Shepherd, Application for Reconsideration [2026] PBRA 8 (08 January 2026) [2026] PBRA 8

PBRA

Shepherd, Application for Reconsideration [2026] PBRA 8 (08 January 2026)

[2026] PBRA 8 · 2025-11-20

[1]This is an application by Shepherd (the Applicant) for reconsideration of a decision of an oral hearing panel dated 20 November 2025 not to direct release and to make no recommendation for open conditions.

[2]Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2025) 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

[3]I have considered the application on the papers. These are the application for reconsideration; the decision dated 20 November 2025 and the dossier that numbered 649 pages including the decision. Request for Reconsideration

[4]The application for reconsideration is dated 2 December 2025.

[5]The grounds for seeking a reconsideration are as follows: a) Error of Law b) Irrationality c) Procedural Unfairness

[6]I will provide details of each ground as submitted in the representations under the heading ' Discussion ' below in order not to be repetitive. Background

[7]The Applicant is serving a sentence of imprisonment for public protection (IPP) imposed in 2010 for the offence of Robbery. He was sentenced at the same time for the offences of intimidating a witness or juror and escaping from lawful custody. His tariff was reduced on appeal to 3 years and six months, and this tariff expired in January 2014. He has been released on licence on four occasions and returned to custody each time. Since his conviction for the index offence, he has been convicted of further offences. In July 2020 he was convicted of the offence of using threatening, abusive insulting words or behaviour with intent to cause fear or provocation of violence. He was given a conditional discharge of 6 months for this offence. The most recent conviction was in March 2024 for resisting/obstructing a constable, for which he received a fine. Current parole review

[8]The Secretary of State (the Respondent) referral is dated July 2025. This is an updated referral as the Applicant was also eligible for consideration of unconditional release, something that was not included in the original referral. The unconditional release is not the subject of this reconsideration and will not therefore be considered. The referral under consideration is the first since the Applicant's fourth recall. The Applicant was 38 years old at the time of the decision.

[9]The oral hearing panel consisted of two independent members. Other than a dossier of 618 pages, the panel also considered written closing legal submissions dated 18 November 2025 and the following additional material. This additional material included: · A 999 recording of an alleged intimate partner violence incident with his partner; · Body worn video footage of the Applicant being removed from his partner's address and arrested by the Police; · CCTV footage of the Applicant attacking a male at a public house resulting in the victim being knocked unconscious; · A shorter version of the CCTV footage.

[10]The oral hearing panel heard oral evidence from the Applicant's Prison Offender Manager, Community Offender Manager and a prison psychologist who had undertaken a psychological risk assessment on the Applicant. The Relevant Law

[11]The panel correctly sets out in its decision dated 20 November 2025 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)

[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

[21]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.

[22]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;

(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.

[23]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]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. "

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, by email dated 15 December 2025 declined to make any submissions in response to the application. Discussion

[29]I will deal with the grounds as they are submitted in the reconsideration application. There will be some repetition.

[30]Before considering the grounds, it will be helpful to provide some details of the incidents that were considered by the panel, as the focus of the application is in relation to these incidents.

[31]The Applicant was released on licence for a fourth time following a decision of the Parole Board in April 2023. He was recalled after he was arrested for two separate matters which were said to have taken place on the same evening. The first was an incident in a public house where violence was used. The second was an allegation of intimate partner violence, the alleged victim being the Applicant's partner. Both allegations were discontinued by the police, although after the earlier allegation of a s18 assault (at the public house) was discontinued, the police then investigated the Applicant for a possible Affray offence, this was also dropped due, it is understood, to the matter being out of time. The Applicant was convicted for obstructing a constable as indicated above.

[32]Error of Law: The application submits that the decision not to release the Applicant contained an error of law. The issues under this ground focused on the panel's assessment of the incident in the public house. The submissions stated that detailed written submissions had been provided to the panel as to " the legal test to be applied when considering whether actions were to be considered as in self-defence" .

[33]The dossier and decision provide information about the public house incident. There are a number of police reports. I have read these, including the signed witness statement of the alleged victim, ' M '. In summary, M admits to being " very drunk " and fighting with a number of customers that evening. He was later assaulted and knocked unconscious by the Applicant. It appears M's brother told him that during the fights or " squabbles " he had in the public house he had a confrontation with the Applicant's partner, and at that time he was struck violently by the Applicant and was knocked unconscious. M subsequently indicated that he did not wish to press charges as he took responsibility for his own poor behaviour. It appears that while the initial police investigation was for a s.18 assault (an allegation of serious violence) this was discontinued when M dropped his complaint. He was then charged with a public order offence, but this was withdrawn for being out of time.

[34]The submissions in the application state that the panel failed to take into account the Applicant's evidence that although he accepted that he had acted violently and, in the way described, he did so in self defence and the panel should have applied the common law test in regard to self-defence. I note that in their written closing submissions to the panel, the legal representatives state that the Applicant acted in what he believed was self defence to protect his partner and the force that he used was " necessary" in the context of that situation. The submissions also indicate that having viewed the CCTV video of the incident, the Applicant now realised that his partner had struck M first, and in hindsight he realised the risky nature of the situation and that he could have used alternatives. It is also stated in those closing submissions that the Applicant fully accepted his actions in the public house.

