Bernard, Application for Reconsideration [2026] PBRA 90 (28 April 2026) [2026] PBRA 90

PBRA
Bernard, Application for Reconsideration [2026] PBRA 90 (28 April 2026)
[2026] PBRA 90 · 2026-03-20
[1]This is an application by Bernard (the Applicant) for reconsideration of a decision of a Parole Board panel member dated 20 March 2026. The decision 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, the decision of the panel and the representations by the Secretary of State (the Respondent). Request for Reconsideration[4]The application for reconsideration is dated 8 April 2026.[5]The grounds for seeking a reconsideration are set out below: Background[6]The Applicant is serving an extended determinate sentence comprising of a determinate period of seven years and an extension period of three years. The index offences were causing grievous bodily harm with intent (S18) and common assault. The Applicant was aged 41 at the time of sentence. He was 46 at the time of the panel decision. The Applicant became eligible for parole on 5 June 2025 and is due for a conditional release in October 2027.[7]The facts of the index offence were that the Applicant assaulted the female victim causing serious injuries consistent with grievous bodily harm. The victim suffered a ruptured spleen, internal bleeding and a broken rib. On the day of the index offence the police were called to an address. They spoke to the victim she said that she had suffered from a fall. The victim later told the police that she had met the Applicant three weeks before. The relationship had deteriorated fairly quickly, and the Applicant had moved into her address and then began to show signs of jealousy anger and paranoia. The victim indicated that she had been assaulted. The Applicant had indicated that he accepted that he had " struck out " at the victim as he did not like her taking drugs and drinking. He had also accepted that his actions might be seen as controlling but maintained that it was not his intention to be controlling. The panel noted that there was a pattern of jealousy and controlling relationships in the past. Current parole review[8]The referral from the Respondent requested the Parole Board to consider whether the Applicant should be subject to a direction for release.[9]The Parole Board panel consisted of a single member. The decision was made pursuant to a post member case assessment process. The member considered a dossier consisting of 489 pages. The dossier contained written representations on behalf of the Applicant as well as reports from the professionals. The Relevant Law[10]The panel correctly sets out in its decision dated 20 March 2026 the test for release. Parole Board Rules 2019 (as amended)[11]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)).[12]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)).[13]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[14]The power of the courts to interfere with a decision of a competent tribunal on the ground of irrationality was defined in Associated Provincial Houses ltd -v- Wednesbury Corporation 1948 1 KB 223 by Lord Greene in these words " if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere". The same test applies to a reconsideration panel when determining an application on the basis of irrationality.[15]In R(DSD and others) -v- the Parole Board 2018 EWHC 694 (Admin ) a Divisional Court applied this test to Parole Board hearings in these words at para 116 "the issue is whether the release decision was so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. "[16]In R(on the application of Wells) -v- Parole Board 2019 EWHC 2710 (Admin) Saini J set out what he described as a more nuanced approach in modern public law which was "to test the decision maker's ultimate conclusion against the evidence before it and to ask whether the conclusion can (with due deference and with regard to the panel's expertise) be safely justified on the basis of that evidence, particularly in a context where anxious scrutiny needs to be applied)". This test was adopted by a Divisional Court in the case of R(on the application of the Secretary of State for Justice) -v- the Parole Board 2022 EWHC 1282 (Admin).[17]As was made clear by Saini J this is not a different test to the Wednesbury test. The interpretation of and application of the Wednesbury test in Parole hearings as explained in DSD was binding on Saini J.[18]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.[19]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[20]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.[21]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.[22]The overriding objective is to ensure that the Applicant's case was dealt with justly. Error of law[23]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.[24]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[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]The Applicant submits that the Parole Board panel (in reaching its decision) inappropriately took account of evidence that the Applicant had been writing to females without discussing these contacts (from prison) with his Prison Offender Manager (POM) or Community Offender Manager (COM). The Applicant argues that the panel proceeded in the absence of evidence supporting the fact that he wrote the letters. Discussion[30]This ground arises in the context of the fact that it was reported by the Applicant's POM and COM that he had written letters to female prisoners and had not disclosed these contacts and the letter writing to professionals. In the context of the Applicant's index offence, which relates to the risk of serious harm to partners, the Applicant's COM and POM took the view that the Applicant should have disclosed these contacts, to ensure that those with whom the Applicant may have been in contact were aware of the Applicant's background and had the opportunity to receive disclosure of any potential future risks.[31]The Applicant submits under this ground that there should have been supporting evidence for the writing of the letters in the form of copies or other evidence before the panel (rather than notes of the concerns within reports of the POM and COM). The Applicant's appears to be indicating that the existence of the letters was in dispute.[32]Having perused the dossier, however, it is clear that the Applicant did not deny the fact that he had been in contact with female prisoners. He had told his legal adviser that one of the females was known to him in the community and that she had passed his details to other women with whom he had been in contact. He also told his legal adviser that he had ceased contact with the women before the matter was raised by his COM. This was noted in representations made by the legal adviser on 17 March 2025.[33]In the circumstances therefore the fact of contact with female prisoners and the fact of the absence of disclosing that contact appears not to be in issue. The concerns raised by the panel related to the fact that the Applicant had not been fully open about these contacts, in the context of the necessity for the Applicant to adopt a compliant and open relationship with professionals, particularly in the area of contact with females. I am not therefore persuaded that the content of any of the contact letters was material or relevant or that there was realistic dispute about the writing of the letters.