Mallin, Application for Reconsideration [2026] PBRA 159 (10 July 2026) [2026] PBRA 159

PBRA
Mallin, Application for Reconsideration [2026] PBRA 159 (10 July 2026)
[2026] PBRA 159 · 2026-06-15
[1]This is an application by Mallin (the Applicant) for reconsideration of a decision of an oral hearing panel dated 15 June 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 advisor, submissions drafted by the Applicant, 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 was received on 22 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. The index offence is arson being reckless to whether life was endangered. He set fire to furniture inside a partners home. The Applicant was aged 24 at the time of sentence. He was aged 43 at the time of the oral hearing decision. The Applicant has been released and recalled on four occasions. Current parole review[7]The referral from the Respondent requested the Parole Board consider whether the Applicant should be subject to a direction for release.[8]The panel hearing was conducted on 28 May 2026. The panel consisted of a judicial chair of the Parole Board accompanied by a psychologist member of the Parole Board. Evidence was given at the hearing by the Applicants Prison Offender Manager (POM), the Applicant's Community Offender Manager (COM) the Applicant was legally represented and gave evidence himself. The Relevant Law[9]The panel correctly sets out in its decision the test for release. 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)). Irrationality[12]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.[13]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. "[14]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).[15]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.[16]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.[17]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[18]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.[19]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.[20]The overriding objective is to ensure that the Applicant's case was dealt with justly. Error of law[21]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.[22]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[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 Respondent indicated that the Applicant's POM had advised that the Applicant was not eligible for any further prison programmes. Grounds and Discussion[26]In this matter two sets of representations were received. One from the Applicant himself and the second set from the Applicant's legal adviser. The representations cover similar ground and I have therefore combined the representations and attempted to identify the grounds argued by both the Applicant himself and by his legal adviser. Ground 1[27]The Applicant submits that the panel gave insufficient weight to the potential reduction in risk which can be demonstrated by the Applicant's custodial period since his recall. In particular the Applicant points out that there was an absence of risk factors at the time of the oral hearing. The Applicant points out that there was no evidence of the use of illicit substances and no evidence of violence. Discussion[28]The analysis of the Applicants risk by the panel was conducted in the context of his longer term history of difficulties in relation to behaviour since the index offence some years ago. The Applicant had been released and recalled on licence on four occasions. The panel noted that he had never spent more than three months in the community before being recalled. The Applicant had also been placed in open conditions (and sent back to a closed prison) on two occasions. On one occasion he failed an alcohol test and on a second absconded. He was unlawfully at large and received a sentence of imprisonment for being at large. In 2018, during his third licence period, he was arrested and received a sentence of six years imprisonment for offences of arson, battery and robbery. He had set fire to a toilet bowl in a public house. Shortly afterwards he approached two females asking for money. He grabbed one older female by the throat, pushed her against a wall, banged her head and took her handbag.[29]The Applicant also had a history of fire setting. There was a conviction in 2006 for committing arson in a derelict train station.[30]There was also evidence of fire setting (although no criminal convictions) connected with housing arrangements. These had led to the Applicant being banned from housing in the area he was living. In total the Applicant had three convictions for setting fires. The convictions did not include an intention to harm although any instance of fire setting in the public domain clearly causes a risk. The panel suggested that it was likely that he used fire setting as a way to manage difficulties when upset and feeling overwhelmed. He appeared to have little thought of the consequences of such a management technique.[31]The index offence occurred in 2007 at premises he was occupying with a partner. He had been excluded from the premises, but broke in. He set fire to soft furnishings in a living room and on a child's bed. He used an accelerant. He then left the premises. He later said that he intended to commit suicide as his partner had ended the relationship. He was convicted of arson being reckless as to whether life was endangered.[32]The panel also noted that there were a number of offences of lower-level assaults. He had punched a partner on a number of occasions.[33]The panel therefore concluded that there was a pattern of violent offending and fire setting particularly in domestic circumstances. That increases risk to potential partners and children and to the general public.