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You are here: BAILII >> Databases >> The Parole Board for England and Wales >> Futter, Application for Reconsideration by, [2025] PBRA 119 (02 June 2025)
URL: http://www.bailii.org/ew/cases/PBRA/2025/119.html
Cite as: [2025] PBRA 119

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[2025] PBRA 119

 

 

Application for Reconsideration by Futter

 

 

Application

    

1.   This is an application by Futter ('the Applicant') for reconsideration of a decision of a panel of the Parole Board ('the Board').

 

2.   The Applicant is serving an extended determinate sentence for a serious sexual offence against his then partner ('the index offence'). The sentence was imposed on 30 November 2015. The Applicant's case has been referred by the Secretary of State for Justice ('the Respondent') to the Parole Board ('the Board') to decide whether he should be released early on licence.

 

3.   On 14 April 2025 a panel of the Board decided against early release. The Applicant's legal representative has now made an application for reconsideration of that decision.

 

Request for Reconsideration

 

4.   Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2024) provides that applications for reconsideration of panel decisions may be made, either by the prisoner or by the Secretary of State for Justice, in eligible cases.

 

5.   Rule 28(2) specifies the types of cases in which reconsideration applications may be made. They include cases, like the Applicant's, where the prisoner is serving an extended determinate sentence.

 

6.   A reconsideration application may be made on the ground:         

 

(a) that the panel's decision contained an error of law and/or        

(b) that it was irrational and/or                  

(c) that it was procedurally unfair.

 

7.   In this case an application for reconsideration has been made on the ground of irrationality. There is no suggestion of any procedural unfairness or any error of law.

 

8.   The application was made just after the expiry of the 21 day time limit for applications of this kind but has been accepted by the Board as it arrived on a Bank Holiday.

 

9.   I am one of the members of the Board who are authorised (as 'Reconsideration Assessment Panels') to make decisions on reconsideration applications, and this case has been allocated to me. I have not found it necessary to receive any oral evidence and I have considered the application on the papers.

 

10.The documents which have been provided to me and which I have considered for the purposes of this application are:

 

(a) the dossier of papers provided by the Respondent for the Board's review of the Applicant's case: the dossier now runs to page 501 and includes a copy of the panel's decision;

(b) the representations made by the Applicant's solicitor in support of this application for reconsideration; and

(c) an e-mail from the Public Protection Casework Section of the Ministry of Justice ("PPCS") stating that the Respondent does not wish to make any representations in response to this application.

 

 Background and history of the case

 

11.The Applicant is now aged 35. He has been diagnosed as suffering from Autistic Spectrum Disorder ('ASD'). It is said that this condition has impacted on (a) his ability to understand other people's emotions, (b) his understanding of intimate relationships, (c) his tendency to apply a literal interpretation of information and (d) his rather rigid style of thinking.

 

12.He has been before the courts on many occasions, the earliest of which was when he was aged 13. Most of his convictions have been related to his misuse of alcohol. His early convictions were mainly for offences of dishonesty, but more recently he has been convicted of serious offences of violence. It is those on which I need to focus for the purpose of this decision.

 

13.His first offence of violence was in June 2012 when he was aged 22. The victim was his then partner Ms L. The offence was a common assault, to which he pleaded guilty and for which in December 2012 he received a 9-week sentence of imprisonment.

 

14.He was on bail for that offence when, in September 2012, he committed an assault on a shopkeeper, which caused the victim grievous bodily harm. It is reported that the victim had confronted him when he was stealing alcohol from his shop, and he threw bottles of wine at the victim hitting him on the head and foot and causing broken toes and swelling of the victim's head. The Applicant pleaded guilty to that offence and in January 2013 he received a 15-month sentence for it.

 

15.The Applicant's next offence of violence was in April 2013. When he came out of prison after serving his latest sentence he resumed his relationship with Ms L. He believed that she had been unfaithful to him when he had been in prison. When in drink he subjected her to a sustained attack during which he punched and kicked her a number of times, as a result of which her jaw was broken. He was not prosecuted for that offence at the time.

