Mortimer, Application for Reconsideration [2026] PBRA 73 (05 May 2026) [2026] PBRA 73

PBRA
Mortimer, Application for Reconsideration [2026] PBRA 73 (05 May 2026)
[2026] PBRA 73 · 2026-03-12
[1]This is an application by Mortimer (the Applicant) for reconsideration of a decision of a Parole Board panel of 12 th March 2026, following an oral hearing on 25 th February 2026 (which had been adjourned from September 2025), not to direct his release.[2]Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2025) (the Parole Board Rules) provides that applications for reconsideration may be made in eligible cases (as set out in rule 28(2)) either on the basis(a) that the decision contains an error of law,(b) that it is irrational and/or(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, including the dossier now containing 740 numbered pages including the decision, the subject of this application, and the application for reconsideration. Request for Reconsideration[4]The application for reconsideration is dated 19 th March 2026.[5]The grounds for seeking a reconsideration are lengthy. They are set out below. " This application is advanced in respect of the release decision. It is submitted that the refusal to direct release is arguably irrational and/or procedurally unfair, in that the panel's reasoning does not adequately or coherently explain why release was refused despite: 1. the recommendation for release from both the POM [Prisoner Offender Manager] and COM [Community Offender Manager]; 2. acceptance that the proposed community risk management plan was robust; and 3. acceptance that there had been a more recent period of stability. "It is appreciated that reconsideration is not a rehearing on the merits and that the threshold is a high one. Nonetheless, it is submitted that the present decision arguably crosses that threshold for the reasons set out below. "The panel recorded that both the POM and the COM recommended release. The POM considered that a sufficient period of stability had now been demonstrated, believed [the Applicant] would comply with licence conditions, and considered there was nothing more to gain from the closed estate. The COM similarly assessed that she was now seeing the same reflective and insightful presentation previously identified, considered that there had now been a period of stability, and recommended release. "The panel also accepted that the proposed release plan was robust, including PIPE Approved Premises, curfew, alcohol abstinence monitoring, drug testing, offence-focused work, GPS monitoring, IIRMS engagement three times weekly, CAS3 move-on accommodation, and additional daytime reporting. "Against that background, the reasoning for rejecting release is limited to the assertion that the POM and COM "placed too much weight on the external factors" and that [the Applicant] needed to demonstrate improved stability over a longer period of time. "It is respectfully submitted that this may be insufficiently reasoned. Where both key offender managers recommend release, and where the panel itself accepts the proposed community plan is robust, fairness requires a clearer explanation as to why those safeguards, in combination with the professional recommendations, were still inadequate to reduce the risk to no more than minimal serious harm risk in the community. The decision does not sufficiently identify what specific residual risk could not be managed by the very controls accepted to be available and robust. "In short, the panel was entitled to prefer [the psychologist's] evidence, but where doing so meant departing from both the COM and POM, a fuller and more particularised explanation was arguably required. "The decision records a number of features supportive of release: · that the POM believed there had been a sufficient period of stability; · that the COM considered [the Applicant] had demonstrated a period of stability and was again presenting as reflective and insightful; · that the panel itself noted "there has been a period of more stable behaviour recently." "However, despite those findings, the panel concluded that [the Applicant] lacked full understanding and insight, that his relationship was untested, and that he needed to demonstrate resilience and stability over a longer period. "That conclusion was open to the panel in principle, but the reasoning arguably lacks sufficient analysis of why the recent accepted period of stability was not enough, particularly given: · the extensive sentence progression already completed; · the long period post-tariff; · the professional view from both offender managers that risk was now manageable in the community; and · the panel's acceptance that a detailed and restrictive management package was available. "The concern is not merely disagreement with the panel's conclusion. Rather, it is that the decision may be internally imbalanced: the factors favouring release are recognised, but not substantively weighed in a way that explains why confinement remained necessary notwithstanding them. "The panel relied on a series of matters said to evidence instability, including: · alleged Subutex use and withdrawal; · possession of syringes; · refusal to attend MDT; · food refusal; · abusive language towards nurses; · deceptive social media conduct; and · aspects of prior conduct in open conditions. "However, the decision also records that a number of these matters