Hamilton, Application for Reconsideration [2026] PBRA 33 (09 February 2026) [2026] PBRA 33

PBRA
Hamilton, Application for Reconsideration [2026] PBRA 33 (09 February 2026)
[2026] PBRA 33 · 2025-12-15
[1]This is an application by Hamilton (the Applicant) for reconsideration of a decision made by a panel of the Parole Board following an oral hearing on 15 December 2025. The panel's decision is dated 2 January 2026. The panel did not direct the Applicant's release, but it did recommend to the Secretary of State (the Respondent) that he be moved to open conditions.[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 were a dossier which comprised 800 pages and contained the decision reasons (DR), and the Applicant's application for reconsideration. Request for Reconsideration[4]The application for reconsideration is not dated but was received by the Parole Board on 14 January 2026.[5]Although the Applicant was legally represented at his hearing he has submitted his own reconsideration application. I have endeavoured to group together the Applicant's points made on each ground, and I have paraphrased some of the arguments made.[6]The grounds for seeking reconsideration are as follows: Irrationality[7]The Applicant submits that the panel's decision was irrational because: a) it failed to consider important police information; b) it based its decision on facts that are demonstrably false and on evidence which does not exist; and c) the panel reached a decision which was contrary to the written and oral evidence and the recommendations of professionals. Procedural unfairness[8]The Applicant submits that the decision was procedurally unfair. The procedural unfairness alleged is not specified but I consider that the general argument made is that the panel failed to justify its reasoning in the DR. Error of law[9]While the Applicant does not explicitly identify error of law as a ground for reconsideration, I have noted that he does generally submit that the panel took into account irrelevant considerations or failed to take account of relevant considerations. Background[10]The Applicant is serving an indeterminate sentence for public protection (IPP) for an offence of robbery. He was sentenced on 21 July 2006 and was given a two-year six-month tariff. At the time of sentencing, he was serving a determinate sentence for another robbery. The tariff expired on 21 January 2009. He was 36 years old at the time of sentencing.[11]The index offence took place in October 2005 when the Applicant and an associate robbed a man in a car park, smashing the victim's car window and demanding money from him. The Applicant took £40 in cash, a mobile phone and several credit cards. He used a screwdriver to threaten the victim and his accomplice got into the car to enforce the victim's compliance.[12]The offence was committed approximately two months after the Applicant had been released on licence from a four-year sentence for another robbery. The Applicant has an extensive history of offending, with 23 convictions in relation to 47 offences. He received his first sentence at age 15. His offending has largely been acquisitive in nature, motivated by a need to fund his long-standing substance misuse. The Applicant has convictions for violent offending, including common assaults, assault with intent to resist arrest and assault occasioning actual bodily harm. He has also received sentences for attempts to pervert the course of justice and escaping from lawful custody (when he absconded from a Category D prison).[13]The Applicant has been released and recalled on this sentence on five occasions. These recalls were sometimes for reasons of compliance, although on four occasions there were also allegations of further offending and on one occasion he was further convicted.[14]The Applicant was last released on 16 September 2024. He was recalled less than three months later following his arrest on suspicion of false imprisonment and grievous bodily harm. It also transpired that he was misusing substances which was a breach of his licence conditions. Current parole review[15]The Applicant's case was referred by the Secretary of State to the Parole Board on 27 December 2024. The referral was in accordance with section 32(4) of the Crime (Sentences) Act 1998 and was in order for the Parole Board to consider whether to direct the Applicant's immediate release under section 32(5) of the 1997 Act. If release was not to be directed the panel was invited to advise the Secretary of State whether the Applicant should be transferred to open conditions.[16]The Applicant's case was reviewed by a single member of the Parole Board and directed to oral hearing on 9 July 2025. The oral hearing was duly listed on 15 December 2025.[17]The oral hearing panel consisted of three independent members. Two professional witnesses gave evidence, a stand-in Prison Offender Manager (POM) and the Community Offender Manager (COM), as well as the Applicant. The Applicant's regular POM was unable to attend the hearing due to sickness. It was agreed by the Applicant's legal representative and the panel chair three days before the hearing that the stand-in POM could attend on the understanding they would be fully aware of the Applicant's case and the content of the dossier and that they had met with the Applicant before the hearing. Despite this, it became clear at the beginning of the POM's evidence that they were unable to provide substantive answers to the panel's questions. The POM was therefore not invited to provide their own recommendation.[18]The panel proposed options for how to proceed in the circumstances to the Applicant and his legal representative. It was recorded that following consultation with his legal representative it was the Applicant's " determined view" that the hearing should proceed. The Relevant Law[19]The panel correctly sets out in its DR dated 2 January 2026 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)[20]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)).[21]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)).[22]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 . Irrationality[23]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.[24]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. "