[34]Accordingly, the risk factors identified by the panel included drug and alcohol abuse; poor emotional management; homelessness; relationship issues; impulsivity; low self esteem; unemployment; poor problem-solving skills; lack of support; a declining mental health and not being forthcoming and open with professionals when he is struggling.[35]The panel also identified that risk was triggered in circumstances involving emotional distress, relationship difficulties or perceived threats from others particularly when he feels rejected unsafe or judged. In these situations the panel identified that the Applicant suffered heightened anxiety and became emotionally overwhelmed. He struggled to regulate these emotional difficulties. The panel took the view that when these triggers were present the Applicant was vulnerable to a number of internal processes including cognitive distortions, low self esteem and maladaptive responses relating to vulnerability, mistrust and shame.[36]The panel also indicated that in terms of behaviour these emotional difficulties led to patterns of impulsive and avoidant responses and a tendency to disengage from supervision and abscond when under pressure. There was an absence of seeking help or utilising support when he decompensated. The panel also identified the association between the behavioural difficulties and substance misuse which further reduced inhibition and increased the likelihood of poor decision-making.[37]In general terms therefore the panel took the view that this combination of difficulties could result in an escalation of risk and seriously harmful behaviour. As noted above the examples being fire setting, domestic violence and violence to the public.[38]Turning to the ground cited above. As is noted by the history of difficulties over many years this was a complex case. The Applicant's COM and POM had both supported a decision to release the Applicant. The rationale of both these professionals was that the Applicant's conduct and attitude in custody had been positive and there was a belief by these professionals that the Applicant was developing effective coping strategies. Their view was that with a robust and tightly coordinated risk management plan the Applicant's risk could be safely managed in the community. The hope was that the Applicant had learned from his recall and would take more appropriate steps to manage difficult situations.[39]The panel however noted that there was little evidence save for a period of good behaviour, that the Applicant would be able to manage in the community. The panel acknowledged that the Applicant generally performs well in custody and had behaved well following this recall. The panel however were bound to note that the problems arise when the Applicant was in the community and feels rejected, overwhelmed, or under threat. The panel took the view that behaviour in prison was of limited value in assessing risk in the community. The panel also felt that the intensive nature of the highly supportive unit where the Applicant was living had the effect of 'cushioning' the potential risk. The panel found difficulty in identifying evidence that the Applicant's risk could be safely managed after a release into the community. The panel took the view that the most reliable indicator of future risk was the pattern of behaviour on licence in the past. The panel noted that not only had there been breaches of licence but there had, in the past, been serious offences committed while in the community. The panel took the view that there was no strong tested evidential basis to conclude that the pattern of destabilising and the potential for rapid escalation to serious harm had been broken.[40]The panel noted that the example given of the potential change in the Applicants emotional management was the fact that he had managed a change of jobs when he had a bad relationship in a prison workshop. Although the panel acknowledged that this was an example of positive behaviour, the panel were not convinced that this was evidence that he had enhanced his skills or reduced his potential risk.[41]The panel took the view that the POM and COM, although supporting release, were able to offer little in terms of adequate reasons for their recommendation. They relied heavily upon good behaviour in the prison environment and the Applicant's good intentions and desire to live an offence free life. The panel accepted the good intentions, but took the view that the Applicant does not have the skills to manage the complex range of scenarios which lead to an escalation of risk.[42]For these reasons I am not persuaded that the panel gave insufficient weight to the Applicant's good behaviour in prison, particularly if this good behaviour had to be measured on the basis of the historical evidence of difficulties in the community. Ground 2[43]The Applicant takes issue with the view of the panel that there is insufficient evidence that the Applicant has enhanced his skills in terms of managing his risk in the community. The Applicant argues that the " check in " work with a prison psychologist, has led to an improvement in the Applicant's ability to manage his risk. The Applicant submits that he has grown in confidence since using the psychology check-in service and that he is more open now to speak to professionals openly and honestly. Discussion[44]As noted above, the Applicant had not undertaken any further accredited risk reduction programmes. It was accepted by all that the Applicant had undertaken a number of such programmes in the past and that there would be no additional accredited programme which would be suitable or relevant to be undertaken by the Applicant. The Applicant was living in a Progression Regime