Fossett, Application for Reconsideration [2026] PBRA 49 (27 February 2026) [2026] PBRA 49

PBRA
Fossett, Application for Reconsideration [2026] PBRA 49 (27 February 2026)
[2026] PBRA 49 · 2026-01-26
[1]This is an application by Fossett (the Applicant) for reconsideration of a decision of an oral hearing panel dated 26 January 2026. The decision of the panel was not to direct release, but to recommend transfer 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 the dossier, the application for reconsideration drafted by the Applicant's legal adviser, the decision of the oral hearing panel and the representations by the Secretary of State (the Respondent). Request for Reconsideration[4]The application for reconsideration is dated 16 February 2026.[5]The grounds for seeking a reconsideration are set out below. Background[6]The Applicant is serving a sentence of life imprisonment for the offence of arson being reckless as to whether life was endangered. He is also serving a sentence of imprisonment for public protection in relation to an offence of arson with intent to endanger life. The facts of the life imprisonment offence were that the Applicant was seen removing items of cardboard from bins and placing them in front of the fire exit of a public house. He had been in the public house earlier. The doors of the public house were locked. The manager of the public house noticed something emitting from an air vent and it was clear that a fire had been started. The manager woke staff and the Fire Brigade was called. The Applicant walked away. The Applicant was later apprehended and gave various explanations for the behaviour. Initially he said a drink had been spiked and that his memory was limited. He later said that he had seen a partner for the first time in 25 years on the night of the offence and also said that the offending was impulsive. The Applicant had a number of earlier offences for fire setting and was subject to a sentence of imprisonment for public protection at the time when he committed the offence at the public house.[7]The Applicant was aged 45 when sentenced. He was aged 54 at the time of the oral hearing. This was the Applicant's third review of his life sentence. His tariff expired in April 2021. Current parole review[8]The referral by the Respondent requested the Parole Board to consider whether the Applicant should be directed for release, and if not directed for release whether there should be a recommendation that the Applicant be transferred to an open prison.[9]The panel consisted of an independent chair, a psychology member of the Parole Board and a further independent member. Evidence was given at the hearing by the Prison Offender Manager (POM), the Community Offender Manager (COM), a prison instructed psychologist and the Applicant. The Applicant was legally represented. The Relevant Law[10]The panel correctly sets out in its decision dated 25 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)[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)).[13]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[14]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.[15]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. "
[16]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).[17]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.[18]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.[19]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[23]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.[24]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[25]The test to be applied when considering the question of transfer to open conditions is the subject of a well-established line of authorities going back to R (Hill) v Parole Board [2011] EWHC 809 (Admin) and including R (Rowe) v Parole Board [2013] EWHC 3838 (Admin) , and R (Hutt) v Parole Board [2018] EWHC 1041 (Admin) . The test for transfer to open conditions is different from the test for release on licence and the two decisions must be approached separately and the correct test applied in each case. The panel must identify the factors which have led it to make its decision. The four factors the panel must take into account when applying the test are:(a) the progress of the prisoner in addressing and reducing their risk;(b) the likeliness of the prisoner to comply with conditions of temporary release(c) the likeliness of the prisoner absconding; and(d) the benefit the prisoner is likely to derive from open conditions.[26]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.[27]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[28]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[29]The Respondent offered no representations. Grounds and Discussion Ground 1[30]The Applicant's legal adviser submits that the panel made a fundamental mistake of fact by recording that the Applicant was convicted of "arson with intent/reckless as to whether life was endangered ". The conviction, as recorded by the sentencing judge, was in relation to committing arson and being reckless as to whether life was endangered. Discussion[31]As is commonly the case in Parole Board decisions, the exact statutory definition of the index offence was not recorded by the panel. The panel in fact followed the recorded details in the Applicant's list of convictions which recorded the offence as " arson with intent/reckless as to whether life was endangered". The complaint under this ground appears to be that the panel failed to distinguish between intent and recklessness pursuant to section 2 (b) of the Criminal Damage Act 1971 .[32]Whilst it is of importance to ensure that offences are accurately recorded, the role of a Parole Board panel is to focus upon risk. Panels are also obliged to consider the facts of the individual case and the background of the prisoner. This was a case where the sentencing judge came to the conclusion that the appropriate sentence was one of life imprisonment. The judge in his sentencing remarks indicated "I am satisfied that you remain dangerous and that there is a significant risk to members of the public of serious harm occasioned by the commission by you of further specified offences."[33]The first question is whether the panel decision amounts to a mistake of fact. The Parole Board written decision did not make a clear distinction between two possible elements of the Criminal Damage Act offences. In a criminal trial this distinction is of importance in the sense that the prosecution would be bound to prove a clear intent to endanger life or in the alternative to prove recklessness whereby life might be endangered. A Parole Board panel hearing is not a criminal trial. It is clear from the written decision that the panel fully understood that they were not making an assessment on the basis that the Applicant was intending to endanger life. The decision is clearly based upon a view that the Applicant's behaviour was reckless and would have (and did) endangered the life of individuals.