 

16.He committed further offences of violence in March 2015, by which time he was in a relationship with another woman, Ms H. He was charged with a variety of offences against Ms H and also, belatedly, with the April 2013 offence against Ms L.

 

17.He pleaded guilty to the offence against Ms L and to assaulting Ms H causing her actual bodily harm. He also pleaded guilty to attempting to pervert the course of justice by trying to persuade Ms H to withdraw her complaint against him.

 

18.He pleaded not guilty to raping Ms H, sexual assault on her by penetration and threating to kill her. He was acquitted by the jury of rape but they convicted him of the sexual assault and threatening to kill Ms H. As regards the rape he agreed that he had had sexual intercourse with Ms H just after he had attacked her, but said that she had consented to it. As the jury acquitted him on that count, it must be assumed that he was telling the truth about that.

 

19.It appears that he now accepts the threat to kill Ms H but he continues to deny the sexual assault. He is aware that the panel was obliged to assess his risk on the basis of the jury's verdict on that charge: the Board has neither the authority nor the resources to re-investigate a case which has been decided by a jury.

 

20.The Applicant was sentenced in November 2015 for the various offences to which he pleaded guilty or of which he was convicted. The judge treated the sexual assault as the most serious of those offences and imposed the EDS sentence on that offence, with shorter normal determinate sentences for the others. Those sentences were ordered to run concurrently with the EDS sentence.

 

21.The EDS sentence is made up of a custodial term of 12 years and an extended licence period of 3 years. The Applicant became eligible for early release on licence from that sentence in March 2023. His case has been referred by the Respondent to the Board to review the case and to decide whether to direct his early release on licence. If he is not released on licence by the Board on this or a later review he will be automatically released on licence in March 2027 (his 'Conditional Release Date'). His sentence will not expire until March 2030 (his 'Sentence Expiry Date').

 

22.For reasons into which it is unnecessary to go the progress of this case has been rather delayed. However, an oral hearing eventually took place on 8 April 2025. It was conducted by video link. The panel who considered the case comprised an Independent Chair, a Psychologist Member and another Independent Member. The dossier of papers provided by the Respondent contained 470 numbered pages at the time of the hearing. The Applicant was legally represented.

 

23.Oral evidence was taken by the panel from the Applicant himself and the following professional witnesses:

 

(a) the Applicant's prison offender manager ('POM');

(b) a prison psychologist; and

(c) the Applicant's community offender manager ('COM').

 

24.At the conclusion of the hearing it was agreed that the Applicant's legal representative should provide closing submissions in writing. These were duty provided along with handwritten representations by the Applicant himself.

 

25.The panel's decision was issued on 14 April 2025. The panel did not direct early release on licence.

 

26.This application for reconsideration of the panel's decision was made on 6 May 2025 by the Applicant's legal representative on his behalf.

 

The Relevant Law        

 

The test for release or re-release on licence

 

27.Under the Codified Public Protection test the panel could only direct the Applicant's release on licence if they were satisfied that his continued confinement in prison is no longer necessary for the protection of the public, and they could only be so satisfied if they considered that, if the prisoner were to be no longer confined in prison, there would be no more than a minimal risk of his committing a further offence so serious that it might result in serious harm to somebody else.

 

The rules relating to reconsideration of decisions

 

28.Under Rule 28(1) of the Parole Board Rules 2019 (as amended in 2024) a decision is eligible for reconsideration if (but only if) it is a decision that the prisoner is or is not suitable for release on licence. The grounds on which an application may be made are as set out above (error of law, irrationality or procedural unfairness). As noted above the application in this case is made on the ground of irrationality.

 

29.A decision that a prisoner is or is not suitable for release on licence is eligible for reconsideration whether it is made by:

(i) A paper panel (Rule 19(1)(a) or (b)) or

(ii) An oral hearing panel after an oral hearing, as in this case (Rule 25(1)) or

(iii) An oral hearing panel which makes the decision on the papers (Rule 21(7)).

 

Definition of irrationality

 

30.The power of the courts to interfere with a decision of a competent public authority on the ground of irrationality was defined in Associated Provincial Houses Ltd -v- Wednesbury Corporation 1948 1 KB 223 by Lord Greene as follows: "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 Parole Board is a public authority for that purpose, and the Wednesbury test therefore applies to applications to the High Court for judicial review of a panel's decision. It also applies to applications to Reconsideration Panels of the Board for reconsideration of a panel's decision on the ground of irrationality.

