Canning, Application for Reconsideration [2026] PBRA 92 (28 April 2026) [2026] PBRA 92

PBRA

Canning, Application for Reconsideration [2026] PBRA 92 (28 April 2026)

[2026] PBRA 92 · 2026-03-27

[1]This is an application by Canning (the Applicant) for reconsideration of a decision of an oral hearing panel dated 27 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

[3]I have considered the application on the papers. These are the dossier, the application for reconsideration drafted by the Applicants legal adviser, the decision of the oral hearing panel and the representations by the Secretary of State (Respondent). Request for Reconsideration

[4]The application for reconsideration is dated 15 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. His tariff expired in January 2019. He was aged 30 of the date of sentence. He was aged 50 at the time of the oral hearing decision. The Applicant was released on 7 June 2019 by the parole board on licence. He was recalled on 22 September 2020. The recall occurred in circumstances where the Applicant had been arrested in relation to an allegation of common assault and cruelty to animals. The Applicant was alleged to have pushed and hit a partner with his elbow when she indicated that she wanted to end the relationship. Issue relating to animals concerned a dog that had died. It also transpired that the Applicant had been drinking alcohol and using crack cocaine during this period. The allegations of assault and cruelty were not pursued by the police and no findings have been made by a parole board in relation to those allegations. The Applicant himself accepted that he had been taking drugs and alcohol at the time. Current parole review

[7]At the time of the oral hearing the Applicant was in an open prison. The terms of the referral were that the Respondent requested that the parole board consider whether the Applicant should be made subject to a direction for release.

[8]The oral hearing panel in this case consisted of an independent chair accompanied by two further independent members of the parole board. The panel hearing took place on 17 February 2026. The panel considered a dossier in this case together with evidence from a Prison Offender Manager (POM), a Community Offender Manager (COM) and a prison instructed psychologist. The Applicant was legally represented at the hearing and gave evidence. The Relevant Law

[9]The panel correctly sets out in its decision letter dated 27 March 2026 the test for release. Parole Board Rules 2019 (as amended)

[10]Rule 28(1) of the Parole Board Rules provides the types of decision which are eligible for reconsideration. Decisions concerning whether the prisoner is or is not suitable for release on licence are eligible for reconsideration whether made by a paper panel (rule 19(1)(a) or (b)) or by an oral hearing panel after an oral hearing (rule 25(1)) or by an oral hearing panel which makes the decision on the papers (rule 21(7)). Decisions concerning the termination, amendment, or dismissal of an IPP licence are also eligible for reconsideration (rule 31(6) or rule 31(6A)).

[11]Rule 28(2) of the Parole Board Rules provides the sentence types which are eligible for reconsideration. These are indeterminate sentences (rule 28(2)(a)), extended sentences (rule 28(2)(b)), certain types of determinate sentence subject to initial release by the Parole Board (rule 28(2)(c)) and serious terrorism sentences (rule 28(2)(d)).

[12]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

[13]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.

[14]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. "

[15]In R(on the application of Wells) -v- Parole Board

2019 EWHC 2710

(Admin) 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).

[16]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.

[17]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.

[18]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;

(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

[22]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.

[23]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

[24]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

[25]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

[26]The Respondent offered no representations. Grounds and Discussion Ground 1

[27]The Applicant's legal adviser submits that the panel acted unfairly by failing to reconstitute a panel hearing following an adjournment at the conclusion of the initial hearing. The circumstances were that a hearing was listed in February 2026. At the conclusion of that hearing the panel determined that they required further information in order to make a final decision. The panel therefore adjourned the proceedings. The panel made detailed requirements within the adjournment notice. The panel also clearly indicated that the review would be concluded on the papers and that reasons will be provided within the following two weeks. Discussion

[28]The Applicant's legal adviser argues that the Applicant should have been given an opportunity to address the issues contained in the report which was secured following the adjournment. It is also argued that there should have been an opportunity to question the Applicant's COM upon the contents of the addendum report.

[29]As noted above it was made clear by the panel that the adjournment would result in the material being considered on the papers and that a decision would follow. Additionally, it is of note that the panel invited representations on behalf of the Applicant to be submitted following the receipt of the further report. The panel also repeated requests for the representations. No representations were received by the panel. In the circumstances therefore the panel had no request for the matter to be reconvened at a further oral hearing and no representations challenging or accepting the content of the further report.

