Massey, Application for Reconsideration [2026] PBRA 65 (23 March 2026) [2011] EWHC 809 (Admin)

EWHC-Admin
Massey, Application for Reconsideration [2026] PBRA 65 (23 March 2026)
[2011] EWHC 809 (Admin) · 2026-02-18
[1]This is an application by Massey (the Applicant) for reconsideration of a decision of an oral hearing panel dated 18 February 2026, the decision of the panel was not to direct release.[2]Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2025) (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 dossier, the decision of the oral hearing panel, the application for reconsideration drafted by the Applicants legal adviser, and the representations by the Secretary of State (the Respondent). Request for Reconsideration[4]The application for reconsideration is dated 25 February 2026.[5]The grounds for seeking a reconsideration are set out below. Background[6]The Applicant is serving a sentence of imprisonment for public protection which was imposed on 15 May 2008. The minimum period imposed by the judge was two years and six months less time served on remand. The offences were causing or inciting a male child under 16 to engage in sexual activity; sexual assault intentionally touching a male (two offences); indecent assault on a male aged 16 or over (two offences).[7]The Applicant was released by a Parole Board on licence on 30 August 2018. He was recalled on 26 August 2023. Current parole review[8]The Parole Board were requested by way of referral to consider whether the Applicant should be directed for release. If not directed for release the Parole Board panel were asked to consider whether there should be a recommendation to the Respondent that the Applicant be transferred to an open prison.[9]The Applicant was aged 66 at the time of the oral hearing. He was aged 48 at the time of the initial sentencing.[10]At the oral hearing the panel consisted of an independent chair of the Parole Board and two further independent members of the Parole Board. Evidence was given at the hearing by the Applicant's Community Offender Manager (COM), the Applicant's Prison Offender Manager (POM), a prison instructed psychologist and a police officer. The Applicant was legally represented at the hearing. The Applicant himself gave evidence. The Relevant Law[11]The panel correctly sets out in its decision dated 18 February 2026 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)).[14]A decision to recommend or not to recommend a move to open conditions is not eligible for reconsideration under rule 28. This has been confirmed by the decision on the previous reconsideration application in Barclay [2019] PBRA 6 . Irrationality[15]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.[16]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. "[17]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).[18]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.[19]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.[20]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[21]Procedural unfairness means that there was some procedural impropriety or unfairness resulting in the proceedings being fundamentally flawed and therefore, producing a manifestly unfair, flawed, or unjust result. These issues (which focus on how the decision was made) are entirely separate to the issue of irrationality which focusses on the actual decision.[22]In summary an Applicant seeking to complain of procedural unfairness under rule 28 must satisfy me that either:(a) express procedures laid down by law were not followed in the making of the relevant decision;(b) they were not given a fair hearing;(c) they were not properly informed of the case against them;(d) they were prevented from putting their case properly;(e) the panel did not properly record the reasons for any findings or conclusion; and/or(f) the panel was not impartial.[23]The overriding objective is to ensure that the Applicant's case was dealt with justly. Error of law[24]An administrative decision is unlawful under the broad heading of illegality if the panel: 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.[25]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. Other Transfer to Open Conditions[26]The test to be applied when considering the question of transfer to open conditions is the subject of a well-established line of authorities going back to R (Hill) v Parole Board [2011] EWHC 809 (Admin) and including R (Rowe) v Parole Board [2013] EWHC 3838 (Admin) , R (Hutt) v Parole Board [2018] EWHC 1041 (Admin) . The test for transfer to open conditions is different from the test for release on licence and the two decisions must be approached separately and the correct test applied in each case. The panel must identify the factors which have led it to make its decision. The four factors the panel must take into account when applying the test are:(a) the progress of the prisoner in addressing and reducing their risk;(b) the likeliness of the prisoner to comply with conditions of temporary release(c) the likeliness of the prisoner absconding; and(d) the benefit the prisoner is likely to derive from open conditions.[27]In Oyston [2000] PLR 45 , at paragraph 47 Lord Bingham said:
" It seems to me generally desirable that the Board should identify in broad terms the matters judged by the Board as pointing towards and against a continuing risk of offending and the Board's reasons for striking the balance that it does. Needless to say, the letter should summarise the considerations which have in fact led to the final decision. It would be wrong to prescribe any standard form of Decision Letter and it would be wrong to require elaborate or impeccable standards of draftsmanship. "
