Smith, Application for Reconsideration [2026] PBRA 154 (07 July 2026) [2026] PBRA 154

PBRA

Smith, Application for Reconsideration [2026] PBRA 154 (07 July 2026)

[2026] PBRA 154 · 2026-05-28

[1]This is an application on behalf of Smith (the Applicant) for reconsideration of a decision dated 28 May 2026 of a Parole Board panel held on 23 April and 21 May 2026 by way of a video link not to direct release or recommend open conditions (the Decision).

[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 or

[3]I have considered the application on the papers. These are the application for reconsideration made on behalf of the Applicant by his legal representatives and dated 17 June 2026 (the Application), the email response of the PPCS on behalf of the Secretary of State (the Respondent) dated 22 June 2026 offering no representations on behalf of the Respondent, and the relevant dossier initially consisting of 503 numbered pages by the conclusion of the hearing and now 527 numbered pages. Request for Reconsideration

[4]The grounds for seeking a reconsideration are based on irrationality and procedural unfairness but in substance the two grounds coalesce as one: a failure to explain fully and adequately why the panel disagreed with the expressed unanimous views of the professional witnesses at the hearing in favour of release. Background

[5]The Applicant was sentenced on 6 November 2003 to a life sentence following a conviction for two offences of robbery, possession of a firearm, and blackmail. The tariff was set at 9 years less time spent on remand. The tariff expiry date was 6 May 2012. At the date of sentence, the Applicant was aged 32 years and is now aged 54.

[6]As noted in the Decision, the Applicant had, up to the date of sentencing for the index offences, accrued a long history of convictions commencing in 1984 when in his teens, for theft, assault, burglary, wounding, blackmail, robbery, and escaping from lawful custody, demonstrating, in the panel's view, " an entrenched pattern of criminal offending involving the use of violence " culminating in the index offences committed whilst heavily addicted to class A drugs and which included stealing a car, committing armed robbery of a jeweller's shop, and holding a gun to the shop assistant's head.

[7]Following sentencing the Applicant was released twice on licence, both times following a Parole Board panel hearing. Both ended in recall, the first after a fortnight in April 2020, the second after three and a half months (late 2022 to spring 2023) following offences committed on licence including theft, burglary and battery for which he was further convicted.

[8]Historic risk factors noted by the panel included:a. substance misuse;

b. financial motivation;

c. sense of entitlement to achieve his needs including use of violence;

d. poor emotional and behaviour control;

e. poor problem solving and impulsivity;

f. lack of victim awareness and empathy;

g. lack of coping skills.

[9]As to positive factors, particularly relevant was his development in the six to eight months preceding the present panel hearing. No security concerns had been noted, there had been no adjudications, a stability in his mental health, no current concerns about substance misuse, developing positive maturity and motivation, an open and honest engagement with professionals, developing insight and awareness of victim empathy and risk factors, improvements in his coping skills (particularly as regards death in the family and the adjourned panel hearing) and self-control, he remained an enhanced prisoner, and no further offending had been noted since his last conviction. Current parole review

[10]The panel consisted of two independent members and a specialist psychologist member. The panel heard evidence from the Prison Offender Manager (POM), the Community Offender Manager (COM), an independent psychologist and, of course, the Applicant himself. The independent psychologist had seen the Applicant for her initial assessment resulting in a report of December 2025. The COM had seen the Applicant some four to five times but felt she had a good understanding of him. Significantly none of these professionals in reports prepared prior to the hearing recommended release. However, by the time of the hearing, and in the last month or so preceding the hearing, they had all changed their minds to one of release. Therein lay the challenge to the panel's decision not to direct release. The Relevant Law

[11]The panel correctly set out in the 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)

[12]Rule 28(1) of the Parole Board Rules provides the types of decision which are eligible for reconsideration.

[13]These are, as in this case, 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)).

[14]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

. I do not therefore consider this matter further other than in the context that, in refusing such recommendation, the panel's reasoning must have had some bearing on their decision to refuse release (see further below).

[15]The challenge in this case is based on irrationality and procedural unfairness to which I now turn although, in substance, as noted above, the two grounds overlapped. Irrationality

[16]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.

[17]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. "

[18]In R (on the application of Wells) -v- Parole Board

[2019] EWHC 2710 (Admin)

Saini J set out what the judge 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)

[19]As was made clear by Saini J in Wells this is not a different test to the Wednesbury test.

[20]An important consequence following from these principles is that in considering an application for reconsideration an appeal panel will not substitute its view of the evidence for that of the panel who heard the witnesses merely because it formed a different view on the papers.

[21]Above all, of relevance in this case, it must be remembered that 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. As was, in effect, submitted on the Applicant's behalf, 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 applicants seeking to complain of procedural unfairness under rule 28 must satisfy the appeal panel 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;

(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. Insofar as there was any separate argument under this head, it can only, at best, have been under para 23 (e) above. Other

[26]It is also worth remembering that panels in preparing the decision are not drafting legal documents of a contractual or proprietary nature which may be subject to rules of construction and interpretation. They must be read fairly and as a whole. That said, this does not detract from the need for setting out proper and adequate reasons for the decision reached, particularly bearing in mind the potential impact of that decision on those likely to be most affected by it. Justice must not only be done but be seen to be done. 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]Finally, it must also be remembered that 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]I have previously indicated that, expressly, no representations were offered on behalf of the Respondent. Discussion

[29]On the Applicant's behalf it was submitted that the panel failed to explain clearly the reasons for departing from the unanimous views of the professional witnesses in favour of release.

