[2025] PBRA 127
Application for Reconsideration by Furniss
Application
1. This is an application by Furniss (the Applicant) for reconsideration of a decision dated 16 April 2025 not to direct his release. The decision was made by a panel on the papers.
2. Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2024) (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.
3. I have considered the application on the papers. These are the decision, the dossier (consisting of 180 numbered pages), and the application for reconsideration. I have also seen a letter dated 18 March 2025 from the Department of Work and Pensions (DWP) regarding the Applicant’s eligibility for Personal Independence Payment (PIP).
Background
4. On 11 September 1998, the Applicant received a discretionary life sentence following conviction for wounding with intent to do grievous bodily harm. The tariff was set at three years and six months (less time spent on remand). It expired in May 2001. On the same occasion he also received a concurrent 12 month determinate sentence for assault occasioning actual bodily harm. The Applicant pleaded guilty to both offences.
5. The Applicant has been released and recalled four times on this sentence.
6. He was most recently released in November 2024 following an oral hearing before the Parole Board. His licence was revoked in February 2025, and he was returned to custody. It is reported that he was demonstrated a disregard for his licence conditions and consistently behaved in a way that demonstrated his lack of motivation to progress pro-socially. He reportedly returned to Class A substance misuse and subsequently committed an offence of shoplifting which involved violence towards a security staff member. He is due to stand trial on 14 October 2005 in relation to assault occasioning actual bodily harm to which he has pleaded not guilty.
7. The Applicant was 30 years old at the time of sentencing and is now 57 years old.
Request for Reconsideration
8. The application for reconsideration has been submitted by the Applicant directly. It argues that the decision was irrational, procedurally unfair and contained an error of law.
9. The application is supplemented by written arguments to which reference will be made in the Discussion section below.
Current Parole Review
10.The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) in March 2025 to consider whether to direct his release. If release was not directed the Board was invited to advise the Respondent whether the Applicant should be transferred to open conditions. It is only the release decision that is subject to reconsideration. This is the Applicant’s first parole review since his fourth recall.
11.The case was reviewed by a single member Member Case Assessment panel (MCA panel) on 16 April 2025. The panel did not direct the Applicant’s release.
12.This decision was made under rule 19(1)(b) and, by operation of rule 19(6) was a provisional decision. Rule 20(1) permits a prisoner who has received a provisional negative decision on the papers to apply in writing for his case to be determined by a panel at an oral hearing. Rule 20(2) provides that any such application must be served within 28 days of receipt of the provisional decision.
13.With no such submissions having been received, the provisional decision of the MCA panel became final on 14 May 2025 and is therefore subject to reconsideration.
The Relevant Law
14.The Parole Board will direct release if it is no longer necessary for the protection of the public that the prisoner should be confined.
Parole Board Rules 2019 (as amended)
15.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)).
16.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)).
17.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.
Procedural unfairness
18.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.
19.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; and/or
(e) the panel was not impartial.
20.The overriding objective is to ensure that the Applicant’s case was dealt with justly.
Irrationality
21.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 (CA) 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.
22.In R(DSD and others) v Parole Board [2018] EWHC 694 (Admin) the Divisional Court applied this test to Parole Board hearings in these words (at [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.”
23.In R(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 the Divisional Court in R(Secretary of State for Justice) v Parole Board [2022] EWHC 1282 (Admin).
24.As was made clear by Saini J in Wells, 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.
25.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.
26.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.
Error of law
27.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.
28.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.
The reply on behalf of the Respondent
29.The Respondent has advised that no representations will be submitted in response to this application.
Discussion
30.The Applicant argues that the panel improperly relied on unproven allegations, particularly in relation to past domestic abuse and an alleged sexual assault, which he denies. He contends that references to these matters amount to defamation and procedural unfairness, especially where no charges were brought and the material was treated, in his view, as fact.
31.The Applicant further submits that the panel mischaracterised his risk level, citing an inconsistency between scores which placed him at medium and low likelihoods of reoffending and the assessment of him as posing a high risk of serious harm. He disputes the panel’s conclusions, especially in the absence of recent serious offending.
32.He also argues that the panel failed to take proper account of his physical disabilities and medical conditions which he states prevented him from working during his most recent period on licence. He challenges the panel’s conclusion that he led a “negative lifestyle” on this basis.
33.The Applicant contends that his current risk has been misrepresented, citing his recent abstinence from drugs, engagement with support agencies, and applications for further rehabilitative work. He maintains that this was not properly considered.
34.In relation to the incident that prompted his most recent recall, the Applicant denies being the aggressor, claiming that he was assaulted by the security guard and acted in panic. He further argues that he is currently on bail pending trial and that previous decisions not to recall him in similar circumstances should have informed a more proportionate approach.
35.The Applicant concludes by asserting that he has demonstrated rehabilitation and a willingness to engage with support services and should be given another opportunity to demonstrate this in the community.
Procedural unfairness
36.The Applicant argues that the panel relied on disputed allegations (particularly historical claims of domestic abuse and sexual assault) which were either unproven or denied. However, the decision letter does not assert these matters as facts; rather, it treats them as part of a broader historical pattern of concern and notes where charges were not pursued. Panels are entitled to consider a range of risk-relevant material, including police intelligence and probation assessments, provided this is properly contextualised. In this case, the panel did not determine guilt in relation to these allegations, nor was the outcome of the decision dependent on accepting them. The panel instead focused on the Applicant’s repeat relapse into drug misuse, pattern of non-compliance, and arrest in connection with a further violent incident while on licence, all of which are supported by evidence. Accordingly, there is no procedural unfairness in the way in which the decision was reached.
Irrationality
37.The Applicant highlights an apparent inconsistency between scores indicating that he posed medium and low likelihood of reoffending and the structured judgement that he posed a high risk of serious harm. However, these tools measure different things: the scores assess statistical likelihood, while structured professional judgement evaluates the severity of potential harm. It is not irrational to conclude that someone presents a low-to-medium likelihood of reoffending, but a high risk of serious harm if they do. The panel carefully weighed these distinctions and supported its conclusions with reference to relevant behaviour during and after release. This does not meet the threshold for irrationality in law.
Error of law
38.The Applicant asserts that he is serving an “automatic life sentence” rather than a “mandatory life sentence” and that the law on two-strike life sentences has changed. There is, however, no error of legal principle in the panel’s approach. The nature of the sentence was correctly summarised, the correct statutory test was applied, and the panel’s reasons are accurately based on the relevant law. No error of law is disclosed.
39.The Applicant also expresses frustration that some of his mitigating evidence, including physical health, abstinence from drugs, and willingness to engage, may have been underemphasised. However, this is a matter of weight and evaluation, not of legal error or procedural defect. A different panel may well have placed different emphasis on these factors, but that will not lead to reconsideration unless that emphasis renders the decision irrational in law. As I have already set out, the panel’s decision in this case does not meet the high threshold necessary for a finding of irrationality.
Decision
Stefan Fafinski
17 June 2025