Flinn, Application for Reconsideration [2026] PBRA 51 (27 February 2026) [2026] PBRA 51

PBRA
Flinn, Application for Reconsideration [2026] PBRA 51 (27 February 2026)
[2026] PBRA 51 · 2026-01-29
[1]This is an application by Flinn (the Applicant) for reconsideration of a decision of a panel of the Parole Board dated the 29 January 2026 making no recommendation for release and no recommendation for 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 application for reconsideration, the decision and the dossier. Request for Reconsideration[4]The application for reconsideration is dated 18 February 2026.[5]The grounds for seeking a reconsideration are that the decision of the panel was irrational in that the decision was contrary to the evidence in the case and the panel have failed to give adequate reasons for disagreeing with the views expressed by the professionals. Background[6]On 12 June 2007 when he was 33 years of age the Applicant was sentenced to imprisonment for public protection (IPP) for an offence of sexual assault. The minimum period he had to serve before he could apply for parole was one year and five months. Time was deducted from the minimum period to allow for time spent on remand and it is not entirely clear what sentence the judge would have passed as commensurate with the offence if he hadn't passed an IPP. The Applicant was first released on licence on 16 March 2017 and he was returned to custody on 29 July 2022. By the time of his first release he was very significantly over tariff. The Applicant was released again on 18 March 2024 and recalled on 18 December 2024. The Applicant is now 52 and has been serving an IPP sentence for 19 years. Current parole review[7]The case was referred to the Parole Board for a decision on 8 January 2025.[8]On 28 January 2026 a panel of two independent members heard evidence from the Community Offender Manager (COM), the Prison Offender Manager (POM) and the Applicant. The Relevant Law[9]The panel correctly sets out in its decision dated 29 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)[10]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)).[11]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)).[12]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[13]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.[14]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. "
[15]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).[16]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.[17]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.[18]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.[19]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.[20]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. "
The reply on behalf of the Secretary of State (the Respondent)[21]The Respondent has made no submissions in response to this application. Discussion[22]The Applicant is a significantly over tariff IPP prisoner. He has spent more than five years on licence in the community without committing any offence. Both the COM and the POM supported release. On the documents that I have read the decision could have gone the other way but that does not mean that the decision was irrational. The grounds for reconsideration are well argued and are persuasive and I have considerable sympathy for the position of the Applicant. Nevertheless the decision will only be irrational if no rational panel would have reached the decision that this panel did.[23]While it can be properly argued that the panel have not attached sufficient weight to the amount of time that the Applicant is over tariff in accordance with Parole Board guidance, they were aware of it and have referenced it at para 4.4 of the decision. (See in particular the guidance given by the Supreme Court in the case of Osborn as to the approach to be taken by the panel when a prisoner is over tariff.)[24]While the COM and the POM supported release, their support was not unconditional (see paras 2.8, 2.12 and 2.16 in particular). The panel were also concerned about the risk management plan (see para 2.15).[25]The panel also took into account, as they were entitled to do, their own impressions of the Applicant (see para 4.2).[26]I do not think there is any merit in the argument on behalf of the Applicant that the panel have not explained sufficiently their reasons for disagreeing with the professionals' opinion, in my judgment their reasons are clear.[27]Accordingly while this application has been well argued, in my judgment this was a decision that a rational panel could have come to on their view of the evidence.[28]Because of the length of time that the Applicant is over tariff the next parole hearing should be sooner rather than later. Decision[29]For the reasons I have given, I do not consider that the decision was irrational and accordingly the application for reconsideration is refused. John Saunders 27 February 2026