[2025] PBRA 77
Application for Reconsideration by Newman
Application
1. This is an application by Newman (“the Applicant”) for reconsideration of a decision of a panel of the Parole Board (“the Board”) which decided on 26 February 2025 not to direct his release on licence but to recommend his transfer to an open prison.
2. The Applicant is serving a sentence of imprisonment for public protection which was imposed on 4 November 2005 for offences against his then partner (‘the victim’). His minimum term (“tariff”) was set at two years less the time which he had served in prison on remand. As will be explained below he has been released on licence six times and recalled to prison six times. His case has been referred to the Board to decide whether he should be released again.
3. 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.
4. 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 indeterminate sentence.
5. 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.
6. In this case an application for reconsideration has been made by the Applicant’s solicitor on his behalf. It is made on the ground of irrationality.
7. The application has been made within the prescribed time limit and is therefore an eligible case.
8. 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.
9. 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, now running to page 352, which was provided by the Secretary of State for the Applicant’s hearing;
(b) the representations made by the Applicant’s solicitor in support of this appeal; and
(c) an e-mail from the Public Protection Casework Section of the Ministry of Justice (“PPCS”) stating that the Secretary of State does not wish to submit any representations in response to this application.
Background and history of the case
10.The Applicant is now aged 44. He had a difficult and traumatic childhood and from an early age he was a user of Class A drugs and engaged in criminal activity. He accumulated a significant number of convictions for a variety of offences and received a number of custodial sentences. He continued to use drugs and was later diagnosed as having problematic personality traits of three different kinds.
11.The offences for which he is serving the IPP sentence (the “index offences”) occurred in July 2005 when he was aged 24. He and the victim had been in a relationship for around three years. At the time of the index offences he had just served a short custodial sentence for driving offences, and on his release the couple had resumed their relationship. The victim was reluctant to tell her family and friends about it because she knew they would not approve of it. The Applicant was upset about that and there was an argument in the course of which they both became distressed and the police were called.
12.The victim told the police that she was being held hostage by the Applicant. The Applicant then took the phone and began talking to the operator, stating that he was holding his partner and children hostage, and that he would kill them if the police did not send an armed response vehicle. He talked about shooting the hostages and then himself. Armed police officers arrived at the house, and the Applicant placed his arm around the victim's throat applying pressure to her windpipe so that she appeared to be struggling for breath. She was holding their two year old son at the time. Her other child was asleep upstairs in bed.
13.Throughout the incident the Applicant was making threats to kill the victim and the children. An armed officer placed pressure on the trigger of his gun but fortunately he did not pull it. The stand-off continued for approximately one hour. Trained negotiators were employed to assist and helped to end the incident. The Applicant pleaded guilty at court to kidnapping and two counts of threats to kill.
14.In prison the Applicant completed appropriate risk reduction programmes and in January 2018 he was released on licence for the first time. He was required to reside at a probation hostel (“AP”). There then followed the six recalls to prison to which reference has been made above. On each occasion the Applicant had been residing in AP; he never progressed to independent accommodation. The sequence of the recalls was as follows.
15.First recall: In April 2018 he was recalled to prison because
(a) he had failed to return to the hostel when he should have done,
(b) he had relapsed into substance misuse, and
(c) he had embarked on a relationship with a young woman.
In November 2018 he was re-released on licence at the direction of the Board.
16.Second recall: In January 2019 he was recalled to prison again because he had once more failed to return to the AP as required. In October 2020 he was re-released on licence by direction of the Board.
17.Third recall: In December 2020 he was recalled to prison again because he had relapsed into the use of a Class A drug. In June 2021 he was re-released on licence by direction of the Board.
18.Fourth recall: In August 2021 he was recalled to prison again because, having tested positive for a Class A drug but having denied that he had used it, he had absconded and stayed at the address of a young woman whom he had met on-line and with whom he had started an intimate relationship. He admitted that he had been using a Class A drug whilst unlawfully at large. In August 2022 he was re-released on licence by direction of the Board.