[25]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) .[26]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.[27]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.[28]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[32]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.[33]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.[34]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[35]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[36]The Reconsideration and High Court Referral section of the Public Protection Group confirmed on 21 January 2026 that it would not offer representations on behalf of the Respondent. Discussion[37]As already explained, the Applicant had been recalled to custody following allegations of further serious offending. In summary, the Applicant had been arrested following an allegation by a female acquaintance that he had prevented her from leaving his property and that when she managed to leave, he accompanied her and seriously assaulted her. It is established fact that while together at the property, the Applicant and the complainant had been smoking crack and/or heroin which they had earlier bought together. The Applicant was said to have accused the complainant of stealing his crack and the complainant reported that he then shouted and became aggressive and prevented her from leaving the property for over an hour.[38]On the complainant's suggestion that they leave to buy cigarettes, the pair left the property together. It is then alleged that the Applicant pushed the complainant to the floor as he believed she had slammed the door when leaving the property. The pair continued walking with the Applicant allegedly acting aggressively towards the complainant until he allegedly pushed or hit her again and she fell to the floor.[39]A third-party witness observed the incident and called out to the assailant that they were calling the police and the assailant ran away. When emergency services arrived, the complainant was found very seriously injured with "massive loss of blood evident on her clothing, body and the floor." The complainant was found to have suffered a brain bleed because of the injury and spent two days in hospital as a result.[40]The police investigation was made subject to no further action due to lack of evidence.[41]Clearly this was an area which would concern the panel and unsurprisingly they spent considerable time unpicking the events with the Applicant and professional witnesses in oral evidence as well as considering a substantial amount of evidence provided by the police, including witness statements.[42]The Applicant's case was that the complainant had been lying. He accepted that they had been smoking drugs together but denied preventing her from leaving the property. He told the panel that when she wanted to leave, she had been able to do so, and he had accompanied her part of the way to the bus stop. He denied any role in the assault.[43]In his submissions for reconsideration the Applicant disputes the assessment made by the panel of the events which led to recall. The panel had concluded that while there was not enough supporting or corroborating evidence to make a finding of fact around the allegation of false imprisonment it did consider that on the balance of probabilities a confrontation had taken place between the complainant and the Applicant. The panel determined that this was directly linked to misuse of substances and poor decision making on the Applicant's part.[44]In particular, the Applicant highlights in his submissions the fact he had taken part in an identity parade but had not been identified by the third-party witness and that cell site data had not placed him at the scene of the attack. The Applicant considered that this pointed to a probability that it was "highly unlikely" that he committed the assault.[45]As is clearly set out in the case of Pearce R (on the application of Pearce and another) (Respondents) v Parole Board of England and Wales 2023] UKSC (Appellant) , the Supreme Court at paragraph 76 found as follows:
" In other circumstances, the Board may not be able to reach a conclusion that the relevant allegation is true or is untrue. It may be impossible to do so where the Board has not got the relevant evidence."
[46]At paragraph 87 (vi) Pearce states:
" In some circumstances, however, the Board may not be able to make findings of fact as to the truth of an allegation either because of an inability to obtain sufficiently reliable evidence or because it would be unfair to expect the prisoner to give an answer to the allegation when he is facing criminal or prison disciplinary proceedings in relation to that allegation."
[47]It continues at (vii):
" In such circumstances the Board, having regard to public safety, may take into account the allegation or allegations and give it or them such weight as it considers appropriate in a holistic assessment of all the information before it, where it is concerned that there is a serious possibility that those allegations may be true. But the Board must proceed with considerable caution in this exercise because of the consequences of its decision on the prisoner."