 

31.In R (DSD and others) -v- the Parole Board 2018 EWHC 694 (Admin) ('the Worboys case') a Divisional Court applied this test to Parole Board decisions in these words: "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." The same test of course applies to "no release" decisions.

 

32.In R (on the application of Wells) -v- Parole Board 2019 EWHC 2710 (Admin) Mr Justice Saini set out what he described as a more nuanced approach in modern public law. This approach 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". This formulation of the 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).

 

33.As was made clear by Mr Justice Saini, this is not a different test from the Wednesbury test. The interpretation of (and application of) the Wednesbury test in parole hearings (as explained in the Wednesbury and DSD cases) was of course binding on Mr Justice Saini. It is similarly binding on Reconsideration Panels.

 

34.It follows from these principles that in considering an application for reconsideration a Reconsideration Panel cannot substitute its own view of the evidence for that of the panel who heard the witnesses and were able to assess their reliability. The Reconsideration Panel will only direct reconsideration on the ground of irrationality if the Wednesbury test is satisfied.

 

The request for reconsideration in this case

 

35.As noted above the application in this case was made by the Applicant's legal representative on his behalf. The arguments deployed by the legal representative in support of the application will be discussed below.

 

The reply on behalf of the Secretary of State

 

36.The Respondent has offered no representations in respect of this application.

 

Discussion

 

37.There can be no doubt, given his offending history, that at the commencement of this sentence the Applicant posed a high risk of serious harm to any future intimate partners. The key question which the panel had to decide was whether that risk had been reduced to a level at which, if the Applicant were to be released on licence, the risk would be no more than minimal.

 

38.None of the three professional witnesses believed that that would be the case. The panel were not obliged to follow the opinions of the professional witnesses, but if they had departed from the views of those professional witnesses they would have had to give reasons for doing so which would stand up to close examination. Otherwise their decision would have been susceptible to a reconsideration application by the Respondent.

 

39.It would be helpful, I think, if for the purposes of my decision on this application I summarised:

 

(a) the evidence about the Applicant's progress in prison as described by the panel;

(b) the Applicant's evidence;                                        

(c) the views of the professional witnesses;                              

(d) the panel's reasons for not directing release on licence; and            

(e) the arguments advanced by the Applicant's legal representative in support of the application for reconsideration.                                 

 

I will then be able to explain my conclusions.

 

The Applicant's progress

 

40.The panel noted that to the Applicant's credit he had, between 2016 and 2019, engaged in a number of non-accredited courses related to personal development, substance misuse, assertiveness and decision making.

 

41.In July 2019 he engaged with a Programme Needs Assessment ('PNA') by a psychologist to determine whether he was suitable for an accredited programme. The assessor recommended participation in a particular accredited programme which would be of greater intensity and effectiveness than the non-accredited programmes which the Applicant had previously completed. By then he had been assessed as suffering from ASD, and the assessor considered whether he would need to undertake an adapted version of the programme but concluded that he would not.

 

42.The Applicant disputed the outcome of the PNA, arguing that (a) it did not reflect his true level of risk and (b) he would not cope well in a group setting on account of his ASD. As a result of that dispute he refused to be transferred to a prison where the recommended programme was available. It was thought by the professionals that his rigid thinking on that topic was, at least in part, related to his ASD.

 

43.The Applicant's behaviour in prison in recent years has usually been positive but there was a period in 2021-2 when he attracted numerous negative entries for poor compliance with the regime. After that, in February 2022, he was transferred to another prison where he soon obtained the highest level in the Incentives and Earned Privileges ('IEP') scheme.

 

44.He has consistently maintained that level since then. He has also engaged well with the Substance Misuse Team and appears to have succeeded in abstaining from misuse of alcohol or other substances (which are readily available in prisons). He has established a good relationship with his POM and is reported to get on well with other people.