19.Fifth recall: In October 2022 he was again recalled to prison. He had had a number of contacts with an ex-partner which he had not disclosed to probation in his supervision sessions. These contacts had commenced shortly after his release. He explained that he had not disclosed the contacts because he was afraid of the consequences (he believed that the situation could threaten the progress he was making in other regards). In December 2023 he was re-released on licence by direction of the Board.
20.Sixth recall: In January 2024 he was recalled to prison again as a result of the discovery had he had been associating with a different female and potentially with her children. He had been in telephone contact with her and was seen with her in a supermarket. He was not entirely truthful when initially questioned but ultimately admitted that he had been to her flat (when her children were not there).
21.Following his latest recall his case was referred by the Secretary of State to the Board to decide whether he should be re-released on licence and, if not, to advise the Secretary of State about his suitability for a move to open conditions.
22.On 19 April 2024 his case was considered by a MCA member who directed that it should proceed to an oral hearing.
23.In July 2024 at the direction of the MCA member a Psychological Risk Assessment (“PRA”) was carried out by a prison psychologist. She recommended that the Applicant should be re-released on licence.
24.The oral hearing took place by video link on 10 December 2024. The panel comprised an Independent Chair and a Psychologist Member of the Board. The Applicant was represented by his solicitor. The panel had considered the dossier which ran to 337 pages. Oral evidence was taken from the Applicant’s prison offender manager (POM), the Applicant himself, the prison psychologist and the Applicant’s community offender manager (COM). The POM, the psychologist and the COM all recommended release on licence.
25.At the end of the hearing the panel invited closing representations in writing from the Applicant’s solicitor, and those were duly provided by the solicitor on 19 February 2025.
26.The panel then issued their paper decision on 26 February. They rejected the recommendations of the professional witnesses and decided not to direct the Applicant’s re-release on licence. They did however decide to advise the Secretary of State that the Applicant was suitable for transfer to an open prison.
The Relevant Law
The test for release or re-release on licence
27.The test for release or re-release on licence is whether the panel is satisfied that the Applicant’s continued confinement in prison is no longer necessary for the protection of the public. The panel cannot be so satisfied unless it considers that, if the prisoner is no longer confined in prison, there will be no more than a minimal risk of his committing a further offence which would cause serious harm to someone 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. A decision not to recommend a move to an open prison is not eligible for reconsideration.
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)).
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.
35.One of the grounds on which a panel’s decision may be found to be irrational relates to cases in which there is a conflict of opinions between the panel and the professional witnesses. The panel is not bound to follow the evidence of the professional witnesses (even if they are unanimous) but if the panel disagrees with them it must explain the reasons why. If the panel does not give reasons for the disagreement, or if its reasons do not withstand close scrutiny, its decision may be found to be irrational.
The reply on behalf of the Secretary of State
36.The Secretary of State has offered no representations in response to this application.
The request for reconsideration in this case
37.The application in this case was made by the Applicant’s solicitor on 19 March 2025. The solicitor’s representations are admirably concise and to the point, for which I am grateful. I will set out their key points below.
Discussion
38.In order to make an assessment of the solicitor’s submission that the panel’s decision was irrational I need to start by examining the panel’s reasons for their decision.
The panel’s reasons
39.In the concluding section of their decision the panel stated:
“In the closing submissions, the legal representative puts forward that [the Applicant] has changed and is extremely insightful, particularly when discussing past relationships, accepting that he should have disclosed them.
“The panel was mindful that professionals did not consider that open conditions was necessary for [the Applicant] and that they recommended release. However it disagreed with them as whilst [the Applicant] is able to describe in theory the importance of disclosing relationships, the panel was not confident that he would be able to disclose relationships in the future as this is yet to be tested. It noted that he told the previous panel, in 2023, that his intention was to disclose any developing relationships yet once in the community he failed to do this. For his risk to be safely managed, [the Applicant] would need to disclose all relationships. It is not clear that he understands yet the importance of doing this, despite the repeated recalls. Even when his dishonesty has been exposed, he has continued to not be fully open.
