[2025] PBRA 79
Application for Reconsideration by Roe
Application
1. This is an application by Roe (the Applicant) for reconsideration of a decision of an oral hearing panel dated 11 March 2025 not to direct his release.
2. Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2024) (the Parole Board Rules) provides that applications for reconsideration may be made in eligible cases (as set out in rule 28(2)) either on the basis (a) that the decision contains an error of law, (b) that it is irrational and/or (c) that it is procedurally unfair. This is an eligible case, and the application was made in time.
3. I have considered the application on the papers. These are the oral hearing decision, the dossier consisting of 1090 pages and the application for reconsideration.
Request for Reconsideration
4. The application for reconsideration is dated 26 March 2025. It has been drafted by representatives on behalf of the Applicant. It submits that the decision was irrational and procedurally unfair and that the panel erred in law.
5. This submission is supplemented by written arguments to which reference will be made in the discussion section below.
Background
6. The Applicant received a sentence of imprisonment for public protection on 13 January 2012 following convictions for attempted rape of a female child under 16, rape of a boy under 13 (x2), attempted rape of a boy under 13 (x2), rape of a girl under 13 and sexual activity with a boy under 13. His tariff was set at 3 years and 173 days and expired on 4 July 2015.
7. The Applicant was 24 years old at the time of sentencing and is now 37 years old.
Current Parole Review
8. The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) in August 2022 to consider whether or not it would be appropriate to direct his release. If the Board did not consider it appropriate to direct release, it was invited to advise the Respondent whether the Applicant should be transferred to open conditions.
9. The case was first scheduled for an oral hearing on 30 July 2024. However in the absence of any witness with knowledge of the case on the day, absence of a completed Adult Social Care assessment and uncertainty as to availability of accommodation, the panel held a case management conference instead and the case was rescheduled for 26 February 2025.
10.The case proceeded to an oral hearing via videoconference on 26 February 2025. The panel consisted of two independent members and a psychologist member. It heard oral evidence from the Applicant, his Prison Offender Manager (POM), Community Offender Manager (COM) and a prisoner commissioned psychologist. The Applicant was supported by an intermediary and was legally represented throughout the hearing. The Respondent was not represented by an advocate.
The Relevant Law
11.The panel correctly sets out in its decision letter dated 11 March 2025 the test for release and the issues to be addressed in making a recommendation to the Secretary of State for a progressive move to open conditions.
Parole Board Rules 2019 (as amended)
12.Rule 28(1) of the Parole Board Rules provides the types of decision which are eligible for reconsideration. Decisions concerning whether the prisoner is or is not suitable for release on licence are eligible for reconsideration whether made by a paper panel (rule 19(1)(a) or (b)) or by an oral hearing panel after an oral hearing (rule 25(1)) or by an oral hearing panel which makes the decision on the papers (rule 21(7)). Decisions concerning the termination, amendment, or dismissal of an IPP licence are also eligible for reconsideration (rule 31(6) or rule 31(6A)).
13.Rule 28(2) of the Parole Board Rules provides the sentence types which are eligible for reconsideration. These are indeterminate sentences (rule 28(2)(a)), extended sentences (rule 28(2)(b)), certain types of determinate sentence subject to initial release by the Parole Board (rule 28(2)(c)) and serious terrorism sentences (rule 28(2)(d)).
Irrationality
14.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.
15.In R(DSD and others) -v- the Parole Board 2018 EWHC 694 (Admin) a Divisional Court applied this test to parole board hearings in these words at para 116 “the issue is whether the release decision was so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”
16.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).
17.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.
18.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.
19.Further while the views of the professional witnesses must be properly considered by a panel deciding on release, the panel is not bound to accept their assessment. The panel must however make clear in its reasons why it is disagreeing with the assessment of the witnesses.
Procedural unfairness
(a) express procedures laid down by law were not followed in the making of the relevant decision;
(b) they were not given a fair hearing;
(c) they were not properly informed of the case against them;
(d) they were prevented from putting their case properly;
(e) the panel did not properly record the reasons for any findings or conclusion; and/or
(f) the panel was not impartial.
Error of law
a) misinterprets a legal instrument relevant to the function being performed;
b) has no legal authority to make the decision;
c) fails to fulfil a legal duty;
d) exercises discretionary power for an extraneous purpose;
e) takes into account irrelevant considerations or fails to take account of relevant considerations; and/or
f) improperly delegates decision-making power.
24.The task in evaluating whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring the duty or power upon the panel. The instrument will normally be the Parole Board Rules, but it may also be an enunciated policy, or some other common law power.
The reply on behalf of the Secretary of State
25.The Respondent has submitted no representations in response to this application.
Discussion
26.Ground 1 - Procedural Unfairness.
The application submits that the panel should have adjourned to allow further investigation regarding the Applicant’s long term living situation upon release. The application submits that the panel having come to the conclusion that “risk could potentially be managed in an AP setting” it was “procedurally unfair to refuse release solely because insufficient information was available” regarding plans for his management in the longer term.
27.Contrary to the claim in the application, the refusal of release was not solely due to the insufficiency of information regarding accommodation. The panel noted the Applicant’s continued engagement in sexual acts in custody in breach of prison rules. The panel was concerned about the Applicant’s communication difficulties, his risk of social isolation and his untested capacity to cope with transition to the community. The panel was also concerned about the absence of a long term resettlement plan. It was not necessary for the panel to adjourn as identification of accommodation could not overcome all the other concerns the panel had identified. This ground therefore cannot succeed.
28.Ground 2 - Error of Law.
