The Secretary of State for Justice, R (on the application of) v The Parole Board for England and Wales

On an application to set aside a Parole Board release decision, the decision maker must ask whether the release direction would not have been given if the new information had been available. That requires sufficient consideration of the information’s nature, relevance, reliability and cogency, assessed against the evidence supporting the original decision.

The inquiry may include deciding whether further information or investigation is required. The intensity of that inquiry is principally for the specialist decision maker. Judicial review must not substitute the court’s assessment of risk or procedure for that of the Parole Board. A failure to refer expressly to every factor or detail will not establish process irrationality unless it reveals an error of approach or a critical gap in reasoning.

The Secretary of State challenged the Parole Board’s decision of 28 January 2026 refusing to set aside its earlier direction for the release of Mr Reginald Zenshen. The application to set aside relied on new information that, after the release direction but before it became final, Mr Zenshen had attempted to steal low-value goods from his employer and had given no satisfactory explanation.

The Secretary of State alleged process and outcome irrationality under rule 28A of the Parole Board Rules 2019. Preliminary issues concerned promptness, the possible alternative remedy under section 32 ZAA of the Crime (Sentences) Act 1997, and the effect of Mr Zenshen’s release before the claim was heard.

The claim was dismissed. Permission was granted on ground 1, alleging process irrationality, but that ground failed on its merits. Permission was refused on ground 2, alleging outcome irrationality.

1. Promptness. The claim was brought promptly for the purposes of CPR 54.5(1). The Secretary of State’s decision required personal and policy consideration, and the lawyers acted quickly once instructions were given. The court nevertheless recognised the prejudice caused by delay in a case concerning liberty and release.
2. Alternative remedy. Section 32 ZAA of the Crime (Sentences) Act 1997 was not analogous to a statutory appeal. A referral under section 32 ZAA required the High Court to reach its own view on the statutory release test under section 32 ZAC. It did not provide a means of challenging a rule 28A set-aside decision. Judicial review was therefore not barred.
3. Set-aside test. Following R (Umar Jones) v The Parole Board of England and Wales and Secretary of State for Justice [2025] EWHC 3216 (Admin), the decision maker had to determine whether the release direction would not have been given, without importing a probability or likelihood threshold. The evidence had to be considered sufficiently to assess its nature, relevance, reliability and cogency. Here the attempted theft was accepted and its reliability was not in issue.
4. Process rationality. The decision maker understood the application, considered the new information against the original risk assessment, and was entitled to conclude that Mr Zenshen’s motivation could be explored under supervision in the community. That was not an unlawful delegation of risk assessment. The decision maker was not required to recite every factor in the original release decision. No critical gap, logical error or failure to consider an obviously material matter was shown.
5. Outcome rationality. The specialist Parole Board member was entitled to decide that further investigation or adjournment was unnecessary. The Secretary of State’s proposed approach would substitute his assessment for that of the expert decision maker. The refusal to set aside fell within the range of reasonable responses.

First-instance judicial review proceedings. No prior appellate history was stated in the judgment.