[34]The relevance of the letter writing was the absence of open and honest disclosure by the Applicant. The Applicant correctly indicates that he has a right to contact members of the public and other prisoners by letter if he chooses. The point made by the panel and by the COM and POM was that, in the context of his index offence, and the fact that the Applicant would be under an obligation in the community to fully disclose such contacts - the absence of full disclosure was a matter of concern in the sense that it indicated both a lack of insight into the concerns of professionals and a potential for the Applicant to act in a similar way were he in the community. For these reasons I am not persuaded that this ground amounts to procedural unfairness or irrationality. Ground 2[35]The Applicant submits that he has completed " over 50 courses " whilst in prison. The Applicant therefore contends that it was irrational for the panel and the probation service to indicate that he had not completed sufficient behavioural interventions to address his risk. Discussion[36]This issue arises in circumstances where the decision of the panel indicated that the Applicant had not completed any accredited offending behaviour programmes during his sentence. It is conceded in the decision that (during his sentence) the Applicant had been the subject of changes in the recommended behavioural course appropriate to address his index offence.[37]The Applicant argues that he has completed a great number of courses during his sentence. Within the dossier, was a comprehensive list of courses and interventions that the Applicant had completed over the period up to the date of the panel decision. Although it was commendable that the Applicant had undertaken prison recommended courses, the reality was that the courses and programmes undertaken by the Applicant were in the main concerned with personal development and were not accredited or addressing his risk factors (particularly domestic violence). The Applicant did undertake a victim awareness course and some work in relation to drug misuse both of which would contribute, to an extent, to the Applicant's understanding of the management of his risk in the community.[38]The undertaking of risk related programmes forms only part of a holistic assessment of the risk of serious harm. The completion of accredited interventions are not a precondition for a direction for release, however, in this case the panel had no evidence that the Applicant had gained the skills and learning that might assist him in managing his risk of serious harm in the community. The completion of a high intensity accredited course would have contributed to the consideration of the management of the Applicants risk in the community.[39]I am not therefore persuaded that the panel acted unfairly or irrationally by taking account of the absence of evidence of risk related learning when making an assessment of the Applicant's current risk of serious harm. For that reason, I do not find that this ground meets the test for reconsideration. Ground 3[40]The Applicant argues that the panel were wrong to take account of the fact that professionals believed that the Applicant continued to use illicit drugs and that he has difficulty in controlling his emotions and (on occasion) is not honest. It is also argued that the Applicant has challenged a number of records of prison adjudications which he indicates were wrongly recorded in his records. Discussion[41]Having considered the panel's written decision in this case I note that the panel have not relied upon the use of illicit drugs while in prison as a factor taken into account in connection with assessing risk. However, the panel have noted that illicit drugs are a risk factor relating to the Applicant, particularly in the community. The risk factor is clearly linked to the Applicants index offence and the factual circumstances of that offence.[42]The panel's primary concern in this case was the fact that there was evidence of the Applicant having a poor relationship with staff in prison. He was reported as using threatening behaviour and being disrespectful towards staff. He is reported as pushing boundaries and using intimidating and manipulative behaviour towards female staff. The panel took the view that these factors impacted directly upon the potential for the Applicant's risk being managed under a risk management plan in the community. In essence it was suggested by the panel that the Applicant's risk could only be managed in circumstances where he was able to create a more stable and trusting relationship with professionals and to respond to disappointment in a less aggressive and confrontational manner.[43]As noted above the second issue cited by the panel was the fact that the Applicant is not able to demonstrate how he would manage his risk of serious harm particularly to partners and females in the community. One way of doing so would be the completion of accredited behavioural programs which may allow for evidence that the Applicant has the tools and ability to desist from violent behaviour towards partners and females in a community setting. The completion of behavioural programmes is not an essential, in terms of demonstrating reduction in risk, however the completion of accredited programmes can be a strongly persuasive factor in assessing risk generally.[44]The panel also took account of the fact that the Applicant has a pending case in the Crown Court relating to allegations of sexual violence. The panel could make no final assessment of these allegations until the case is completed. However, the panel appropriately indicated that if the allegations were proven either in court or by way of an assessment of the Parole Board panel pursuant to the case of Pearce, a Parole Board panel may need to reassess the risk factors associated with the Applicant. It may be that the issue of sexual violence would be an additional matter to be considered in terms of risk assessment.[45]So far as the challenging of the recording (in the dossier) of adjudications which have resulted in not being proved are concerned. It is commonplace for adjudications both proven and unproven being recorded in the dossier. The adjudication history may demonstrate a pattern of behaviour which a panel would be justified in taking into account.[46]I am not therefore persuaded that there is a basis under this ground to argue that the panel's decision was either irrational or procedurally unfair. Ground 4[47]The Applicant argues that he has never been issued with a " full report " from the prison or the probation service concerning parole. Discussion[48]The position regarding documentation and the issuing of copy dossiers is that the legal responsibility lies with the prison service. The Parole Board are not in a position to intervene in relation to the issuing of documents. It is noted however that the Applicant's legal adviser did not argue that there had been difficulty with the issuing of the dossier documents. The Applicant may be referring to other documents which he feels could or should be made available which would be beyond the remit of the Parole Board.[49]In the circumstances therefore this ground fails on the basis that the prime responsibility in connection with the issuing of documents to prisoners lies with the prison and not with the Parole Board. Decision[50]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 28 April 2026