Smith, Application for Reconsideration [2026] PBRA 7 (27 January 2026) [2026] PBRA 7
[1]This is an application by Smith ("the Applicant") for reconsideration of a decision of a Panel of the Parole Board ("the Panel"), at an oral hearing which took place on 31 October 2025, not to direct her 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(c) that it is procedurally unfair.[3]I have considered the application on the papers. These are: · The dossier provided by the Secretary of State ("the Respondent") which now contains 929 numbered pages; · The Panel's decision dated 10 November 2025 ("the Decision"). · The application for reconsideration ("the application") submitted on behalf of the Applicant by her solicitor dated 4 December 2025. Request for Reconsideration[4]Reconsideration is said to be sought on the basis of irrationality and procedural unfairness and I will consider the grounds put forward in support within the Discussion section of my decision. Background[5]The Applicant is now aged 47. On 6 July 2012 the Applicant was sentenced, following a trial, to life imprisonment for the murder of her six-week-old daughter in November 2007 by the administration of dihydrocodeine. The Tariff was set at 12 years and the Sentence Expiry Date was in July 2024.[6]The Applicant had been previously cautioned for theft from employer and convicted of driving with excess alcohol.[7]This was her second review . Current parole review[8]The Applicant's case was referred to the Parole Board by the Respondent to consider whether or not it would be appropriate to direct her release, or in the alternative to consider a recommendation for a transfer to open prison conditions. The case was allocated to a three-person Panel which comprised a specialist psychiatrist member and two independent members, one of whom chaired the panel.[9]The Applicant was represented by Counsel who sought a direction for release.[10]At the hearing evidence was given by: a) The Prison Offender Manager (POM); b) The Community Offender Manager (COM); c) The Applicant; d) A psychologist instructed by HMPPS (the psychologist);and e) A psychiatrist instructed by HMPPS (the psychiatrist).[11]The panel declined to direct the Applicant's release or to recommend a move to open prison conditions. A decision not to make such a recommendation is not eligible for reconsideration. The Relevant Law[12]The Panel correctly sets out in the Decision the test for release.[13]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)). 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, and application, of the Wednesbury test in Parole hearings as explained in DSD was binding on Saini J. 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;(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.[20]The overriding objective is to ensure that the Applicant's case was dealt with justly . Reconsideration as a discretionary remedy[21]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[22]By email dated 17 December 2025 PPCS confirmed that the Respondent offers no representations in response to the application. Preliminary matters[23]In dealing with the grounds for reconsideration, it is necessary to stress certain matters of basic importance. The first is that the Reconsideration Mechanism is not a process by which the judgement of the Panel when assessing risk can be lightly interfered with. Nor is it a mechanism in which the member carrying out the reconsideration is entitled to substitute his/her view of the facts in place of those found by the Panel, unless, of course, it is manifestly obvious that there was an error of fact of an egregious nature which can be shown to have directly contributed to the conclusion arrived at by the Panel.[24]The second matter of material importance is that when deciding whether a decision of the Parole Board was irrational, due deference has to be given to the expertise of the Parole Board in making decisions relating to parole.[25]Finally, where a Panel arrives at a conclusion, exercising its judgement based on the evidence before it and having regard to the fact they saw and heard the witnesses, it would be inappropriate to direct that the decision be reconsidered unless it is manifestly obvious that there are compelling reasons for interfering with the decision of the Panel. Discussion[26]In detailed representations Counsel for the Applicant submits that the panel's decision should be reconsidered on the grounds of both irrationality and procedural unfairness and is said to be brought on two grounds: 1. The Panel's decision fails to follow the Parole Board's 'Guidance on prisoners who maintain their innocence' ('the Guidance on Maintaining Innocence') and on victim personal statements ('VPS'), makes material errors of fact leading to unfairness, and fails to consider or obtain relevant evidence. Accordingly, it is procedurally unfair . 2. In the further or alternative, for the same reasons the decision is irrational . Ground 1 - Procedural unfairness[27]In relation to the Board's Guidance on prisoners who maintain their innocence (the Guidance), which I have carefully considered, Counsel for the Applicant submits that the panel concluded that the Applicant's denial of responsibility for her daughter's death meant that her risk could not therefore be explored, was inherently risky and must preclude release and that the Panel's decision not to direct release was made primarily because of the Applicant's denial of guilt .[28]The COM, who did not support a direction for release, notes (p. 696 of the dossier) that the Applicant has consistently denied responsibility for her daughter's death and " therefore has declined to engage [in] any offence related work or discussions around the triggers, motivations and impact of the index offence. This makes the completion of a full risk Assessment difficult to undertake as there are clearly gaps in our understanding of what the risk looks like ."