[30]Four passages in the Decision came in for particular criticism contained in paras. 3.7, 3.16, 4.6 and 4.7 thereof.

[31]Para. 3.7 noted as follows:

" All professionals confirmed their recommendation for release. The panel considered these very carefully and came to its own independent assessment, in concluding that all of the professional witnesses were over reliant on [the Applicant's] custodial behaviour, which had been stable since October 2025, and did not take into consideration his serious history of offending, the imminency of risk on his last release and the commission of a further offence of violence whilst unlawfully at large."

[32]Para. 3.16:

"... [the Applicant] has managed his custodial behaviour in the past but demonstrated he was unable to cope with life stresses, resulting in a further conviction for violence whilst on licence. ..."

[33]Paras. 4.6 and 4.7:

"4.6. However, set against the positive progress that [the Applicant] has made, the panel are concerned that the risk factors identified have not yet been sufficiently addressed. In particular, [the Applicant] is vulnerable to being unable to cope when faced with the stress of being released and no further offending behaviour work has been undertaken since recall, specifically addressing his further conviction for a violence offence. The Panel considered that all of the professional witnesses placed too much emphasis on [the Applicant's] recent custodial behaviour, as demonstrated by their very recent change of recommendation, which the panel considered was not supported by evidence of longer term change and reduced risk. "4.7. The panel assessed that it is necessary for the protection of the public that [the Applicant] remains confined, given that risk to the public remains assessed as high, there are outstanding risk factors to address and that there has not been any evidence of sustained change or reduction of risk since recall. The panel made no direction for release. "

[34]The criticism, in brief, may be summarised as follows:a. The professionals based their risk assessments on a full offending history and his recall circumstances which were addressed in the written reports.

b. The further conviction for violence whilst on release was due to the Applicant's struggling with emotional management due to the death of his mother and undue weight was placed upon it ignoring the clear evidence of sustained progress made by the Applicant since.

c. All professionals concluded no further offending work was required, he had engaged with professional assistance as regards substance misuse, and had a good understanding around the triggers to his offending and as regards managing his risk.

d. The reasons given were irrational and inadequate having regard to the views of the professionals who were questioned in detail at the hearing particularly as regards their change of mind and as regards risk.

[35]Whilst anxiously noting, as ever, that the Applicant has already spent a considerable part of his life in prison and is well over the tariff expiry date, I am unpersuaded by these criticisms. The decision must be read as a whole. It was careful, lengthy and detailed in detailing the risk factors historic and present, in noting the evidence of each of the witnesses, and in analysing and balancing factors both favourable and less favourable to the Applicant. The panel nowhere in the Decision casts doubt upon the factual evidence given by the professionals (particularly as regards the progress made by the Applicant in recent months), only in the overall conclusions, assessments, evaluations and opinions reached by those professionals.

[36]They carefully noted the current risk factors including continuing risks arising from boredom and substance misuse, from coping with stresses through living in the community or in inappropriate localities. They noted the Applicant's progress, improvement, development in custody, and many positive factors, but these were still at a relatively early stage (largely from autumn 2025 onwards) and it was yet to be shown that these improvements were substantial and sustained over a period of time, more than a few months, particularly bearing in mind the likely stress on the Applicant once in the community. There remained a number of assessed risks including of harm to the public (high), a medium to high risk of absconding, his vulnerability to stress and substance misuse.

[37]Reading the Decision as a whole and standing back and looking at matters in the round it is clear in my judgment that the panel (rightly in my view) carried out a careful analysis and balancing exercise. They looked at the whole history of the Applicant's offending, risks, conduct on his second release on licence, as well as his improved motivation, development, and progress, and felt that the professionals had been too influenced by the later developments and improvements. In the context of an offending history going back to 1984, and his time in custody (bar the two releases) for most of the past 20 odd years since at least 2003, the evidence of improvement was essentially confined to the last months and needed to be backed up by evidence over a longer period. The panel also noted the absence of a recommendation for a move to open conditions and the risk of absconding. It thus all came mainly down to time. The decision in substance can perhaps be summarised as possibly nearly due for release, but not yet, a longer period of evaluation was needed. As I said, reading the Decision fairly, that is clearly the reason why they decided that the change of opinion by the professionals should not, at this stage, be accepted. So read, in my judgment the analysis, reasoning and conclusions are more than adequately set out in the Decision. Decision

[38]Accordingly, for the reasons I have given, and bearing the principles set out above in mind, I do not consider that the decision was either irrational or procedurally unfair and the application for reconsideration is refused.

[39]Whilst so deciding, I would hope however (I can do no more), that the Applicant's progress continues and that, as early as circumstances and the demands on the prison service render reasonably appropriate, his case can be placed before a further panel in the not too distant future bearing that progress in mind, the Applicant's age, and the length of time already in custody. HH Roger Kaye KC 07 July 2026