[2025] PBRA 81
Application for Reconsideration by Fell
Application
1. This is an application by Fell (the Applicant) for reconsideration of a decision dated 26 March 2025 not to terminate the licence imposed upon him in connection with a sentence of imprisonment for public protection (the IPP licence). The decision was made following a paper review.
2. Rule 28(1) of the Parole Board Rules 2019 (as amended) (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.
3. I have considered the application on the papers. These are the decision and the IPP licence termination dossier, consisting of 289 numbered pages.
Background
4. The Applicant received three concurrent sentences of imprisonment for public protection (IPP) on 1 August 2006 following conviction for robbery and two attempted robberies. The tariff was set at two years less time spent on remand, and expired in May 2008.
5. The index offences are reported to have been sexually motivated and triggered by the Applicant’s paraphilia in relation to women with nose rings. The Applicant approached his victims from the rear, knocked them to the ground and stole or attempted to steal their nose rings.
6. He was first released on 22 October 2013 following an oral hearing but recalled to custody on 26 April 2014 following concerns about offence-paralleling behaviour.
7. He was released for a second time on 10 December 2015, again following an oral hearing, but recalled to custody on 4 October 2016 following an incident of harassment against a female work colleague for which the Applicant received an eight week sentence.
8. The Applicant was 21 years old at the time of sentencing and is now 40 years old.
Request for Reconsideration
9. The application for reconsideration is dated 6 April 2025 and has been drafted by the Applicant. It submits that the decision was irrational. No substantive submissions were made regarding procedural unfairness or error of law.
10.This submission is supplemented by written arguments to which reference will be made in the Discussion section below.
Current Reference
11.The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) on 13 December 2024 under section 31A of the Crime (Sentences) Act 1997 to consider whether or not it would be appropriate to terminate his licence.
12.On 26 March 2025, a member dismissed the reference following a paper review.
The Relevant Law
Crime (Sentences) Act 1997
13.Section 31A of the Crime (Sentences) Act 1997 provides the process for consideration of licences by the Parole Board which relate to ‘preventive sentences’ after the ‘qualifying period’ has passed.
14.The ‘qualifying period’ is:
a) two years if the prisoner was not at any time in the period of two years beginning with the date of the prisoner’s release serving any preventive sentence in respect of an offence for which the prisoner was convicted when aged 18 or over; otherwise
b) three years beginning with the date of release on licence, regardless of whether the prisoner has subsequently been recalled to prison (section 31A(5) as amended by the Victims and Prisoners Act 2024).
15.A ‘preventive sentence’ is a sentence of imprisonment for public protection or a sentence of detention for public protection (including such a sentence of imprisonment or detention in a young offender institution or detention passed as a result of section 219 or 221 of the Armed Forces Act 2006) (section 31A(5) as amended by the Victims and Prisoners Act 2024).
16.If a prisoner has been released on licence (regardless of whether they have been subsequently recalled) and the qualifying period has expired, the case must be referred to the Parole Board (section 31A(3) as amended by the Victims and Prisoners Act 2024).
17.The Parole Board shall direct the Secretary of State to make an order that the licence is to cease to have effect unless it is satisfied that it is necessary for the protection of the public that the licence should remain in force (section 31A(4)).
18.From 1 November 2024, there is a statutory presumption that the Parole Board will direct termination of an IPP licence where it is no longer necessary for the protection of the public. The test is therefore whether, notwithstanding that presumption, it remains necessary for public protection that the Applicant’s licence continues.
Parole Board Rules 2019 (as amended)
19.Rule 28(1) of the Parole Board Rules provides the types of decision which may be considered for reconsideration, including decisions made in response to a referral by the Secretary of State under section 31A of the 1997 Act (rule 31(6) or rule 31(6A)): specifically, a decision to terminate a licence or a decision to dismiss the Secretary of State’s reference.
20.Decisions concerning preventative sentences (as defined in section 31A(5) of the 1997 Act) are eligible for reconsideration under rule 28(2).
Irrationality
21.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 (CA) 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.
