Fyves, Application for Reconsideration [2026] PBRA 15 (14 January 2026) [2026] PBRA 15

PBRA
Fyves, Application for Reconsideration [2026] PBRA 15 (14 January 2026)
[2026] PBRA 15 · 2025-11-13
[1]This is an application by Fyves (the Applicant) for reconsideration of a decision of a Parole Board member dated the 13 November 2025. The decision 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 panel member and the representations by the Secretary of State (the Respondent). Request for Reconsideration[4]The application for reconsideration is dated 17 December 2025.[5]The grounds for seeking a reconsideration are as set out below. Background[6]The Applicant is serving a sentence of life imprisonment for the offence of murder. The sentence was imposed on 25 March 2004. The Applicant was aged 26 at the time of sentence. The Applicant is now aged 48. The facts of the index offence were that the Applicant and two others travelled to a property to meet a male (the victim) ostensibly to purchase drugs. During the course of an exchange the victim was shot and wounded by bullets from two guns and later died in hospital. The sentencing judge indicated that the offence was planned and that the Applicant and his co-accused had in mind stealing the drugs and using guns if necessary to achieve the theft. The Applicant's tariff expired on 23 July 2023. The Applicant is subject to a deportation order. Appeals against the deportation order have been refused, however it is understood that further appeals have been lodged. This was the Applicant's second review. Current parole review[7]The Respondent referred the Applicant's case to the Parole Board to consider whether there should be a direction for release and if not whether there should be a recommendation to transfer the Applicant to an open prison.[8]The panel consisted of a single member reviewing the referral in a Member Case Assessment (MCA). A dossier consisting of 176 pages and representations from the Applicant's legal adviser were considered by the Parole Board member. The Relevant Law[9]The panel correctly sets out in its decision letter dated 13 November 2025 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[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[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 criteria are now set out in the Secretary of State's Directions to the Parole Board of the 1 August 2023.[25]Before recommending the transfer of a prisoner to open conditions, the Parole Board must consider all information before it, including any written or oral evidence obtained by the Board and whether the following criteria are met: · the prisoner has made sufficient progress during the sentence in addressing and reducing risk to a level consistent with protecting the public from harm (in circumstances where the prisoner in open conditions may be in the community, unsupervised under licensed temporary release); and · the prisoner is assessed as presenting a low risk of abscond.[26]The Parole Board must recommend a move to open conditions only where it is satisfied that the two criteria are met.[27]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.[28]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. "
[29]Omitting to put information before a panel is not a ground for procedural unfairness, as has been confirmed in the decision on the previous reconsideration application in Williams [2019] PBRA 7 . This is the case even where the information, had it been before the panel, would have been capable of altering its decision, or prompting the panel to take other steps such as putting the case off for an oral hearing where the new information and its effect on any risk assessment could be examined. This is because procedural unfairness under the Rules relates to the making of the decision by the Parole Board, and when making the decision the panel considered all the evidence that was before them. There was nothing to indicate that further evidence was available or necessary, and so there was nothing to indicate that there was any procedural unfairness. Reconsideration as a discretionary remedy[30]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.[31]The Respondent offered no representations. Grounds and Discussion Ground 1[32]It is submitted on behalf of the Applicant's legal adviser that the panel were wrong to assert that the Applicant's identity remains an issue in this case. Discussion[33]This is a case where identity has been a live issue for many years. The issue arises because the Applicant has used false identities in the past. He also comes from Jamaica and it appears that there has been some difficulty in securing cogent and specific information from Jamaica. The panel relied upon a report from the Applicant's Prison Offender Manager (POM). That report indicated that the Applicant's identity " remains unconfirmed ". The report goes on to indicate that the presumption has been that the Applicant's name and date of birth are ones which have been offered by the Applicant himself and confirmed to an extent by official records. The name and date of birth given by the Applicant appears not to have been confirmed by his country of birth and origin namely Jamaica which clearly leaves a position where there remains a question mark over identity, particularly in the context of a case where the Applicant himself has lived under assumed names for criminal purposes in the past.[34]The importance of a clear identification is associated with the need to ensure that any risk assessment by a psychologist or indeed by a probation officer (and eventually by a Parole Board panel) is based upon credible evidence. One area of doubt is whether there exist any previous convictions or criminal history in any country outside the UK. Efforts appear to have been made for some years to secure information from the authorities in Jamaica. To date those efforts have not borne fruit.