[29]The COM, as did the psychologist and the psychiatrist, recommended a progressive move to open prison conditions as " This would provide further opportunities for us to increase our understanding of the risk factors. A period in open conditions will allow for a more dynamic and realistic assessment of [the Applicant's] risk in the community, while still maintaining appropriate safeguards."[30]In an earlier report (dossier pp. 403/4) the COM records that the Applicant "continues to maintain her innocence and refuses to complete any offence focussed work if there is any risk while undertaking this work, that this will inadvertently declare her guilt...and as such demonstrating there has been a reduction in her risk is impossible."[31]In her representations the Applicant does not refer to the oral evidence of the COM on this issue and it is, accordingly, assumed that this was in line with the analysis and conclusions contained in her reports.[32]The Applicant does quote extensively from the oral evidence of the POM who in her report of July 2025 (dossier p.687) states,[33]"I acknowledge the concerns as to risk in light of [the Applicant] maintaining her innocence, and having not engaged in any specific offence related work or discussions around the triggers, motivations and impact of the index offence. This leaves us with deficits in our understanding of what the risk would look like. However, I would argue that experience of her conduct over a considerable period of time, by a number of different professionals, evidence of her compliance and engagement during this time, combined with reports by a number of different professionals throughout this time, which have remained consistent in their assessment of [the Applicant] , serve in no small way to mitigate those deficits ."[34]In that report (confirmed as unchanged in October 2025) the POM did not support release but recommended a move to open conditions.[35]At paragraph 4.7 of the Decision the Panel noted that none of the professionals recommended release although the POM did think that the Applicant's risks could be managed in the community. All recommended that she transfer to open conditions.[36]The Panel found that, based on the index offence, the Applicant's " risk factors include poor emotional wellbeing, poor thinking skills, and a lack of victim awareness" (Decision 1.19) and considered that the Applicant's engagement with a collaborative formulation was a positive start, but the panel did not find it helpful in identifying the triggers to the index offence as the process did not challenge her account nor had it considered the Family Court findings. In addition, the Panel noted that the psychologist considered that, as the formulation was incomplete, potentially areas of risk were missed.[37]The Panel noted that in her psychological risk assessment, " the psychologist was of the opinion that the Applicant externalised risk in a way that met what she thought that the Parole Board wanted to hear from her but that she was not able to internalise it, perhaps because things that were internal were unbearable" and that, "Given [the Applicant's] attitude towards the index offence, it is difficult to identify definitively what triggered her harmful behaviour but it appears that she had found it unbearable to hold things inside herself and expelled them out into her children ."[38]The Panel found that the Applicant had not completed any specific offence-focused work as she continued to maintain her innocence and that she had said that she would not engage in such work although she was open to other therapeutic work and had completed a collaborative formulation which had recommended that she should complete further work.[39]The Panel considered whether the proposed risk management plan would be likely to be effective in managing the Applicant's risks and found that its evaluation was hampered by the lack of understanding about the triggers to the Applicant having harmed her children and, therefore, as it was not known if she has appropriate internal controls, the Panel focussed on the adequacy of the external controls which might serve to manage the Applicant's risk if she were to be released into the community.[40]The Panel made clear that it bore in mind the Guidance and that denial is not in itself a risk factor but does mean that the Panel needs to look elsewhere for evidence of a reduction in risk.[41]In its conclusion at paragraph 4.4 of the Decision it made clear findings that the Applicant "lacks insight into the risk she poses to others. That, combined with her denial, could mask any increase in risk. Her attitude towards the index offence also means that it is difficult to identify potential victims and consequently protect them. Whilst [the Applicant] may not be able to complete offence focused work, she could have undertaken work on trauma which may have assisted her in managing her risks. She has not presented as willing to change risk-related behaviours."[42]It is also important to note that the Panel, drawing on the reports of both the psychologist and the psychiatrist gave detailed consideration (Decision 1.25) to the function of the Applicant's denial of responsibility for the index offence of murder, concluding that there remains a lack of understanding as to why she behaved as she did and that she has core risk reduction work outstanding and that she needed to remain in closed conditions.