Aslam, Application for Reconsideration [2026] PBRA 78 (14 April 2026) [2026] PBRA 78

PBRA
Aslam, Application for Reconsideration [2026] PBRA 78 (14 April 2026)
[2026] PBRA 78 · 2026-02-26
[1]This is an application by Aslam (the Applicant) for reconsideration of a decision of an oral hearing panel dated 26 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 18 March 2026.[5]The grounds for seeking a reconsideration are set out below. Background[6]The Applicant's index offences consisted of a conviction for an offence of sexual assault and offences relating to possessing indecent images. So far as the sexual assault is concerned the victim was a young boy. The sexual assault was in a familial environment. The Applicant sexually touched the boy and also placed the boy's penis in his mouth. On arrest for this offence the Applicant was found to have sexual images of children on a device. The Applicant denied the offending against the child but was convicted after trial. At the sentencing hearing the Applicant admitted committing the offences. The Applicant had said that he had initially denied the offences as he did not want his family to judge or reject him. The sentencing judge commented upon the fact that the Applicant had put the child through a " highly stressful and acutely embarrassing experience of giving evidence in a Crown Court trial" .[7]The Applicant denied at the time, and continues to deny, that he is sexually attracted to male children. His explanation for the offending was that he had viewed pornography and had taken alcohol.[8]The Applicant received an extended sentence of imprisonment which consisted of a custodial term of 10 years and extension period of five years. He was released automatically in June 2023 and recalled 18 days later following a breach of his licence conditions. The Applicant's sentence expires in May 2028. Current parole review[9]The referral from the Secretary of State requested that the Parole Board consider whether the Applicant should be directed for release. The Applicant was aged 39 at the time of sentencing. He was aged 50 at the time of the oral hearing.[10]The panel hearing took place on 25 February 2026. The panel consisted of an independent chair of the Parole Board and a further independent member of the Parole Board. The panel considered a dossier in this case. Evidence was given by a Prison Offender Manager (POM), a Community Offender Manager (COM) and a prison instructed psychologist. The Applicant also gave evidence and was legally represented. The Relevant Law[11]The panel correctly sets out in its decision dated 26 of February 2026 the test for release. Parole Board Rules 2019 (as amended)[12]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)).[13]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)).[14]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[15]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.[16]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. "
[17]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).[18]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.[19]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.[20]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[24]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.[25]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[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. "
[28]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[29]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[30]The Respondent offered no representations. Grounds and Discussion Ground 1[31]The Applicant's legal adviser submits that the Applicant suffered procedural unfairness because certain material was not contained within the dossier. The material referred to was detailed logs and written work undertaken by the Applicant while he was completing a program called Living as New Me (LNM). The particular concern was that the Applicant's legal adviser submits that the panel found that the Applicant demonstrated limited insight and failed to express empathy towards the victim. However it is submitted that he had undertaken work during the LNM programme related to victim empathy. It was therefore submitted that the written work of the Applicant would be evidence that he had undertaken work in relation to victim empathy. Discussion[32]The dossier in this case was reasonably substantial. One of the documents in the dossier was a progress review in relation to the LNM programme. The review was written following a meeting with the Applicant and the programme delivery team. The progress review summarised the work that had been undertaken by the Applicant and the progress that he had made in the various programme modules.[33]Although the granular detail of individual course and programme work can be of interest, it is unusual for course materials and a prisoner's working documents to be included within the dossier. The assessment of a prisoner's response to any particular undertaking is usually recorded in the form of a summary from the course providers followed by an independent assessment and reflection by a psychologist. In this case the psychologist specifically included within the appendix to the psychological report the fact that the LNM records had been accessed and considered as collateral sources of information. The panel were therefore in possession of both the course provider's progress review and an independent assessment by a psychologist of the work undertaken by the Applicant.[34]In the light of the availability of this information I am not persuaded that the panel would have been any further assisted by the individual course work. The panel's role is to take a holistic view of all the elements relating to risk assessment. Panels will rely upon professional reviews of work undertaken by prisoners and will also use the panel hearing itself as an opportunity to invite the prisoner to illustrate the gains from the particular work.