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The Parole Board for England and Wales


You are here: BAILII >> Databases >> The Parole Board for England and Wales >> Zhang, Application for Reconsideration by, [2025] PBRA 118 (10 June 2025)
URL: http://www.bailii.org/ew/cases/PBRA/2025/118.html
Cite as: [2025] PBRA 118

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[2025] PBRA 118

 

 

 

Application for Reconsideration by Zhang

 

Application

 

1.   This is an application by Zhang (the Applicant) for reconsideration of a decision of an oral hearing dated 4 April 2025 not to direct release and not to recommend a transfer to open conditions. The Applicant was formerly known by another name, but has changed his name by deed poll.

 

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 the extended time granted by the Board.

 

3.   I have considered the application on the papers. These are:

 

·         The Decision Letter (DL)

·         Representations on the Applicant's behalf dated 16 May 2025

·         The dossier, consisting of 1614 numbered pages ending with the DL

 

Request for Reconsideration

 

4.   The application for reconsideration is dated 16 May 2025.

 

5.   The grounds for seeking a reconsideration are as follows:

 

(1)         Procedural Unfairness

(a)         The Parole Board review has been protracted (starting in August 2021 and ending 3 years and 7 months later) to an extent which results in its being fundamentally flawed.

(b)         "There is evidence of bias within the decision or at least the perception of bias."

(2)         Irrationality

(a)         4 previous Community Offender Managers (COMs), the Prison Offender Manager (POM), prison-based psychologist and psychologist instructed on behalf of the Applicant, in fact all the witnesses except the current COM, gave evidence at a hearing in February 2024 supportive of release. The panel heard that MAPPA was supportive of release. At a later hearing in March 2025 another new COM did not support release.

(b)         The Risk Management Plan is extremely comprehensive and robust.

(c)         The panel questioned the Applicant's honesty, his lack of insight into his own sexual risks. The panel failed to take into account two incidents: one when the Applicant while on temporary release, was approached by a sex worker and declined her offer; the other when he borrowed a DVD from the library, discovered it had been recorded over with pornography, and returned it to the library orderly, explaining why.

(d)         The panel made a finding of fact in regard to what is referred to as "the hospital incident" and a finding of fact in regard to unsubstantiated intelligence reports (IRs).

(e)         It is accepted that the Applicant gave conflicting evidence over two oral hearings, but "it is questionable to what extent the panel considered [the Applicant's] cognitive functioning and neurodiversity issues" when concluding that he did not give credible evidence. "Arguably they did not adapt their questioning style into a format he was able to better understand." Specifically, the Representations suggest that the Applicant did not understand what was meant by sexual urges as contrasted with sexual thoughts, and that the panel's conclusion that he still has unhealthy sexual thoughts/risks may be based on a misunderstanding.

(f)          "It is accepted that there is a reliance on external controls, this is more likely the case with an individual with ASD and cognitive difficulties, however those external controls are stringent and robust, and capable of identifying warning signs in the event of elevation of risk."

Background

 

6.   The Applicant is now 59 years old. He was 44 in 2008, when he received a sentence of imprisonment for public protection (IPP) for an offence of rape. He had many previous convictions, including 20 convictions for sexual offences. In December 1981, when he was 17, he received a probation order for an offence of attempted rape. In March 1987, for offences of indecent assault on a female under 18, gross indecency with a child and indecent exposure, he received a short, suspended sentence of imprisonment. In May 1987 he received an 18 month sentence of imprisonment for inflicting grievous bodily harm on his daughter. In August 1987, for two offences of indecent exposure, he received a short sentence of imprisonment. In August 1988 he was sentenced to 3 years' imprisonment for attempted rape. In December 1990 he received a sentence of 21 months' imprisonment for two offences of gross indecency with a child. In July 1991, for indecent assault on a female, he was sentenced to 21 months' imprisonment consecutive to that sentence. In July 1993, he received a sentence of 8 months' imprisonment for two offences of indecent assault. In May 1994 he received a conditional discharge for indecent exposure. In December 1994, for an offence of indecent assault on a female, he received a total sentence of 6 years' imprisonment.

 

7.   In November 1998, for two offences of indecent assault, and one offence of outraging public decency, he received a sentence of 4 years' imprisonment. In January 2004 and again in April 2005 the Applicant received further sentences for breaching a Sex Offender Order; he was recalled twice during his licence. In March 2007 he received a 26 month sentence for outraging public decency and breach of a Sex Offender Order.