[43]Having given careful and anxious consideration to the Applicant's representations in relation to the issue of her steadfast maintenance of innocence in the face of her conviction for the index offence, I am satisfied, in the light of all the relevant evidence, that the Panel had well in mind, and properly directed itself in accordance with, the Guidance and I find that, in essence, the Applicant's representations amount to asking me to take a different view of the evidence from that of the Panel which had a wealth of information and analysis before it, both oral and written, and in relation to which it came to firm findings in the exercise of its judgement, giving full and clear reasons.[44]Put shortly, I reject the suggestions that the Panel started from the premise that denial is inherently risky and must preclude release and that its decision not to direct release was made primarily because of the Applicant's denial of guilt.[45]The Applicant's next submission relates to a victim personal statement (VPS) submitted by a member of the victim's family which appears in full in the dossier. I have considered the argument made by the Applicant and the Board's Guidance on Victims.[46]The submissions refer to "Non-Disclosure Guidance" but it would appear that this procedure was not followed in this case as the victim was content for the statement to be fully disclosed to the Applicant.[47]I have considered the VPS which, unfortunately, does contain impermissible and inappropriate content.[48]This was quite properly raised by Counsel for the Applicant and the Panel records the agreed way forward in the Decision as follows:[49]" At the start of the oral hearing [the Applicant's] legal representative raised the question of the Victim Personal Statement containing allegations and commenting on [her] suitability for release. The panel noted these concerns. It was agreed that the hearing could proceed with the panel disregarding any allegations that were not mentioned elsewhere in the dossier and not putting weight on the victim's view on release."[50]Counsel now suggests that this statement of intent does not reflect her understanding of what was said at the hearing without indicating the nature of that difference.[51]In any event, I find that the Panel attributed no weight to the victim's view on release, that, in relation to the Applicant's use of alcohol, it relied upon information from sources other than the VPS and, finally, I reject the suggestion that "the Panel has allowed the VPS to play a part in its process of risk assessment" since the reference to the Applicant's behaviour towards the victim would appear to relate to injuries suffered as a baby and for which there is considerable evidence contained in the dossier outside of the contents of the VPS.[52]I find that this submission discloses no procedural unfairness.[53]The Applicant then sets out no less than eight "material errors of fact leading to unfairness ": 1. A number of points are made about the availability of, and the Applicant's willingness to engage with, therapy. The Panel's findings that " [the Applicant] would be able to complete trauma therapy despite her denial of responsibility for the index offence but has not done so " and that " she could have undertaken work on trauma which may have assisted her in managing her risks. She has not presented as willing to change risk-related behaviours" are simply statements of fact. There are a variety of reasons for this, which may include the availability of such work at a particular prison, but that is not a matter for the Panel. However, as the Panel found, other reasons included that "Prior to the last review in 2023, [the Applicant] had been assessed as unsuitable for any of the available custodial offending behaviour programmes, in part because she was maintaining her innocence and also because her static risk scores were too low" and that since the previous review the Applicant "has not completed any offence focused work as she continues to maintain her innocence." The Panel did not overlook that the Applicant completed a collaborative formulation or that she engaged in some one-to-one work around the Good Lives Model with her then POM since all this work is referred to in the Decision. I can find no justification for suggesting that these statements represent, " another example of the Panel treating [the Applicant's ] denial alone as a barrier to release." 2. It is submitted that the Panel's view that "the Applicant had not yet developed a realistic resettlement plan" is not borne out by the evidence. In my view this is a finding by the Panel having heard and considered all the evidence. This was a matter for its judgement and does not amount to an error of fact which could support a finding of procedural unfairness. 3. The Applicant challenges the Panel's assertions that there is a "lack of understanding about the triggers to [the Applicant] having caused harm to her children... it is not known if [ the Applicant] has appropriate internal controls " and "It is not known why she behaved as she did" . I can discern no error of fact here which involves procedural unfairness. The passages quoted by the Applicant represent the Panel's views in relation to her triggers and lack of internal controls based on a consideration of all the evidence which also includes that of the COM and the written reports of the POM and the psychologist which I have referred to earlier in this decision. 