[34]So far as intent is concerned at paragraph 1.12 of the decision the panel candidly indicated that " it is still not entirely clear why [the Applicant] chooses to set fires. The psychologist suggested that he is not a violent person in terms of physically confronting people and his offending is an impersonal way of releasing emotions. She considered that it could give him a feeling of being quite powerful as it can cause a lot of damage and cause problems for others. It also allows him to feel as if he is controlling a situation when he cannot do so otherwise. " It is clear therefore that the panel were not proceeding on the basis of the Applicant having an intention to endanger life but were proceeding on the basis of the Applicant's reckless behaviour causing a situation that would endanger life.[35]A mistake of fact has a specific legal meaning as defined in E v Secretary of State for the Home Department . In my determination the facts relating to the Applicant's offending were well understood and clearly recorded within the decision. I am not persuaded that the fact that the panel used an informal shorthand to refer to the offence led to any unfairness or lack of understanding by the panel. I note that the Applicant's legal adviser does not argue that the panel's written decision contains any factual reference to the Applicant having an intent to endanger life. In fact, the entire tenor of the decision relates to, and references, the reckless behaviour of the Applicant and the danger that had been caused in the past by his offending behaviour. For this reason, I do not find that a mistake of fact occurred in this case. The panel used an informal shorthand to refer to the index offence, however the panel had a full understanding of the offence from the point of view of assessing risk. The use of a shorthand reference to the offence did not in my view impact upon the decision of the panel or upon their risk assessment.[36]It is also clearly of note that the Applicant was convicted of the offence of arson with intent to endanger life in 2012. He was sentenced to imprisonment for public protection. That conviction remains live and he is subject to that conviction although it is somewhat subsumed by the life sentence. It is clear therefore that the panel would have been perfectly entitled to consider the aspect of an intent to endanger life, however (in fact) the decision focused upon the more recent conviction. Ground 2[37]The Applicant's legal adviser argues that the Applicant is recorded in the panel decision as telling the panel that " he had never completed work about fire setting before". The panel took the view that this was not an accurate response. The panel noted:
" This is not accurate as he told the 2016 panel that he had not previously done any focused work on that area so had decided to seek help."
[38]The Applicant appeared to be arguing that he had been released from prison in the past but had " never " undertaken work in connection with desisting from fire setting. He had then (after release) reoffended.[39]The Applicant came before a Parole Board panel in 2016. In the course of the hearing the (2016) panel recorded that the Applicant had told them in evidence:
"It was never your intention to hurt anyone, but to cause alarm. When you set a fire in a public house, you hoped to get a reaction rather than cause harm. You have always realised that fire setting was dangerous, but in previous sentences you had never done any focused work in this area. This time you decided to seek help."
[40]The Applicant appeared to be telling the 2016 panel that in the past he had not received any help in relation to his fire setting, but this time he had sought help (during his sentence). In that 2016 decision was a reference to a report by a psychotherapist. The report was also on the current dossier. Between 2013 and 2016, the Applicant had been working with a psychotherapist in the prison in relation to his fire setting. The panel recorded the evidence of the psychotherapist. " She (the psychotherapist) says that you now have a much better understanding of why you committed the arson offences. You can now understand your angry feelings... The focus of the work was to develop alternative strategies to offending and to ask for help which were previously found difficult. She believed that key therapeutic objectives had been achieved over the three years."[41]As noted above the Applicant was in fact released on licence by the 2016 panel. In 2017 he reoffended.[42]During the course of the sentence imposed following the 2017 offending, it was suggested that the Applicant should undertake a specialist psychological intervention relating to fire setting, namely the Fire Setting Intervention Programme for Prisoners (FIPP). The Applicant did undertake this work which was completed in October 2024.[43]The Applicant's legal adviser takes issue with the panel's comment in the panel decision of 2026 wherein the panel implied that the Applicant's comment that he had "never completed work about fire setting" did not reflect the entire picture. It is clear from the history within the dossier that before he was released in 2016, the Applicant had undertaken a substantial amount of work with a psychotherapist aimed at addressing his propensity to set fires. This work was not the FIPP, but it was a reasonably substantial body of work and was said to have had the outcome of enabling the Applicant to understand why he committed arson offences.[44]In reality therefore there is a fine point being argued here. The panel were not at fault in commenting that the Applicant had undertaken work in relation to fire setting in the past. The Applicant's legal adviser has grounds for making the point that the Applicant had not completed the specialist intervention, namely the FIPP. The Applicant's legal adviser argues that:
" This was a fundamental misunderstanding of previous work carried out and undermined the credibility of the prisoner and the views of the specialist witnesses in relation to insight. The mistake undermined the panel view that the prisoner had failed to implement learnt strategies. He had not yet completed the relevant course work (i.e. FIPP)."
