Gagen, Application for Reconsideration [2026] PBRA 42 (18 February 2026) [2026] PBRA 42

PBRA

Gagen, Application for Reconsideration [2026] PBRA 42 (18 February 2026)

[2026] PBRA 42 · 2026-01-23

[1]This is an application by Gagen (the Applicant) for reconsideration of a decision dated 23 January 2026 not to direct his release. The decision was made by a panel after an oral hearing.

[2]Rule 28(1) of the Parole Board Rules 2019 (as amended) (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

[3]I have considered the application on the papers. These are the decision, the dossier (consisting of 329 numbered pages), and the application for reconsideration. Background

[4]On 12 February 2008, the Applicant was convicted after trial of murder. He received a sentence of life imprisonment. The minimum term was set at 14 years less time spent on remand and expired in September 2021.

[5]The Applicant was 48 years old at the time of sentencing and is now 66 years old. Request for Reconsideration

[6]The application for reconsideration has been submitted by solicitors on behalf of the Applicant. It argues that the decision was procedurally unfair.

[7]The submissions are supplemented by written arguments to which reference will be made in the Discussion section below. Current Parole Review

[8]The Applicant's case was referred to the Parole Board by the Secretary of State (the Respondent) in December 2024 to consider whether or not it would be appropriate to direct his release. This is the Applicant's third parole review.

[9]The case proceeded to an oral hearing on 13 January 2026, before a three member panel. The panel heard oral evidence from the Applicant, the Prison Offender Manager (POM), and the Community Offender Manager (COM). The Applicant was legally represented throughout the hearing and closing submissions were provided in writing after the hearing.

[10]While the Applicant had demonstrated sustained stability and compliance in custody, the panel was not satisfied that he could be released safely at this stage.

[11]The panel attached significant weight to the Applicant's index offence of murder, which represented a serious escalation in harm, and to his longstanding pattern of alcohol-fuelled violence, including violence within intimate relationships and the use of a weapon. Although the Applicant had completed some offending behaviour work and maintained good custodial behaviour over a prolonged period, the panel considered that this progress had occurred within a highly structured custodial environment and did not sufficiently demonstrate how he would cope in the community.

[12]The POM described the Applicant as stable, compliant, abstinent from alcohol, and presenting with reduced physical capacity, which she considered relevant to risk, and she supported release on the basis that relapse would be quickly identified and managed. The COM adopted a more cautious position. While accepting the Applicant's stable presentation and lack of imminent risk, she did not support immediate release, identifying alcohol misuse and difficulties within intimate relationships as enduring risk factors and expressing concern that the Applicant's capacity to cope in the community had not been tested for many years.

[13]The panel accepted that the Applicant did not present an imminent risk of causing serious harm and that further core risk reduction work was not essential. However, it was not satisfied that his risk could be managed safely on release, particularly given the need to assess risk on an indefinite basis, the likelihood that intensive oversight would reduce over time, and the Applicant's limited personal support and resettlement planning. The panel therefore concluded that the Applicant did not meet the codified public protection test and made no direction for release. It did, however, recommend that he be transferred to open prison conditions. It is only the panel's decision not to release the Applicant that is open for reconsideration. The Relevant Law

[14]The Parole Board will direct release if it is no longer necessary for the protection of the public that the prisoner should be confined. Parole Board Rules 2019 (as amended)

[15]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)).

[16]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)).

[17]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

. 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;

(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. The reply on behalf of the Respondent

[21]The Respondent has submitted representations in response to this application which will be considered in the Discussion section below. Discussion

[22]It was submitted on behalf of the Applicant that he was entitled to a procedurally fair review of his continued detention and that fairness required all material relevant to the assessment of risk to be before the panel. It was argued that the Applicant's health and care needs were highly relevant to risk and manageability, given that health is one of the recognised pathways to reducing reoffending.

[23]It was contended that information relating to the Applicant's recent and ongoing medical investigations, including attendance with a consultant audiologist and forthcoming scans, had not been placed before the panel and that this amounted to a material omission. It was further submitted that, in light of the Applicant's age and physical conditions, his care needs should have been assessed by the Local Authority and that the absence of such an assessment undermined the fairness of the parole review.

[24]It was further argued that the Respondent had failed to comply with relevant policies relating to continuity of care, adult social care assessment, and pre-release resettlement, and that this failure had a material and adverse impact on the fairness of the Applicant's parole proceedings. It was submitted that, absent proper care planning, the Applicant would be at risk of becoming overwhelmed in the community, which could increase his risk.

[25]On that basis, reconsideration of the decision was sought, together with directions requiring the provision of updated healthcare evidence, an explanation for the absence of such material prior to the original hearing, and the completion of a Local Authority Care Assessment to inform any future risk management plan.

[26]The substance of the Applicant's complaint is that information relating to his health and potential care needs was not before the panel and that this omission rendered the review procedurally unfair. I do not accept that submission. The panel was entitled to determine the case on the evidence properly before it. There is no suggestion that relevant material was withheld from the panel, that an adjournment or directions were sought and refused at the hearing, or that the Applicant was otherwise prevented from advancing his case at the oral hearing.

[27]The panel expressly considered the Applicant's health, mobility, and vulnerability as part of its assessment of risk and manageability. Those matters were taken into account in evaluating the Applicant's current presentation, his capacity to cause serious harm, and the risk of destabilisation on release. The fact that further medical investigations were contemplated or undertaken after the hearing does not retrospectively render the hearing unfair, nor does it establish that the panel lacked sufficient information to reach a lawful decision.

[28]The application places significant reliance on alleged failures by the Respondent to comply with policies relating to continuity of care, adult social care assessment, and pre-release resettlement. Even if such matters were made out, they would not establish procedural unfairness on the part of the panel. Reconsideration is concerned with the fairness of the panel's process, not with the adequacy of executive preparation for release. The absence of further care planning was a matter the panel was entitled to take into account in assessing whether the Applicant's risk could be managed safely in the community.

[29]I note the representations submitted on behalf of the Respondent. These assert that the Stakeholder Response Forms relied upon by the Applicant were included in the dossier prior to the oral hearing and were available to the panel. They further note that the healthcare material before the panel did not identify a current requirement for an Adult Social Care Needs Assessment, and that the evidence of the COM was that such a referral was not considered necessary at the time. These matters reinforce my conclusion that the panel had sufficient information before it to conduct a procedurally fair review.

[30]I have also considered the Applicant's supplementary representations submitted in response to the Respondent's reply. These raise no new matters of substance and do not alter my conclusions.

[31]In any event, I am not satisfied that the outcome would realistically have been different had the matters now relied upon been before the panel. The panel's refusal to direct release was based upon the seriousness of the index offence, the Applicant's offending history, the untested nature of his risk outside a structured environment, and the need to assess risk on an indefinite basis. The threshold for reconsideration is therefore not met. Decision

[32]For the reasons set out above, the application for reconsideration is refused. Stefan Fafinski 18 February 2026