Reconsideration as a discretionary remedy[28]Reconsideration is a discretionary remedy. That means that, even if an error of law, irrationality, or procedural unfairness is established, the Reconsideration Member considering the case is not obliged to direct reconsideration of the panel's decision. The Reconsideration Member can decline to make such a direction having taken into account the particular circumstances of the case, the potential for a different decision to be reached by a new panel, and any delay caused by a grant of reconsideration. That discretion must of course be exercised in a way which is fair to both parties. The reply on behalf of the Secretary of State[29]The Respondent offered no representations. Grounds and Discussion Background[30]In order to address the representations on behalf of the Applicant in relation to this reconsideration application, it has been necessary to summarise in some detail the evidence received at the panel hearing and background evidence relating to the Applicant.[31]The Applicant in this case is serving a sentence of imprisonment for public protection. The index offences related to indecency with children. The offences were committed between 1992 and 2005. Sentence was imposed in May 2008.[32]In 1992 a 12-year-old boy who was described as having " problems " was using an empty house with a friend where they had made a den. The Applicant who was then aged 32, went to the house on the occasion of the offence, got into bed with the boy and touched his genitalia over his jeans and then touched his buttocks. The Applicant denied this offending, but was convicted after trial.[33]On a date between 1998 and 2000, the Applicant came to know the victim of the second offence who was a friend of the Applicant's son. The victim was aged between 17 and 18. The Applicant worked in a shopping centre and told the victim that he could secure him a job. The Applicant then told the victim that he needed to be measured for a uniform. He then escorted the victim to an upstairs bedroom instructed the victim to remove his trousers and underclothes and touched his genital area. He then told the victim that he would be required to provide a sperm sample, for a drug test, in order to secure the job. He told the victim to masturbate into a condom. The victim attempted to masturbate but did not achieve ejaculation. The Applicant then offered to help him, but the victim refused.[34]The third offence occurred in August 2005. The Applicant met a boy who was 15 years old (although the Applicant said he thought he was 16). The Applicant was working for a train company, and the boy was on work experience. The Applicant offered to accompany him on a train journey. During the course of that journey the Applicant engaged in conversation of a sexual nature. He then offered the boy a " blow job ". He also sexually touched the boy on his thigh.[35]The fourth offence occurred when the Applicant and the victim of this offence (who was 22 years old) were both training to be train conductors. The Applicant as described by the sentencing judge " took a fancy to him [the victim] and made numerous phone calls and sent 950 text messages ". At one point during the time that the victim was working, the Applicant lent over and touched him on his genital area (over his trousers) and kissed him on the head.[36]The sentencing judge indicated that these offences " showed a pattern of sexual abuse ". The judge indicated that the Applicant had taken advantage of males " all of whom were vulnerable ".[37]At the time of sentencing the Applicant had a previous conviction. In 1986 he was convicted of indecent assault and was sentenced to six months imprisonment. The facts of this offence were that the Applicant (falsely) informed a boy that his girlfriend had been involved in a traffic accident. The Applicant offered to help. The Applicant then drove the boy up a secluded track, locked the doors of the vehicle, told the boy to drop his trousers and masturbated him. The Applicant then told the boy to do the same to him (the Applicant).[38]The panel also received evidence relating to allegations which had not resulted in convictions.[39]In 2002 the Applicant had been investigated over allegations that he befriended a female with two young sons aged 10 and eight both of whom had learning difficulties. The two children made allegations that on one occasion when their mother stayed at the Applicant's house, all were in a bed together. During the night the boys awoke and became aware of the Applicant touching their penises over their clothing. The matter did not result in any charges as the children's learning difficulties and the absence of supportive evidence meant that charges were not laid.[40]In 2006 the Applicant was investigated about an incident relating to a five-year-old. The Applicant allegedly pulled the child's pants down and then pulled his own down. The Applicant then placed his face near to the child's genitals. The child's mother did not wish to proceed with the criminal process, and the matter did not therefore proceed to trial.[41]During the course of the Applicant's initial prison sentence the Applicant was alleged to have been involved in attempting to groom a young male prisoner by providing items in return for anticipated sexual favours. The Applicant was moved to another wing. Recall[42]The Applicant was released after a Parole Board hearing in August 2018. He was recalled in August 2023. The Applicant was subject to a number of conditions. The primary licence conditions on release were that he was not permitted to have contact with children. His licence was monitored by both a probation officer and a Management of Sexual or Violent Offenders (MOSOVO) officer.