Gavin, Application for Reconsideration [2026] PBRA 71 (01 April 2026) [2026] PBRA 71

PBRA
Gavin, Application for Reconsideration [2026] PBRA 71 (01 April 2026)
[2026] PBRA 71 · 2026-02-17
[1]This is an application by Gavin (the Applicant) for reconsideration of a decision of an oral hearing panel dated 17 February 2026. The decision of the panel was not to direct 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. 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 9 March 2026.[5]The grounds for seeking a reconsideration are set out below. Background[6]The Applicant is serving a sentence of life imprisonment with a minimum term of 17 years and one day. The Applicant pleaded guilty to two counts of murder. The Applicant, who was aged 18 at the time of the offending, entered a jewellers shop with a co-defendant. They asked to look at a ring and then went behind the counter. The Applicant approached the first victim and repeatedly stabbed him with a knife. When his wife tried to intervene, she was also stabbed. The Applicant and his co-defendant grabbed jewellery and left. The Applicant was described by the judge as " a dangerous, cold calculating young man ". The Applicant had previous convictions. One conviction was for the offence of affray. The murder convictions were a serious escalation of the Applicant's offending record. The Applicant's tariff expired in March 2016. The Applicant was sentenced when he was 19 years old. He was 45 years old at the time of the oral hearing. Current parole review[7]The referral from the Respondent requested that the Parole Board consider whether the Applicant should be directed for release and if not whether there should be a recommendation that the Applicant be transferred to an open prison.[8]The oral hearing panel consisted of an independent chair and an independent panel member. Evidence was given at the hearing by a Community Offender Manager and a Prison Offender Manager. The Applicant was legally represented and gave evidence. The Relevant Law[9]The panel correctly sets out in its decision dated 17 February 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. Procedural unfairness[19]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.[20]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.[21]The overriding objective is to ensure that the Applicant's case was dealt with justly. Error of law[22]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.[23]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 Transfer to Open Conditions[24]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) , 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.[25]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. "
[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 representations. Discussion Ground 1[29]It is submitted by the Applicant's legal adviser that the oral hearing panel " ignored or misapplied " the risk assessment data. Discussion[30]This ground arises in the context of the panel's written decision. The panel indicated that they took the view that the predicted static scores, which were included within the OASys (Offender Assessment System) report, underestimated the risk posed by the Applicant. The scoring predicted(1) violent reoffending within two years by the Applicant as low and(2) general reoffending as medium.[31]The OASys system is a tool used by the probation service to suggest levels of future risk. OASYs reports include a comprehensive bank of data relating to an individual's general background and risk.[32]The suggested " probability of proven reoffending " (labelled as OGRS3) is a measure which relies upon static factors and applies a statistical algorithmic approach. Two further common measures within OASYs are " the probability of proven non-violent reoffending " (OGP) and " the probability of proven violent type reoffending " (OVP) which apply a mix of static and dynamic factors.[33]The adoption of these risk measures is known to require caution when applied to long term prisoners. The reason for such caution is the fact that the algorithm is broad based. It does not (for example) distinguish between individuals in the community and those serving long sentences. The algorithm also relies upon a measure of an individual's age and the length of time since a previous conviction regardless of their prison status. Additionally, factors which are of importance, namely prison behaviour and adjudications do not form part of the scoring.[34]The Applicant's legal adviser suggests that the panel failed to provide an evidence base for their conclusion that the static risk factors were likely to have underestimated the potential risk of the Applicant. OASYs is a tool applied to all those in contact with the probation service and its limitations (and benefits) are well understood by professionals and those concerned with risk management. I am not persuaded that this was an area of knowledge which would have been novel or unknown by those professionals and others at the hearing such that comment upon it required an evidential fact-finding exercise.[35]It is also the case that risk assessment measures are but one of a number of factors taken into account when reaching a decision as to the Applicant's risk of serious harm to the public. Of more value was the measure within OASys of the " Risk of Serious Harm " (ROSH) which was set at " high " and which is a risk factor which incorporates both dynamic and static scores and applies the concept of structured risk assessment.[36]The Parole Board publishes guidance in relation to risk assessment (Risk Assessment Guidance (July 2024 V2.0). Parole panels use the guidance in relation to decision-making. The guidance makes clear that risk assessment involves not only actuarial tools but also a number of different factors which must be balanced in order to make an assessment of risk to determine whether the test for release has been met. The Parole Board guidance is publicly available.