Ellis, Application for Reconsideration by the Secretary of State for Justice [2026] PBRA 99 (12 May 2026) [2026] PBRA 99

PBRA
Ellis, Application for Reconsideration by the Secretary of State for Justice [2026] PBRA 99 (12 May 2026)
[2026] PBRA 99 · 2026-04-07
[1]This is an application by the Secretary of State for Justice (the Applicant) for reconsideration of a decision to direct the release and terminate the imprisonment for public protection (IPP) licence of Ellis (the Respondent). The decision was made by a panel on the papers. This is an eligible decision.[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 paper decision, the dossier consisting of 554 pages, the application for reconsideration and the representations in response to the application. Request for Reconsideration[4]The application for reconsideration is dated 7 April 2026 and has been submitted by the Reconsideration & High Court Referral Section of the Public Protection Group acting on behalf of the Applicant.[5]The application submits that both the release decision and the termination decision are irrational. This submission is supplemented by written arguments to which reference will be made in the discussion section below. Background[6]The Respondent received a sentence of imprisonment for public protection on 15 December 2006 following his plea to attempted robbery. His tariff was set at twenty-two and a half months (673 days) and expired on 18 October 2008.[7]The Respondent was aged 24 years old at the time of sentencing and is now 44 years old.[8]He was released on 21 March 2016 following a Parole Board decision, his licence was revoked in August 2017 and he was returned to custody. He experienced further releases following subsequent decisions of the Parole Board as follows, released in January 2018 and returned to custody in February 2018, released in February 2019 and returned to custody in April 2020, released in January 2020 and returned to custody in June 2020, released in September 2021 and returned in December 2021. His latest release was in December 2024 and he was recalled and returned to custody in October 2025. Current parole review[9]The Respondent's case was referred to the Parole Board by the Applicant in October 2025 to consider whether or not it would be appropriate to direct his release. If the Board did not consider it appropriate to direct release, it was invited to advise the Applicant whether the Respondent should be transferred to open conditions. In addition the Board was also asked to consider whether it would be appropriate to release the Respondent unconditionally from the IPP licence. 10.The case was considered on the papers by a single member who directed release and termination of the IPP licence. The Relevant Law[11]The panel correctly sets out in its decision dated 13 March 2026 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 as well the considerations for IPP release. 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. The reply on behalf of the Respondent 21.The Respondent submits that the decision was a rational one, reasoned and detailed and based on reports which were relevant and recent and based on clear reports contained in the dossier. The Respondent submits that the decision, taking into account the presumption of termination, was reasoned and based on sound, supported evidence. Discussion 22.The grounds submit that the panel failed to discuss why it disagreed with the recommendation by the community offender manager (COM) that the Respondent's licence should not be terminated, that the panel placed too much weight on historical termination reports, that the panel did not provide clear rationale for why a risk management plan was no longer required to manage the Respondent in the community and the panel made a decision to release the Respondent on the papers despite what they considered to be unclear written evidence. 23.The starting point for the consideration and understanding of the panel's conclusion is its decision on recall. The panel clearly, carefully and fairly considered all the evidence presented and concluded that the recall was not appropriate, being neither necessary nor justified. In particular the panel found that there was no evidence that the Respondent's risk was escalating when he was recalled and had not worsened since the last review. 24.The panel did not only rely on historic reports but all reports in the dossier were considered, including the recent reports of September 2025. The most recent report was the COM's Part C Update of February 2026. In rejecting the COM's change of position the panel was not persuaded by the conclusion which appeared unclear and appeared to rest solely on the fact of recall which the panel had not found to be appropriate. 25.The panel's conclusion regarding the risk management plan is based on its assessment of the case and the Respondent's progress prior to recall and the lack of risk related behaviour whilst on licence. 26.It is not correct to submit that the panel's decision failed to give sufficient reasons. The decision was clearly and adequately reasoned. The question of weight to be attached to evidence was a matter for the panel and nothing in its attribution of weight in this case could be described as irrational. 27.The panel considered the test for oral hearings. It is not a fair assessment, and rather misleading, to suggest that the panel proceeded to a paper decision despite unclear written evidence. The panel found a particular aspect of the COM's report to be unclear in the sense of unpersuasive. The panel gave reasons for rejecting that aspect and in those circumstances there was no need to direct an oral hearing. An oral hearing would not have assisted in resolving any disputes concerning facts, providing information that might assist with risk analysis or enabling clarification of any points materially relevant to the assessment of risk. In those circumstances there was no need for the panel to direct an oral hearing. 28.In my judgment there was clearly material available to the panel which justified the decision that the panel made and it cannot be properly described as irrational within the meaning set out above. The reasons for the decision are clearly set out in the decision and are supported by evidence . 29.The panel disagreed with the changed position of the COM. It was perfectly entitled to do so. The decision sets out comprehensive reasons for doing so. These reasons are soundly based on evidence as well as being rational and reasonable or at least not so outrageous as to be irrational in the sense expressed above. 30.There are no grounds on which it can be sustainably argued that the decision to release the Respondent and terminate his licence was so illogical that every other panel would have decided otherwise. Decision 31.Therefore, for the reasons I have given, I do not consider that the decision was irrational and accordingly the application for reconsideration is refused. Barbara Mensah 12 May 2026