[30]In circumstances where a panel have made it clear that they are contemplating a decision on the papers and where opportunities are offered to the Applicant to make further representations I am not persuaded that it can be submitted that the panel acted procedurally unfairly in proceeding to conclude the hearing in the way that was suggested. I am not therefore persuaded that this ground amounts to procedural irregularity. Ground 2

[31]The Applicant's legal adviser submits that the panel in reaching its decision relied upon matters which could not be finalised before the release of the Applicant. These matters were said to include confirmation as to the probation trust who would take responsibility for the Applicant; assessments of support by community services and evidence relating to move on accommodation following a placement in approved premises. Discussion

[32]The panel made clear in its decision the reasons why it had concluded that the Applicant's risk could not be managed safely in the community. As is acknowledged by the Applicant's legal adviser the panel accepted that the Applicant had made good progress while in the open prison where he now resides. He had also undertaken work relating to risk and neuro diversity. The issues which remained outstanding where the fact that the Applicant was to be released to an area which was not his home based area. At the time of the oral hearing the panel had no clear indication of the identity of professionals in connection with probation support who would be taking responsibility for the Applicant's case. Because he would be out of his home area there would be extreme difficulties in providing move on accommodation for the Applicant. Finally, there were remaining and concerning issues relating to a relationship with a female partner. The detail and future of this partnership remained unclear. In the light of the fact that the Applicant's index offence and to an extent his recall related to difficulties with partnerships, it is entirely understandable that the panel were concerned that this issue remained unresolved.

[33]Despite the understandable difficulties of providing ongoing accommodation and support in the community for prisoners, the panel were obliged to apply the codified public protection test. The panel concluded that because of the nature of the unresolved issues relating to the Applicants ongoing potential life in the community he did not at the time of the panel hearing meet the test for release. Whilst disappointing for the Applicant, I am not persuaded that the panel's decision was either irrational or procedurally unfair on the basis of the absence of a clear and robust community-based risk management plan. Such a plan was of fundamental importance, given the potential risks posed by the Applicant in the community. Ground 3

[34]The Applicant's legal adviser submits that the panel were irrational in their decision because the panel accepted that the Applicant had made "considerable progress" while at the open prison. That he had worked with psychology services and that his work was "impressive" and that the professional supported release. It is further argued that the Applicants risk was not imminent. Discussion

[35]As noted by the Applicants legal adviser this was a case where the panel spoke positively of the Applicants work in progressing his sentence plan and preparing for release. However, the test for release requires a holistic view of the evidence which includes a substantial and robust risk management plan to manage future risk. As noted above there remained fundamentally important issues outstanding in relation to the management of the Applicants risk in the community. There was substantial uncertainty in relation to move on plans and living accommodation. There was also uncertainty in connection with the Applicant's relationship with a female prisoner with whom he had been corresponding.

[36]It is further argued that the professionals in this case had recommended release. As is well understood, 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 assessment 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 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. It was observed by the divisional Court in DSD that parole Board panels have the expertise to do just that.

[37]However, panels making a decision contrary to the opinions and recommendations of professional witnesses must explain clearly the reasons for doing so and the stated reasons should be sufficient to justify the conclusions as per R (Wells).

[38]In this case the panel clearly set out the reasons for declining to accept the recommendations of professionals. The Applicant's COM had expressed concerns about compliance with licence conditions as there had been issues relating to contact by the Applicant with his female prisoner friend. The Applicant's COM was also unable to indicate whether the Applicant will be accepted by the probation service in the area that he wished to reside if he were released. It was also the case that the area where he wished to reside suffered extremely difficult accommodation difficulties which would be exacerbated by the fact that the Applicant was not a former resident in that particular area. In the light of the gravity of the index offence and the fact that there had been a recall in this case which was associated with difficulties with a partner. The panel's concern, that the risk management plan had insufficient safeguards to meet the requirements of the test for release, is explained and, in my determination, reasonable on the evidence presented at the hearing.

[39]For this reason I do not find that the decision of the panel was irrational in the sense set out above. Decision

[40]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 S Dawson 28 April 2026