4. This submission relates to the statement (Decision 4.2) that "The Family Court found that [the Applicant] had caused harm to three of her four children ". I have carefully considered the Judgment of a Judge of the Family Division of the High Court handed down in December 2010, which is said to run to 37 pages, all of which appear in the dossier. The Judge made clear findings in relation to the death of the Applicant's daughter (A) of which she was subsequently convicted by a jury. As to her eldest daughter (E) the Judge notes as "Agreed Facts" that the Applicant had admitted previously that she had caused rib fractures to E by rough handling and that she had subsequently lied about this to the medical authorities and to the child's father. She later signed a document confirming this for the purposes of the threshold criteria pursuant to s.31 Children Act 1989. Any further finding of fact was therefore unnecessary given her acceptance that she was the perpetrator of the injuries to E. I also note t he Panel Chair Directions in April 2025 (dossier p.631) requesting that the psychologist should base her assessment "on the Finding of Fact by the Family Court which found that [the Applicant] harmed her daughters and explore the possible triggers for such behaviour " while also making it clear (dossier p.441) that " Witnesses should note that the Parole Board panel will rely on the Family Court Finding of Fact exercise and will not undertake its own finding of fact exercise". No objection appears to have been taken to this approach on behalf of the Applicant. Counsel for the Applicant rightly refers to the Applicant's psychological deterioration at the time of the birth of her son (J) as noted in the Judgment (dossier pp.481/2) and her behaviours towards him which may well have caused him, as a baby, some distress. The Judge does not, however, appear to have made any findings in relation to J or any other child and, therefore, I accept that it was incorrect to say that the Family Court found that the Applicant had caused harm to three (rather than two) of her four children. Nevertheless, this submission is, in my view, without merit since I find that it is fanciful to suggest that this minor error (which is in no way material to the Panel's overall findings) can amount in itself or in conjunction with any other error of fact to such procedural unfairness or irrationality as to justify a direction for reconsideration. In addition, particularly in the light of the Panel's unchallenged case management decision to rely on the Judgment of the High Court, it is, in my view, untenable to suggest that, upon a proper application of the relevant Guidance, the Panel should have held its own finding of fact in relation to the injuries to E now that the Applicant has chosen to resile from her previous admissions of responsibility. 5. The Applicant suggests that " The Panel makes a number of contradictory statements about the protection of the public ." I find that the Applicant is here simply making submissions in relation to a number of findings made by the Panel in the light of its view of the evidence. They do not represent errors of fact. 6. The Applicant asserts that the Panel has erred in relation to her willingness to discuss the death of A with professionals. I find that the Panel was well aware of the work done by the Applicant with the POM on living a " good life" and with the trainee psychologist on the collaborative formulation (during which she is reported to express a distrust of professionals and disagreement with a large amount of the formulation of factors impacting risk). The Panel also had the benefit of the psychiatrist's view that, " It is unlikely after all the years in imprisonment [ the Applicant's] attitude towards the Index Offence will change. Denial and minimization are key risk factors for reoffending." (dossier p.678). Also, those of the Psychologist that, " Areas of concern remain her level of insight into risk of harm and psychological defences that make it difficult for her to accept responsibility for wrongdoing and may mask any increase in risk " (dossier p.646) and "[the Applicant] appears to have developed strong psychological defences against feelings of shame and vulnerability, and this has prevented her developing insight into her risk" (dossier p. 645). The Applicant is, I find, once again challenging findings made by the Panel on the basis of the evidence before it and, in my view, it has not been demonstrated that the Panel has made an error in relation to the fact that, while the Applicant has had many discussions over the years with a variety of professionals, it has always been on the basis that she did not harm A and, accordingly, the Panel remained concerned (as did professionals as is noted above) that, despite, the work done with her to prepare a formulation and identify risk factors by other means, the statutory test for release was not made out. 7. Contrary to this submission, the Panel does not say that the Applicant shows an excessive degree of reliance upon professionals. The point being made here is the necessity, as the Panel saw it, for the Applicant to further develop her own internal controls rather than to have to rely on external controls, much of which depend upon the involvement of professionals. There is no error of fact here. 8. This submission relates to the Panel's finding in relation to the level of risk which the Applicant currently poses. In the post-sentence report, completed following her conviction for murder, she is assessed as presenting a high risk of harm to any child in her care and there has been no change in this since the COM continues to assess her as posing a high risk of serious harm to children as well as to the public. The Applicant prays in aid her risk of reoffending scores but there is no indication that these have reduced over time while the psychologist is recorded as assessing the Applicant, on the basis of different criteria, as presenting a moderate risk of violence in the community. The Panel also agreed with the psychiatrist that the risk of harm to children that the Applicant presents could be transferred to others such as to vulnerable adults in her care. I find that, far from being inaccurate, the Panel has reached a judgement in relation to overall risk based on the evidence before it and I find no error of fact here.