[2025] PBRA 115
Application for Reconsideration by Davis
Application
1. This is an application by Davis (the Applicant) for reconsideration of a decision of the Parole Board following an oral hearing on 8 April 2025 not to direct his release.
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. This is an eligible case, and the application was made in time.
3. I have considered the application on the papers. The papers comprise:
a. The dossier now comprising 651 pages now including written submissions put in on his behalf following the hearing and the decision letter (DL) the subject of this application
b. The Grounds dated 8 May 2025 submitted on behalf of the Applicant in support of the application.
Background
4. The Applicant is now 52 years old. In January 2008 he was sentenced to an extended determinate sentence of 14 years comprising a custodial term of 14 years and an extension period of 10 years for 22 sexual offences committed against children. In February 2017 he was automatically released on licence. On 10 July 2020 his licence was revoked and he was returned to prison 3 days later. The hearing on 8 April 2025 was the third hearing since his recall to prison. His sentence will expire in October 2031.
Request for Reconsideration
5. The relevant sections of the Grounds are set out in full.
'On page 14 of the Decision letter at paragraph 4.6, the panel concluded,
'The Panel is required to consider risk beyond sentence end date. In [the Applicant's] case the risk to children is considered to be high and if he persists in presenting with similar attitudes and poor decisions as he has done in the community prior to the offences and on licence then there is a higher than minimal risk someone could be seriously harmed. Previous licence conditions as well as a custodial sentence have not been a deterrent to repeat behaviour. The Panel consider this risk to be unacceptable. It is likely that this risk will remain high until [the Applicant] demonstrates that he is able to self manage this area of risk. There is time to evidence this before his conditional release date. The Panel found little evidence that [the Applicant] is able to self manage this behaviour'.
Request for reconsideration
We would argue that the Parole Board Decision is irrational on the grounds that:
The panel did not record in its Decision letter significant evidence from [the Applicant] around his sexual interests which links to his truthfulness, an aspect that the panel considered throughout the Decision letter including its conclusion. The lack of this vital evidence raises a question as to whether this evidence was taken into account or afforded any weight at all, the absence of which has played at the least, a material part in the Decision.
Evidence omission 1
[The Applicant] was questioned whether he still had a sexual attraction to children.
The panel correctly records that [the Applicant] stated, 'I wouldn't say I have sexual interest in children out right. It was because L was wrong place at the wrong time and I was lonely and depressed and she was there' (page 7, paragraph 2.16). However, [the Applicant] went on to clarify to the panel that [currently] his 'sexual attraction is not with children' and went on to describe what ages (not children) he is attracted to, both of which is not recorded in the Decision letter. [the Applicant] also stated in evidence which was not recorded in the Decision letter that 'it has been so long since he had sexual thoughts about Lorna. Never about other children'.
Omitting [the Applicant's] clear statement that he does not have a sexual attraction to children and the age of the people he is attracted to, does not clearly present [the Applicant's] position on the matter and feeds into a narrative that [the Applicant] is not being truthful with the Parole Board about the principal aspect of risk. There was psychological evidence [the Applicant] would have had to have a sexual attraction and arousal to children for the index offences to have happened (page 9, paragraph 2.33) but his current sexual interest is fundamental to risk management on any future release.
Evidence omission 2
[The Applicant] also expressed why he disagreed with a previous Panel Decision letter in 2015 on the same subject of sexual interest but his comment is again not recorded. The panel decision records the following,
'The Panel also noted that to the 2015 Panel he admitted to being sexually attracted to female children especially to 13-14 year olds and because he didn't have access to that age group at the time he offended against his daughter. However more recently he has denied that he had a sexual attraction to children' (page 3, paragraph 1.4) and,
'To the present Panel he said he could not remember saying what is recorded in the 2015 decision letter and if he did he was not sure why he said it (page 3, paragraph 1.5),
[The Applicant] gave a reasonable explanation to the panel why he said it to the 2015 panel. [The Applicant] stated '[he] was told so many times that he was a wrong-un, peado etc, he believed it'.
His explanation was not recorded in the present Decision letter. This omission paints a picture of [the Applicant] not being honest with the current panel nor the 2015 panel. The impression [the Applicant] did not have an explanation leads to the lack of a fair assessment of his honesty more.