“Although [the Applicant] has not been violent for many years, he has also not been in the community for any lengthy period. His key risk would be in relationships and he is yet to be tested in that situation when a relationship is in difficulty or when [the Applicant] is no longer in the structured environment of approved premises. The panel was not confident that [the Applicant’s] risks could be safely managed in the community and concluded that there was a more than minimal risk that, were he no longer confined, [the Applicant] would commit a further offence, the commission of which would cause serious harm. It concluded that he needed to remain confined for the protection of the public and made no direction for release.
“The panel considered that the public could be protected were [the Applicant] to be in the community on temporary release as his risk was not imminent. There would be benefits of a move to open conditions so that he could rehearse disclosure in a somewhat more structured setting with the support of PERS [Pathway Enhanced Resettlement Service] if possible. This would hopefully set him on the track where he is not recalled so quickly when eventually released. The panel considered that [the Applicant] did not present a more than minimal risk of absconding and recommended that he be transferred to open conditions. It did not consider that he would need a particularly lengthy period of testing in open conditions although it is for the Secretary of State to determine the timing of the next review.”
The Applicant’s solicitor’s submissions
40.The solicitor refers to the decisions to which I have referred above and places particular reliance on the question posed by Mr Justice Saini in Wells: “Does the conclusion follow from the evidence or is there an unexplained evidential gap or leap in reasoning which fails to justify the conclusion?”
41.The solicitor goes on to submit:
“At the hearing all of the professional witnesses gave firm/assured recommendations for release. We argue that the decision of 26th February is an unreasonable departure from the recommendations of the professional witnesses and the decision is, in our submission, irrational/unreasonable.
“The professional witnesses are, of course, specifically tasked with the assessment of risk and vastly experienced in the same and
“In arguing this we acknowledge, of course, that it is within the discretion of the panel not to follow the recommendations of witnesses at the hearing. However, the panel does have to still justify the decision that it makes, and it is not open to the panel to make decisions on a basis that does not withstand scrutiny.
“Whilst the panel can of course adopt a different position to the witnesses, in doing so, they must provide appropriate reasons for the same. In our submission the panel’s rationale is conspicuously brief/superficial and it does not genuinely engage with the clear/firm recommendations of the professional witnesses.
“It is submitted that in the instant case, the impugned decision, is irrational/unreasonable having regard to the evidence adduced, heard, tested, and considered by the panel.”
My conclusions
42.The Applicant has clearly made significant progress during this sentence. His risk factors have previously been identified as being associated with mental health/personality disorder, entrenched schemas arising from childhood trauma, emotional dysregulation, substance misuse and thinking skills deficits. The panel added relationships as a further area of risk, underpinned by a fear of rejection and abandonment. That was clearly a very reasonable addition. It has understandably been a struggle for the Applicant, with his difficult start in life, to address all these areas of risk. To his credit, as the prison psychologist pointed out in her report, his mental health and substance misuse problems have been well managed for some time now. He is still taking heroin substitute medication but plans to reduce and eventually dispense with it in the community. The professionals regard that as a reasonable plan and the panel do not seem to have disagreed.
43.The current outstanding problem area is clearly associated with relationships. The Applicant, perhaps understandably, does not have a good record of successful intimate relationships, and associated with that problem is his track record of failure to disclose developing relationships to the professionals responsible for the management of his case. The index offences, sadly resulting from an inability to handle difficulties in relationships, were very serious, hence the need (a) for the professionals to support him in order to protect himself and any future partner and children from serious harm, and (b) for the Applicant himself to be open and truthful with the professionals.