[35]The Applicant's legal adviser indicates that a POM (in 2024) set out in some detail a message from the Home Office who indicated that they had various records relating to the Applicant's identity. It is apparent that there is a level of best evidence upon which the Home Office and prison service have been relying in relation to identity. However, it is also apparent that there is a continuing lack of evidence from the Applicant's home country. That evidence would build upon the passport information which is alluded to by the Home Office.[36]The Applicant's legal adviser submits that the panel proceeded on the basis of a mistake of fact about identity. As noted above mistakes of fact can result in a decision being irrational, however the mistake must be as to an existing fact; that fact must be established in the sense that it was uncontentious and objectively verifiable. I am not persuaded in this case that it can be said that the Applicant's identity is established to the point of being uncontentious and objectively verifiable. It is likely that there will never be a clear evidential basis to establish the Applicants identity because of the history of the use of false identities and the difficulties in securing coherent information from authorities abroad. I am not therefore persuaded that the panel's assertion that the Applicant's identity has not been confirmed beyond doubt was a mistake of fact and one which engaged irrationality. Ground 2[37]It is a submitted, on behalf of the Applicant, by the Applicant's legal adviser, that the panel were incorrect in asserting that it was not possible to obtain information regarding convictions or the absence thereof from the Jamaican authorities. It is submitted that the panel should have given more time for the authorities to attempt to establish whether any criminal history is attributable to the Applicant in his home country. Discussion[38]The evidence considered by the panel member in relation to criminal records in Jamaica was that a formal application had been made by the prison authorities to the Jamaican authorities. The application was for an international previous conviction certificate. No response had yet been received by the prison or the probation services. It was also of relevance that any response from the authorities in Jamaica necessarily depended upon the credibility and veracity of the information supplied to them which would be based upon the Applicant's self-report and the various documents which were in the possession of the Home Office. The Applicant's legal adviser is clearly correct in asserting that it would be possible to obtain information from the authorities in Jamaica about the Applicant. The reality was that that information was not as yet forthcoming. However, reliance upon that information would clearly require caution on the basis that the information could only be as good as the truthfulness and veracity of the material supplied to the Jamaican authorities.[39]The requirement to gather information in relation to parole hearings is the responsibility of the parties. The Parole Board are not a party or an evidence gathering body. The Parole Board are at liberty to request the securing of information from the parties. I am not therefore persuaded that it was incumbent upon the Parole Board to either make the enquiries themselves in relation to the Applicants background in Jamaica or to adjourn the case, without a clear prospect of information forthcoming, to await the response from the authorities in Jamaica. I do not therefore find this ground engages reconsideration. General[40]What is clear in this case is that a major factor in finalising a conclusion is the question of the Applicant's future residential status. The Applicant is subject to a live deportation order. The Home Office have submitted emergency travel documents to the Jamaican high commission. Apparently the first set of documents were mislaid and therefore a further set have been submitted. Overlaying the deportation order have been appeals by the Applicant. A number of appeals have been rejected, however the indication on the dossier was that the Applicant had made further representations which were being considered by the Home Office. The reality therefore was that there was no certainty as to where the Applicant might reside if he were to be considered for release. This is a matter of some importance because the Parole Board are obliged to consider the Applicant's risk wherever he may finally reside in the world. The panel's decision was that taking account of the Applicant's current status namely that he was subject to deportation, the Applicant would have no visible means of support in the community and would not have the access to support in terms of accommodation and the right to employment because of that status. It is clear therefore that the Applicant's risk at whatever level could not be managed without certainty in relation to his residential and other issues.[41]The Applicant's legal adviser submits that reconsideration should be considered in this case because of the fact that there are factual issues that require resolution and that the panel considered limited facts rather than exploring oral evidence from the witnesses. The basis of a reconsideration application is the test set out above. The panel's decision is assessed on the basis of the evidence before the panel at the time of the panel decision. I am not persuaded that the panel acted with irrationality on the basis of the evidence and material before the panel at the time of the decision. This is clearly a complex case. There is unlikely to be progression until the decision relating to the Applicants deportation has been finalised and all appeals are completed. At that point the panel will no doubt be required to consider the guidance relating to foreign national prisoners and whether the Applicant will be likely to be residing in the UK or elsewhere. For these reasons I am not persuaded that this is a case for reconsideration. Decision[42]For the reasons I have given, I do not consider that the decision was irrational and accordingly the application for reconsideration is refused. HH Stephen Dawson 14 January 2026