How, Application for Reconsideration [2026] PBRA 91 (28 April 2026) [2026] PBRA 91

PBRA
How, Application for Reconsideration [2026] PBRA 91 (28 April 2026)
[2026] PBRA 91 · 2026-03-25
[1]This is an application by How (the Applicant) for reconsideration of a decision of an oral hearing panel dated 25 March 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 10 April 2026.[5]The grounds for seeking a reconsideration are set out below. Background[6]The Applicant is serving a sentence of life imprisonment for the offence of murder with a tariff of 19 years and six months. The Applicant was aged 53 at the time of sentence. He was aged 73 at the time of the panel hearing. The Applicant's tariff expired on 12 June 2025. The facts of the index offence were that the Applicant befriended the victim who was aged 74. They were staying in the same hotel. After a period of time together on an evening the Applicant resolved to rob the victim. He followed him into his room and struck him over the head. He then applied a pillow to the top and bottom of his face and applied pressure. The victim was found the next morning with six broken ribs and severe bruising. He had died as a result of asphyxia caused by smothering. The Applicant took the victim's belongings and cash and spent some on buying a car and on travel.[7]This was the Applicant's second review by the Parole Board. 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. The Applicant was at the time detained in an open prison.[9]The oral hearing panel consisted of an independent chair of the Parole Board accompanied by a further independent member of the Parole Board and a psychologist member of the Parole Board. Evidence was heard at the hearing from the Applicant's Prison Offender Manager (POM), the Applicant's Community Offender Manager (COM) and a prison instructed psychologist. The Applicant was legally represented at the hearing and gave evidence himself. The Relevant Law[10]The panel correctly sets out in its decision dated 25 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's legal adviser submits that the panel attached disproportionate weight to issues of breaches of licence conditions and compliance, which had occurred during the Applicant's period of time in an open prison. The specific incidents being(1) that he accepted a lift from his wife when he was on temporary leave in the community - which he was not permitted to do,(2) while working in a shop (on temporary prison leave) he had sold an item which he was not authorised to sell and(3) he had been involved in an issue about taking a small amount of cash from a charity jar while working on temporary leave. Discussion[30]As noted in the panel decision, the panel did take account of incidents which amounted to minor breaches of the Applicant's licence conditions while living in the open prison and on temporary leave in the community. The panel however acknowledged that individually the incidents were relatively minor in nature. However, the panel also indicated that these incidents demonstrated a propensity to break rules. In the context of assessing the effectiveness of future licence conditions the panel's overall conclusion was that the Applicant was " prepared to break the rules for his own benefit ".[31]Although the panel made reference to these issues. As is the norm, the panel took a holistic view of the assessment of risk, and of the application of the codified public protection test for release. Having considered the decision of the panel I am not persuaded that these minor incidents were decisive in terms of the decision of the panel. These incidents clearly added to the panel's overall concerns about the ability to manage the Applicant's risk in the community, however, on the basis of the written decision, I am not persuaded that the panel placed undue weight upon these matters.[32]The fundamental issues, which persuaded the panel that the test for release was not met, related to the risk management plan. The index offence occurred in circumstances where the Applicant had financial difficulties and difficulties concerning family and accommodation. Arising out of these difficulties, the serious offence of murder occurred. The panel appropriately analysed the risk management plan, and in particular arrangements relating to future accommodation, financial support, and general support in the community. The reality was that at the time of the panel hearing the availability of financial support by way of benefits in the community was unclear. The Applicant has medical problems and is in his 70s and therefore his opportunities to work would inevitably be limited. There was no clear indication of move on accommodation for the Applicant beyond living in approved premises. There was some indication that he might be able to live in a hotel or similar accommodation, however the Applicant had serious medical issues which would also need to be accommodated. The panel also noted that the index offence itself occurred in hotel accommodation and therefore care would have to be taken in terms of a decision to house the Applicant in a similar environment.[33]The position of the Parole Board panel is that a decision is made on the basis of the evidence presented at the hearing. The suggestion by the Applicant's legal adviser was that the panel should have considered adjourning the matter and sought to secure further information regarding accommodation and other support in the future from the probation service or the prison service. As noted above the Parole Board are not empowered to become involved in progression planning in relation to future accommodation and support in the community. A Parole Board panel is a decision-making body required to take account of the referral by the Respondent and to apply the public protection test to the evidence presented at the hearing.