 

The Applicant's evidence

 

45.Before answering questions from the panel, the Applicant had prepared a written statement which he read out. His statement outlined the role of alcohol in his offending, which he linked to poor self-esteem and poor coping which in turn had impacted on his belief system. He said that, as he is not now using alcohol, his old views are not currently present.

 

46.He said that if he were to enter a new relationship he would employ skills which he had learned in custody, such as being patient and asking for help. He accepted that he struggled to accept his past behaviours, but had accepted his mistakes, had matured and now 'likes who he is'.

 

47.When asked how he had changed since the index offences, he stated that he had matured and had 'looked into his wrongs' to stop the same thing happening again. He referred to a time early in his sentence when he had been at a prison which provided psychodrama sessions and he had had a 'lightbulb moment' which had helped him see things from other people's points of view. He said that he is now able to challenge his thinking by accepting that other prisoners are at different stages of their sentence, and he has learned to walk away from certain situations.

 

48.He believes that his risk has been the lowest it has ever been and his view is that he cannot lower it any further before being released on licence at his CRD.

 

The views of the professional witnesses

 

49.The POM's view is that the Applicant minimises his offending, tending to identify external factors (i.e. alcohol) as opposed to internal factors (i.e. his value system at the time of his offending). The Applicant presents with resistance to undertaking further work because he disagrees with the professionals' assessments of his risk and does not believe he will benefit from the proposed work.

 

50.The POM believes that the programme recommended by the PNA assessor (or its replacement by another similar programme) remains the most appropriate intervention, and that another programme which the Applicant says he is willing to undertake in the community is not intensive enough to address his level of risk.

 

51.The prison psychologist confirmed in his evidence to the panel the view which he had set out in detail in his report. He accepted that there had been evidence of change in that the Applicant accepts being violent in his relationships. However he believed that the Applicant showed less insight on how he would manage future risky situations, other than just saying that he would walk away from a relationship. As the psychologist put it, given the Applicant's unaddressed attachment issues related to people leaving him, he is more likely to cling on to a relationship than to walk away from it.

 

52.In the psychologist's view it is in that context that the Applicant's risk has not been fully addressed and requires further exploration through intensive core risk reduction work. The psychologist's preference for that work would be a period in a Therapeutic Community but at the very least he believes it should be engagement in the programme recommended in the PNA.

 

53.The COM was also of the view that the Applicant still requires a high intensity programme to address his risk, which in the COM's view is core risk reduction work. She believes that the Applicant over-simplifies his risk by attributing his offending primarily to his use of alcohol.

 

The panel's reasons

 

54.The panel had first to make their own assessment of the Applicant's risks and the likelihood of the proposed risk management ('RMP') being effective to protect the public.

 

55.As regards the assessment of the Applicant's risks the panel wrote in their decision letter:

 

"In reaching its own assessment of risk, having considered both the written and oral evidence, the Panel agree that [the Applicant] would present with both a high risk to the public and a high risk of future intimate partner violence. His risk of serious harm is largely related to the potential for him to commit future acts of domestic violence towards any future intimate partner. If he were to re-establish a relationship with a previous partner (i.e. the mother of his third child) they would also be at risk from him. His proven offending in this capacity indicates he has the capacity to cause serious physical and psychological harm. [His] risk would be heightened if he was in an intimate relationship, had not dealt with attachment style which increases the likelihood of him become jealous and/or paranoid regarding a partner's fidelity, was failing to manage his emotions within this context, and was misusing alcohol. As, in the view of the Panel, [the Applicant] has not yet addressed the underlying causes of his offending behaviour and has partial insight into the future risk he poses, the Panel concluded there would be imminence to his risk if in the community. Whilst risk is mitigated by him not being in a relationship, his proven offending indicates that his risk can escalate quickly and in an unpredictable fashion. The Panel agree with the analysis of [the psychologist] that risk of sexual offending is likely to occur within an intimate relationship. [The Applicant] continues to present with a risk of general violence which would be heightened if he were under the influence of alcohol."

