the police took no further action was not a relevant consideration in relation to the Applicant's risk of serious harm in the community.[31]It is also noted later in the panel's decision that the panel accepted that the Applicant had not been charged with any offences, their obvious concern was whether the Applicant evidenced sufficient self-control, and control of alcohol use, to respond to difficult situations without using violence and elevating risk.[32]The Applicant's legal adviser also indicates that the Applicant takes issue with the fact that the panel indicated that the Applicant had (on another occasion) assaulted a police officer. Again, the Applicant himself when asked about these matters by the panel, during the panel hearing, said that he was in an area which was being cleared by the police. He indicated that he had been told by the police to leave this area. He said that the police had then "manhandled" him, and "out of fear of being arrested" he pushed a female officer causing her to fall to the ground. No further action was taken relating to this incident, however it amounted to an assault on the police officer, and again was a perfectly reasonable basis upon which the panel could consider how the Applicant responds to difficult situations in the community and in particular his propensity to resort to physical hostility. I am not therefore persuaded that the panel acted unreasonably or irrationally by taking account of the Applicant's own acceptance that he had pushed over a police officer. Ground 2[33]The Applicant's legal adviser indicates that the Applicant takes issue with the fact that the panel accepted the view of a prison instructed psychologist, namely that further work was indicated to assist the Applicant in managing his propensity to risky behaviour. The substance of the argument in relation to this ground is that the prison service has not been able to identify whether the work which is suggested by the psychologist is available to be offered to the Applicant. Discussion[34]As is well understood, the Parole Board and Parole Board panels are not empowered to make directions relating to the availability or the undertaking of behavioural work. The responsibility for offering opportunities and for taking up work is entirely in the hands of the prisoner and of the prison service. However, it is not unreasonable for a panel to take account of a suggestion by a professional that a body of work is assessed as being required in order to assist the Applicant to manage his propensity to violence. I am not persuaded that the panel were irrational in not pursuing either the nature of the work in detail, or where it would be or could be undertaken. In my determination it was not unreasonable for the panel to reflect upon the professional view of the psychologist who had prepared a report, and to consider whether they accepted or rejected that proposal. In this case the panel accepted that it appeared that the Applicant needed to undertake further behavioural work in order to assist him to manage his risk of serious harm in the community. It was not unreasonable for the panel to indicate that they agreed with that view. (See also the note above from the Respondent.) Ground 3[35]The Applicant's legal adviser submits that the panel placed undue reliance upon the views of the POM who did not support a direction for release. It is submitted that the POM had little experience of meeting with the Applicant and was not therefore in a strong position to offer a recommendation. Discussion[36]As is well understood, panels of the Parole Board are not obliged to follow the views and recommendations of professional witnesses. Panels receive those views and reflect upon them and make their own independent decision based not only upon recommendations, but upon the evidence of the Applicant himself and the historical evidence and reports contained in the dossier. In this case none of the professional witnesses (save for the psychologist instructed by the Applicant himself) supported release. It is not therefore a case where the panel unduly relied upon one particular piece of evidence relating to one professional. I am not persuaded that this is a viable ground for reconsideration. Ground 4[37]The Applicant's legal adviser submits that the panel were wrong to conclude that the Applicant showed limited evidence of internal controls, and that therefore the reliance in the community to manage his risk would be predominantly upon external controls. The essence of the panel's position was that until the Applicant can develop internal controls, external controls (such as the Risk Management Plan (RMP)) were unlikely to be effective in managing his risk of serious harm in the community. Discussion[38]The Applicant's legal adviser gives examples of the Applicant's ability to harness internal controls. Those examples included the fact that the Applicant dealt with a disappointment relating to a (parole hearing) adjournment without negative behaviour and in general terms that the Applicant had proven by his absence of violence in custody that he was therefore using internal controls.[39]Within the Parole Board decision, the panel themselves addressed this point. The prison instructed psychologist had specifically indicated that the Applicant copes better in a custodial environment where there is structure and routine (and the absence of alcohol). However, the prison instructed psychologist also indicated that the Applicant was still evidencing impulsive and aggressive behaviour in prison, and for that reason the suggestion was that there remained work to be undertaken in relation to emotional dysregulation. The psychologist also took the view that the Applicant lacked insight into his own risks which are heightened when he relapses into substance misuse.