[37]The oral hearing decision by the panel in this case indicates that the panel took account of a number of factors beyond actuarial tools. I am not persuaded that the panel misapplied the evidence relating to actuarial assessments in the dossier or that the panel relied overly heavily upon statistical measurements. Ground 2[38]The Applicant's legal adviser submits that the panel " treated institutional adjustment as predictive of serious risk in the community ". Discussion[39]This submission refers to the fact that the Applicant had a long history of verbal threats and conflicts with prison staff and behavioural issues in relation to prison rules which were taken into account by the panel. The Applicant's legal adviser argues that the panel inappropriately treated these incidents as evidence of the potential for unpredictability and noncompliance which could (in the community) lead to a rapid escalation of risk and potentially serious harm. It is pointed out by the Applicant's legal adviser that, despite these incidents (in prison), the Applicant had not used physical violence or physically harmed prison staff or been in possession of weapons. In simple terms it is argued by the Applicant's legal adviser that the fact that the Applicant behaved badly in prison, makes threats and breaches prison rules does not necessarily mean that he will continue with this behaviour in the community.[40]The oral hearing panel noted that the Applicant had, before he moved to the current prison, been allocated to a category A prison. The panel noted that it was reported that the Applicant's behaviour (in that Category A prison) was generally disruptive and threatening. He had spent most of his time in the segregation wing of that prison because of his disruptive behaviour. On two occasions there had been attempts to relocate him to the main wing of the prison both attempts failed and on the second attempt there was an assault upon a member of staff.[41]The Applicant then moved to a (lower category) prison where he was detained at the time of the oral hearing. His behaviour had reportedly improved when he first came to the prison, and he was able to build a positive relationship with some staff.[42]A member of staff, with whom he had a good relationship, then left the prison. This departure apparently destabilised the Applicant. There were then a series of incidents involving threats towards nursing staff and towards prison officers. There were breaches of the prison rules relating to the use of the call bell. He was allegedly abusive to staff. On the day of the hearing itself the Applicant had initially refused to attend the oral hearing because of a dispute about the fact that staff were not permitting him to return to his cell to change to a different pair of training shoes which he wanted to wear for the hearing.[43]The Applicant (candidly) told the panel that he was not prepared to make compromises and would assert his position regardless of the responses or views of the staff. The panel's conclusion, having heard evidence from the Applicant, was that he would only comply with the prison regime on his own terms. The panel took the view that he was not willing or able to apply perspective to the regime or to compromise in any way. The Applicant appeared to accept that he was unwilling to seek ways to avoid confrontation. He also appeared to understand that his stance caused difficulties relating to sentence progression.[44]The panel in their concluding remarks indicated that they took the view that, in a less restrictive atmosphere, there could be a rapid escalation of conflict which could lead to violence and serious harm because of the Applicant's uncompromising attitude towards professionals, prison staff and those who are charged with the management of his risk.[45]The Applicant was fully entitled to take a robust and uncompromising attitude towards authority and staff in the prison environment. This clearly meant that he was often in conflict with staff over various matters. The panel were obliged to consider the Applicant's presentation and historical behaviour in the context of how his risk could be safely managed in the community. In reality, in the less structured environment of the community, the Applicant's approach to challenging situations would be highly likely to result in a risk of serious harm.[46]The panel clearly had in mind that the Applicant, as a life licence prisoner, would (in the community) be obliged to comply with a substantial amount of supervision and oversight for the remainder of his life. It was clear that, if the Applicant could not or would not comply with restrictions within the prison environment, it was highly unlikely that he would do so in any other environment, particularly within the community. The panel could also not ignore the seriousness of the index offence when assessing the management of the Applicant's risk in the community.[47]For these reasons, as articulated by the panel in the decision, I am not persuaded that the panel inappropriately took account of the Applicant's prison behaviour when assessing whether or not his risk of serious harm could be appropriately managed in the community. Ground 3[48]The Applicant's legal adviser submits that the panel failed to give appropriate weight to undisputed positive evidence. Discussion[49]The Applicant's legal adviser submits that the Applicant had completed core risk reduction work, there had been a period of behavioural improvement when he moved prisons, his risk was not deemed to be imminent, he had family support and there was no pattern of violence prior to the index offence. It is argued that these positive factors were not appropriately balanced against the negative evidence adduced at the hearing.[50]It was clear from the panel decision that, account was taken by the panel of the fact that the Applicant had no further risk reduction work which could be undertaken, that he had strong family support and that there were occasions of positive behaviour while in prison.[51]The reality of a panel hearing, is that there will be emphasis upon the potential risks and dangers that might arise in the community. The release test requires a panel to focus upon the potential risk of serious harm. The Applicant's legal adviser argues that the panel's role was a " balancing exercise " and that the panel failed to balance the positive factors against the negative factors.