[34]I am not persuaded that the panel had a duty to adjourn the case to await the possible outcome of arrangements which would reinforce or add to the risk management plan. No proposals were placed before the panel relating to future accommodation and no application was made to adjourn. Having considered the decision of the panel - which was primarily based upon the absence of suitable protective arrangements in the community together with an overall concern about the Applicant's propensity to push boundaries in relation to temporary leave, I am not persuaded that the decision of the panel could be characterised as irrational as is argued by the Applicants legal adviser. Ground 2[35]The Applicant's legal adviser submits that the panel failed to take account of the Applicant's serious ongoing medical condition. The Applicant had had surgery during his time in the open prison. The surgery resulted in the installation of a permanent ileostomy which has caused the Applicant mobility difficulties. The legal adviser also notes the Applicant's age of 73. The argument submitted by the legal adviser is that the significant medical condition meant that his risk of serious harm would be reduced and would be considerably less than the risk which applied at the time when he was 52 and committed the index offence. Discussion[36]As noted above the Applicant's legal adviser submits that the Applicant's capacity to conduct violence similar to the index offence has been substantially diminished by his medical condition. The Applicant's medical condition was noted by the panel however, as referenced by the Applicants legal adviser, the panel made no direct connection between the risk of serious harm and the Applicants medical condition. The reality was that the panel had no independent evidence that the Applicant's ability to cause serious harm in the community was substantially diminished by his medical condition. The panel could have speculated about the potential for harm; however this would have been an inappropriate approach. The Parole Board process requires an evidential basis for reaching a conclusion. Whilst the Applicant was suffering medical challenges, the index offence and an earlier history of violence could not be entirely ignored by the panel despite the medical issues. I am not persuaded that the panel acted irrationally in not approaching a decision relating to risk of serious harm based on the Applicants medical condition. As noted above the fundamental issue in this case was that the Applicant was unable to evidence substantial plans relating to accommodation, income and support in the community. I am not therefore persuaded that the panel acted irrationally in not relying substantially upon the reports of the Applicants medical condition in assessing risk. Ground 3[37]The Applicant's legal adviser argues that the panel acted irrationally in relying upon the absence of accommodation and financial benefits and support in the community when reaching a decision concerning the test for release. It is argued that the panel had a power to address the problems of accommodation by way of an adjournment. Discussion[38]As noted above the role of the Parole Board panel is to consider evidence presented at the hearing. The arrangements relating to accommodation, ongoing support in the community and financial benefits are the responsibility of the Applicant (working with his COM and POM). It is well understood that prisoners, and those supporting them, encounter serious difficulties in securing suitable accommodation and support mechanisms in the community. However, despite these difficulties, the panel's role remains one entirely focused upon the decision about whether the Applicant's risk could be safely managed, given the risk management plan and evidence presented at the hearing. It was clear that on the basis of the evidence presented at the hearing there was no clear indication of how the Applicant would live his life beyond approved premises. This was a relevant, and important issue given the fact that the index offence occurred in similar circumstances of instability. For the reasons set out above, again, I am not persuaded that the panel acted irrationally in not adjourning this matter, particularly in circumstances where no application was in fact made to adjourn by the Applicant or his legal adviser. Ground 4[39]The Applicant's legal adviser argues that insufficient weight was given to the protective factors relating to the Applicant. Discussion[40]The panel in their decision accepted that " a lot of weight was placed on [the Applicant's] improved openness and honesty since his return to prison from hospital." However, the panel qualified their view by noting that these changes had occurred only in the last two months, and that there had been insufficient time to demonstrate a lasting change in the Applicants approach. The panel also gave credit for the behavioural work that the Applicant had undertaken to lower his risk, the fact that there had been no violent incidents in prison and the progression of the Applicant to an open prison. The reality was, therefore, that the panel did in fact take account of positive protective factors and noted them in the decision.