Weaver, Application for Reconsideration [2026] PBRA 2 (02 January 2026) [2026] PBRA 2

PBRA
Weaver, Application for Reconsideration [2026] PBRA 2 (02 January 2026)
[2026] PBRA 2 · 2025-11-14
[1]This is an application by Weaver (the Applicant) for reconsideration of a decision dated 14 th November 2025 following an oral hearing on 28 th October 2025 not to direct his 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 area. The dossier of 270 pages including the Decision, the subject of this application.b. The representations submitted by the Applicant's legal representative dated 20 th November 2025.c. An email from the Reconsideration Team within the Ministry of Justice indicating that it offers no representations on behalf of the Secretary of State (the Respondent). Request for Reconsideration[4]The grounds for seeking a reconsideration are as follows: Grounds for Review Ground 1: Material mistakes of fact The Claimant asserts that the Panel made a mistake of fact in stating that the Professionals gave evidence that he needed to undertake "core risk reduction work" to minimise risk sufficient for release. There are two elements to this mistake(i) whether the recommended work was core reduction work and(ii) whether the Professionals assessment of risk was said to be imminent. Core Risk Reduction Work ("CRRW") A fundamental feature of CRRW is that it is required to be undertaken by an offender so that risk may be reduced so that the offender is not a risk to the public and release may be directed. On this issue the Professionals were clear as noted by the Panel i.e. the recommended work could be undertaken in the community i.e. the level of risk was already at a level whereby the Claimant could be released, it could therefore not be classified as CRRW. By the above it is clear that the Panel placed significant reliance on the fact that the Claimant, in their understanding, was recommended to undertake CRRW and so represented an unacceptable danger to the public. The Professionals were clearly of the view that the Claimant could be released and so the work advised to be undertaken was not CRRW. The Claimant asserts that this mistake of fact fundamentally coloured and infected the Panel's assessment of risk and what was professionally recommended by way of steps that the Claimant should take before release. By characterising the work as CRRW the Panel irrationally relied on the same in its assessment of risk i.e. if it is CRRW, the Claimant cannot be released before it is undertaken. Immediacy of risk All professionals said that risk was not imminent. It is submitted that the immediacy of risk and the requirement to complete CRRW go hand in hand. In considering that the Claimant was required to undertake CRRW the Panel, by inference, decided that the immediacy of the risk was at such a level that release was not possible. The mistake of fact clearly infected the Panel's decision. The test for mistake of fact Applying E v Secretary of State for the Home Department in which the Court gave guidance on the doctrine of error of fact. In short, in circumstances where there is an alleged mistake of fact there must be answered four questions:• Is the fact an existing fact?• Is the fact established i.e. is it contentious?• Was the Claimant (or his advisors) responsible for the mistake?• Did the mistake play a material part in the tribunals decision? The Panel's reliance on the mistake is clear. On this basis the decision should be quashed in accordance with R (on the application of Kitto) v Parole Board and Another Admin 12 Nov 2003 and H v Parole Board. Ground 2: Failure to provide sufficient reasons The Panel did not provide sufficient reasons to justify departure from the views of the Professionals. As per Evans all of the Professionals supported release from custody and there was an enhanced duty to ensure that clear reasons were given for the Impugned Decision. The Impugned Decision does not provide sufficient reasoning as to why the Claimant could not be managed in the community in accordance with the views of the Professionals Ground 3: Irrationality. By their failure to appreciate that risk could be managed in the community which was recommended by the Professionals, by misunderstanding evidence and by failing to provide sufficient reasoning the Impugned Decision as a whole was non-sensical and is therefore irrational. The Impugned Decision as a whole was so exceptional as to be irrational especially in the context of the Claimant's right to liberty. As per Lord Carnwath at [60] of Pham v Secretary of State for the Home Department [2015] 1 WLR 1591 :
"In Kennedy v Charity Commission [2014] UKSC 20 , [2014] 2 WLR 808 , a majority of this court endorsed a flexible approach to principles of judicial review, particularly where important rights are at stake (see especially per Lord Mance, at paras 51-55). As Lord Mance said (para 51): "