[43]On one day the MOSOVO officer conducted an unannounced home visit. The Applicant was not at home. The officer therefore waited in his car for him to return. The Applicant was seen walking back to his address holding a bag of chips and in the company of a young boy. When he saw the officer, he gave the boy the chips and his house key and told the boy to let himself in. The boy was approximately 13.[44]It later transpired that the Applicant had befriended the mother and family of the boy. He had also befriended the brother of this boy who was a 16-year-old. The mother explained that the Applicant had been friendly with them for approximately three years. The Applicant had been in the family home on numerous occasions and had bought things for the 13-year-old.[45]The 16-year-old also told the police about one incident when the Applicant had been with him at a local theatre. The 16-year-old told the police that, whilst at the theatre, the Applicant had offered money in exchange for oral sex. The Applicant denied this offending. The matter was not pursued by the Crown Prosecution Service. The panel however had a copy of the statement made by the 16-year-old about the contacts that had been made by the Applicant with the family.[46]The Applicant was arrested and charged with breaching his Sexual Offences Prevention Order (SOPO). He received a sentence of 12 months imprisonment for this breach.[47]When asked by the panel about contact with this family, the Applicant said that they were neighbours and that the professionals had overreacted to these contacts. He however conceded that he had breached licence conditions and had not informed his COM or MOSOVO of his contact with the family.[48]In advance of the parole hearing, a prison instructed psychologist had undertaken an assessment of the Applicant's behaviour. The psychologist suggested that the Applicant would not benefit from any further accredited (sexual offending) interventions because of the number of interventions that he had undertaken in the past. One possible intervention which related to addressing a sexual interest in children was considered by the psychologist not to be suitable. This was because the Applicant had told the psychologist that he had no sexual interest in, or preference for, children. He said his sexual interest was in adult men.[49]The panel expressed their doubts about this self-report by the Applicant because of his capacity for deceit. The panel were of the view that the evidence relating to the recall indicated that the Applicant had the capacity to be minimising, deceitful and manipulative. Secondly the Applicant's COM (who knew the Applicant well) also took the view that the Applicant was manipulative and deceitful in his exchanges with professionals.[50]Although the prison psychology department had not supported further work in relation to sexual harm to children, there had been a suggestion of work related to the topic of deceitfulness and manipulation. The suggested behavioural work therefore was one-to-one work in relation to exploring the factors which were associated with deceitfulness and manipulation by the Applicant. The Applicant undertook 10 sessions with a psychologist. Once completed the prison instructed psychologist reviewed the Applicants position and came to the conclusion that the Applicant had developed insight into why he was evasive or manipulative (it was thought to be a way of achieving his own ends, a way of not being seen in an unfavourable light, and linked with core beliefs associated with pleasing people).[51]The psychologist's final recommendation to the parole panel, was that the Applicant's risk could be safely managed in the community. The psychologist was specifically asked by the panel (by way of example) about the incident in the theatre. The psychologist told the panel that in the light of the Applicant's history of sexual offending there was " a possibility that it could have happened ". The psychologist went on to hypothesise that " if it did " the psychologist accepted that it would suggest a sexual attraction to children and a level of sexual preoccupation. Despite this concern the psychologist had concluded that the Applicant had the strategies to deal with a sexual interest in young children through his earlier learning in programmes and the more recent work.[52]The panel were not convinced by the arguments adduced by the psychologist. In particular the panel took the view that even if the Applicant had knowledge of the strategies that could be used to control his sexual interest in children, the panel had no evidence that he was capable of, or motivated towards, utilising those skills to manage his risk in any appropriate situation.[53]At the panel hearing the panel also heard evidence from the MOSOVO officer who described the incident which led to the recall. The officer had spoken to the mother of the two young children who had been befriended. The mother had no idea that the Applicant had convictions for offending against children. The officer also told the panel that he had managed the Applicant in the community and had never been told by the Applicant of his contact with this family. The police officer took a strong view about the Applicant's risk. He quoted the view of an earlier MOSOVO officer who had dealings with the Applicant and who had taken the view that the Applicant was a " manipulative sexual predator " and that " he befriends young families and offends ". The view of the police officer was that if released the Applicant would superficially comply, but in the background would commit offences.[54]The Applicant had spoken to his POM after recall. The Applicant told the POM that his reason for not disclosing the contact with the family was that the mother of the family had persistently contacted him. He also said that the mother had asked for financial support and he had given gifts. He denied making any approaches to the 16-year-old in the theatre.