[48]The panel in my view undertook the exercise anticipated in the case of Pearce . The panel did not make a finding of fact in relation to the allegation of assault but was satisfied that the Applicant was involved in a 'confrontation' with the complainant. It made no finding of fact in relation to the allegation of false imprisonment.[49]In relation to the absence of a positive identification of the Applicant by the third-party witness at an identity parade, the panel addressed this in its decision. It was of the view that despite this, there was sufficient information for it to decide on the balance of probabilities that it was improbable that another very similarly described individual would have been seen running away from the location at 02:30hrs. There is no question that someone seriously assaulted the complainant; the Applicant was known to have been in the area with the complainant at around the relevant time, the complainant had identified him as the assailant, and he matched the description of the assailant provided contemporaneously to the police by the third-party witness. The panel set out this finding clearly and I am satisfied it was a reasonable finding to make.[50]There is no mention in the panel's decision of the cell site data. From the police reports in the dossier, it is clear that during the investigation the investigator doubted that cell site data would be able to definitively locate the Applicant at the precise scene of the assault. This transpired to be the case. While the Applicant's phone could be located to a postcode a short distance away from the scene of the incident and the Applicant's home, it was not possible to narrow down the location further. In other words, the cell site data could not positively locate the Applicant at the scene, nor could it positively rule out that the Applicant was at the scene.[51]The DR stated that it was not intended to be a summary of the material in the dossier or the evidence at the oral hearing but was a summary of the evidence most relevant to the panel's reasons for reaching its decision. The cell site data did not feature in the DR, and I do not consider that it played any part in the panel's decision. The Applicant's suggestion that had the panel done so, it would have reached a different conclusion about the matter of the assault is not, in my view, sustainable.[52]Unusually, the panel did not articulate whether this conclusion was relevant to its assessment of risk and, indeed, relied on it directly only to make its assessment of whether the Applicant's recall was appropriate. Some reference was made in its conclusion to risk factors of substance misuse, association with negative associates and his ability to make appropriate decisions at challenging times, linking this with his recall, but there was no other obvious weight placed on the allegations in its conclusions.[53]The Applicant also submits that the panel's DR did not fully justify its decision not to direct release. The Applicant submits that it was not sufficient for the panel to simply state it was not confident that the Applicant met the test for release and it should have had a very strong reason to disagree with the opinions of professionals. The Applicant points to his completion of courses to support abstinence from substance misuse, a long history of clear drug tests and support for his release from his COM and substance misuse worker.[54]This argument brings me back to the cases of Wednesbury , Wells and DSD cited earlier. Panels of the Parole Board are not obliged to adopt the opinions and recommendations of professional witnesses. It is the panel's responsibility to make their own risk assessments and to evaluate the likely effectiveness of any risk management plan proposed. They must make up their own minds on the totality of the evidence that they hear, including any evidence from the Applicant.[55]However, if the panel decides contrary to the opinions and recommendations of professional witnesses, it is important that the panel explains clearly the reasons for doing so and that its stated reasons should be sufficient to justify its conclusions, per Wells cited above.[56]I am satisfied that the panel in this case made a careful assessment of the risk related issues. It acknowledged that the Applicant had completed further interventions and had shown positive custodial behaviour since recall. It noted the COM's support for his re-release and the reasons for the recommendation. However, it also acknowledged previous releases where the Applicant had persuaded panels this was sufficient to evidence a reduction in risk and thus his manageability in the community, but he had then gone on to breach his licence conditions, and he had also reoffended on at least one previous release. The panel noted the Applicant's ability to mask problems from his COM which meant that warning signs of increasing risk were not identified promptly. The panel concluded that that the Applicant had not been able to evidence the depth of internal skills to sustain abstinence from substance misuse (a significant risk factor in the Applicant's offending), to make appropriate decisions in challenging moments, or to comply with the risk management plan.[57]The Applicant also submits that the decision is irrational because the panel stated that he had completed a specific intervention designed to help address substance misuse in 2023, but had still gone on to commit further offences. The Applicant states that he did not, in fact, complete this intervention and contends this means the panel's risk assessment was based on incorrect assumptions about his offending history and non-engagement with rehabilitation.[58]The Applicant's completion of the programme is mentioned in the previous release decision and in several places in the COM's OASys report. The OASys report provides a summary of the post-programme report produced following its completion. While it is not impossible that this may have been an error, it does not appear to have ever been challenged by the Applicant until now.[59]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.[60]I am not satisfied that the Applicant has provided that objectively verifiable evidence of the true picture. Certainly, it is true that the Applicant has undertaken substance misuse work in the past and yet has gone on to relapse, even if it was not the specific programme identified in the DR. So even if I did find that the panel had fallen into error here, I do not consider that this would have been sufficient to engage the discretionary remedy of reconsideration.[61]Having considered the representations by the Applicant, set against the explanation by the panel for their decision, I am not persuaded that this is a matter where the panel's decision could be described as so outrageous in its defiance of logic or accepted moral standards that no sensible person could have arrived at it. Inevitably decisions relating to risk require a balance of considerations and as evidenced in this case there are differing views. It is possible that a different panel would have come to a different decision. However, I am not persuaded that this is a case which engages the tests for directing reconsideration and I therefore refuse the application for reconsideration. Decision[62]For the reasons I have given, I do not consider that the decision was irrational, procedurally unfair or fell into error of law and accordingly the application for reconsideration is refused. Sally Allbeury 09 February 2026