[2025] PBRA 100
Application for Reconsideration by Kenealy
Application
1. This is an application by Kenealy (the Applicant) for reconsideration of a decision of an oral hearing panel dated the 25 March 2025 not to direct the Applicant’s release.
2. Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2022) (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 Applicant’s legal adviser, the oral hearing panel’s decision and the response by the Secretary of State (the Respondent).
Request for Reconsideration
4. The application for reconsideration was received 15 April 2025
5. The grounds for seeking a reconsideration are as set out below:
Background
6. The Applicant is serving life sentences for offences of rape. The Applicant was sentenced on 26 November 1998 when he was aged 25 his tariff expired in 2009. He was released by the parole board on licence in October 2021 and was recalled in May 2024. The Applicant committed rape offences on two occasions. in 1996 he broke into the home of a woman and her nine-year-old daughter. He held a knife to the mother’s head and then vaginally and anally raped both the daughter and mother. In 1997 he approached a 17 year old young woman in the evening. He told her he had a knife, pushed her into a driveway, removed her clothing and committed an offence of rape upon her. The Applicant was 25 years old when sentenced. He was 51 at the time of the oral hearing.
Current parole review
7. The oral hearing panel consisted of an independent chair and a further independent member of the parole board. The parole board panel reference requested that the parole board consider whether the Applicant should be released and if not whether it would be appropriate to recommend a transfer to an open prison. The oral hearing panel considered a dossier consisting of 656 pages. Evidence was received from a Prison Offender Manager (POM) and a Community Offender Manager (COM). The Applicant was legally represented at the hearing.
The Relevant Law
8. The panel correctly sets out in its decision letter dated 25 March 2025 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.
Parole Board Rules 2019 (as amended)
9. 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)).
10.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)).
11.[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
12.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.
13.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.”
14.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).
15.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.
16.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.
17.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
(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.
Error of law
21.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.
22.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
23.The test to be applied when considering the question of transfer to open conditions is the subject of a well-established line of authorities going back to R (Hill) v Parole Board [2011] EWHC 809 (Admin) and including R (Rowe) v Parole Board [2013] EWHC 3838 (Admin), R (Hutt) v Parole Board [2018] EWHC 1041 (Admin). The test for transfer to open conditions is different from the test for release on licence and the two decisions must be approached separately and the correct test applied in each case. The panel must identify the factors which have led it to make its decision. The four factors the panel must take into account when applying the test are:
(a) the progress of the prisoner in addressing and reducing their risk;
(b) the likeliness of the prisoner to comply with conditions of temporary release
(c) the likeliness of the prisoner absconding; and
(d) the benefit the prisoner is likely to derive from open conditions.
24.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."
Reconsideration as a discretionary remedy
25.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 Secretary of State
26.The Respondent offered no representations.
Grounds and Discussion
Ground 1
27.It is submitted on behalf of the Applicant that the panel made an error of law in determining that the Applicant’s refusal to undertake a behavioural programme in the community was a licence breach.
Discussion
28.The circumstances of this submission are that the Applicant had been referred by his COM to a behavioural course in the community. The Applicant was clearly required under the terms of his licence to comply with any requirements of his probation officer aimed at addressing behavioural problems in the community. This being a standard licence condition. A direction to attend a behavioural course is clearly such a requirement. Creating barriers and failing to attend such a course would clearly amount to a breach of a licence condition. In my determination the panel were perfectly entitled to conclude that there had been a breach of a licence condition. Whether the Applicant’s probation officer decides to take action on any breach is a matter for the probation service. The panel’s position is to assess behaviour and to consider whether such behaviour might impact upon the assessment of risk. In this case the panel, understandably, indicated that the reluctance to undertake a behavioural course in the community was a factor to consider in assessing the Applicant’s likely behaviour in the future. This does not in my determination amount to an error of law or indeed of fact.
Ground 2
29.It is submitted on behalf of the Applicant that the panel were wrong to take account of the fact that there had been (in the community) instances of highly volatile and explosive anger towards his COM and that the Applicant had been regularly using cocaine and not been honest about it. The Applicant’s legal adviser submits that there were explanations for this behaviour, and that the Applicant was trying to address problems with drug misuse.