[55]The POM supported release because the Applicant had completed all work that could be done in prison and in the view of the POM risk was not " imminent ".[56]The Applicant himself when giving evidence to the panel indicated that his sexual interest was in young adults. He denied having a sexual interest in children although there was a note of ambiguity as he appeared to identify young adults as 14/15-year-olds. After further discussion with the panel the Applicant accepted that he had a technical attraction to children because of his interest in 14/15-year-olds. The panel recorded some concern about the definition that the Applicant applied to those with whom he had a sexual interest namely " young adults ". The panel expressed the view that the Applicant may well have been giving himself permission to offend by labelling children as young adults. The panel also bluntly took the view that the Applicant's behaviour prior to his recall indicated that there was no evidence that he was managing his attraction to young adults and young boys in the light of the age of the two sons of the woman with whom he struck up a friendship.[57]In evidence to the panel the Applicant denied that he had deliberately arranged an evening with the older son of the mother with whom he was friendly. He submitted that the boy had become aware that he (the Applicant) was going to see a show which was of interest to the boy. He told the panel that the mother of the boy had said that her son would meet the Applicant at the theatre. The panel having considered the explanation by the Applicant of how this incident occurred, rejected the explanation given by the Applicant. The panel took the view that the Applicant had deliberately engineered an occasion where he could spend time with the boy and possibly offend.[58]The panel explored a number of other areas in relation to the recall and the Applicants background generally.[59]Evidence was received from the Applicant's COM. The COM told the panel that there was no further core risk reduction work which could be offered to the Applicant. He would be offered consolidation work if he were in the community which would be undertaken with his COM. The COM, however, was not confident that the Applicant would be open and honest if he were to be released. She took the view that the Applicant did not meet the test for release.[60]As noted above the panel received evidence of allegations which had not resulted in convictions. It was clear that the Applicant had serious (historical) convictions relating to the sexual abuse of children, however there had also been more recent allegations. The panel appropriately applied the Parole Board Guidance on Allegations and the case of Pearce in their approach to considering the allegations which had not resulted in convictions.[61]The panel correctly applied the Supreme Court guidance in Pearce. The panel indicated that they placed weight upon the allegations when assessing risk. The evidence which was taken into account by the panel was; the fact that the Applicant was not open and honest with professionals about contact with the family; the fact that the Applicant spent time with a boy at a theatre in breach of licence conditions; (the panel concluded that the boy was being truthful) and that the Applicant had in fact asked the boy for oral sex as reported by the boy; the fact that the Applicant had undertaken grooming type behaviour by ingratiating himself and giving gifts to the family; the fact that the Applicant allowed himself to spend time with the younger child of the family (as observed by the police officer).[62]In explaining the reasons for their decision, the panel indicated that they placed greater emphasis than the professional witnesses upon the fact that the Applicant both minimised and denied his contact with children and with the family mentioned above. The panel concluded that the Applicant remained a person without sufficient insight or self-awareness to address the potential risks he posed to children. The panel also concluded that there was little evidence of any skills to manage his risk of sexual harm towards children in the community.[63]As a result of this finding the panel concluded that it would be highly unlikely that he would disclose and be honest about contact with children in the future.[64]The panel were bound to take account of the Applicant's offending history against children over many years. The panel also took the view that despite behavioural work which had been undertaken by the Applicant over the years there had been no evidence following that work of a reduction of risk. The panel indicated that on the contrary the Applicant's conduct in the community suggested that despite any behavioural work undertaken, he would use opportunities to groom families with a view to offending against children.[65]Although the panel accepted that there was a Risk Management Plan (RMP), the panel noted that the plan was reliant upon openness and honesty with professionals. The panel were not persuaded that the Applicant would, in fact, be honest.[66]The panel therefore concluded that the confidence expressed by the prison psychologist and the POM in the Applicant's ability to manage his risk in the community was misplaced and heavily reliant upon self-report from an acknowledged deceitful and manipulative individual. Reconsideration Submissions Ground 1[67]The Applicant's legal adviser submits that the panel came to an incoherent conclusion. This is argued on the basis that the prison psychologist and the POM supported release, no further treatment needs existed and risk was not imminent. It is submitted that the panel's view that " there is no evidence of risk reduction " and that the Applicant " continues to pose a high risk of serious harm and cannot be managed in the community " were irrational conclusions. Discussion[68]It is well understood, as noted above, that panels of the Parole Board are not obliged to follow the recommendations of any particular professionals. Panels must make their own judgement based upon the evidence presented at the panel hearing. The panel assessed the evidence of the psychologist in this case with some care. There were clear matters which were of concern.