were disputed by [the Applicant], including alleged substance misuse, alleged abusive remarks to nurses, and other aspects of recent behaviour. It also records, in relation to earlier matters at [a prison], that allegations of assault on officers appeared not to result in police investigation or adjudication. "It is submitted that the panel was of course entitled to assess disputed evidence, but procedural fairness requires clarity as to what findings were actually made and on what basis. The decision refers to disputed conduct in a manner that appears to fold allegation and proof together, without always identifying whether the panel found each matter proved, partly proved, or simply concerning regardless of proof. That is arguably material because those incidents were relied upon as central evidence of instability and insufficient insight. "The point is especially important where the panel also relied on [the Applicant] "minimising" behaviour and denying incidents where direct quotes were attributed to him. If the underlying incidents were themselves disputed and not clearly resolved, the use of those disputes to support a finding of minimisation may risk unfairness. "At paragraph 4.3, the panel placed weight on the description in the LISP4 [a document detailing why a prisoner is returned to closed conditions] of trousers, towels and shoes arranged to create the impression that [the Applicant] remained in bed, concluding from this that the abscond was planned and not impulsive. "However, elsewhere in the decision the circumstances of the abscond are described in more complex terms: [the Applicant] said he had been given a tablet by another prisoner, there was an inappropriate sexual proposition, he experienced feelings linked to the index offence, and chose to put distance between himself and the other prisoner rather than create conflict. He described not knowing where he was, sitting on a bench until daylight, and the incident was previously summarised as arising in a context of emotional dysregulation. "The panel was plainly entitled to regard the abscond as highly significant. However, if that incident was relied upon as powerful evidence of current inability to comply in the community, there is an arguable need for fuller reasoning as to why the planning inference should decisively outweigh the substantial subsequent work undertaken, the professional release recommendations, and the current proposed controls. The issue is not whether the panel could rely on the abscond, but whether the decision sufficiently explains the weight attached to it in the context of the current evidence. "The panel correctly directed itself that release requires satisfaction that confinement is no longer necessary for the protection of the public and that there be no more than a minimal risk of a further serious-harm offence. "However, the operative reasoning arguably focuses predominantly on: · historical seriousness; · past abscond; · recent instability in custody; and · perceived deficits in insight, without fully grappling with the distinct question of whether the current risk was manageable in the community by the proposed structure and controls. "This is particularly so where the panel accepted the risk management plan was robust yet did not explain, in concrete terms, why that plan would not manage the identified warning signs and risks described by the COM. "It is therefore submitted that the reasoning may not sufficiently bridge the gap between accepted concerns and the legal conclusion that continued confinement remained necessary. "For those reasons, it is submitted that the decision refusing release is arguably irrational and/or procedurally unfair and should be reconsidered under Rule 28." Background[6]In 2001 the Applicant, then aged 17, was convicted of murder. He was sentenced to life imprisonment with a minimum term to be served of 15 years and 1 day. His tariff expired in June 2016. In February 2022 he absconded from open conditions and was arrested the next day. In April 2023 a Parole Board panel declined to direct his release. Current parole review[7]His case was again referred to the Parole Board in November 2023 by the Secretary of State for Justice (the Respondent).[8]The case was directed to oral hearing by a Parole Board member on 10 th May 2024. The Relevant Law[9]The panel correctly sets out in its decision the test for release. 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)). Irrationality 12.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. 13.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. " 14.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). 15.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. 16.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. 17.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 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. The reply on behalf of the Secretary of State 21.The Respondent has, on 31 st March 2026, stated that he will not be submitting representations in response to the application. Discussion Procedural irregularity[22]This ground is based on the assertion that the decision lacked precision when dealing with individual incidents which had been alleged to have occurred in the recent past and suggests that each such alleged incident should have been subjected to the sort of scrutiny and "verdict" as individual charges or counts in a criminal trial. 