[45]In my determination, given the fact that the Applicant had undertaken three years of therapeutic work relating to his propensity to set fires, it was not unreasonable for the panel to be sceptical about a comment that he had " never done any focused work in this area".[46]In the concluding remarks the panel fully acknowledge that the Applicant had undertaken the FIPP intervention. However, the panel noted that in the past the Applicant had been assessed as having made progress to address the risk factors relating to fire by completing offending behaviour work and work focused on fire setting (as noted above), but within a relatively short period of time he would reoffend. The panel noted that, in the past, the Applicant's risk escalated very rapidly with no warning signs, despite the work that had been undertaken whilst in prison. The panel also took the view that there continued to be a lack of clarity as to why the Applicant chose to set fires when he was in the community.[47]The Applicant's legal adviser characterises this ground as a mistake of fact. I am not persuaded that the comment by the panel relating to earlier work amounted to a mistake of fact. The comment was factually accurate in the sense that the Applicant had undertaken work in connection with fire setting in the past. He had not undertaken the FIPP, but he had undertaken work in connection with his propensity to commit arson, albeit of a different sort.[48]In my determination this ground fails. Firstly, because I am not persuaded that the comment by the panel about earlier work amounts to a mistake of fact. It may have been desirable for both the panel and the Applicant to clarify exactly why he felt that the earlier work was not relevant or effective. However, there is clear evidence that the Applicant had undertaken work albeit not the FIPP. Secondly, I am not persuaded by the argument that this comment amounted to a fundamental misunderstanding of earlier work or of the Applicant's insight. Insight did concern the panel because of the repeated offending and the absence of a clear understanding as to why he persisted in committing arson offences and endangering the public. The panel's conclusion was in my determination proportionate in the sense that the panel acknowledged that work had been done and therefore the Applicant had progressed, but that they continued to have concerns about whether in reality the most recent intervention work did have a long lasting effect and would address the risk of serious harm. The panel's decision to recommend a transfer to an open prison clearly indicated the panel's view that the intervention work could be tested in a controlled environment where the public would be less likely to be at risk of serious harm. Ground 3[49]It is submitted by the Applicant's legal adviser that the panel failed to make clear in its reasons why it disagreed with the assessment of the professional witnesses who were recommending release. Discussion[50]As noted by the Applicant's legal adviser a panel of the Parole Board must make clear the reasons why it has reached its conclusion as per Wells above.[51]The panel noted that it had considered the views of the professionals and also noted the fact that the FIPP course had been completed.[52]The panel indicated that it took account of the very serious nature of the index offence and of the potentially devastating consequences of reckless behaviour relating to fire. The Applicant had appeared in court on six occasions in the past and been convicted of arson offences. He had received a lengthy determinate prison sentence, an indeterminate prison sentence and a life sentence all relating to arson offences. The panel in my view were entitled to treat the decision to direct release with extreme caution.[53]The panel's reasoning was that the Applicant had a limited support network in the community which could impact upon his emotional well-being. The panel took the view that there needed to be more time to attempt to build a social network to support the Applicant. The panel also took the view that the Applicant needed to develop leisure activities again to ensure emotional well-being and guard against the potential for dysregulation and an escalation of risk. The panel took the view that it was essential for the Applicant to continue to ask for help from professionals, a practice which could be consolidated in an open prison. The panel also noted that there would be a change of COM following the panel hearing, again the panel took the view that it would be important to develop a good working relationship with the incoming COM which would help to manage risk.[54]The panel considered the risk management plan but took the view that it relied heavily upon external controls which had not been effective before the commission of the index offence. The panel acknowledged that an alcohol tag was a new factor, however the panel also noted that the index offence was committed very soon after taking the first amount of alcohol following the last release from prison. In overall terms the panel took the view that the Applicant's ability to manage his entrenched pattern of behaviour required testing in a less secure environment. The panel therefore concluded that the test for release was not met, but that the test relating to a recommendation for an open prison was met and accordingly the panel recommended a transfer to an open prison.[55]As noted above the panel set out the reasons why they disagreed with the professionals that an immediate release into the community was appropriate in this case. The overarching factors were the dangerous nature of the Applicant's behaviour and the need therefore to test the effectiveness of the work undertaken by the Applicant in the controlled environment of an open prison.[56]Having considered the decision as a whole, I am not persuaded that the panel's conclusion was irrational in the sense set out above. I am also satisfied that the panel explained the reasons why it came to the conclusion that it did, and the reasons why it did not support the views of the professionals. I therefore do not direct reconsideration in this case. Decision[57]For the reasons I have given, I do not consider that the decision was irrational and accordingly the application for reconsideration is refused. HH S Dawson 27 February 2026