Foran, Application for Reconsideration [2026] PBRA 93 (28 April 2026) [2026] PBRA 93

PBRA
Foran, Application for Reconsideration [2026] PBRA 93 (28 April 2026)
[2026] PBRA 93 · 2026-04-01
[1]This is an application by Foran (the Applicant) for reconsideration of a decision of an oral hearing panel dated 1 April 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 Applicants legal adviser, the representations made by the Applicant in a separate note, the decision of the oral hearing panel and the representations by the Secretary of State (Respondent). Request for Reconsideration[4]The application for reconsideration which comprises of two documents. The Applicant himself drafted representations. The Applicant's legal adviser also drafted representations and requested that the Parole Board combined the two sets of representations into a single application for reconsideration which I have done.[5]The grounds for seeking a reconsideration are set out below. Background[6]The index offence was robbery. The offence was committed in October 2013. The Applicant and for other men broke into the victim's home stealing a car mobile phone money and jewellery. The victims were a married couple. The masked men entered the home shouted at the victims and were in possession of weapons namely a crowbar and the knife. One victim was bound by tape. A screwdriver was held to the male victim's neck and the Applicant's DNA was later found on the screwdriver. The male victim was assaulted. The Applicant was aged 22 at the time of sentence he was aged 34 at the time of the oral hearing. The Applicant was sentenced to an extended sentence of imprisonment consisting of a determinate period of 10 years and an extension period of five years. The Applicant's conditional release date was 10 March 2024. The Applicant was released by the Parole Board following a parole hearing on 28 July 2021. He was recalled on 21 May 2022. He had been arrested by the police. He had been seen in a vehicle which had not been disclosed to the probation service and had been in the company of an antisocial associate.[7]He was released for a second time on 27 August 2024 and recalled as noted below on 8 November 2024. This recall occurred in circumstances where the Applicant had purchased a car and driven it without insurance or licence. The driving had created dangers to the public and had resulted in a police chase and a crash. The Applicant had been convicted following this incident of dangerous driving. The panel were considering a first review following the last recall to prison. 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 Parole Board member. The panel hearing took place on 12 March 2026. The panel heard evidence from a Prison Offender Manager (POM) a former POM, and a Community Offender Manager (COM). The Applicant himself gave evidence and was legally represented. The Relevant Law[10]The panel correctly sets out in its decision letter dated 1 April 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) 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 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[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]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.[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. "
[27]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[28]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 Respondent[29]The Respondent offered no representations. Grounds and Discussion Ground 1[30]The Applicant's legal adviser submits that the hearing was procedurally unfair because the panel consisted of a single member. It is acknowledged that this matter was not raised either before the hearing or at the hearing by the Applicant or his legal adviser. Discussion[31]In accordance with the Parole Board Rules, panels of the Parole Board sit as single members as well as in multiple configurations. No specific argument is adduced in relation to this ground. Short of a substantive argument I am not persuaded that the fact that a panel consisted of a single member can be argued to be procedurally unfair without a basis for that argument. Ground 2[32]The Applicant's legal adviser submits that the Applicant takes the view that the conclusions reached by the panel member in relation to the hearing were wrong and thus the decision itself is irrational. Discussion[33]The specific matters in contention are: a) That the panel member found that the Applicant did not take responsibility for his behaviour that led to his first recall on this particular sentence; b) That the Applicant had repeatedly breached his licence conditions in relation to vehicle disclosure; c) and that he was in the company of another male linked to criminal behaviour. In breach of his licence conditions;[34]The Applicant argues that he was justified in not taking responsibility for the circumstances of the recall. This (the Applicant argues) is because, although he was arrested in circumstances where he was travelling in a car which had not been disclosed to the probation service, he emphasises that he was never charged with a criminal offence relating to this journey.[35]The Applicant was subject to licence conditions which required him to disclose the identity of vehicles in which he travelled. The police followed a car containing the Applicant and another man. The Applicant, after being asked to stop by the police, ran from the car across traffic holding a package. The package was not recovered but the Applicant was eventually located hiding in a garden. The vehicle from which the Applicant alighted was registered to a man known to be involved with criminal behaviour. This was the second time that the Applicant had been found in a vehicle with the man involved. The recall of the Applicant was initiated following this incident which was reported by the police to the probation service.[36]The Applicant's legal adviser is correct in asserting that the Applicant was not charged with a criminal offence in relation to this series of incidents. As noted the Applicant therefore takes the view that his recall was unfair.[37]The reality was that the Applicant was recalled on the basis of breaching licence conditions and potentially breaching behavioural conditions relating to his licence. The absence of a criminal conviction was clearly not a necessary or material factor in the decision relating to recall. The reason for the recall was not the commission of a provable criminal offence, but the deliberate breach of licence conditions and (good) behaviour conditions which are a fundamental aspect of probation licences. The current panel, and an earlier panel, took the view that the circumstances of the recall were appropriate.[38]I am not persuaded that the panel were unfair in taking account of the Applicant's behaviour prior to the first recall on this sentence. It is clear that the panel member felt that there was an absence of insight by the Applicant into the concerns regarding his behaviour on licence and his manageability in the community. The Applicant's argument that a lack of a criminal conviction negated the behaviour generally demonstrates a limited understanding of the requirements of licence conditions and of behaviour on licence aimed at managing risk. Ground 3[39]The second issue raised by the Applicant and his legal adviser is that the Applicant indicates that the panel incorrectly concluded that the Applicant's current partner would not be considered to be protective. The panel indicated that it appeared that he was in a relationship with this partner when he breached licence conditions - namely the offence which led to his second recall (dangerous driving).