[40]It is clear therefore that the professionals and the panel took a wider view of the assessment of the Applicant's risk than a period of good behaviour during the most recent recall. The panel accepted that there had been progress made by the Applicant. The Applicant had been prescribed medication to assist with his neuro diversity (which was thought to assist his dysregulation). There had also been a reduction in negative behaviour in prison. However, despite these positive gains the panel took the view that there remained evidence that the Applicant could not safely manage his risk of serious harm in the community. The basis of the panel's rationale in relation to a lack of internal controls was well set out in the decision. Whilst the Applicant may disagree with the view of the panel, the panel were entitled to reach a decision based upon the evidence presented to them. I am not persuaded that the basis of that decision was irrational in the sense set out above. Ground 5[41]The Applicant's legal adviser submits that none of the professional witnesses suggested that the risk of serious harm was imminent. The Applicant's legal adviser quotes from the report of the psychologist instructed by the Applicant. The conclusion of the psychologist was that the codified public protection test was met and recommended release. This was apparently upon the basis that firstly, there was not an imminent risk of serious harm upon release; secondly that risk could be effectively monitored and managed under an enhanced RMP; and thirdly that there was no clear evidence that the Applicant displayed behaviour that would be deemed as posing "serious harm" . Discussion[42]The Codified Public Protection Test makes no reference to the risk of serious harm being imminent. It is unarguable that if a risk of serious harm were imminent than the test would be unlikely to be met. However, the contrary argument does not apply, namely because the risk of harm is not imminent the codified test is met. As is enunciated in the case of Johnson EWHC 1282 (Admin) the courts have found that the test for release has no temporal element. Accordingly, the panel were obliged to take account of the risk of serious harm for the foreseeable future. In the Applicant's case this was highly relevant, given the propensity for the Applicant to relapse into substance misuse which was historically a trigger for violence.[43]The conclusion by the Applicant's psychologist that there was no clear evidence that the Applicant displayed behaviour that will be deemed as posing "serious harm" during his time on licence was highly contestable. As noted above the Applicant had, on his own admission, in a public house, punched a man in the head and kicked another man in the stomach. He had also pushed over a police officer in a dispute. Whilst these incidents did not result in serious harm, such incidents were clearly the basis of the panel concluding that there was a risk of serious harm, particularly taking into account the Applicant's history of violence associated with robberies and burglaries.[44]The Applicant's legal adviser notes that the panel in this case gave limited direct reasoning as to why they rejected the views of the psychologist instructed by the Applicant. Parole Board guidance requires the panel to justify its reasoning and to explain how the decision was reached. In this case the panel noted the fact that the Applicant's instructed psychologist was recommending release. Within the body of the decision the panel set out in some detail the basis of their conclusion that the Applicant's risk could not be managed. The panel dealt with the issue of imminence which was referenced by the Applicant's instructed psychologist and also dealt with the risk of serious harm.[45]The drafting of this decision would have been improved, and it would have been easier for the Applicant to comprehend, if the panel had directly addressed the report by the psychologist instructed by the Applicant. Despite the limited reference to the psychologist's report I am not persuaded that, taking the decision as a whole, the Applicant would not have understood the basis upon which the panel reached their conclusion, and importantly the basis upon which they did not accept the conclusions of the prison instructed psychologist. For that reason, I do not find that this ground amounts to either a procedural irregularity or irrationality. Ground 6[46]The Applicant's legal adviser submits that the panel acted procedurally unfairly. Discussion[47]The background to this submission is that, at the conclusion of the first scheduled oral hearing, a decision was made to adjourn the case to secure further information. The adjourned hearing was heard by video link. One of the witnesses, the psychologist instructed by the Applicant, who had been at the original hearing, suffered difficulties with the internet line and was therefore unable to log in to the adjourned hearing. The panel noted, in the written decision itself, that the independent psychologist had sent a message indicating she had difficulties with her internet connection. The panel then consulted with the Applicant's legal adviser about how to proceed (whether to continue or to adjourn to another day to enable the psychologist to log in). The Applicant's legal adviser then spoke to the Applicant. The panel were then told by the Applicant's legal adviser that the Applicant was content to proceed with the oral hearing and asked that the panel rely upon the independent psychologist's written report which was on the dossier. Discussion[48]The Applicant's legal adviser submits that the Applicant was treated unfairly because the panel should have taken the decision "out of his hands" and exercised a judicial function of adjourning the matter despite the view of the Applicant himself. This is argued on the basis that the Applicant had been waiting some time for his hearing and did not wish to delay the matter any further. Prisoners who are legally represented have the benefit of robust and experienced advice from a legal adviser. Doubtless the legal adviser will offer cogent advice to a client, however it is well understood that despite advice, an individual client has the right to make an independent decision about a matter such as whether to oppose or apply for an adjournment. I am not persuaded that it can be argued that the panel acted procedurally unfairly in seeking representations and accepting the submissions by the legal adviser in this case. Decision[49]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 25 June 2026