The application submits that the panel did not apply the correct legal test for release. It is submitted that the panel does not make it clear that a serious harm test has been applied and in stating that the risk could potentially be managed in an AP setting the panel “has not correctly applied the statutory test and therefore the decision is vitiated by an error law”.
29.The codified public protection test is correctly and automatically set out at the start of the decision letter. The panel sets it out again in the body of the decision. There is no evidence that the panel did not apply that test in its consideration of the evidence. The application relies on the same passage regarding accommodation as it had done in submissions for procedural unfairness. Taking the sentence out of context of the rest of the paragraphs gives a distorted impression of its significance. In the context of considering the manageability of risk, the panel considered the evidence of the POM regarding the risk management plan and licence conditions. The panel did not suggest that obtaining accommodation alone could result in release, “his capacity to self-manage, develop a pro-social support network and build a rapport with his professional support network” were factors which indicated that release could not be directed.
30.The panel applied the correct test in concluding that the continued sexual acts, communication difficulties, risk of social isolation and lack of evidence to demonstrate his capacity to cope with a transition to the community were all matters of concern and that his difficulty in adapting could increase his risk of reoffending and causing serious harm. As the panel noted, the index offences showed the Applicant’s capacity to cause serious harm to children of both genders through sexual abuse which had lasted for “up to four years and affected multiple victims”.
31.Throughout the decision there is reference to serious harm and no evidence that the panel considered a lesser test. There is no evidence that the panel did not apply the correct test and this ground must therefore fail.
32.Ground 3 - Material errors of fact leading to procedural unfairness and irrationality.
The application submits that the reference to the Applicant’s former partner having been convicted of similar sexual offences against children was factually incorrect and the source in the decision was not identified. The application also submits that the claim that he and his partner engaged in sexual acts in the chapel was not explored at the hearing and the Applicant and his representative were therefore not aware that the panel would accept that as factually correct.
33.The Applicant and his representative had access to the dossier and would have been aware of its contents. Whilst the decision letter has not referred to the source, the claim is set out in the OASys report where the COM reports that the Applicant “is engaged to another serving prisoner who is also a Registered Sex Offender. It is my opinion that this increases risk owing to the fact that they have both been convicted of sexual offences against children”. There is no further evidence identified in the dossier to suggest this is incorrect. It is incumbent on the Applicant and his representative to read the dossier thoroughly and where they allege factual inaccuracies in the reports to point them out to the panel. In the absence of credible alternative explanation or evidence, the panel cannot be expected to guess as to what may or may not be challenged by the Applicant. There is no procedural unfairness in the panel taking into account matters in the dossier which they have not been asked to disregard or been informed are incorrect.
34.Aside from the alleged location of the sexual activity (in the chapel) and the alleged nature of the other prisoner’s previous offending (sexual offences against children), the Applicant does not deny that he engaged in consensual sexual activity in custody with the other prisoner in breach of prison rules. As the panel observed, this raised concern both about the level of sexual interest the Applicant had and his attitude towards external controls placed on him. There is no irrationality in that decision.
35.Ground 4 - Irrelevant considerations and discriminatory treatment.
The application states that the panel took into account the Applicant’s sexual orientation and his disability, protected characteristics under the Equality Act 2010 when assessing his risk of serious harm in the community. The panel had stated that the Applicant’s “sexual identity (reported to be homosexual in custody but bisexual in the community) may also heighten the level of arousal the Applicant feels if released”. The application submits that in considering the necessity for polygraph testing, the panel had taken into account the Applicant’s communication difficulties. In doing so the panel is said to have concluded that the Applicant may not be suitable for Polygraph Testing thus failing to consider reasonable adjustments and treating him less favourably than those with no communication difficulties.
36.The panel found as a significant risk factor a degree of sexual preoccupation by the Applicant. In those circumstances the panel was entitled to consider sexual identity and whether it was supportive of that conclusion. An early Psychological Risk Assessment report had noted the Applicant’s sexual activity with men in custody and concluded that “engaging in impersonal sex could be an indication of ongoing sexual pre-occupation”, which if not managed would be likely to result in the Applicant seeking sexual interaction with others and trigger sexual thoughts about children.
37.The panel noted the concerns raised by the Applicant and his representative regarding Polygraph Testing. The Applicant did not meet the automatic risk threshold for Polygraph Testing (an override would have had to be applied for). Far from discriminating against the Applicant, the panel were sympathetic to his communication difficulties and did not agree to that testing being added to the Applicant’s licence.
38.There is no evidence that the panel discriminated against the Applicant in considering his protected rights; on the contrary those rights were fairly considered by the panel. Accordingly this ground must fail.
39.Ground 5 - Lack of cogent reasons for departing from unanimous recommendations.
The application submits that the decision fails to provide sufficient reason or coherent explanation as to why the panel rejected the unanimous recommendation of the professional and expert witnesses for release. The application makes specific complaints about individual findings of the panel.
40.The panel noted in the decision that the professionals had recommended release but recognised that it had to make its own assessment of risk. That it did after considering the totality of the evidence including that presented by the Applicant. The reasons given are more than sufficient to justify the panel’s conclusions. Those reasons are soundly based on evidence as well as being clear, thorough, rational and reasonable. I am satisfied that the specific complaints about individual findings are an attempt to re-argue matters that have already been fully considered and properly decided upon by the panel reaching conclusions open to it. This ground must therefore fail.
Decision
41.For the reasons I have given, I do not consider that the decision was irrational or procedurally unfair or contained errors of law and accordingly the application for reconsideration is refused.
Barbara Mensah
23 April 2025