 

8.   The index offence, for which he received an IPP with a Tariff Expiry Date in April 2012, was committed against an adult female who, like the Applicant, was under supervision at the same probation office. The Applicant was on licence after his release from the 2007 offences. The Applicant and the victim (V) had met before, and V had told her probation officer that she was frightened of the Applicant. They were both at the probation office on the same day. The Applicant hung around after his appointment finished. V asked to be let out of the back door. But they met again by the station and walked together to a secluded spot where the Applicant attacked V and raped her in humiliating circumstances, while verbally abusing her. The Applicant pleaded Guilty on the day of the trial. Initially, to the author of the Pre-Sentence Report, the Applicant said he was Not Guilty of the offence and had only pleaded Guilty because his solicitor told him to do so. He now accepts his guilt. He admitted in later interviews that he was pre-occupied with sex, that he had distorted views about sex and relationships, believing that he needed to scare women in order to have sex. But he told a Parole Board panel in 2022 that he had not been violent towards V, and believed she was compliant.

 

9.   Many of the Applicant's previous convictions involved him approaching teenage girls, either in a public area or on buses, and sexually assaulting them or exposing himself.

 

10.During the current review period the Applicant has been diagnosed as having High Functioning Autism Disorder, certain personality disorder traits, and low average to borderline intellectual abilities.

Current parole review

 

11.I take the history of this parole review from the DL:

 

·         07/04/2021 Referral by the Respondent

·         19/09/2022 First hearing scheduled. Applicant at establishment A, Cat D. Hearing adjourned - funeral of Queen Elizabeth II.

·         21/11/2022 Hearing adjourned because of (disputed) new allegations which had resulted in the Applicant being returned to closed conditions. Evidence taken from POM and Applicant only.

·         07/12/2022 Hearing adjourned because of an allegation that the Applicant was in possession of pornographic DVD. Adjourned for more information and updated reports.

·         21/02/2024 Full hearing and evidence taken from all witnesses.

·         29/04/2024 Further adjournment. After the above hearing the POM provided evidence that the Applicant was alleged to have behaved inappropriately during a hospital visit ("the hospital incident"). Panel decided it must reconvene.

·         26/03/2025 Final hearing

·         04/04/2025 Decision Letter

 

12.The DL records that the Applicant was offered a deferral and an expedited hearing by a fresh panel to mitigate the mounting delays. His then legal representatives said they would prefer to continue with the same panel.

 

13.The panel consisted of two independent members of the Board and one psychologist member. On 21 February 2024 the panel heard evidence from a prison-based psychologist, a lead psychologist from an OPD based support service (who has worked with the Applicant for many years), the POM, a psychologist instructed on behalf of the Applicant, the COM, a security governor and a support worker, as well as the prisoner. On 26 March 2025 the same witnesses gave evidence, save that there was a new COM, and an escort officer who gave evidence about the hospital incident. The Applicant was legally represented throughout, though it appears from the Representations on his behalf that he changed solicitors in early March 2025. His representatives had the opportunity to question witnesses, and to make representations at all stages in the proceedings. The panel considered a dossier which then contained 1591 pages.

 

The Relevant Law

 

14.The panel correctly sets out in its decision letter 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)

 

15.This decision and this sentence are eligible for reconsideration.

 

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 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- the Parole Board [2018] EWHC 694 (Admin) (Worboys) 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."

 

19.In R(on the application of 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 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).

 

20.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.

 

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.

Procedural unfairness

 

  1. 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 focuses on the actual decision.

 

  1. 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;

(e)         the panel did not properly record the reasons for any findings or conclusion; and/or

(f)          the panel was not impartial.

 

  1. The overriding objective is to ensure that the Applicant's case was dealt with justly.

 

26.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.

 

27.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."

 

28.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

 

29.The Respondent has chosen not to make any reply to this application.

 

Discussion

 

30.I can deal briefly with the complaint of procedural unfairness.

 

31.Although a great deal is said in the Representations about the protracted nature of this review process, nowhere is it suggested how this may have changed the outcome. On the contrary, the author of the Representations speculates on the state of mind of the panel as the case proceeded, and proposes that the better course would have been for the panel to decide the case on the papers rather than permit such extensive adjournments: a decision on the papers would, in the context of this case, inevitably have been a decision to refuse release.

 

32.Furthermore, if I were to find that the delay in this case did give rise to procedural unfairness, the only remedy at my disposal is reconsideration: that is, further delay before a decision is reached. In those circumstances, I would exercise my discretion not to grant reconsideration, as the remedy would compound the unfairness. In fact, I do not find that the delay in this case, regrettable though it undoubtedly is, falls into the category of procedural unfairness as discussed above.