[69]Firstly, the psychologist felt obliged to place little or no weight upon the allegations which resulted in the recall. The psychologist also appeared to accept the fact that the Applicant did not require any work to be undertaken in relation to a sexual interest in children because the Applicant had told an assessor that he did not have any such interest. Although the Applicant was at liberty to express his own view, the panel not surprisingly, were unconvinced that the Applicant (with his long and troubling history of accessing children for sexual purposes) could be thought to be being open and honest in telling an assessor that he had no sexual interest in children.[70]Secondly, although the POM, and the prison instructed psychologist appeared to take the view that the Applicant's risk could be managed with the support of the RMP proposed, the stark fact was that the recall demonstrated evidence, not only of breaches of the former RMP, but also evidenced behaviour which was placing children at high risk of sexual harm.[71]I am therefore not persuaded by the Applicant's legal adviser's argument that the panel's decision was lacking in any " rational evidential chain ". There was a clear and unambiguous chain of behaviour and a discernible pattern of behaviour which indicated that the Applicant (as alluded to by the sentencing judge in relation to the index offence) " is a sexual predator of young boys or young men " who is " a manipulative and overbearing man ". I am not persuaded that this ground amounts to irrationality as submitted by the Applicants legal adviser. Ground 2[72]It is submitted on behalf of the Applicant that the panel relied on the assertion that there was a lack of evidence that the Applicant would behave safely (towards children) in the less restrictive environment of the community. It is submitted on behalf of the Applicant that the panel failed to take account of the completion of intensive work by the Applicant prior to release in 2018; the five years spent in the community with no sexual offending, and the more recent work undertaken in prison. It is submitted that the panel displayed " circular reasoning " which is irrational. Discussion[73]The panel in the written decision indicated that so far as the Applicant was concerned it determined that, although the Applicant had completed sexual offending work before he was released on licence in 2018, that work had had little or no impact in terms of addressing the Applicants risk to young boys. The circumstances of the recall were evidence of the fact that the Applicant had failed to harness the learning that he was thought to have acquired prior to his release.[74]Although it is argued (by the Applicant's legal adviser) that the Applicant spent five years in the community before recall with " no sexual offending ". As is noted above, during the last three years before recall, the Applicant had been befriending a mother with two boys. The panel came to the conclusion that the Applicant had been undertaking an exercise of grooming the family which paralleled his behaviour in the past.[75]The Applicant's legal adviser also argues that the panel declined to recommend a transfer to open conditions, which would have enabled the Applicant to be tested and to demonstrate safe behaviour. In essence it is submitted that the panel stood in the way of enabling the Applicant to demonstrate prosocial behaviour in the less restrictive environment of an open prison.[76]The reconsideration process does not encompass decisions relating to open conditions. However, the primary duty of the panel was not to facilitate circumstances which would enable the Applicant to be tested as to whether or not his risk of serious harm was reduced. Panels of the Parole Board are firmly required to consider public safety and to apply the test in the context of public safety. In the light of the wording of the test it is entirely feasible that an individual prisoner's risk remains at such a high level that despite good behaviour in custody and the completion of behavioural programmes risk remains at such a level that it remains necessary in order to protect the public from serious harm that the prisoner be detained. The test for release does not envisage circumstances whereby a highly risky person is released into the community in order to test whether harm to the public results. I am not therefore persuaded that this ground amounts to irrational decision-making by the panel in the sense set out above. Ground 3[77]It is submitted that the panel acted irrationally in their assessment of the allegations arising from the recall. It is argued that the panel failed to take sufficient account of the fact that the Applicant contested the allegations and provided evidence undermining the account by the young boy concerned. Discussion[78]As indicated above, the panel engaged with the allegations and set out in detail the considerations in relation to those allegations. The law in relation to allegations is clearly set out by the Supreme Court in the case of Pearce [2023] UKSC 13 on appeal from [2022] EWCA Civ4. It is also summarised in the guidance on allegations published by the Parole Board. In this case the panel followed the requirements of the case of Pearce. They considered whether the allegations were relevant to risk. They went on to consider the nature of the allegations themselves in the evidence supporting those allegations which included a statement from the boy concerned. The Applicant had a full opportunity to challenge and explain the background to the facts relating to the allegation.