Mykoo, Application for Reconsideration [2026] PBRA 3 (05 January 2026) [2026] PBRA 3

PBRA
Mykoo, Application for Reconsideration [2026] PBRA 3 (05 January 2026)
[2026] PBRA 3 · 2025-10-26
[1]This is application by Mykoo (the Applicant) for reconsideration of a decision of a panel of the Parole Board dated 26 October 2025 making no direction for release but recommending a move to open conditions following an oral hearing on 22 October 2025.[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 decision, the application for reconsideration, the dossier, and the response from the Secretary of State (the Respondent). Request for Reconsideration[4]The application for reconsideration is dated 24 November 2025. It is submitted on the Applicant's behalf by a solicitor who was not his representative at the hearing. It is not clear from the papers whether the new solicitor has consulted the solicitor who represented the Applicant as to what went on at the hearing. It would normally be sensible if this was done.[5]The grounds for seeking a reconsideration are as follows:(i) That the decision was irrational due to errors of fact and a failure to properly consider the evidence.(ii) The decision was procedurally unfair in that the panel failed to adequately investigate facts that were in dispute. Background[6]The Applicant was sentenced on 23 September 2009 to life imprisonment with a minimum tariff of 14 years for 19 offences of robbery, theft of a motor vehicle and taking a motor vehicle without consent. He asked the Court to take into account 104 other offences, most of which were of robbery. The Applicant, while accepting that he committed a large number of other offences, says that he admitted some offences which he did not commit. The offences he did commit were extremely serious, often involving attacks on lone women in the street; strangling them and then stealing jewellery. The Applicant was 29 when sentenced; he is now 45. Current parole review[7]The Applicant's case was referred to the Parole Board on 10 September 2024. There were a number of adjournments for the preparation of a psychological risk assessment.[8]The hearing of this review was on 22 October 2025. The panel was made up of three independent members who heard evidence from a psychologist; a senior probation officer; the prison offender manager (POM) and the community offender manager (COM). The Relevant Law[9]The panel correctly sets out in its decision dated 26 October 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)). 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 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[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]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.[24]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[25]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[26]The Respondent responded to some of the allegations in the application which is helpful. Discussion[27]It would seem that the Applicant has instructed new solicitors to apply for reconsideration. He is perfectly entitled to do that, but it does mean that his new representative was not at the hearing, nor was able to hear the evidence.[28]The central issue for the panel was whether the Applicant satisfied the test for release now or whether to recommend a move to open so that the Applicant could be further tested to ensure that he was safe to be released.[29]The Applicant had committed a large number of very serious offences and has already served a very long time in custody. While he has twice been in an open prison he has been recalled to closed conditions on both occasions, on the second occasion after a short period.[30]None of the professionals were recommending release but were recommending that he return to open conditions so that hopefully at his next review the panel will be satisfied that he has developed the necessary "internal resilience to be able to succeed in the community". This is consistent with previous decisions of the Parole Board in this Applicant's case.[31]In my judgment it cannot sensibly be argued that in those circumstances the decision of the panel was irrational. It is said in the application that the panel failed to consider the evidence properly. On a proper consideration of the decision I do not consider that criticism is justified. The decision is detailed and deals with the evidence in a comprehensive way.[32]The Applicant complains that there were a number of factual inaccuracies in the decision and in the dossier. Some of these have been responded to by the Respondent. The Applicant complains that the number of offences taken into consideration, namely 104, is incorrect. That is the number that he asked the judge to take into consideration but he now says that he didn't commit all of those, but he accepts a substantial number. That is not something that the panel would be expected to investigate this long after the offences were committed and in any event it would make no difference to the final outcome.[33]The Respondent further points out that according to the official record the Applicant does have a conviction for causing grievous bodily harm with intent in 1997 whereas the Applicant says it was a conviction for causing actual bodily harm. Again, this is not a matter which the panel would have investigated if it had been brought to their attention as it would not have affected the outcome of the review.[34]The Applicant also complains that he did not receive the dossier until the day before the hearing. The Respondent has pointed out that the Applicant received the dossier on 19 December 2024 and it was an updated dossier that he received the day before the hearing. If the contents of the dossier took the Applicant by surprise he could have asked for the hearing to be put back which he did not.[35]The Respondent further points out that according to the prison the Applicant was returned to the closed estate from open as a result of two adjudications. The Applicant says it was because he was believed to have said that he didn't want to stay at the open prison any longer.[36]I have taken into account the helpful information from the Respondent. In relation to the other complaints of errors of fact I have considered all of them individually and cumulatively. I will assume for the purposes of this decision that there are those factual inaccuracies. Even on that basis I am satisfied that those factual inaccuracies would have made no difference to the outcome of the hearing and that the decision of the panel would have been the same even with the accurate information.[37]Complaint is also made that the panel should have made further inquiries before the hearing or during the hearing. It is a matter for the panel to decide whether and what further information they require to make a fair and informed decision. They were not requested to adjourn for that purpose and in my judgment, they were perfectly justified in not putting off the hearing further.[38]I have considered each of the numerous complaints made in the application for reconsideration and I am satisfied that they would have made no difference to the final decision, which was not irrational, nor was the procedure unfair.[39]Further, the decision whether to order reconsideration is discretionary. As I do not consider that there is a reasonable prospect that the decision, if there was a further hearing, would be different I would not grant reconsideration as an exercise of my discretion. Decision[40]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. John Saunders 05 January 2026