23.This assertion is flawed. The parole process is incapable of conducting "trials" concerning individual allegations which would often require the calling of witnesses and individual findings "on the balance of probabilities". 24.It is clear that the panel listened carefully to the evidence concerning the allegations and having done so were entitled to conclude that the number and nature of them was sufficient for them to be put into the balance when reaching its overall conclusion on release/no release. Irrationality 25.a) This is the principal ground advanced. I summarise the lengthy grounds quoted above: i. The POM and COM supported release. ii. The decision accepted that the proposed risk management plan (RMP) was "robust ", and, iii. that there had recently been a period of "stability " in the Applicant's behaviour. iv. Various incidents alleged to have occurred in the recent past - many of which were disputed by the Applicant - were not subjected within the decision to the individual consideration they should have received with "verdicts" being returned on each of them. v. Although accepting that the psychologist witness did not recommend release the decision failed to explain rationally why it declined to direct release. vi. The panel's treatment of the Applicant's admitted absconsion from prison failed properly to explain why the mitigation advanced and the work done since his return to closed conditions, together with the recommendations of both the POM and the COM, did not result in a direction for release. b) The decision focuses too much on the past and too little on the present and predictable future behaviour of the Applicant. c) The decision does not sufficiently explain why, in spite of what it accepted was a "robust" RMP, that plan would not be capable of identifying an increase in the risk of serious harm in time for the Applicant to be prevented from causing such harm. Decision 26.As to the specific matters raised in paragraph 5 and summarised at paragraph 25 above: a) i. The grounds concede that unanimity from the POM and COM cannot be decisive at a parole hearing, when another professional witness disagrees with their recommendation. ii. The robustness of an RMP cannot of itself prove that the risk a person may present is manageable. iii. The panel was entitled to conclude - at paragraph 4.4 of the decision - that a short period of recent stability against the background of the Applicant's criminal record and the index offence was not sufficient to justify a finding that the risk he now presented was "less than minimal". iv. The decision at paragraph 4.6 explains that while the external factors - the RMP - may well be the best such plan that can be devised at the moment, the Applicant's insight into and understanding of his internal factors is still largely untested; see paragraph 4.5 of the decision. That is not an irrational inference based on recent incidents described in the earlier paragraphs of the decision. v. The decision (at paragraphs 2.20-2.23) summarised the evidence of the psychologist and her reasons for not recommending release. No criticism is made - no doubt for good reason - of her evidence or of the way in which her evidence is summarised. Likewise, paragraphs 4.3-4.7 of the decision explain clearly why the Applicant's internal factors, as explained by the psychologist and evidenced by recent behaviour in prison, persuaded the panel not to direct release. The reasoning adopted could certainly not be described as irrational. vi. The panel clearly considered the period since his recall - see paragraph 4.4 in particular - but was entitled to conclude that, as so often in the past, positive progress was matched by negative features and a concern that the relationship on which he placed such weight in support of his application for release was "largely untested and he needs to demonstrate more resilience and stability over a longer period of time". b) Past behaviour - including of course the index offence and any previous criminal record as well as the very recent past - is a relevant indicator of the existence or otherwise of the risk now to be considered by the Parole Board. Although the index offence is now very old it cannot be ignored if only as the reason why the Applicant has spent so much of his life in prison. It is clear too that very recent behaviour (see paragraphs 2.16 and 2.17) played an important part in the reasoning behind the eventual decision. c) This ground is the strongest of those presented. Another panel may have concluded - as the ground suggests - that any increase in the risk presented by the Applicant would likely be identified before the risk became a reality. However a sudden loss of temper by a man like the Applicant, who is by nature both strong-willed and inclined to certainty that his opinion is correct, would likely lead to serious injury whether to himself or another. And the deceptive behaviour and the conclusion recorded by the decision at paragraphs 2.17-2.19 were clearly - and rightly - an important consideration for the panel. 27.Accordingly, while it possible that another panel may rationally have reached a different conclusion, the decision falls far short of being "irrational" within the meaning defined at paragraphs 12-17 (in particular paragraphs 16 and 17) above. 28.This application is therefore refused. Sir David Calvert-Smith 05 May 2026