Views of professionals concerning sexual interests/honesty
In summary, the COM's evidence was that she was concerned about [the Applicant's] honesty regarding sexual interest/age of children. The POM had not asked [the Applicant] about his sexual interests but that he had been consistent regarding his account regarding his recall. The COM and POM did not recommend release.
Both prison and prisoner-commissioned psychologists' evidence stated there is no evidence of continuing sexual attraction to children and that [the Applicant] 'was more likely to be confused rather than lying' (oral evidence from Ms Unwin). Both psychologists recommended release.
The panel's view
The Panel were more persuaded by the COM and POM as to why [the Applicant] did not meet the test for release because of 'concerns around his openness and honesty, limited social networks, his relationship with his COM needs to be strengthened further and that further testing was required through progression to a Cat D establishment through the prison process' (paragraph 2.45, page 10).
Conclusion
If there were omissions of evidence from the Decision Letter that were not materially related to risk, there would not be an argument of irrationality. However, the statements that Mr Davies has made about his sexual interest and his previous account of sexual interest, in our submission go to the heart of any decision about whether he can be managed in the community on licence, particularly because the panel had concerns about his honesty. Within the panel's conclusion, the panel 'found little evidence that Mr Davies is able to self manage this behaviour' (paragraph 4.6, page 16) and 'the panel had concerns about how truthful he was being about all aspects of his index offences as well as his actions in the community on licence' (paragraph 4.2, page 13).
We note the overriding objective should be to treat the case justly and it is submitted that the omissions/mistakes of fact have played at least a material part in the reasoning not to direct PD's release.
We respectfully seek re-consideration of the panel's decision in order for PD to put his application for release before a new panel of the Parole Board.'
Current parole review
6. The Review was the 2nd since the Applicant's recall in 2020 case the case was referred to the Parole Board by the Secretary of State for Justice (the Respondent). The case had been listed for August 2024 but was deferred during the hearing as the result of evidence given at the hearing by the Applicant.
The Relevant Law
Parole Board Rules 2019 (as amended)
7. Rule 28(1) of the Parole Board Rules provides the types of decision which are eligible for reconsideration. This is an eligible decision.
Irrationality
8. In R (DSD and others) v the Parole Board [2018] EWHC 694 (Admin), the Divisional Court set out the test for irrationality to be applied in judicial reviews of Parole Board decisions. It said, at para116,
"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."
9. This test was set out by Lord Diplock in CCSU v Minister for the Civil Service [1985] AC 374. The Divisional Court in DSD went on to indicate that in deciding whether a decision of the Parole Board was irrational, due deference had to be given to the expertise of the Parole Board in making decisions relating to parole. The Board, when considering whether or not to direct a reconsideration, will adopt the same high standard for establishing "irrationality". The fact that Rule 28 contains the same adjective as is used in judicial review shows that the same test is to be applied.
10.The DSD case is an important case in setting out the limits of a rationality challenge in parole cases. Since then another division of the High Court in R (on the application of Secretary of State for Justice v Parole Board [2022] EWHC 1282 Admin) (the Johnson case) adopted a "more modern" test set out by Saini J in R (Wells) v Parole Board [2019] EWHC 2710 (Admin).
11.In the Wells case Saini J set out "a more nuanced approach" at paragraph 32 of his judgment when he said:
"A more nuanced approach in modern public law is 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".
12.It must be emphasised that this is not a different test to the Wednesbury reasonableness test. In the Wells case Saini J emphasised at paragraph 33 that "this approach is simply another way of applying" the Wednesbury irrationality test.
13.What is clearly established by all the authorities is that it is not for the reconsideration member deciding an irrationality challenge on a reconsideration - or a judge dealing with a judicial review in the High Court - to substitute his or her view for that of the panel who had the opportunity to see the witnesses and evaluate all of the evidence. It is only if a reconsideration member considering the application decides that the decision of the panel did not come within the range of reasonable conclusions that could be reached on all of the evidence, that he or she should allow the application.
14.Panels of the Board are wholly independent and are not obliged to adopt the opinions or recommendations of professional witnesses. The panel's duty is clear and it is to make its own risk assessment and to evaluate the likely effectiveness of any proposed risk management plan. That will require a panel to test and assess the evidence and decide what evidence they accept and what evidence they reject.