The common law no longer insists on the uniform application of the rigid test of irrationality once thought applicable under the so-called Wednesbury principle. ... The nature of judicial review in every case depends on the context." The judgment also endorsed (para 54) Professor Paul Craig's conclusion (in "The Nature of Reasonableness" (2013) 66 CLP 131) that – "both reasonableness review and proportionality involve considerations of weight and balance, with the intensity of the scrutiny and the weight to be given to any primary decision maker's view depending on the context." Those considerations apply with even greater force in my view in a case such as the present where the issue concerns the removal of a status as fundamental, in domestic, European and international law, as that of citizenship." Background[5]The Applicant is now 38 years old. In February 2018 he was sentenced to an extended determinate sentence of 78 months custody and 48 months extension period together with an indefinite restraining order for offences of attempting to wound with intent to cause grievous bodily harm, and common assault. He was released automatically in February 2023 and recalled to prison in March 2024 following an assault of his mother for which he received a sentence of 4 months imprisonment. His Sentence Expiry Date is in November 2027. Current parole review[6]At the Telephone Hearing (requested by the Applicant) on 28 th October 2025 the panel heard evidence from the Applicant's Prison Offender Manager (POM) and Community Offender Manager (COM) and the Applicant. The Relevant Law[7]The panel correctly set out in its decision letter dated 14th November 2025 the test for release. Parole Board Rules 2019 (as amended)[8]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)).[9]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 10.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. 11.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. " 12.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). 13.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. 14.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. 15.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[19]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.[20]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[21]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. 22.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. "
I have considered too the authorities cited in the grounds of E v Secretary of State for the Home Department [2004] QB 1033, R(Kitto) v Parole Board [2003] EWHC 2774 (Admin) , R(Morton) v Parole Board [2003]EWHC 2774 (Admin), Pham v Secretary of State for the Home Department [2015] 1 WLR 1591 , and Kennedy v Charity Commission [2014] UKSC 20 , [2014] 2 WLR 808 , 23.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 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. Discussion 25.Ground 1. I have considered the ground against the DL's analysis at paragraph 4.5 and find the passage clear and properly reasoned. The events leading to his recall to prison provided strong evidence that his risk was not yet at a level that could be safely managed in the community. The availability or not of work to be done to reduce the risk sufficient to allow a decision to release was rightly said to be irrelevant to the question to be answered by the panel. The Applicant had done no work since release to reduce that risk in spite of the understanding given to the panel in 2022 that such work would be done and the serious incident which resulted in his recall had occurred. The "imminence" of risk is not a relevant consideration when assessing the question of release. The panel must consider it indefinitely, as it correctly states at the conclusion of paragraph 4.6, and the events which led to the Applicant's recall were a strong indication that the risk was indeed imminent.[26]Ground 2. The concluding paragraphs - 4.7-9. - of the DL provide a clearly reasoned explanation of its decision, namelya. His serious previous record of offending,b. His poor record of compliance with previous requirements,c. The absence of, or alternatively, the failure to observe, warning signs before the events which led to his recall,d. The circumstances surrounding the recall,e. His long and serious record of violent offending,f. His "high" risks of causing serious harm and of re-offending,g. The "lack of available interventions to address his risks", andh. His history of poor compliance with requirements and the clear link between non-compliance and the risk of serious harm.[27]Ground 3. This ground is in effect a repetition of the earlier grounds under the head of irrationality.a. There is no explanation of how the panel is said to have "misunderstood" the evidence either in general or as to any particular relevant section of the evidence.b. The DL - at paragraphs 4.1-9 - sets out clearly and rationally why in the end it decided that the release test had not been met. Decision 28.Refusal - for the reasons I have given, I do not consider that the decision was either irrational or procedurally unfair and accordingly the application for reconsideration is refused. Sir David Calvert-Smith 02 January 2026