Discussion
30.The panel’s role was to consider the evidence of behaviour by the Applicant in the context of making a decision about risk in the future. The panel inevitably took account of concerning behaviour in the community when reaching an overall assessment of the Applicant’s risk in the future. I am not persuaded that taking account of these issues, even in circumstances where the Applicant had made efforts to improve, was irrational in the sense set out above.
Ground 3
31.It is submitted on behalf of the Applicant that the panel were wrong to take account of the fact that there was evidence that the Applicant had not reported relationships and contacts with women (as he was required to do). It is argued on behalf of the Applicant that his COM, had not issued a formal warning about failing to notify relationships.
Discussion
32.The panel were entitled to take account of behaviour in the community which potentially elevated risk and was a potential breach of licence conditions. This was particularly the case in the circumstances of the Applicant’s index offences. The fact that the Applicant’s COM decided not to take formal action against the Applicant, while he was in the community, does not in my view prevent the panel from taking account of behaviour, when making an overall assessment of risk in the future. Risk related behaviour may not at all times lead to recalls or indeed warnings, however, a panel is entitled to take account of the nature and number of risk related factors when making an overall assessment about future risk. Again, I do not find that this argument amounts to irrational decision making in the sense set out above.
Ground 4
33.It is submitted that the panel were wrong to take account of evidence that the Applicant had (by his own admission) been involved in a number of “one night stands” with women. The panel were concerned about whether those women were fully informed about the Applicant’s background and risk.
Discussion
34.As indicated above, the panel were entitled to test and investigate the evidence of the Applicant’s behaviour while in the community to make an assessment as to risk in the future. A risk factor in relation to this Applicant was sexual preoccupation, behaviour which was clearly closely aligned with the nature of the Applicant’s contacts and relationships with women. The panel were entitled to take account of these issues in assessing risk. This does not in my view amount to irrational decision-making or assessment.
Ground 5
35.It is argued that the panel were wrong to conclude that, being involved in a single night encounter (with a woman), followed by telephone contact amounted to a “developing relationship” and a potential breach of licence.
Discussion
36.In the light of the index offence in this case, and the number of licence conditions related to relationships with women, I am not persuaded that the panel’s conclusion that the Applicant had failed to disclose the potential of a developing relationship could amount to a misinterpretation of the position. The panel were entitled to find that the Applicant, having engaged in a ‘one night stand’, followed by telephone contact, was in the course of a developing relationship and was therefore bound to disclose this to his COM under the terms of his licence.
Ground 6
37.The Applicant’s legal adviser submits that the panel were not entitled to indicate that, in their opinion, further behavioural work was required to be undertaken by the Applicant before his risk could be safely managed in the community. The argument on behalf of the Applicant is that it was “not for the panel” to determine further work was required and that there was an absence of a program needs analysis or a psychological assessment. Additionally, the COM had no details as to any further work which could be undertaken.
Discussion
38.Whilst it is not for parole panels to direct or indeed suggest any particular behavioural undertaking or programme, it is frequently the case, and in my determination acceptable, for a panel to indicate that having assessed the evidence, it is their view that the Applicant should undertake further behavioural work to demonstrate that risk can be safely managed in the community. It is also not a matter for the panel to suggest any particular form of work or indeed to become involved in whether such work might be available. The panel’s responsibility is solely directed towards assessing public risk, but panels are entitled to point out the fact that they take the view that further work would be required by a prisoner. Again, I do not find that the assertions by the panel could amount to irrationality in the sense set out above.
Ground 7
39.It is submitted on behalf of the Applicant that the panel were wrong to indicate that there was “ample evidence of active risk factors which increases risk”.
Discussion
40.The panel in its decision set out clearly the basis upon which they came to this conclusion. The Applicant had been misusing drugs whilst in the community, he failed to be open and honest with his probation officer (about drugs and relationships), he failed to undertake behavioural work which had been directed by his probation officer, he had been involved in sexual relationships which were not fully disclosed to his COM and he had entered into a relationship with a vulnerable woman. Again, in the light of the Applicant’s index offences, and his risk factors, the panel clearly set out the reasons for determining that there had been active risk factors, and that therefore the Applicant’s risk of serious harm could not be safely managed in the community. For that reason, I do not find that this ground amounts to irrationality in the sense set out above.
Decision
41.For the reasons I have given, I do not consider that the decision was irrational and /or procedurally unfair and accordingly the application for reconsideration is refused.
HH S Dawson
13 May 2025