[2025] PBRA 113
Application for Reconsideration by Hinchley
Application
1. This is an application by Hinchley (the Applicant) for reconsideration of a decision dated 22 April 2025 not to direct his release. The decision was made by a panel following an oral hearing.
2. Rule 28(1) of the Parole Board Rules 2019 (as amended) (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 457 numbered pages), and the application for reconsideration.
Background
4. On 17 February 2020, the Applicant received an extended sentence comprising a custodial period of four years and six months with two years and six months on extended licence following conviction on nine counts of destroying or damaging properly recklessly with intent to endanger life (arson). He also received a concurrent 12 month determinate sentence for harassment.
5. He was automatically released in May 2024 but recalled in June 2024 after his mental health deteriorated significantly and his bedspace at designated accommodation was withdrawn.
6. The Applicant was 33 years old at the time of sentencing and is now 39 years old.
Request for Reconsideration
7. The application for reconsideration is dated 13 May 2025 and has been drafted by solicitors on behalf of the Applicant. It submits that the decision was irrational. No submissions were made regarding procedural unfairness or error of law.
8. This submission is supplemented by written arguments to which reference will be made in the Discussion section below.
Current Parole Review
9. The Applicant's case was referred to the Parole Board by the Secretary of State (the Respondent) to consider whether to direct his release. This is the Applicant's second parole review since his recall.
10.The case proceeded to an oral hearing on 11 April 2025, before a three-member panel, including a psychologist specialist member. The panel took oral evidence from the Applicant, the Prison Offender Manager (POM), the Community Offender Manager (COM) and a mental health nurse. The Applicant was legally represented throughout the hearing.
11.In the professional opinion of both the POM and COM, the Applicant was suitable for release but only if specialist psychologically-supported designated accommodation was available. After the hearing, the COM advised that the application for such premises had been declined.
12.The panel did not direct the Applicant's release. It concluded that the Applicant's risk of serious harm remained more than minimal, and that continued confinement was necessary for the protection of the public. While both the POM and COM supported release, this was conditional on a placement in specialist accommodation, which was not available due to concerns about the Applicant's level of risk. His mental health remains unstable, with ongoing incidents of self-harm, threats towards others, and inappropriate sexualised behaviour, all of which reflected patterns seen both at the time of the index offences and during his brief time in the community before recall. Although the Applicant was able reflect on his behaviour after the fact, he continued to demonstrate poor consequential thinking and impulsivity that could result in serious harm before professionals would be able to intervene. He had not yet completed the necessary psychological work to address underlying trauma or develop sufficient internal risk management strategies. While the proposed risk management plan includes reasonable external controls, the panel was not satisfied that these would be sufficient without corresponding internal controls, especially in the absence of stable specialist accommodation and intensive community support.
The Relevant Law
13.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)
14.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)).
15.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)).
16.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
17.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.
18.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."
19.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).
20.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.
21.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.
22.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
23.The Respondent has advised that no representations will be submitted in response to this application.
Discussion
24.The Applicant seeks reconsideration on the sole ground of irrationality, arguing that:
a) The panel placed insufficient weight on professional assessments of risk both of whom recommended release subject to a robust risk management plan.
b) The panel placed insufficient weight on the views of professionals that there was no core risk reduction work outstanding and that remaining risk was not imminent.
c) The panel placed insufficient weight on the lack of evidence of any use or threat of violence to others.
25.First, it is argued that the panel placed insufficient weight on professional assessments of risk, both of whom supported release subject to a robust risk management plan. However, the panel's reasoning makes clear that it did not disregard or dismiss those views; rather, it carefully contextualised them. While the POM supported release and the COM ultimately did not object in principle, both professionals explicitly stated that release was only considered viable if the Applicant was released to specialist designated accommodation. As the panel noted, that accommodation was not available, having been declined on the basis of the Applicant's current risk profile. In those circumstances, the panel was entitled - and indeed obliged - to assess the manageability of the Applicant's risk in the absence of that critical protective factor. It cannot be irrational to conclude that a professional recommendation conditional upon a now-withdrawn placement does not translate to a viable or safe release pathway in practice.
26.Second, it is argued that the panel failed to give sufficient weight to the professional opinion that there was no outstanding core risk reduction work and that any remaining risk was not imminent. This characterisation does not accurately reflect the totality of the evidence. The panel noted, and accepted, that the Applicant had engaged with services and had developed some ability to reflect on his behaviour after the event. However, the evidence before the panel was that the Applicant's consequential thinking skills remained underdeveloped. It was also accepted that he had not yet undertaken any trauma-focused psychological work post-recall. The panel's concern was not that work had been omitted arbitrarily but that meaningful progress had not yet been made in developing internal risk management strategies to a sufficient level that would allow his release to be safely managed in the community without reliance on unavailable external structures. That is a judgment properly within the remit of the panel and squarely based on the evidence.
27.Third, it is argued that the panel placed insufficient weight on the absence of any actual use or immediate threat of violence to others. The panel addressed this issue directly, noting that the Applicant had not acted violently towards others during this recall period, and gave him credit for his restraint when assaulted by another prisoner. However, the panel also observed a pattern of escalating self-harm, threats (including arson-related), and inappropriate sexualised behaviour that mirrored aspects of the behaviour at the time of his index offences and his previous recall. These were not dismissed as mere expressions of distress but recognised as indicators of deteriorating mental health and impaired impulse control. In that context, the panel's conclusion that the Applicant's risk was more than minimal and that his potential to cause serious harm could materialise before intervention was possible, was not only reasoned, but consistent with the statutory test and the need to consider carefully all the elements in a case involving enduring risk factors and a vulnerable, volatile presentation.
28.In summary, this was a panel that carefully weighed the evidence before it, recognised the significance of professional opinions, and reached a reasoned conclusion based on the specific risks presented in the Applicant's case and the limitations of the proposed release plan. The panel's reasoning reflected a proper application of the statutory test in a case involving multiple and enduring risk factors. It cannot be said that the panel's decision defied logic or moral standards, nor that it was outside the range of reasonable responses available on the evidence. The decision was therefore not irrational.
Decision
29.For the reasons I have given, I do not consider that the decision was irrational and accordingly the application for reconsideration is refused.
Stefan Fafinski
27 May 2025