prison. The prison is psychologically informed and focused towards giving prisoners opportunities to prepare for release in the future, it is particularly focused upon prisoners who are not eligible to be transferred to an open prison. The Applicant had voluntarily undertaken work with a prison psychologist on a " check-in " basis. He had attended a number of sessions and told the panel that he gained a great deal from them. It was acknowledged that these were not sessions which could amount to risk reduction work but assisted the Applicant with emotional management generally. The panel noted that there was some evidence that the Applicant had improved his insight and understanding of difficulties. The panel's view was that an improvement in insight would not necessarily equate with behavioural change. The panel therefore acknowledged that some useful work had been undertaken but were not persuaded that that work amounted to substantive evidence that the Applicant's risk could be safely managed in the community. For that reason I am not persuaded that this ground amounts to irrationality in the sense set out above. Ground 3[45]The Applicant argues that there is no further accredited intervention work that he could undertake and therefore the only work that he could do would be psychology check-in sessions and accordingly things would not change greatly over the next two years. It is therefore argued that it is irrational to deny the Applicant's release. Discussion[46]As noted above the panel acknowledged that there appeared to be no further accredited risk reduction work which could be viably offered to the Applicant. An assessment of risk involves a holistic view of the evidence. Part of that evidence will include indications that appropriate core risk reduction work has been undertaken and the learning has been taken on board. However, risk reduction work is not the entirety of the basis upon which a risk assessment is made. An important factor for a panel is to assess whether any risk reduction work which has been undertaken has led to a change in behaviour and the use of the learning which should have been embedded in the work undertaken.[47]In the early part of the Applicant's sentence he had undertaken Enhanced Thinking Skills Programme (ETS) and also PASRO (Prisoners Addressing Substance Related Offending). In the light of the recall history the panel, not surprisingly, appeared to take the view that the Applicants behavioural programs did not appear to have provided him with the skills to manage difficulties in the community or the learning which could be applied to avoid offending and recalls in the community.[48]The role of the Parole Board panel does not include sentence planning or suggested behavioural interventions. Those issues are entirely in the hands of the prisoner himself and the prison service. The role of the panel is to assess the prisoner's risk, taking account of all relevant factors, which will include behavioural work undertaken and the Applicants conduct and behaviour both in the community and in prison. As noted above the Applicant was in a Progression Regime prison. The prison operates a three stage process. The Applicant had reached stage 3 before an earlier recall. At the time of the panel hearing he was apparently at stage 2.[49]Turning to the grounds cited above, the fact that the Applicant may not have any behavioural work which could be undertaken is not a material factor in assessing the Applicants risk. I am not therefore persuaded that the fact that there may not have been any behavioural work or programmes, which could be undertaken by the Applicant, would be a factor indicating irrationality in this decision. Ground 4[50]The Applicant submits that the panel indicated that the Applicant was "c ushioned " by the nature of the unit upon which he is living at present. The Applicant argues that this is the type of support which he requires and that he would get similar support when he is in the community. Therefore his risk could be managed. Discussion[51]It appears the point being made by the panel in this comment was that the progression prison regime occupied at present by the Applicant was an intensive psychologically informed environment. The Applicant had appeared to manage his emotions appropriately in this environment. However, the reality was that his situation in the community would not have the advantage of the support offered by this prison regime. The panel also noted that the Applicant persistently failed to seek support and help during times when he was in the community. As noted above the panel took the view that the Applicant's stable behaviour in the prison environment was not the best test of his ability to manage his risk of serious harm in the community. I am not persuaded that this amounts to irrationality in the sense set out above. Ground 5[52]The Applicant submits that any risk that he may pose relates to non-compliance rather than the risk of harm. The Applicant submits that he has not caused anyone harm since 2018 and that he is highly motivated not to harm in the future. Discussion[53]The panel did not accept that the risks posed by the Applicant are merely non-compliance. The panel set out in some detail their view of the mechanics of the potential risk of serious harm. The panel indicated that in circumstances of emotional distress; relationship difficulties; or perceived threats from others - particularly where there is rejection or he is being judged; the Applicant finds himself in a situation of heightened anxiety and becomes emotionally overwhelmed.