McFaull, Application for Reconsideration [2026] PBRA 45 (20 February 2026) [2026] PBRA 45

PBRA

McFaull, Application for Reconsideration [2026] PBRA 45 (20 February 2026)

[2026] PBRA 45 · 2025-12-11

[1]This is an application by McFaull (the Applicant) for reconsideration of a Member Case Assessment (MCA) decision dated 11 December 2025 which did not direct the Applicant's review to oral hearing and did not 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

[3]I have considered the application on the papers. These are the dossier which now consists of 185 pages including the MCA decision, and a three-page application for reconsideration submitted by solicitors on the Applicant's behalf. Request for Reconsideration

[4]The application for reconsideration was dated and received by the Parole Board on 4 February 2026. The application is made by solicitors acting on the Applicant's behalf. For simplicity, I will refer to the submissions made by the solicitors as if they were made directly by the Applicant.

[5]The ground for seeking reconsideration is that the decision was procedurally unfair. The essence of the challenge is that the Applicant was not legally represented for his review and that he wished to be represented. It is submitted that the MCA member did not take sufficient necessary steps to check whether the Applicant had access to a legal representative if he so wanted and this did not allow him to meaningfully participate in the review process. It is also submitted that the Applicant was not provided with a specific piece of guidance. Background

[6]The Applicant is serving a life sentence for murder. The index offence was committed in October 2001 when the Applicant, then aged 22, and a group of associates attacked the victim in a car park. One of the group stated falsely that the victim had committed a sex offence. The Applicant stamped on the victim's head repeatedly, left the scene and returned to continue the assault by again stamping on his head and hitting the victim on the head with a brick. The victim was particularly vulnerable as he was blind.

[7]The Applicant pleaded guilty before trial and was sentenced in June 2002. His minimum tariff was set at 13 years and nine days and his tariff expired in November 2014. He is significantly over tariff and has yet to be released. The Applicant is confined in the Scottish prison estate. He has been transferred to National Top End (NTE) on two occasions but was returned to closed conditions on both occasions. He has recently been transferred for the third time to NTE. Current parole review

[8]The Applicant's case has been reviewed eight times by the Parole Board. Most recently the Applicant's case was referred to the Parole Board by the Secretary of State for Justice (the Respondent) on 24 July 2025. That referral asked the Parole Board to consider whether to direct the Applicant's release. If it did not direct release, the Parole Board was invited to advise the Respondent on the continuing areas of risk to be addressed.

[9]The Applicant's case, like all cases referred to the Parole Board, was considered by a single member of the Parole Board as part of the MCA process. Documents available to the MCA member included reports from the Applicant's Scottish Community Based Social Worker, his Prison Based Social Worker and his English Community Offender Manager. The MCA member considered that they had sufficient information to conclude the Applicant's review on the available papers without the need for an oral hearing. The MCA member provided a ' no release' decision on 11 December 2025. The Relevant Law

[10]The panel correctly sets out in its decision the test for release. Parole Board Rules 2019 (as amended)

[11]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)).

[12]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)). Procedural unfairness

[13]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.

[14]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.

[15]Representations largely rely on point a, b, and d set out above.

[16]The overriding objective is to ensure that the Applicant's case was dealt with justly. Other

[17]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

[18]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

[19]The Respondent's representative confirmed that no representations would be submitted. Discussion

[20]The Applicant submits that the MCA member failed to follow the Parole Board's Guidance on Representation (' the guidance '). In particular, it is argued that the MCA member ought to have directed prison staff to assist the Applicant in seeking or obtaining legal representation and to have ensured that he was provided with a copy of the ' easy read' Parole Board guide. Reliance is placed on paragraph 5.1 of the guidance.

[21]The Applicant further submits that he was not afforded adequate time to instruct a legal representative and make representations in advance of the MCA assessment, as contemplated by paragraph 5.2 of the guidance.

[22]In support of this submission, it is explained that the Applicant approached prison staff for assistance in seeking legal representation and was assisted in identifying a Scottish solicitor. It is said that this solicitor was not in a position to accept instructions and referred the matter back to the prison, recommending that the Applicant contact his current representative. It is submitted that this process caused delay. However, no explanation is provided as to why the solicitor was unable to accept instructions, why the Applicant was not informed directly, or how long the delay lasted. In any event, the Applicant did not inform the Parole Board that he was experiencing difficulties in obtaining legal representation.

[23]The fact that the Applicant was actively seeking legal representation, with the assistance of prison staff, indicates that there was no unmet need requiring further direction from the MCA member. Prison staff were already providing the assistance envisaged by the guidance.

[24]The Applicant also asserts that the MCA member did not ensure that he had sight of the ' easy read' Parole Board guide. I note that this document was included in the dossier as a core document at pages 4 to 25. It is the responsibility of the prison to ensure full disclosure of the dossier to the Applicant, and the MCA member had no reason to believe that this had not occurred. It has not been submitted that the dossier was not disclosed to the Applicant. I also note that this was the Applicant's eighth parole review, such that the parole process cannot reasonably be said to have been unfamiliar to him.

[25]Further, the dossier contains a letter from the Prison and Probation Casework Section dated 14 November 2024, sent to the Applicant following the completion of his seventh review. That letter explained the target date for the commencement of the next review would be September 2025. Although the review in fact began in July 2025, by the time the case reached the MCA stage in December 2025 the Applicant had been aware of the forthcoming review for approximately thirteen months. He was also aware, from previous experience, that his review could be concluded on the papers without an oral hearing. In my view, the Applicant therefore had both sufficient time and sufficient understanding to instruct a solicitor well in advance of the MCA decision.

[26]The Applicant next relies on paragraph 5.3 of the guidance, which states that MCA panels should consider whether a prisoner appears to have obtained representation and whether written representations are likely to be submitted, and that enquiries may be made where this is unclear.

[27]There was nothing in the dossier before the MCA member to indicate that the Applicant had obtained legal representation or that representations were likely to be submitted. Even had there been, the guidance does not impose an obligation on the MCA member to make further enquiries. It is not unusual for no legal representations to be submitted at the MCA stage. The Applicant could have provided personal representations or requested an adjournment to seek legal advice but did neither.

[28]Following the MCA decision, the Applicant had a further 28 days in which to request an oral hearing. If the Applicant did not appreciate the need to notify the Parole Board of his intention to submit representations prior to the MCA decision, the urgency of the situation would have been apparent upon receipt of that decision.

[29]Finally, it is submitted that the Applicant's case was " particularly complex " due to his transfer to the Scottish prison system. Paragraph 5.4 of the guidance provides that in particularly complex cases a short adjournment may be directed to allow enquiries to be made concerning any need for assistance.

[30]The Applicant's placement within the Scottish prison estate does not render his case complex. He has been held within that estate since at least 2004, and all of his parole reviews have taken place during that period. While there are differences between the Scottish and English prison and probation systems, these do not amount to complexity for the purposes of the guidance.

[31]The Applicant also seeks to rely on a previous reconsideration decision (Brown, Application for Reconsideration by

[2024] PBRA 81

) and submits that while the facts are different, the underlying issues are the same. Reconsideration decisions do not set any binding precedent. Even if they did, the case cited deals with events in an oral hearing where a prisoner was unrepresented and relies on different parts of the guidance and a different set of circumstances. I do not consider that there are sufficient similarities with the Applicant's case to be able to draw a direct comparison. Decision

[32]For the reasons I have given, I do not consider that the decision was procedurally unfair and accordingly the application for reconsideration is refused. Sally Allbeury 20 February 2026