 

56.As regards the likely effectiveness of the RMP the panel wrote:

 

"Whilst the proposed RMP is robust, the conclusion of the Panel was that it was not sufficient to manage [the Applicant's] risk of serious harm. This is based on there being insufficient evidence of risk reduction since the start of his sentence, that there remains core risk reduction work outstanding and the Panel have assessed his risk as imminent. In this context the Panel were not satisfied that warning signs of increased risk would be identified and acted upon before the point at which serious harm could occur. Whilst [the Applicant] presents as motivated to comply, his lack of insight regarding this risk he poses means he may not disclose relevant information of his own volition. The Panel also note a poor history of previous compliance when in the community."

 

57.Finally the panel had to reach their own overall conclusion as to whether the test for release on licence was met. They wrote:

 

"In reaching a decision, the Panel carefully considered both the written and oral evidence and the written closing submissions from [the legal representative]. Within those submissions, [she] highlighted that although [the Applicant] had not engaged in formal risk reduction work the case of Gill indicates that such work is not necessary for sufficient condition for release and that [the Applicant] had perused [sic: pursued?] other avenues to reduce his risk. It was further highlighted that [the Applicant] is not currently in a relationship, therefore [the legal representative] submitted risk is not imminent, remaining in custody would not test any risk regarding relationships, the proposed RMP was sufficiently robust to manage his risk and that his release should be directed.

 

"[The Applicant] is serving an EDS for several acts of serious violence against two intimate partners. One of the victims was also sexually assaulted by [the Applicant], something he disputes. The effects of his offending would have caused serious physical and enduring psychological harm to the victims. The Panel assess that [the Applicant's] emotional management within his relationships, specifically at times when he perceives a partner may have been unfaithful, the impact of his ASD and his misuse of alcohol are critical risk factors related to these offences. He has a previous conviction for assaulting one of the victims of the index offences and a previous conviction for a serious act of violence.

 

"The Panel assess that there has been evidence of change on the part of [the Applicant] since the index offence. He does present as more insightful into the underlying drivers into his offending - particularly regarding substance misuse, his diagnosis of ASD has created a more comprehensive understanding of his risk, his evidence to the Panel indicates a greater level of maturity than at the point of his conviction, he is proactively engaged in several non-accredited interventions and has maintained Enhanced IEP status for a significant period of time. All this is entirely to [the Applicant's] credit.

 

"Given the above changes, it is unfortunate that [the Applicant] has been not yet had the opportunity to complete a structured intervention to address his risk within intimate relationships. Whilst he states he has never declined any opportunity, the dossier describes there having been reluctance on his part. This may be a product of his ASD and potential over-confidence about the extent to which he has made changes through maturation, reflection and non-accredited work. Given the chronicity of his intimate partner violence the Panel have concluded that a High intensity intervention is outstanding core risk reduction work. Whilst [the Applicant] is insightful into the role of alcohol in his offending, this has been at the expense of more underlying attitudes and behaviours which have driven his use of violence. The presence [sic: absence?] of core risk reduction work does not preclude [the Applicant] from being considered for release as long as his risk has reduced to an extent that it is manageable in the community.

 

"Whilst accepting that [the Applicant] has evidenced greater insight via other means, it is not sufficient, in the view of the Panel, to be sufficient to indicate his risk would be manageable within the community given the serious nature of his offending.

 

"It is in this context that the Panel have assessed his risk to be both High and with imminence were his release to be directed. Given [the Applicant's] partial insight into his offending and lack of insight into future risk scenarios, the Panel were not content that the proposed RMP would identify and act upon signs of increasing risk before the point at which serious harm could occur. As outlined in the index offences, his risk has the capacity to increase rapidly and unpredictably when risk factors are activated.

 

"At the oral hearing, there was no support for [the Applicant's] release from the professional witnesses.

 

"As the Codified Public Protection Test has no temporal element, the Panel needs to consider future risk and determine whether release would cause a more than minimal risk of serious harm to the public whether before or after the date of [the Applicant's] Conditional Release Date and Sentence Expiry Date. In doing so, the Panel has borne in mind that there must be a causal link between [the Applicant's] continued detention and the prevention or reduction of risk. On the evidence available to it, the Panel has assessed that there is risk related to [the Applicant's] use of violence within intimate relationships. It determinates this risk could be prevented by [the Applicant's] continuing detention as the Panel have assessed that there is core risk reduction work outstanding to address this area of risk, the proposed RMP is not sufficient to address or reduce his risk and that his risk is potentially imminent if he were not in custody. It would follow from this that the Panel concluded that there would be a more than minimal risk of serious harm to the public if he were not confined.