[52]I am not persuaded that the role of the Parole Board panel is a balancing exercise. Whilst positive behaviour and factors may well lead to a conclusion that the risk of serious harm is reduced and may be manageable, the role of the panel is not to balance the risk of serious harm against the positive factors in the Applicant's life. Risk assessment will inevitably focus upon negative risk factors, however a panel will also be obliged to consider whether those negative risk factors are ameliorated or reduced by taking into account positive indicators of behaviour. In this case I am not persuaded that the panel acted unfairly in their assessment of the Applicant's risk of serious harm. The Applicant himself was adamant that regardless of risk reduction work or relationships with professionals he maintained his right to behave in a challenging and often uncompromising manner towards those charged with his supervision and oversight in prison. This would clearly be a substantial factor in considering how the Applicant's risk could be managed in a community setting. Again, I am not persuaded that the panel approached the assessment of risk inappropriately or unfairly. Ground 4[53]The Applicant's legal adviser submits that the panel unfairly failed to consider alternative interpretations of negative events. In particular that the Applicant's recent deterioration in behaviour occurred following the departure of a trusted staff member. Discussion[54]The panel's role in assessing the Applicant's risk was to consider how the Applicant approached issues which may eventually lead to an escalation of risk in the community. Whilst there may have been explanations for the Applicant's deterioration in behaviour (for example the departure of a member of staff) the panel's role was clearly to assess how the Applicant might deal with challenging issues whilst in the community. Regardless of the fact that there was a possible explanation for the deterioration in the Applicant's behaviour, the panel were entitled to conclude that the Applicant lacked the necessary internal controls to manage his behaviour, in the face of routine difficulties that might occur in life. It was clear, in the panel decision, that a substantial concern was the inability of the Applicant to harness perspective taking, compromise and reality when faced with routinely challenging situations in the prison environment. The panel, when making their risk assessment, were entitled to apply this evidence to the question of how the Applicant might manage such issues in the community.[55]In my determination the panel had substantive evidence of the Applicant's inability to manage routine difficulties, with which he would be faced if he were in the community. For that reason, the panel were entitled to conclude that the Applicant's risk would elevate very quickly and that there would be a potential for serious harm were he to be faced with similar routine challenges in the community. Ground 5[56]The Applicant's legal adviser submits that the panel erroneously applied the public protection test. This is argued on the basis that the panel indicated that in order to progress the Applicant needed to " demonstrate positive behaviours, perspective taking, less defined attitudes, address his rigid thinking, manage conflicts in a prosocial manner, manage his hypervigilance and develop a trusting relationship with professionals to evidence changes in behaviour and responses, which he states, very clearly, he is not willing to do in the current environment". The Applicant's legal adviser appears to argue that the test for release is forward-looking and that the panel therefore were wrong to consider the Applicant's behaviour while confined. It is argued that the risk management plan which included living in approved premises, curfews and drug testing were not appropriately taken into account by the panel as possible factors which would manage risk in the community. Discussion[57]The assessment of risk is a multifaceted exercise. A Parole Board panel are obliged to take account of a number of relevant factors. As noted above, those factors are comprehensively addressed in the guidance published by the Parole Board. Inevitably a panel will take account of the behaviour of the prisoner whilst in prison. Good behaviour is not necessarily an indicator of a reduction in risk, however poor behaviour and an inability to manage restrictions and compliance and negative reactions to challenging situations would inevitably be factors which a panel will take account of in terms of predicting how a prisoner may manage risk in the community. In my determination the panel were entitled to take account of the Applicants behavioural difficulties in the prison in reaching an overall assessment of the risk of serious harm in the community, and therefore in applying the public protection test. I am not persuaded that their approach can be characterised as irrational or procedurally irregular. Ground 5[58]It is submitted, by the Applicant's legal adviser, that the panel failed to apply the appropriate test to the decision as to whether to recommend to the Respondent that the Applicant be transferred to an open prison. Discussion[59]As noted above decisions relating to recommendations to transfer to an open prison are not within the scope of reconsideration. Ground 6 - Procedural unfairness[60]The Applicant's legal adviser argues that the panel acted procedurally unfairly by relying upon evidence of " custodial irritability " without exploring its context, that they failed to engage with evidence of positive behaviour, and that they imputed negative motives when assessing the Applicant's behaviour. Discussion[61]This submission appears to mirror the submissions set out above relating to irrationality. A reading of the panel's decision indicates that the panel took account of positive behavioural issues. The panel acknowledged that the Applicant had undertaken behavioural work and was unlikely to have the need to undertake any further work. The major issue was the Applicant's inability to manage challenges within the prison in any way other than in conflict with those supervising him. The Applicant appeared to find difficulty in applying any learning that might have been gained from behavioural intervention work in his everyday exchanges with prison staff and others. The prison service had suggested that the Applicant consider moving to a specialist prison which would support him in being able to manage his challenging behaviour. However, the Applicant, as was his right, declined to take up the suggestion. I am not persuaded that this submission amounts to procedural unfairness in the sense set out above. Decision[62]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. HH Stephen Dawson 01 April 2026