[35]I considered whether I needed to watch the CCTV footage myself but at no time are the actions taken by the Applicant as stated in the decision denied. I note from the decision that the Applicant was shown in the CCTV assaulting M, after which his partner also joined in. The decision goes on to state that the Applicant then " intervened again, punching the male twice ...rendering him unconscious" . The Applicant then kicks the male to the head while he was unconscious on the ground and was pulled away by others. Minutes later he is seen to attack another male. The panel took evidence from the Applicant who stated that he was not himself under the influence of alcohol at the time, but his partner was. He accepted that he had acted violently towards M but had " no choice" as M was involved in a confrontation with his partner.

[36]As I noted above, the closing submissions ask the panel to consider that the force used by the Applicant was both in self-defence and necessary. I note that the law on self-defence does allow a person to use force to protect themselves or another person. However, it is qualified in that a person is allowed to use ' reasonable force' . The application also submits in a footnote the relevant caselaw including R v Williams (Gladstone) [1983] EWCA Crim 4 .

[37]The decision does not refer to these submissions on self-defence. It is accepted that where detailed submissions on a particular matter are related to the review, a panel should consider these and do so explicitly.

[38]Having accepted that, however, I consider that the panel did in fact consider the Applicant's argument of self-defence. It is clear in several paragraphs in the decision that they heard the Applicant's evidence that he had been mistaken in his belief that his partner was under threat sufficient to require his taking action, and his evidence that the force that he had used was necessary, and that he had not known that the victim M was unconscious when he stamped on his head. All these issues are fully explored in the decision.

[39]The panel then very clearly explains its own stance on the extent of violence used, in that it disagreed that the Applicant did not know or could not have known that the victim M was unconscious when the Applicant stamped on his head.

[40]I note that the panel also indicate that the Applicant then tried to assault others before others intervened.

[41]For these reasons, although not explicitly stated, I find no error in law in that the panel did not consider the argument of self-defence.

[42]I should also add that even had I found that there had been an error in law in this particular case, that is to say if I had accepted that there is merit in the reconsideration application on this ground, I still would not have granted reconsideration in this case. I am reminded that reconsideration is a discretionary remedy (see paragraph 27 above). The decision was a justified and reasonable one for the following reasons:

[43]The panel took full evidence from the Applicant about his stance on self-defence, and came to a reasoned and, in my view, reasonable decision that: · The Applicant went to the public house knowing (as he admitted to the panel during the hearing) that this was a venue that had a reputation for fights, thereby putting himself in a risky position when he was on licence; · That he was seen to undertake and has admitted to undertaking a serious attack on another person at that pub; · That even when the other person was clearly knocked down by the Applicant, the Applicant was then seen to stamp on his head. The decision records that the Applicant told the panel that he did not know that the victim was unconscious when he stamped on his head. The decision states that the panel disagrees with the Applicant in that the CCTV shows, "it is quite clear that after the second blow to his head, the victim falls face down to the floor and is entirely motionless when [the Applicant] stamps on him". · The panel considered the Applicant's evidence to them that the force that he used was necessary in order to defend himself and his partner. The panel comments on this that it is satisfied, having viewed the CCTV evidence, that the Applicant "engaged in a serious violent assault ...which went well beyond what was required to reduce any threat to himself or his partner, particularly as other people had already intervened to separate them ". The panel then goes on to state that the CCTV evidence shows that the Applicant "then went on to assault another male, and the attacks were only stopped due to the intervention of others" .

[44]Furthermore, relevant to their decision, the panel considered other factors relating to the Applicant's behaviour while on licence. These are not referred to in the reconsideration application but in my view provide sufficient additional evidence as to why the panel came to its decision. These include an allegation of domestic violence, also not proceeded with by police; allegation that the Applicant attempted to evade arrest and an allegation that he assaulted an officer during the pursuit following the domestic violence incident. The Applicant was convicted of resisting arrest. The panel is clear that they were unable to make any findings of fact regarding an allegation of assault - either domestic violence or police related. However the panel did find that, taking his own evidence into account, the Applicant displayed deficits in his thinking skills, and the panel was also concerned about his noncompliance with the police when they attempted to arrest him. The panel also took into account evidence of substance abuse while in the community, which was more significant than he had earlier disclosed.

[45]I am also reminded that the test that the Parole Board panel had to consider was not whether or not the Applicant had a defence to the force used. The relevant test for the Parole Board is an entirely different one.