 

"Therefore, in both considering and applying the Codified Public Protection Test, the Panel have concluded that it remains necessary for the protection of the public that [the Applicant] remains confined and does not direct his release."

 

The legal representative's submissions

 

58.The legal representative has made a number of detailed submissions which I will address in turn. I have also considered the Applicant's own representations to see if there is anything in them to add significantly to the legal representative's.

 

59.Submission: "Whilst [the Applicant] maintains his innocence for the sexual element of his offending, he has not dismissed the severity of the conviction and, to his credit, has reflected on the circumstances of the offence in light of his Autism Spectrum Disorder (ASD) and how this may have impacted on his perception of consent.

 

"We do not submit that the Panel in this matter placed any undue weight on [the Applicant's] stance on innocence, nor does it appear that this this (sic) was a conclusive factor in their assessment of risk. With this in mind, whilst we appreciate that this will be a continuing factor when considering our application for reconsideration, we submit that this should not hold any additional weight to what has already been assessed by the panel."

 

60.As explained above (and as the Applicant is aware) the panel was obliged to proceed on the basis of the conviction for sexual assault which the judge treated as the most serious of the Applicant's offences. I agree with the legal representative that the panel do not seen to have regarded the Applicant's denial of the sexual offence as a conclusive factor. However, when considering whether the Applicant needed to undertake any core risk reduction work the panel necessarily had to have in mind that he had been convicted of a serious sexual offence and had not undertaken any risk reduction work to reduce his risk of future offending of that kind.

 

61.Furthermore, the legal representative appears to accept (rightly) that without the necessary risk reduction work the Applicant might behave in sexual matters in an unacceptable way, not appreciating that his partner did not want him to behave in that way. This would, of course, be damaging to their relationship and might result in violence.

 

62.Submission: "To reiterate the general evidence heard, whilst [the Applicant] had no support for release, it was agreed amongst professionals that [he] was an open and honest individual, with consistently good custodial behaviour, and one who was able to take on criticism and adjust his behaviour where necessary.

 

"It appears that the Panel have raised some concern regarding the Applicant's ability to disclose important information, calling into question the manageability of risk, however, we submit that these concerns are unfounded and have only been raised on the assessment that his insight is lacking."'

 

63.It is of course to the Applicant's credit that his behaviour in prison has been good and he has been able to be generally open and honest with those supervising him. However this does not mean that he will always be able to behave appropriately in an intimate relationship in the community, nor does it mean that there is no risk of his being less than open and honest with those responsible for supervising him in the community. I believe that the panel were fully justified in assessing that there are significant limits to the Applicant's insight.

 

64.Submission: "...it was brought to the attention of the Panel during the hearing that [the Applicant] was in contact with the mother of his child. Whilst this contact is purely platonic and for the benefit of their shared child, concern was raised that probation was unaware of this, despite [the Applicant's] transparency."

 

65.This point arises from the following passage in the panel's summary of the COM's evidence: "[The previous COM] was not aware that the Applicant had been in contact with a previous partner. It does highlight concerns about his understanding about relationships and when to disclose these although in fairness this had not likely been explained to him therefore it is unlikely this was deliberate on his part."

 

66.The panel's qualification in this passage is important, and this part of the COM's evidence was not referred to again in the panel's decision letter. It is clear that the panel attached no weight to it in their reasons.

 

67.Submission: "...whilst professionals consistently praised [the Applicant] for his understanding of the underlying drivers of his offending and particularly commended his understanding of his alcohol use and his recently diagnosed ASD, which has significantly contributed to his improved, positive, custodial behaviour, they took the view that he had overcompensated his risk to these factors at the expense of other risk factors at play."

 

68.This point arises from the following passage in the 'Conclusion' section of the panel's decision letter: "Whilst [the Applicant] is insightful into the role of alcohol in his offending, this has been at the expense of more underlying attitudes and behaviours which have driven his use of violence."