[41]The panel were clearly obliged to balance the obvious protective factors against matters of risk and to apply the public protection test. As is noted above the fundamental concern of the panel was the lack of support, accommodation and income in the community. The panel took the view that these were factors which could quickly lead to instability, possibly a return to alcohol use, and indicated a potential for the risk of serious harm. I am therefore not persuaded that the panel gave insufficient consideration to the positive and protective factors relating to risk in this case. The panel were entitled to balance those protective factors against the risk associated with the lack of support in the community. Clearly the panel did so in this case. Ground 5[42]The Applicant's legal adviser submits that the panel departed from accepting the unanimous professional opinions in this case namely that the Applicant could be safely managed in the community. The POM, COM and prison instructed psychologist had all indicated that they would recommend release. Discussion[43]It is well acknowledged that 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 risk management plan proposed. They must make up their own minds on the totality of the evidence that 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 in the divisional Court in DSD they have the expertise to do it.[44]However, a panel, when making a decision contrary to the opinions and recommendations of professional witnesses must explain its reasons for doing so, and it's stated reasons should be sufficient to justify its conclusions as per R (Wells).[45]In this case, as is noted above, the panel gave clear and unambiguous reasons for concluding that the Applicant's risk could not be managed in the community despite the views of professionals. The professionals appear to have placed limited weight upon the fact that the Applicant would have no suitable ongoing accommodation arrangements beyond a short time in approved premises; that he would have no clear access to funds for living; and that he would have limited support in circumstances where he was medically unwell. The emphasis by the professionals was focused to a large extent upon the Applicant's prison behaviour; the fact that he had completed behavioural interventions; a recent improved relationship with professionals; and the fact that he was in an open prison.[46]The panel were obliged to take a holistic much longer-term view and to consider the Applicant's risk in the foreseeable future. The statutory test having no temporal element as indicated in the case of Johnson EWHC 1282 (Admin) and Dich and Murphy [2023] EWHC 945 Admin[47]In my determination the panel set out its reasons for declining to follow the views of the professionals in this case. The particular issue being the clear absence of any planned appropriate support for the Applicant in terms of accommodation and financial (and general) support beyond the approved premises arrangements. I am not persuaded therefore that this ground amounted to irrationality in the sense set out above. Ground 6[48]The Applicant's legal adviser submits that the panel acted procedurally unfairly in failing to direct further information or to resolve the accommodation difficulties by way of an adjournment. Discussion[49]As noted above, Parole Board panels are not empowered to manage sentence progression or the provision of accommodation for prisoners upon release. Panels of the Parole Board are required to respond to the reference from the Respondent and to deal with the reference with promptness and expedition. The arrangements for arranging and accessing accommodation are ones which are the responsibility of the Applicant himself together with his COM and possibly POM. Whilst it is fully understood that the provision of accommodation for those leaving prison is an area of extreme difficulty, Parole Board panels are dependent upon those supporting prisoners to make arrangements which are suitable to manage the prisoner's risk on release. Taking account of the legal criteria of procedural unfairness, as set out above, there are no issues of unfairness which arise in this case in relation to a failure to adjourn. The hearing was conducted procedurally fairly, the issue was the absence of evidence supporting a contention that the Applicant's risk could be safely managed in the community. For these reasons I am not persuaded that procedural unfairness is engaged under this ground. Ground 7[50]The Applicant's legal adviser submits that the panel in this case failed to apply " anxious scrutiny " to the decision in the context of the Applicant being a post tariff life sentence prisoner. Discussion[51]The concept of anxious scrutiny coincides with that of rationality. 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 would 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.[52]In this case the panel clearly set out within its decision a reasonable assessment of the positive factors relating to the Applicant's case. In particular the fact that he had spent time in an open prison, his age and the fact that he had medical difficulties. The panel also balanced these matters against the fact that there had been some minor examples of pushing boundaries which could cause concern, however the major and overriding consideration was the fact that the Applicant's index offence occurred in circumstances where he had instability and a lack of accommodation in the community. The risk management plan, as presented at the hearing, proposed a relatively short period in approved premises. After this, the Applicant would have found himself in a very similar situation to that which resulted in the index offence. In my determination the panel were entitled to consider that the Applicant's risk of serious harm could not be managed safely unless there was evidence of long-term stability and support for the Applicant in the community which would ameliorate against destabilisation and possible return to alcohol and risky behaviour. For this reason, I am not persuaded that the panel did not apply anxious scrutiny to this case. Having considered the evidence, the panel's explanation for its decision, although contrary to the hopes of the Applicant, were based upon rational and understandable concerns and considerations. For this reason, I do not find that this ground amounts to a basis for reconsideration in the sense set out above. Decision[53]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