44.The key question for the panel and the professionals to address was whether, if the Applicant were to be re-released on licence, there would be a risk that he would enter into a new relationship without informing his COM. If that were to happen (and things were to go wrong in the relationship) there would obviously be a risk of serious harm to his partner or any children which she might have or, indeed, to the Applicant himself.
45.I have considered very carefully the rest of the evidence which I have seen in addition to the “Conclusion” section of the panel’s decision.
46. I have noted the reports by the STRIVE team. The STRIVE team is an Intensive Intervention and Risk Management Service (IIRMS) designed to support the outcomes of the Offender Personality Disorder (OPD) Pathway by providing a community based service that delivers individually tailored and psychologically informed interventions directly to offenders, which aims to enhance the management of risk of serious harm to others and re-offending, and develop psychological wellbeing and social engagement. These interventions may be delivered by psychologists and/or occupational therapists. The team do not normally offer their interventions to prisoners while they are in prison.
47.The team initially worked with the Applicant during his periods on licence in the community, commencing in 2018. Among other things, in the early stages the psychologist on the team provided some schema therapy. At some stage that was discontinued. Subsequently, in 2024, exceptionally the team worked with him in prison but it appears that the schema therapy was not resumed at that stage.
48.The panel summarised the work which was currently being done with STRIVE as follows:
“[The Applicant] is continuing to work with STRIVE both with an occupational therapist and with a psychologist, focusing on his recalls after having first built a relationship with the professionals. He was said to be open to completing this work and engaged well, looking at his core beliefs around relationships. STRIVE report that [the Applicant] is considered to have ‘a number of unmet childhood needs that have supported the development of entrenched beliefs about himself, other people and the world around him.’. It notes that intimate relationships have been central to [the Applicant’s] recalls, with him fearing the loss of the intimate relationship which led to him concealing it. [The Applicant] told the panel that he had come to understand that he tends to put other people before himself in a romantic relationship as he does not want to look coercive or controlling which can lead him to not telling probation. [The Applicant] has not completed any further schema work with STRIVE since the last recall.”
49.Whilst the work with STRIVE was clearly beneficial, it did not prevent the Applicant’s repeated recalls.
50.At the end of the “Analysis of Evidence of Change” section of their decision the panel wrote:
“The psychologist considers that [the Applicant] has addressed his core risk factors although would benefit from further work in relation to problem solving, thinking skills, healthy relationships and emotional regulation. The panel agreed that whilst [the Applicant] has completed all core risk reduction work, he is yet to complete the schema work around his fear of abandonment and rejection and emotional instability. It appreciated that schema work can take a long time and that he has been involved in this work previously, although not recently. [The Applicant] is making incremental steps towards being safer by addressing substance misuse and emotional regulation. This represents a good foundation for future schema work.”
51.In the next section (“Analysis of the Manageability of Risk”) the panel wrote:
“The psychologist notes that the external management and monitoring of [the Applicant’s] risk factors would be a high priority, especially when he is not applying his insight or using his skills to manage problems ….
“[The Applicant] could continue to work with STRIVE although this is on a voluntary basis. However there is nothing to indicate that he would not take the opportunity to continue the work. He would also be referred to the substance misuse service.
“[The Applicant] does not know if he wishes to have a relationship with the woman he was with at the time of recall …
“[‘The Applicant] … has a number of protective factors including coping, empathy, employment, self-control, external controls and leisure activities.”
52.I am afraid that I am not persuaded that the Wednesbury test is satisfied. I believe that it was reasonable for the panel to conclude that there was a more than minimal risk of the Applicant entering into an undisclosed intimate relationship and then causing serious harm to his partner and/or her children and/or himself if things go wrong. Other panels might have come to a different decision but that is not the test I have to apply. I am satisfied that the panel provided adequate reasons which stand up to close examination for their rejection of the professionals’ recommendations, and that there was no “unexplained evidential gap or leap in reasoning which fails to justify the conclusion”.
Decision
53.For the above reasons I am obliged to refuse this application for reconsideration.
Jeremy Roberts
22 April 2025