[35]The Applicant's legal adviser also candidly accepts that neither the Applicant nor his legal adviser in fact requested that the course material be uploaded to the dossier. Although I am not persuaded that the Applicant's coursework would have added to the available reviews on the dossier, the Applicant and his legal adviser would have been at liberty to request that material either in advance of the hearing, or indeed during or at the hearing.[36]It is also the case that considerations of procedural unfairness apply to the material which was available to and presented to the panel at the time of the oral hearing. Omitting to place material before a panel is not a ground for procedural unfairness as noted above and for the reasons noted above. I am not therefore persuaded that this ground amounts to procedural unfairness in the sense set out above. Ground 2[37]The Applicant's legal adviser argues that the decision suffered from an error of fact. The error of fact was said to be the indication by the panel that a programme undertaken by the Applicant, Becoming New Me Plus (BNM+), included only a single module relating to sexual offending. It is submitted that the panel were incorrect because the Applicant engaged in "multiple structured exercises addressing sexual offending" . Discussion[38]The panel's wording (in their decision) in relation to the comments referred to above were that the BNM+ programme included " one module (out of twelve) where the participants were required to reflect on the causes of their sexual offending ." The BNM+ programme consists of 12 intervention blocks. One block (Block 8) is entitled " Managing my Sexy thinking " and focuses upon "not OK " thinking about sex. The programme is strengths based and relies heavily upon the psychological concepts of " Old Me and New Me ". The programme is targeted at offenders with convictions for a contact sexual offence.[39]In the light of the fact that the programme was specifically directed towards offenders with sexual convictions, it is highly likely that issues relating to sexual misconduct were covered in other parts of the 12 module programme. However, in terms of factual accuracy, the panel accurately reflected the fact that only one module actually focuses upon the concept of inappropriate sexual thinking. I am not therefore persuaded that this ground amounts to evidence of a mistake of fact. The panel were commenting upon their view of the effectiveness or otherwise of the intervention undertaken by the Applicant. The panel specifically indicated that they took the view, from the evidence in the dossier, and adduced in the hearing, that the Applicant did not have " a full understanding of why he [the Applicant] committed the sexual offending, issues around sexual interest, potential sexual attraction to boys and sexual preoccupation ... and that this remained an area of ongoing risk and outstanding treatment needs ".[40]I am not therefore persuaded that the panel misunderstood the nature of the work that had been undertaken by the Applicant or that the comment by the panel amounts to a mistake of fact. Ground 3[41]The Applicant's legal adviser submits that the panel acted irrationally in rejecting the opinion of the prison instructed psychologist and the POM, both of whom supported a direction for release. The Applicant's legal adviser notes that these two professionals took the view that the risk of imminent sexual offending was low and that the Applicant could be safely managed in the community. The Applicant's legal adviser challenges the decision of the panel to reject the evidence of the psychologist " who is the specialist assessor of sexual risk ". Discussion[42]This was a case where there was a divergence of opinion in relation to professional recommendations. The Applicant's COM did not support a direction for release. The POM and the prison instructed psychologist took the view that the Applicant could be safely released. So far as risk measurement tools were concerned the tools predicted that the Applicant's probability of contact sexual reoffending and image reoffending and general violent reoffending was at the medium level. The Applicant's COM took the view that the statistical tools may not accurately reflect the risk because of the fact that the Applicant had disclosed a number of areas of offending which did not result in convictions which would not have been included within any actuarial assessment. The assessment tools also indicated that the Applicant presented a high risk of serious harm to the public and children in the event of the commission of a further offence.[43]The prison instructed psychologist applied an additional assessment tool, namely SVR-20 (V2). The conclusion of the psychologist was that " the imminence of sexual reoffending " was low and that the Applicant had engaged in all core risk reduction work and that he had applied his learning to previous offending behaviour.[44]The Applicant's COM conceded that the Applicant had shown a willingness and ability to engage with professionals, however the COM took the view that the Applicant had not yet acquired the skills to manage his own emotions and react to them. The COM therefore took the view that the Applicant's risk could not be safely managed in the community. Although the Parole Board referral did not include the option of a recommendation relating to an open prison, the COM suggested that the Applicant would benefit from a period in an open prison where he could demonstrate his ability to manage his emotions and risks in the supervised environment of an open prison.[45]The panel's role was to take a holistic view of the evidence presented at the hearing. The panel took the view that the external controls that were being suggested, namely the risk management plan (RMP) and possible interventions with his COM, were robust. However, the panel were not satisfied that the Applicant's internal controls were sufficient to self-manage his risk. The panel noted that external controls alone would not be sufficient and it was necessary for the Applicant to demonstrate insight into his own risk factors and warning signs. The panel took the view, based upon the evidence received at the panel hearing, and within the dossier, that the Applicant had limited insight into these risk factors. The panel also noted that the Applicant's evidence of compliance was poor (as indicated by the circumstances of the recall) which had occurred within a short time of his release.