 

69.This was a fair point for the panel to make. As noted above the Applicant's attitude to the suggestion that he should undertake further risk reduction work was that, as he had completed the work necessary to address his misuse of alcohol, he did not need to address any other factors. His erroneous belief was that any other factors were solely attributable to his misuse of alcohol and therefore if he was not using alcohol he did not need to undertake any other work to reduce his risk to the public.

 

70.The difficulties with his belief are that (a) it is always possible that an individual who has been addicted to the use of alcohol to meet his needs will relapse into its use in difficult circumstances, and (b) since the Applicant has not engaged in any work to address the other contributors to his offending, it is impossible for professionals (including a panel of the Board) to evaluate the risk that those contributors might come into play when the Applicant is in an intimate relationship in the community, especially if he reverts to the use of alcohol.

 

71.Submission: "[The Applicant] continues to submit that there was no reluctance on his part to engage with what was required of him in the context of the subject matter, but rather that he considered his ASD to take priority given his understanding of this would directly correlate to his understanding of risk.

 

"[The Applicant] has expressed that he has felt penalised for his inability to complete [the recommended programme] as whilst there has been some valid reluctance in light of his ASD, this has taken precedent in professional assessment rather than the hurdles that were beyond his control, creating a narrative that is not wholly accurate. In addition to this, it is submitted that [the Applicant's] perceived reluctance has been inappropriately used as evidence of lack of insight and so in turn, a lack of risk reduction.

 

"The Panel has acknowledged the possibility of ASD as a factor that has contributed to A's inability to complete [the recommended programme], however they do not go on to address [the] validity of the Applicant's concerns or the merit in an alternative route forward."

 

72.I am afraid that the evidence shows that the Applicant has always been reluctant to undertake the recommended programme, and indeed he refused a move to a prison where that programme was available. It is a shame if he feels that he has been penalised by not being able to complete the programme. What he should understand (and I hope he will be helped to do so) is that the professionals who have recommended the programme are only anxious to see that he is equipped with the necessary skills to avoid further offending when he is in the community (and further prison sentences).

 

73.I do not think that there are any 'hurdles beyond his control'. I am sure that what he can and should do is to understand (and I hope, again, that he will be helped to do so) that there are factors additional to misuse of alcohol which would be liable to contribute to further offending in intimate relationships, and that the learning available in a risk reduction programme would help him to avoid those factors coming into play in the course of his future relationship(s).

 

74.The panel clearly did consider very carefully the Applicant's concerns and any alternative way forward but they came to the conclusion there was no 'alternative way forward' which would meet the test which they were obliged to apply. I cannot find that that conclusion was unreasonable.

 

75.Submission: "...the panel have noted a degree of "over-confidence" about the extent of [the Applicant's] maturation, change and reflection, however, previously accepted that they had limited knowledge of the early years of [the Aplicant's] sentence.

 

"The implication of this is, therefore, is that the Panel cannot know the extent to which [the Applicant] has matured or changed and so cannot accurately describe [the Applicant's] perspective as over-confident, without seeing the full picture. Whilst witnesses expressed in oral evidence that the Applicant had made progress and was, in many ways, a changed person, the lack of written reports from the early stages of [the Applicant's] sentence seem to have belittled this perspective, leading to the wider conclusion that the Applicant cannot be managed despite contrary evidence."

 

76.I am afraid I do not find this convincing. It is quite clear that at the start of his sentence the Applicant had very little insight into his offending and its consequences. He now has a significant amount of insight though it does not extend as far as understanding that there are other factors than misuse of alcohol which contribute to his risk of serious harm. I do not think that the stages by which his insight has been improved during his sentence are of any real significance: what matters is his current level of insight.

 

77.Submission: "Whilst it was agreed that risk was high in the context of an intimate relationship, it was also agreed that risk of general violence was low to medium. It was agreed that risk of serious harm was currently not imminent, and imminence would only increase if [the Applicant] were to enter into a relationship. It was further agreed that the proposed risk management plan was robust enough to manage current risk, to the point where there were additional licence conditions that could be added but were not deemed necessary at this current time.