22.In R(DSD and others) v Parole Board [2018] EWHC 694 (Admin) the Divisional Court applied this test to Parole Board hearings in these words (at [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.”
23.In R(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 the Divisional Court in R(Secretary of State for Justice) v Parole Board [2022] EWHC 1282(Admin).
24.As was made clear by Saini J in Wells, 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.
25.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.
26.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.
The reply on behalf of the Secretary of State
27.The Respondent has offered no representations in response to this application.
Discussion
28.The panel’s task was to assess whether it remained necessary for the protection of the public that the Applicant’s licence should remain in force, despite the statutory presumption in favour of termination.
29.The Applicant submits that the decision was irrational. The primary argument is that the statutory presumption in favour of termination was not rebutted by the evidence before the panel. The Applicant asserts, as he did in his representations prior to the decision being made, that his risk of re-offending is low, and, as such, the continued imposition of the IPP licence cannot be reasonably justified.
30.Although the Applicant’s risk of reoffending has been scored as low using the OASys OGRS3, OGP and OVP assessments, his reported OSP/C (OASys Sexual Reoffending Predictor/Contact) score indicates a high static risk of proven direct contact sexual/sexually motivated reoffending. Moreover, his dynamic Risk of Serious Recidivism (RSR) score shows a medium risk.
31.Given the sexually motivated nature of the index offences and the circumstances of both recalls, it was not unreasonable for the panel to give weight to the alternate risk scores. Neither was it unreasonable for the panel to conclude that the continuation of the licence was essential rather than beneficial. It sets out cogent reasons for doing so.
32.There is no dispute that the Applicant has made substantial and sustained progress under supervision. However, the test for licence termination is forward-looking, and considers not only current behaviour but also dynamic risk and the robustness of external controls.
33.The panel’s reasoning indicates a balanced consideration of both progress and residual risk. This weighing exercise was not irrational. It is open to a panel to conclude that progress alone is insufficient to demonstrate that licence conditions are no longer necessary, particularly where dynamic risk factors remain.
34.While the panel did not explicitly cite the new presumption within its reasoning, the decision reasoning reflects awareness of the new statutory context. The decision acknowledges that the Applicant is approaching automatic termination in September 2025 but explains that retention of the licence is proportionate and necessary to safeguard against foreseeable risk elevation between now and automatic termination.
35.The statutory test does not guarantee termination simply because an individual has made progress or has not reoffended. The panel’s decision was rooted in its conclusion that residual dynamic risk remains real. That is a conclusion open to a rational panel to draw.
36.The Applicant also asserts that he was led to believe by earlier Parole Board panels that his licence would be terminated if he continued to make progress and avoided further offending, and that the current decision is inconsistent with those expectations. The Parole Board cannot bind future panels or create a legitimate expectation of a particular outcome. Each panel must consider the evidence afresh and apply the legal test based on the circumstances at the time of review. While previous panels may have identified areas of focus, those do not equate to a promise that termination would follow if met. Moreover, the panel did not contradict prior decisions. It acknowledged the Applicant’s efforts and noted that the support network built around the licence was currently playing a protective and transitional role, especially during a sensitive period of social reintegration.
37.The Applicant also argues that it was disproportionate not to terminate the licence so close to its presumed automatic expiry in September 2025.
38.While proximity to automatic termination is a relevant consideration, it does not of itself mandate termination. The panel acknowledged this context but found that maintaining licence supervision allowed for gradual de-escalation of contact and planned endings with support agencies. This was not an unreasonable conclusion. It also aligns with the multi-agency IPP Progression Panel which, at its October 2024 meeting, also recommended that the licence should continue until automatic termination in September 2025 to ensure stability and transition planning. The IPP panel considered this would be beneficial, and as previously discussed, the Parole Board panel reasonably concluded that it would be essential.
Decision
39.Having carefully reviewed the original decision, the dossier, and the Applicant’s representations, I am not satisfied that the panel acted irrationally or otherwise unlawfully. The panel’s conclusion that it remains necessary for the protection of the public that the licence should continue was reasonably open to it on the evidence. The application for reconsideration is therefore refused.
Stefan Fafinski
24 April 2025