[54]In this situation, the panel indicated, there were a number of internal processes including cognitive distortions, and maladaptive responses, leading to a pattern of impulsive and avoidant behaviour. There is also a heightened risk of substance misuse in these circumstances. This situation in the view of the panel leads to rapid escalation of risk, and, in the past, has led to seriously harmful behaviour including violence and fire setting.[55]The panel therefore provided an evidential basis for their view that the Applicant's risk remains a risk of serious harm in the community rather than rule breaking. For this reason, I do not find that the panel's views in this regard were irrational. Ground 6[56]The Applicant submits that the listed risk factors (set out by the panel in their decision) are historical are not " live " or present at the current time, and therefore should not be taken into account in terms of assessing risk. Discussion[57]This issue has been addressed above. A risk assessment must involve an assessment of the historical behaviour of a prisoner. Risk factors may not be entirely " live " at the time of the panel hearing, however it is reasonable for the panel to assess whether there is a potential for the risk factors being engaged and for risk to elevate. The panel's major concern, in this case, was the rapid deterioration in the Applicant's emotional management and the potential for serious harm arising from such deterioration. Again, I am not persuaded that this amounts to irrationality. Ground 7[58]The Applicant argues that the panel indicate in their decision that his risk is manageable in the confined environment of the prison, but that that risk has not been tested in the community. The Applicant submits that the panel have not taken account of the fact that it would be impossible for him to be tested in the community unless he were subject to a direction for release. It is therefore submitted that this view is unfair. Discussion[59]The Applicants complaint in this ground is understandable. However as noted above, the panel are obliged to carry out a holistic risk assessment. The panel are not empowered to become involved with sentence planning or with any matters related to the preparation by a prisoner for release. In this case there was clear evidence that the Applicant found great difficulty in managing his emotions and risk while in the community. There had been a number of failed attempts at residing in an open prison. As noted above, at the time of the panel hearing, the Applicant was residing in a Progression Regime prison whose aim is to assist and support prisoners to prepare for release into the community. I am not persuaded that this ground amounts to irrationality or engages reconsideration. Ground 8[60]The Applicant submits that he is serving his sentence at present on a Progression Regime, which is a preparatory regime for release or open conditions and that he is much more heavily tested because of the more intensive oversight on a Progression Regime. It is submitted therefore that there is evidence that he is ready for release. Discussion[61]As noted above the Applicant is currently residing in a Progression Regime prison. The Applicant is likely to be given opportunities to undertake work and interventions which will assist him in demonstrating that his risk of serious harm can be safely managed in the community. Clearly a lengthy period of stability will be a factor taken into account by any future panel in considering risk. The panel set out in their decision the reasons why they considered that there was insufficient evidence to support a decision that the Applicant's risk could, at the time of the hearing, be managed in the community. As also noted above a decision relating to release involves risk assessment which includes considerations of a number of factors including; historical behaviour, behaviour since conviction, behavioural undertakings, custodial behaviour and any psychological or other work undertaken by the Applicant. All these matters are the focus of consideration by a panel. In this case I am not persuaded that the panel acted irrationally in reaching the conclusion that they did, for that reason I do not consider this is a case to direct reconsideration. Ground 9[62]It is submitted that the Applicant's recall to prison was hasty as the Applicant had missed his curfew by under one hour and therefore alternatives should have been considered by the probation service. Discussion[63]The note from the probation service indicates that the Applicant failed to return for his curfew and that checks were made with the police and hospitals. The Applicant himself was contacted (by mobile phone) several times by the staff from the Approved Premises. The Applicant did not respond to these attempts to contact him but hung up his mobile telephone. At the time, the Applicant did not provide any explanation for his failure to return or his location. The Applicant later told his probation officer (when in prison) that he had had some problems with being offered drugs in the Approved Premises and he had decided to leave the accommodation. He was unlawfully at large for two days. He was asked why these matters were not discussed with probation staff or his key worker. He said that he didn't want to be a " grass ".[64]The panel considered whether the recall was appropriate. The panel found that it was. The Applicant had not discussed any issues with staff although he had every opportunity to do so. He also had a record of serious offences while on licence in the past therefore the decision to recall was unsurprising. I am not persuaded that this can amount to irrationality or impact upon a decision relating to reconsideration. Decision[65]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 Stephen Dawson 10 July 2026