[40]It is submitted by the Applicant that he did not commence his relationship with his current partner until after he committed the driving offence. Discussion[41]The evidence adduced at the parole hearing was that the Applicant had been with his current partner for approximately three months. It is not entirely clear whether this relationship began while the Applicant was in the community although it appears likely that it did. In the light of the fact that the Applicant was recalled immediately following the dangerous driving, there appears to be an inference that the Applicant was in a relationship with the partner at a time when he was offending. It is conceded that the evidence in this area is not entirely clear, however I am not persuaded, in any event, that this was a material factor in the panel's decision relating to release. The reality was that the Applicant had known the partner for a short period of time and therefore it would have been difficult to conclude that there was evidence sufficient to rely upon the partner as a protective factor, albeit that over time it may be that the partnership will prove to be prosocial and protective. Ground 4[42]The Applicant's legal adviser indicates that the applicant challenges the conclusion by the panel member that the Applicant did not take "full responsibility" for his dangerous driving. Discussion[43]This submission relates to the fact that the Applicant was arrested prior to his second recall in circumstances where he was driving a motor vehicle dangerously without a licence or insurance. The panel explained the basis of this conclusion (not taking full responsibility).[44]The Applicant had given evidence he drove the vehicle before his police arrest for approximately 1000 metres on a road and then onto a motorway and that he then stopped on the hard shoulder and ran away. By contrast the sentencing judge had noted that the incident involving the Applicant was a long chase involving fast driving, damage to a police vehicle, and a disregard of the danger to others. In my determination the panel were entitled to take account of the description of the index offence by the judge, and to compare that with the relatively minimised description by the Applicant, and therefore come to the conclusion that the Applicant did not accept full responsibility for the seriousness of the offence. Ground 5[45]The Applicant also challenges the view of the panel member that the Applicant, when in the community, did not appear to have the ability to use any skills or learning, that he might have gained from behavioural work and interventions. Discussion[46]It is clear from the dossier that the Applicant's behaviour following his recall raised a number of causes or concern within the prison. There were examples of poor behaviour towards staff and a lack of compliance with prison rules. These examples of antisocial behaviour were recorded in the dossier. In my determination the panel were entitled to look for evidence that the Applicant was able to apply any skills or learning that he had acquired during his current recall and the earlier sentence. The examples of poor behaviour indicated that the Applicant had difficulty in applying any learning and skills that he might have acquired in behavioural interventions when faced with challenges both in prison and in the community.[47]I am not therefore persuaded that these issues relating to the Applicant's challenge of the findings of the panel member have substantive merit and could amount to a reason for reconsideration. Ground 6[48]The Applicant's legal adviser also argues that the panel member failed to take account of the fact that the professionals in this case supported release. Discussion[49]It is well understood that panels of the Parole Board are not required 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 undertake a holistic and independent assessment of the evidence.[50]However, where a panel makes a decision contrary to the opinions and recommendations of professional witnesses, it is important that it should explain clearly its reasons for doing so and that it stated reasons should be sufficient to justify its conclusions as per R (Wells ).[51]As noted, in the panel members decision, the basis upon which the panel member reached the conclusion was set out in paragraph 4.4 of the decision. The panel indicated its reasons for rejecting the views of the COM and POM in this case. In essence the panel clearly concluded that the professionals were overly confident in their assessment of the Applicant's ability to manage his risk in the community.[52]In brief the reasons for rejecting the views of the professionals were; that the applicant had a poor insight into his negative behaviour as displayed by repeated breaches of licence conditions relating to vehicle disclosure and links with inappropriate associates; the panel pointed out the fact that although the Applicant had completed interventions during his prison incarceration there was limited evidence of an ability to apply any learning from programmes which would assist in self managing risk; the panel rejected the views of the professionals that there would be warning signs and that risk was not imminent. The evidence for this was the fact that when last in the community (without warning signs ) the Applicant engaged in a serious episode of dangerous driving and one which could have resulted in death or serious injury (according to the sentencing judge); the panel member also noted that the Applicant's compliance in the community had been superficial, in the sense that he had failed to disclose both buying a motor vehicle and the identity of motor vehicles in which he travelled - all of which were requirements of his licence conditions; the panel also noted the minimisation of offending behaviour displayed by the Applicant in his description of the dangerous driving offence which led to his arrest. Again, the professionals appear not to take account of the risks involved in minimisation demonstrated by the Applicant; finally, the panel member had also taken account of the Applicants behaviour in prison. The Applicant had a poor regard for those in authority and for abiding by prison rules all of which reflected upon compliance and was a matter which again the professionals appear not to have considered when offering their recommendations.[53]In the circumstances therefore, it is my determination that the panel member appropriately applied the requirements of the case of Wells . The reasons for the decision being contrary to the opinions and recommendations of professionals were set out and explained in the written decision, and those stated reasons, in my determination, justified the conclusions reached by the panel member. For this reason, I do not find that this ground engages reconsideration. Decision[54]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