 

"In short, the concern appeared to be in the context of an intimate relationship - a situation that does not currently exist and provides no guarantee of a time frame for "testing". Whilst [the Applicant] understands the concern that he could enter into a relationship quickly, thereby presenting a risky scenario without the opportunity to complete any further work on risk or his ASD in the community, he is adamant that this will not happen."

 

78.No doubt the Applicant is adamant that that scenario will not happen but I am afraid there is a real risk that it will. This is what the panel rightly took into account.

 

79.Submission: "Whilst we appreciate that the test for the Panel has no temporal element and so risk should be looked at in light of any possible risky scenarios, we submit that [the Applicant's] insight has been undervalued, and too greater emphasis has been placed on a hypothetical scenario that is not guaranteed to ever exist."

 

80.I do not believe that the Applicant's insight has been undervalued. As I have explained what is lacking in his insight is a recognition that there are factors other than misuse of alcohol which he needs to address if he is to reduce his risk of serious harm to a level which meets the test for release on licence.

 

81.To say that the 'hypothetical scenario' is not guaranteed to ever exist is putting things the wrong way round. What matters is not whether the scenario is guaranteed to exist but whether there is a significant risk that it will (and that the Applicant will be unable to deal with it safely). It was that risk which the panel had to assess.

 

82.Submission: "...there is also no guarantee that [the Applicant] will be able to access any further accredited courses, nor will he be able to address his ASD in custody due to the lack of resources. It was discussed in the hearing that ASD services would be more readily available in the community and so the progress expected of [the Applicant] is more likely to happen in the community than [in prison] prior to his CRD in 2027.

 

"Whilst we understand that this is not a key consideration for the panel, we submit that a risk assessment cannot be said to have been properly completed if consideration is not given to the possibility of [the Applicant's] conditional release weighed against the likelihood of additional risk reduction being completed more efficiently in the community."

 

83.It is likely to be the case that ASD services will be more readily available in the community than in prison. However, what the panel had to decide was whether the Applicant has reduced his risk to a level which meets the test for release on licence. If he has not (and the panel were of the view, for the reasons which they carefully explained, that he has not), I am afraid that the greater availability of ASD services in the community does not mean that he can safely be released on licence.

 

84.Submission: "[The Applicant] has now spent a long time in custody and the impact that this time has had on his risk reduction cannot be overlooked. In this time, he has matured, he has reflected on his past, he has remained abstinent from alcohol and all other substances, he has developed a new sense of self, helped by his ASD diagnosis and has shown a keen motivation for self-improvement and engagement with professionals in the future."

 

85.All of these matters were clearly taken into account by the panel but they did not, in the panel's view, amount to sufficient evidence that the test for release was met. This is an unusual and difficult case in which views could reasonably differ. Some panels might have accepted the submissions made by the legal representative while others would not have done. I have reminded myself of the Wednesbury test for irrationality, and I am afraid that I cannot find that the panel's decision comes anywhere near meeting that test. It cannot be said that any sensible person could not have arrived at it. On the contrary the panel's reasons for their decision, supported as they were by all three professional witnesses, were compelling.

 

Decision

 

86.I have a great deal of sympathy with the Applicant, who has made great strides during this sentence though not (as the panel found and I agree) sufficient to meet the Codified Public Protection Test. I cannot, therefore, uphold this application for reconsideration.

 

87.It is not for me to suggest where things should go from here but I have no doubt that HMPPS will wish to consider how best to provide the opportunity for the Applicant to achieve a further reduction in his risks (which would be in the public interest as well as the Applicant's given that he will be released on licence in March 2027 if not before).

 

88.There will be an annual review of the Applicant's case in a year or so's time when he will have the opportunity to submit again that he should be released on licence. It may well be that HMPPS will consider that an updated PRA should be carried out, not least because (a) there will be a replacement programme in place of the one originally proposed and (b) six years have elapsed since the last PRA and other things (including the possibility of the Applicant being able to undertake an adapted programme or some form of 1:1 work) may need to be reconsidered.

 

 

 

Jeremy Roberts

02 June 2025

 

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