 

33.The Representations assert that "there is evidence of bias within the decision or at least the perception of bias". This is a grave allegation, and no responsible firm of solicitors should permit such an allegation to be made on its behalf without there being a basis for it. Not even the flimsiest of bases for the suggestion is advanced: the author of the Representations has read a transcript of some or all of the proceedings and does not refer to it at all for these purposes. The most the Representations say on this point is that the author suspects that, having heard evidence in February 2024, the panel was "unlikely to be impartial to new arguably negative information reported to it via security reports". This, of course, is mere speculation, and would not, if properly expressed (the panel, viewing the evidence as a whole, might assess evidence in 2025 in the light of what it had heard in 2024), amount to an allegation of bias at all. I am asked to consider the vaguest, and most serious, of slurs against the panel without there being any particulars given or any evidence to support it. It does not seem that the author of the Representations has a professional body to which he can look for guidance as to his future conduct. I must leave it to the solicitors on whose behalf he signed the Representations to see that professional standards are complied with in future.

 

34.I do not find that the complaint of procedural unfairness producing a manifestly unfair, flawed, or unjust result is made out.

 

35.I turn to the question of irrationality.

 

36.As to (a), see Paragraph 22 above. In this case the panel very clearly explained its reasons for disagreeing with the professional opinions of some, though not all, of the witnesses. Panels of the Parole Board are not obliged to adopt the opinions and recommendations of professional witnesses. It is their responsibility to make their own risk assessments and to evaluate the likely effectiveness of any risk management plan proposed. They must make up their own minds on the totality of the evidence that they hear, including any evidence from the Applicant. They would be failing in their duty to protect the public from serious harm (while also protecting the prisoner from unnecessary incarceration) if they did not do just that. As was observed by the Divisional Court in DSD, they have the expertise to do it.

 

37.As to (b), the panel was entitled on the evidence to conclude that this "gold standard" (as it expressed it) RMP would be inadequate to control this Applicant, with his long record of sexual offending and, as the panel found, recent evidence of continuing inappropriate sexual interest (the hospital incident). And see Paragraph 41 below.

 

38.As to (c), the panel was aware of the evidence about the two matters referred to. In respect of the incident with the sex worker, on that occasion the Applicant was accompanied by a member of staff: the incident told the panel nothing of how he would have behaved if not so supervised. As to the DVD, this too gives little information as to what the Applicant would do in the community.

 

39.As to (d), in regard to the hospital incident, I cannot find in the Representations any suggestion that the panel was not entitled to come to the conclusion that it did, applying Pearce [2023] UKSC 13: he had become preoccupied with a female patient and had focused his attention on her during a hospital visit. Nor can I see anything to suggest that the panel's finding was irrational or wrong. In regard to the security and intelligence reports (SIRs), again the panel applied Pearce in coming to the conclusions it did. It made no firm findings of fact in regard to the security concerns and gave its reasons for that. It noted as an area of concern that sexual preoccupation and sexual gratification may remain problematic for the Applicant, even in prison. Complaint is made that the panel noted that the IRs demonstrate a pattern of alleged behaviour that spanned several years, when (the Representations assert) they were over a period from late 2022 to mid 2023, and all from establishment A. I am far from sure that this assertion is correct: I can find relevant concerning entries in the dossier dating back to 2018; see, for example, p220-221. In any event, there was nothing irrational in the way the panel applied Pearce and came to its very limited conclusions in this area.

 

40.As to (e), the panel was, as it stated at Paragraph 2.20 of the DL, fully aware of the Applicant's learning style and autism and other personal difficulties. The Applicant had the benefit of representation throughout. If his representative had considered at any stage that the Applicant was not understanding the questions he was being asked, the representative could and should have asked the Applicant and other witnesses questions that clarified the issue. At no stage had any witness or representative on behalf of the Applicant suggested that a face-to-face hearing was necessary in this case. After the event is too late for any such suggestion.

 

41.In respect of (f), the panel was entitled on the evidence to conclude that, notwithstanding the strength of the RMP, without more evidence of internal controls the Applicant did not pass the test for release. It is important to take account of the spontaneous and recurrent pattern of the Applicant's offending as set out in Paragraph 9 above: unless he is under constant supervision, which is not and cannot be a condition of his licence, only internal controls can prevent such behaviour.

 

42.I do not find the complaints of irrationality to be made out, either individually or taking them together.

Decision

 

43.For the reasons I have given, I do not consider that the decision was irrational or procedurally unfair and accordingly the application for reconsideration is refused.

 

 

 

 

HH Patrick Thomas KC

10 June 2025

 

 

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