Howard, Application for Reconsideration [2026] PBRA 44 (19 February 2026) [2026] PBRA 44

PBRA
Howard, Application for Reconsideration [2026] PBRA 44 (19 February 2026)
[2026] PBRA 44 · 2026-02-09
[1]This is an application by Howard (the Applicant) for reconsideration of a decision of an oral hearing dated 22 January 2026, where the panel made no direction for his release. Whilst not subject to this challenge, the panel also declined to make a recommendation 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 are: a) the dossier, now amounting to 545 pages; b) the decision of the panel; and c) submissions from the Applicant's legal representative supporting the application. Request for Reconsideration[4]The application for reconsideration is dated 9 February 2026.[5]The Applicant suggests that the panel acted irrationally in a number of ways, however, the general thrust of the submissions relates to how the panel considered the Applicant's risk having made conclusions of fact around allegations of further sexual offending. There is also a suggestion that the panel acted unfairly, in that it failed to ask him specific questions. I address the details of the submissions below. Background[6]The Applicant is serving two life sentences. In 1993 he was convicted of manslaughter. At the time of the offence, he had been subject to a hospital order but had been granted section 17 leave. He attacked the victim, a 62-year-old, seemingly to steal her handbag, but after she resisted, he held her in such a way so as to strangle her. He dragged her to a disused room and tied her hands behind her back with shoelaces.[7]In 1995, whilst imprisoned for the previous matter, he was convicted of murder, after he was involved in an attack on a prisoner in custody. The Applicant and his co-defendant attacked the victim, strangling him to death. He sent a letter to the police, taunting them about the incident.[8]The Applicant had a number of serious previous convictions. He was convicted of sexually offending against a 12-year-old boy in 1982. It is reported that when the victim struggled, the Applicant strangled him. In 1984, whilst in prison for the sexual offences, he tied up, tortured, and slit the throat of another prisoner. The victim in that case had been blackmailing the Applicant and forcing him to engage in sexual conduct.[9]The Applicant's tariff expired in July 2012. He progressed to open conditions in October 2017, before being released on licence in December 2019. He spent nearly two years in the community before being recalled in September 2021, when he was subject to allegations that he had committed rape and other offences. A previous review concluded on the papers due to the ongoing criminal investigation. Current parole review[10]The Secretary of State (the Respondent) referred the Applicant's case to the Parole Board in December 2023 to consider whether he should be released, and if not, whether a recommendation for open conditions should be made.[11]The Applicant's case was subject to substantial case management, primarily related to the allegations which had resulted in his recall. After several adjournments and deferrals, the Applicant's case was first heard on 16 July 2025, by a two-member panel, comprising of two independent members. Evidence was taken from the Applicant, his Community Offender Manager (COM), and a Detective Sergeant from the police. This hearing was restricted to considering the allegations related to his recall, which at that stage, were not being pursued criminally. The panel's conclusions from that hearing are addressed in the discussion section of this decision, below.[12]The same panel reconvened on 21 January 2026 and heard evidence from the COM, the Prison Offender Manager (POM), a prison-based forensic psychologist (PFP) and the Applicant.[13]The Applicant was legally represented throughout both hearings. The Relevant Law Parole Board Rules 2019 (as amended)[14]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)).[15]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)).[16]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[17]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.[18]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. "
[19]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).[20]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.[21]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.[22]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. Other[26]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[27]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[28]The Respondent offered no submissions. Discussion[29]The Applicant's legal representative has presented the application under one ground, however, I consider there to be a number of distinct arguments as follows: a) The panel's questioning during the hearing of 21 January 2026 indicated the panel was operating under a different belief from the one which it had previously concluded on 16 July 2025, which amounted to irrationality. b) The panel's approach to the Applicant's semen being reported on the complainant's underwear suggested they did not believe his account and was not in line with the previously accepted evidential difficulties, which amounted to irrationality. c) Whilst the PFP was questioned about the issues around the semen in the underwear, the Applicant was not, denying him the opportunity to answer this point, which amounted to procedural unfairness. d) The panel relied on two risk factors, namely a sexual interest in violence and sexual preoccupation, which could only stem from the panel concluding the Applicant had committed a sexual offence before his recall, which amounted to irrationality. e) The panel's overall conclusion was irrational because it disregarded key aspects of the conclusions it had made at the fact-finding hearing on 16 July 2025 (relying on R (on the application of Pearce and another) (Respondents) v Parole Board for England and Wales (Appellant) [2023] UKSC 13 ). Preliminary matters[30]Before addressing these grounds, it is important that I set out the evidence heard by the panel, and what they concluded after the hearing on 16 July 2025, as this is central to all of the grounds pleaded by the Applicant.