[46]The panel were obliged to consider the Applicant's risk for the foreseeable future and beyond the sentence expiry date. The panel took the view that the limited internal controls demonstrated by the Applicant meant that his risk of serious harm could not be managed safely in the community, particularly taking into account the need to consider risk over the longer term.[47]The factors taken into account by the panel in reaching their conclusion were(1) the historical evidence of the Applicant's use of violence and the carrying of a knife and the evidence of violence within intimate relationships,(2) the evidence of the index offence itself which indicated the potential of a sexual attraction towards male children and the potential for a breach of trust,(3) concerns regarding compliance and in particular the extremely short period that the Applicant was in the community before he breached licence conditions and was recalled, and(4) as noted above the panel took the view that there was insufficient evidence that the Applicant had developed internal controls which would be essential to manage risk in the community.[48]Panels of the Parole Board are not obliged to adopt the opinions and recommendations of professional witnesses. It is their responsibility to make their own risk assessments and to evaluate the likely effectiveness of any RMP proposed. They must make their own minds up on the totality of the evidence they hear, including any evidence from the Applicant. They would be failing in their duty to protect the public from serious harm (while also protecting the prisoner from unnecessary incarceration) if they failed to do just that. As was observed by the divisional Court in DSD they have the expertise to do it.[49]However, it is important that a panel should explain clearly its reasons for reaching a decision which is contrary to the opinion or recommendation of a professional witness. Its reasons should also sufficiently justify its conclusions as per R (Wells) above. In this case it is clear that the panel assessed with care the competing evidence in this case. The major concern was that, on the basis of the evidence adduced at the hearing, and the views of the COM in this case, the panel concluded that the Applicant had insufficient insight into his offending behaviour to safely manage his risk in the community.[50]Where a panel arrives at a conclusion, exercising its judgement based on the evidence before it and having regard to the fact that they saw and heard the witnesses, it will 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.[51]In this case there were diverging views as to the management of the Applicant's risk in the community. The panel explained the reasons why they rejected the views of the witnesses who were supporting release. The panel also explained the reasons why they took the view that the test for release had not been met in this case. I am not therefore persuaded that the panel acted irrationally in reaching their conclusion. Ground 3a[52]It is also submitted that the risk assessment tools indicated a medium risk associated with the Applicant and therefore, by implication, his risk could be safely managed in the community. Discussion[53]The panel in this case accepted that the static risk assessment tools in general terms indicated a medium risk associated with the Applicant. The assessment tool in relation to assigning a risk of serious harm (ROSH) indicated that the level was high. "High" is defined as a situation where " there are identifiable indicators of the risk of serious harm, the potential event could happen at any time and the impact would be serious."[54]This assessment was also supported by the prison instructed psychologist who indicated (using the language of imminence) that the risk of harm was " not imminent".[55]Risk assessment tools are a fundamental factor in overall risk assessment by panels of the Parole Board, however as indicated above the Parole Board are obliged to take a holistic view of risk which involves not only the assessment of tools and levels of risk but also an assessment of collateral evidence which includes evidence from the prisoner, evidence of factors such as unconvicted offending, evidence of the acceptance or otherwise of offending behaviour and an insight into, and understanding of, risk scenarios.[56]It is clear from a reading of the decision that these factors were considered by the panel and that an overall conclusion was reached on the basis of factors beyond risk assessment tools. I am not therefore persuaded that the panel acted irrationally in their assessment of the risk assessment tools presented at the hearing. Ground 3b[57]It is submitted, by the Applicant's legal adviser, that the panel decision "introduces a circularity that is inherently problematic". The submission is that the panel concluded that risk would only reduce following a period of successful testing in the community, but were unprepared to direct the Applicant's release, thereby leaving him in a position where he was unable to prove his reduced risk. Discussion[58]It is well understood that panels of the Parole Board are obliged to focus upon the public protection test. A panel would not be acting appropriately if it directed release of a prisoner in order to facilitate a "test" of the risk of serious harm to the public in the community. The clear obligation of the panel is to be satisfied that the codified public protection test is met before a prisoner's release. The COM in this case had suggested that there may be a possibility of the Applicant moving to an open prison, however that decision will be entirely one for the prison service and did not form part of the panel's referral. Again, I am not persuaded that the panel's decision in this case could be characterised as irrational. Decision[59]For the reasons I have given, I do not consider that the decision was irrational/procedurally unfair and accordingly the application for reconsideration is refused. HH S Dawson 14 April 2026