[54]Under a heading "Failure to consider or obtain evidence", it is submitted on behalf of the Applicant that , "Despite these detailed directions and the detailed reports they led to, the Panel repeatedly states in its decision that [the Applicant's] risks and triggers are not understood without saying why it considers the reports it directed to assess these have fallen short. In the absence of this, it is submitted that the inference must be drawn that the Panel has unfairly failed to take the reports into account."[55]This suggestion involves the assumption that, merely because experts are asked to address certain issues, they will inevitably be able to come up with full and definitive answers.[56]In addition, the psychiatrist sets out his instructions in full in his report (dossier p.660) from which it is apparent that he was not asked to carry out a risk assessment or to focus on triggers for offending.[57]As to the psychologist, as set out above, she found, by way of example, "Given [the Applicant's] attitude towards the index offence, it is difficult to identify definitively what triggered her harmful behaviour"; and later "[ The Applicant ] appears to have developed strong psychological defences against feelings of shame and vulnerability, and this has prevented her developing insight into her risk."[58]Far from having "fallen short", I note that no issue was taken on behalf of the Applicant as to the adequacy of the expert reports which were prepared in accordance with the Panel's directions (indeed they are described in the submissions as detailed) and even a cursory reading of the Decision reveals that the Panel gave the reports and the oral evidence of the experts careful and anxious consideration.[59]I can find no evidence of procedural unfairness here.[60]In reliance on para.4.8 of the Decision, which does not form any part of the Panel's reasoning or its decision upon the referral but which is provided by way of assistance to the next panel, Counsel for the Applicant appears to be suggesting that the Panel should have adjourned to obtain a further assessment and that, presumably, the decision not to release should therefore be reconsidered on the basis that this amounted to procedural unfairness and/or irrationality.[61]There is no suggestion that the absence of this assessment was identified on behalf of the Applicant or by any of the professional witnesses as a significant omission preventing the Panel properly carrying out a full and fair review given the considerable amount of material and expert opinion available to the Panel and no application appears to have been made on behalf of the Applicant for such assessment to be obtained.[62]In fact, the Panel itself in straightforward terms provides an answer to this line of argument where it states, "The panel considered whether to adjourn for this assessment for this review but came to the view that it had sufficient evidence to conclude this review without the assessment ."[63]The Panel took the view that such information was not materially significant for its purposes and that it could properly carry out its risk assessment for the purposes of the current review without it .[64]There are no grounds, in my view, to find it that in doing so they acted irrationally or demonstrated procedural unfairness. Ground 2 - Irrationality[65]The Applicant also submits that " In the further or alternative, for the same reasons the decision is irrational " without further detail or argument but in reliance on the blanket assertion that there are unexplained evidential gaps and leaps in reasoning that fail to justify the decision not to release which has been made based on facts unsupported by the evidence and that the Panel proceeded contrary to the Board's own guidance, without considering or obtaining relevant material and the decision is therefore not logically justifiable.[66]In fairness to the Applicant and in deference to the submissions made on her behalf, I have addressed at considerable length those matters which are said to constitute, either individually or cumulatively, such procedural unfairness as to justify a direction for reconsideration.[67]The panel, I find, carefully considered the written and oral evidence before it, set out its findings and explained in detail their reasons for concluding that, a pplying the appropriate test, it was not satisfied that it is no longer necessary for the protection of the public that the Applicant should be confined and did not direct release.[68]The Panel attributed weight where appropriate (which is a matter pre-eminently for the panel) and arrived at its findings following an exercise of its judgement in concluding that the Applicant did not meet the test for release in the course of a full oral hearing at which she was legally represented throughout.[69]Accordingly, given all my findings and in the absence of any further specific matters raised in support of a finding of irrationality, for which the bar is set at a high level, I am in no doubt, applying the appropriate tests, that the Panel's decision not to direct the Applicant's release does not fall to be reconsidered on the basis of irrationality. Decision[70]In conclusion, I find that the application is without merit and, for the reasons I have given and applying the appropriate tests, I do not consider that the decision was irrational or that there was any procedural unfairness and, accordingly, the application for reconsideration is refused . PETER H. F JONES 27 January 2026