15.Once that stage is reached, following the guidance provided by such cases as Wells a panel should explain its reasons whether or not they are going to follow or depart from the recommendation of professional witnesses.
16.The giving of reasons by a decision maker is "one of the fundamentals of good administration" (Breen v Amalgamated Engineering Union [1971] 2 QB 175). When reasons are provided, they may indicate that a decision maker has made an error or failed to take a relevant factor into account. As I understand the principles of public law engaged in deciding this application, an absence of reasons does not automatically give rise to an inference that the decision maker has no good reason for the decision. Neither is it necessary for every factor to be dealt with explicitly for the reasoning to be legally adequate in public law.
17.The way in which a panel fulfils its duty to give reasons will vary depending on the facts and circumstances in any particular case. For example, if a panel is intending to reject the unanimous evidence of professional witnesses then detailed reasons will be required. In Wells at paragraph 40 Saini J said:
"The duty to give reasons is heightened when the decision maker is faced with expert evidence which the panel appears, implicitly at least, to be rejecting".
18.When considering whether this decision is irrational, I will keep in mind that it is the decision of the panel who are expert at assessing risk; importantly it was the panel who had the opportunity to question the witnesses and to make up their own minds what evidence to accept. As I have already observed, it is extremely important that I do not substitute my judgment for theirs. My function is to decide whether the panel in this case erred in law or reached a decision that was Wednesbury unreasonable and/or procedurally unfair in some respect.
Other
19.It is possible to argue that mistakes in findings of fact made by a decision maker result in the final decision being irrational, but the mistake of fact must be fundamental. The case of E v Secretary of State for the Home Department [2004] QB 1044 sets out the preconditions for such a conclusion: "there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter; the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable; the appellant (or his advisors) must not have been responsible for the mistake; and the mistake must have played a material (though not necessarily decisive) part in the tribunal's reasoning." See also R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] AC 295, which said that in order to establish that there was a demonstrable mistake of fact in the decision of the panel, an Applicant will have to provide "objectively verifiable evidence" of what is asserted to be the true picture.
20.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."
The reply on behalf of the Secretary of State
21.The Respondent has offered no representations in respect of this application.
Discussion
22.It will be clear from the cases referred to above concerning irrationality that an application for reconsideration following a case such as this in which the two professionals mostly closely concerned with the current and, (if released on licence), future management of the Applicant opposed release will require some fundamental failure of reasoning within the DL to render its decision irrational.
23.The core of the application lies in the DL's omission of some of the evidence given by the Applicant at the hearing and a submission that that omission was the result of the panel's failure properly to assess the evidence of the Applicant and thus to reach a "rational" conclusion as to the risk he now presents of serious harm.
24.As to the particular grounds submitted –
a. "Evidence Omission 1". The Decision Letter is, like a court judgment, expected to summarise the evidence within the dossier and at the hearing which has led it to its decision. At paragraphs 1.4, 1.8, 2.11, 2.15-16, 2.17, 2.33, 2.34, 2.44, 3.4, 3.13, 4.3, and 4.6. and elsewhere the question of the Applicant's past, recent and current attraction or lack of attraction to children were thoroughly summarised. The passage at 2.44 refers directly to the evidence given by the Applicant on the issue.
b. "Evidence Omission 2". I have listened to the recording of the Applicant's evidence which lasted the best part of 2 hours, in particular the passage cited in this Ground which took place after he had been giving evidence for a little more than an hour when being questioned by the second panel member to question him. In fact, he gave both the answer cited within the DL and - then, immediately afterwards - the answer quoted in the Ground. It is therefore true to say that the DL does not fully represent the Applicant's evidence on this topic. However, the failure to reflect that difference comes nowhere near rendering the ultimate decision, based on far more important considerations than the exact words used during a hearing some ten years earlier, irrational.
c. The final ground attempts to show that the panel's decision to accept the reasoning of the POM, and, in particular, the COM, that the risk currently posed by the Applicant was such as to militate against release and, that in due course a progression to open conditions might be the safest way to ensure that his risk was manageable upon his eventual release, was irrational. I find nothing in the opinion of the COM or in the acceptance of it by the panel to justify that assertion.
Decision
Accordingly this application is refused.
Sir David Calvert-Smith
28 May 2025