[46]The duty of a panel of the Parole Board emanates from the referral of the Respondent in this case to consider re-release on licence (or failing that recommendation for transfer to open conditions, not the subject of this reconsideration). There is a very detailed codified test that the panel must consider. This legal duty is the first consideration of any panel. A panel must apply the codified test for release. This public protection test requires the panel to consider whether the panel is satisfied that there is no more than a minimal risk of serious harm should a prisoner commit a further offence. The panel is also required to take into account previous relevant offending (in this case violent offending) and likelihood of compliance on any future licence. I paraphrase a long and fairly complex test for the purposes of this discussion. In this case, the panel found, in summary, that: · The extent of violence used by the Applicant was unjustified, especially when he stamped on the victim's head when he was already on the ground, motionless; · His actions in going to a venue that he knew (which he admitted) was where fights regularly took place indicated a failure to consider the risky situation, he was putting himself in; and that he continued to attempt to fight when others tried to intervene.

[47]These findings are highly relevant to the codified public protection test. I do not find any error of law.

[48]I now turn to the ground of Irrationality: The application states that the decision not to release the Applicant was irrational because it came to the conclusion that the Applicant needed to undertake further core risk reduction work in light of the " serious violent assault" (from the decision) that he had committed, and repeated the complaint of the earlier ground of the panel being in error in law. I have already dealt with the issue of error of law and will not revisit it. The application further states that the panel focused on the amount of force used by the Applicant and not the necessity (as argued by the Applicant) of using the force. The Application states detailed legal submissions were not considered.

[49]I reject the assertion that there was a duty for the panel to consider the necessity of the Applicant in using the force as a factor in deciding about the amount of force used. I rely on a section of the codified test for release which states:

"public protection decision", in relation to a prisoner, is a decision as to whether the decision-maker is satisfied that it is [not necessary, or no longer necessary,] for the protection of the public that the prisoner should be confined. "

The decision-maker must not be so satisfied unless the decision-maker considers that there is no more than a minimal risk that, were the prisoner no longer confined, the prisoner would commit a further offence the commission of which would cause serious harm."

[50]The panel clearly considered the violence, as admitted by the Applicant and seen though CCTV recording during the incident at the public house. The panel came to the conclusion that the violence was of a serious nature (more than a minimal risk of harm). I cannot find fault with the panel's reasoning or its explanation for its conclusion.

[51]I do accept that the decision might have more clearly stated that the legal submissions had been considered and in what way. However, in my view this is not a fatal flaw in the panel's decision. It considered the amount of force used. For this it had good evidence in that it could see the Applicant's actions. It pointed out the use of continued violence after the assaulted victim was knocked out by the Applicant and found that stamping on the head of someone who is down was not necessary. This consideration is the key one for the public protection test.

[52]Under this ground the Application also argues that the panel took evidence from the professionals that core risk reduction work had been completed, and that further work recommended was not core work. The Application states that the panel did not explain why they disagreed with the professionals' assessments. I accept that if a panel does disagree with professional recommendations and opinions, they should explain their reasoning. I considered the decision carefully and I am satisfied that the panel did explain its reasons for disagreeing with the recommendations of the professionals. The panel stated:

" Based on his violent conduct in the community, the panel is not satisfied that [the Applicant] has evidenced an ability to recognise high risk situations or manage his tendency to resort to violence. The accredited interventions undertaken have not proved effective in reducing risk and in the panel's view, outstanding core risk reduction is required to increase [the Applicant's] internal controls, without which, the external controls of the risk management plan are not assessed as sufficient to manage risk in the community "

. All these points were raised with the professional witnesses, and their replies are summarised in the decision. The panel then explained its own position in relation to these points.

[53]In its conclusion the panel states a number of remaining concerns relating to the Applicant's risks. These included (but are not limited to): · The seriousness of the index offences and his past violent offending; · The assessed levels of risk (high risk of causing serious harm); · The identified risk factors; · The circumstances of his four releases and subsequent recalls to custody; · The alleged further offending (not restricted to the public house incident); · The panel's finding that he caused serious harm through the use of violence during his last release.

[54]The panel goes on to state concerns about imminence of risk and poor confidence that the Applicant had the internal strategies to manage his risk. The panel after having gone through these concerns, then specifically state it " therefore disagrees with the views of professionals that all core risk reduction work has been completed and assesses there is a need for further intervention ." In my opinion the panel has considered all the reasons provided by the professionals for their release recommendation and provided their own opinion, taking all the evidence into account. This was not an irrational decision.

[55]I turn now to the last ground of procedural unfairness: The application states that there is no evidence that the panel applied the legal issues (as provided in legal submissions) that the panel should take into account in the Applicant's case. In my view these have already been aired. I have already dealt with the submission that the argument for self-defence should have been fully considered by the panel. I do not consider it necessary for me to consider the matter again under another ground for reconsideration.

[56]In conclusion and in general, I accept the argument made in the application that legal submissions should not be ' skirted or ignored' . I do accept that the panel could have more explicitly stated the legal submissions and made their position in relation to them clearer. I do not accept that this failure is fatal in relation to this decision for the reasons that I have given. Decision

[57]Refusal - For the reasons I have given, I do not consider that the decision was wrong in law, irrational or procedurally unfair and accordingly the application for reconsideration is refused. Chitra Karve 08 January 2026