Wheeler, Application for Reconsideration [2026] PBRA 155 (07 July 2026) [2026] PBRA 155

PBRA
Wheeler, Application for Reconsideration [2026] PBRA 155 (07 July 2026)
[2026] PBRA 155 · 2026-05-18
[1]This is an application by Wheeler (the Applicant) for reconsideration of a decision, dated 18 May 2026, declining to direct his release. The decision also noted the panel's refusal to make a recommendation for a transfer to open conditions, and this aspect is commented upon further below.[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 as follows: · The dossier, totalling 794 pages. · The decision. · The submissions on the Applicant's behalf by his legal representative.[4]Having considered the papers, I asked that the Applicant's legal representative have the opportunity to amend their submissions, in so far as they conflated release and open conditions. A deadline was provided for this, but no further submissions were received. I have proceeded by addressing the submissions as they relate to the decision not to release. Request for Reconsideration[5]The application for reconsideration is dated 08 June 2026.[6]The grounds for seeking a reconsideration are presented in narrative form and not specifically pleaded. However, it is clear that the submissions generally suggest that the decision was irrational on the basis of a number of evidential points. Background[7]The Applicant was convicted on 28 February 1995 of a number of charges: · Two counts of manslaughter, receiving a life sentence on both. · Rape, two counts of false imprisonment, and indecent assault, receiving concurrent determinate sentences of 12 years, 14 years and seven years respectively.[8]The index offence involved an attack on an elderly couple in their home. The Applicant stabbed both victims and cut their throats before sexually mutilating them. Having done this, he invited two girls (aged 14 and 18) back to his flat, where he raped and indecently assaulted them at knifepoint. He moved the victims to his friend's flat, where he raped the same victim again. He then brought both to the location of his previous attack, where the bodies of the victims were present. He sexually assaulted both again. The Applicant was convicted of manslaughter on the basis of diminished responsibility.[9]The Applicant had a previous conviction from 1988 for attempted rape.[10]The Applicant's tariff expired on 15 April 2004. He has spent his entire sentence in the high security estate, where he still remains. This is now his eighth parole review. Current parole review[11]The Applicant's case was referred to the Parole Board on 18 January 2024, to consider whether he should be released from custody and, if not, whether a recommendation for open conditions should be made. His case was originally concluded on the papers at the Member Case Assessment stage, but a Duty Member considered the case under Rule 20 and directed the case to an oral hearing.[12]The Applicant's oral hearing was adjourned on a number of occasions related to the amount of time originally scheduled for the hearing, then the unavailability of legal representation. The hearing finally proceeded on 07 May 2026 before a three member panel, consisting of two independent members and one psychologist member. The panel heard evidence from the Applicant's Prison Offender Manager (POM), his Community Offender Manager (COM), and a prison psychologist. The Applicant was legally represented throughout. The Relevant Law[13]The panel correctly sets out in its decision the test for release. Parole Board Rules 2019 (as amended)[14]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)).[15]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)).[16]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 in Barclay [2019] PBRA 6 . Irrationality[17]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.[18]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. "
[19]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).[20]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.[21]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.[22]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. Other[23]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[24]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[25]The Secretary of State (the Respondent) has made no submissions. Discussion Irrationality[26]The Applicant's challenge to the decision not to direct his release is founded in irrationality. The Applicant makes a number of points on this general submission. · The panel did not give sufficient weight to the evidence around the Applicant's progress with risk reduction interventions, and that he has no risk reduction work outstanding. The panel also failed to give sufficient weight to the Applicant's generally positive behaviour for a prolonged period of time. · Equally, the panel did not give sufficient weight to the Applicant's evidence around these interventions and how he has used the skills and changed his behaviour. · The panel gave too much weight to the opinions of the POM and COM concerning their views on consolidation work needing to be completed in closed conditions. On that same point, the panel has not provided sufficient reasons, other than accepting the POM and COM's evidence. · In so far as it relates to release, there is limited evidence to conclude there is an increased risk of abscond.[27]The Applicant's challenge is in fact a challenge to the merits of the panel's decision not to direct his release. As already highlighted, interfering with the decision of the panel that heard the evidence, and was best placed to assess weight, should only occur when the panel's conclusions could not have been reached by any reasonable panel.[28]The panel clearly took into account the amount of work the Applicant had completed during his sentence, describing it as "vast" . However, there was other evidence that suggested the Applicant had been unable to apply learning from this work consistently.[29]The panel had clear evidence before it that the Applicant had poor relationships with both his POM and COM. This included evidence suggesting the Applicant would attempt to control discussions and would only answer questions that he wanted to. In fact, the Applicant's own evidence supported this conclusion. This was strong evidence that the Applicant would be unlikely to openly engage with his COM if he was released.[30]Likewise, it was entirely open to the panel to conclude that further work was necessary in closed conditions, as he was yet to evidence the application of his learning outside of the high security estate.[31]I am satisfied that the panel gave sufficient weight to the Applicant's progress, and did not give undue weight to the evidence of the POM and COM. There can be no realistic criticism of the panel's conclusions on these matters.[32]With respect to the risk of abscond, the Applicant gave evidence that if he was released to London he would not comply and would hand himself into police. On that point alone, it is reasonable to conclude that there was relevant evidence supporting some risk of abscond.[33]Considering the foregoing conclusions, I am satisfied there was no irrationality in the panel's decision. Open Conditions[34]As already noted, a recommendation, or lack thereof, for a transfer to open conditions is not eligible for reconsideration. This is due to the construction of the Parole Board Rules. Rule 28(1) lists the types of decisions that are eligible. For the purpose of the Applicant's case, the type of decision being challenged is one made after an oral hearing, which is a decision made under Rule 25(1). Rule 25(1) states that the decision solely relates to a decision to direct release or not direct release and makes no reference to open conditions. This is understandable, being that the panel does not make a decision that a prisoner is transferred to open conditions, rather it is a recommendation; the Secretary of State ultimately decides. In any event, I have no authority under the Parole Board Rules to consider this aspect of the decision. Decision[35]For the reasons I have given, I do not consider that the decision was irrational and accordingly the application for reconsideration is refused. John Marley 07 July 2025