[31]The following matters are relevant to this application: a) There were two substantial allegations against the Applicant. The first related to a male JH. The panel considered the Applicant had been honest around these matters and there was no substance to the allegation. b) The second related to a female HD. Without rehearsing the specifics, HD alleged that the Applicant had sexually assaulted and raped her. The Applicant denied the allegations. He accepted he had attended HD's flat as she had contacted him to say she had taken tablets. He contacted an ambulance who brought HD to hospital. Police indicated that there was no record of HD having made a call to the Applicant as he suggested. c) The Applicant's semen had been found in the gusset of HD's underwear. The Applicant had suggested to police that this was due to retrograde ejaculation when urinating, and there may have been a transfer when using HD's bathroom. d) There had been evidential issues with the underwear. The underwear tested had been found by HD around three weeks after the incident. The underwear that she had been wearing when brought to hospital were not seized or recovered. e) Police indicated that social media evidence suggested HD considered herself to be in a relationship and had posted a photograph with the Applicant. HD indicated to police that the Applicant had asked her not to tell his COM that they were in a relationship. The COM gave evidence that the Applicant had disclosed contact with HD, but this was limited to a walk and a visit to her flat. f) The Applicant had accepted sending friend requests to several females on Facebook, but HD only wanted friendship. He considered himself to be in a relationship with another female when he first met HD. g) The Applicant denied having any sexual contact with HD. h) The Applicant denied deleting messages from his phone the day after the incident, claiming his phone had been rebooted due to it cutting out. i) The panel noted the inconsistencies between the Applicant's and HD's version of events. They also noted the evidential difficulties around the underwear, from the forensic continuity perspective, and also from the perspective of the descriptions given. j) The panel concluded that it could not make a finding of fact about rape, or whether there had been sexual contact on that evening. However, the panel concluded that there had been sexual contact between the Applicant and HD at some point, which the Applicant had denied. The panel could not make any finding that such contact was non-consensual. Whilst it did not use the term, the natural implication of this conclusion is the panel considered the Applicant had been dishonest and misleading in his evidence. The questioning on 21 January 2026[32]The Applicant suggests that the panel were in fact, operating on the belief that he had committed the alleged recall offence, despite their clear conclusion to the contrary, because they posed questions to the PFP about the Applicant's deception, specifically around his semen being found in her underwear, and his explanation for that.[33]The panel had found the Applicant had sexual contact with HD, which he had denied. They had not accepted his account of how his semen came to be found in the underwear, and this could clearly be characterised as deceptive. Such questioning was not indicative of a change in the panel's conclusions but rather was entirely consistent with them.[34]The fact that findings of fact had been made at the previous hearing, did not preclude them from being explored further. The panel was now conducting a risk assessment based on what they had previously concluded. It was appropriate that the panel's conclusions around the Applicant having had a sexual relationship with HD, which he had denied, were explored in the context of his future risk, particularly with the PFP, who had not been present at the previous hearing.[35]I do not consider this could amount to irrationality. The panel's approach to the semen found in the underwear[36]The Applicant raises concerns around the panel's approach to the semen found in HD's underwear, including a specific concern that they did not believe his account concerning retrograde ejaculation, and discounts the evidential difficulties associated with the underwear, including the panel's observations about the chain of custody and discrepancies in the evidence.[37]This somewhat mirrors the first argument and as noted above, the panel did not believe the Applicant's account about retrograde ejaculation. Having considered the evidential difficulties, they had concluded that the semen found in HD's underwear was due to sexual contact at some point.[38]Whether or not the police had failed to indicate the issues with the safe chain of custody, or whether or not an expert report concerning the Applicant's claims about retrograde ejaculation had been obtained, the simple fact was the Applicant had maintained that position during the fact-finding hearing, and the panel had not believed his account.[39]Again, the panel's approach to this issue was entirely in line with the conclusions that they had made and does not come close to amounting to irrationality. The failure to question the Applicant on the matters raised with the PFP[40]The Applicant had been questioned in detail about the semen found in the underwear at the fact-finding hearing. It is inaccurate to suggest that he had not been given an opportunity to address the issue with the panel.[41]The panel's conclusions around the facts were included in the dossier and made available to the Applicant and his legal representative before the second hearing. The Applicant should not have been surprised that the panel was proceeding on the basis that he had sexual contact with HD and had not accepted his rationale for his semen being in her underwear.[42]If, however, this was in fact a surprise to the Applicant, he had an opportunity to raise these points during the hearing, either by way of further questioning, or by submissions through his legal representative. There is no suggestion that either option was pursued.[43]I find no procedural unfairness in how the panel approached this issue. The panel's consideration of risk factors[44]The panel concluded that a sexual interest in violence was a risk factor. The Applicant submits that this conclusion could only stem from a belief that he had committed a sexual offence at the time of recall.[45]At paragraph 4.1 the panel note that the Applicant had previous convictions that demonstrate sexual violence. His convictions from 1982 for sexually assaulting a 12-year-old boy where he had strangled him, support that contention. Whilst a historic conviction, it was clearly one of concern, and one which could support the conclusion that a sexual interest in violence was a risk factor.[46]Similarly, sexual preoccupation as a risk factor could logically be inferred from the evidence. Whilst on licence the Applicant had accepted making contact with a number of women via social media. He had accepted meeting HD whilst in a relationship with another female. He had denied sexual contact with HD, which the panel had rejected. Considering these facts in the round, there is evidence which could raise concerns about how the Applicant was approaching relationships and his attitudes to sex, and his openness with professionals about these matters.[47]I do not accept that the inclusion of these two risk factors means the panel acted contrary to their conclusions of fact. There was sufficient evidence outside of the allegations to conclude that these could be risks, and such an assessment cannot be considered to be irrational. The overall conclusions were irrational/non-compliant with Pearce[48]This effectively acts as an overarching argument including all previous grounds. For completeness, I do not consider the panel erred with respect to the principles in Pearce .[49]The Applicant suggests that the panel's overall approach must be linked to a belief that he had committed a sexual offence, despite having concluded previously they could not do so. For the reasons already highlighted, I find that the panel acted consistently with their findings of fact, and there was a cogent and logical basis for the panel's approach and conclusions, which does not come close to clearing the bar of irrationality. Decision[50]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 Marley 19 February 2026