[79]Having read the detailed decision by the panel it is clear that there was a firm basis for concluding that the allegations could be relied upon. The Applicant had deliberately met a child in a theatre. He had been undertaking behaviour which amounted to grooming for some considerable time. He had avoided informing his probation officer or supervising police officer about his contacts with the two boys concerned. He had a history of making approaches very similar to that which he made to the boy in the theatre. The Applicant himself had a history of deceptive and dishonest explanations and behaviour relating to his conduct with victims. He had groomed families in the past. For these reasons, despite the denials and explanations by the Applicant, there was a substantial body of evidence upon which the panel could have reached its conclusion. I am not persuaded that this ground amounts to an irrational decision by the panel. Ground 4[80]It is submitted, on behalf of the Applicant, that the panel acted procedurally unfairly in their assessment of the allegations relating to the matters which had not led to convictions. It is submitted that the finding that " weight " should be applied to the allegations was procedurally unfair because further evidence should have been acquired. In particular it is argued that the officer investigating the initial allegation made by the complainant should have been called to give evidence. Discussion[81]This issue has been addressed in the ground above. The procedure anticipated for addressing allegations in the context of Parole Board hearings is comprehensively articulated in the case of Pearce. It is fully acknowledged in that case that panels are unlikely to be in a position to conduct an equivalent of a criminal trial. However, panels are obliged to follow the procedural suggestions in that case and to act fairly. In particular panels must ensure that the prisoner has an opportunity to make representations. In this case as indicated above, the panel addressed the allegations clearly and explicitly and made it clear that they were taking account of the requirements of the Supreme Court case.[82]The case of Pearce makes a distinction between an allegation which leads to a finding of fact and the situation where a finding of fact on the balance of probabilities may not be possible to determine but where there is a serious possibility that the allegation may be true. In either case the panel have the right and duty to place such weight upon the finding as they find appropriate. It would, in my view, be helpful for panels to make clear whether this is a case of a finding of fact on the balance of probabilities, or a case where there is a serious possibility that the allegation may be true. This however does not affect the finding of this panel. The panel made a positive finding and indicated that they placed weight upon that finding. The panel had a substantial body of evidence which could well have led to a conclusion that the allegations were proved on the balance of probabilities.[83]In the circumstances I am not persuaded that there was a procedural irregularity in the approach by the panel. Ground 5[84]It is submitted on behalf of the Applicant that the panel failed to engage with evidence favouring release of the Applicant. The representations repeat the point that both the prison instructed psychologist and the POM supported release, that no work was outstanding, that the Applicant had undertaken some sessions addressing deceitful behaviour and that there was a substantial RMP. It is submitted that the decision contains no explanation as to why these matters were rejected. Discussion[85]As indicated in earlier discussion points, the panel, as they are entitled to, were not persuaded by the arguments of the POM and the prison instructed psychologist. The argument of the POM, in the main, was that there was no further work to undertake and that the Applicant had behaved well in prison conditions. Whilst both those factors are relevant to an overall conclusion about risk. The panel were entitled to take account of matters beyond the absence of further available behavioural work and good behaviour in prison.[86]The panel also addressed the reasons why they rejected the views of the prison instructed psychologist. The psychologist appeared to adopt and accept the view that the Applicant's self-report (that he did not have a sexual attraction towards children) was sufficient to address his risk in relation to children in the community. The prison instructed psychologist was also not able to address the issue of the behaviour of the Applicant prior to recall. A psychologist in a professional capacity is often obliged to take a more nuanced approach to allegations. Psychologists will rarely if ever be in a position to reach a firm conclusion on the balance of probabilities in relation to allegations. The approach of psychologists, as in this case, is to reach conclusions on the basis of court convictions and reliance to an extent upon self-report by the prisoner. Panels of the Parole Board are in a different position. As an adjudicating body, they have the right, pursuant to the case of Pearce to address allegations and to reach final and binding conclusions about them. With this background it is understandable that the panel approached the recommendation of the psychologist with some caution. It is clear that the panel took the view that the prison instructed psychologist had relied heavily upon self-report from a prisoner who was clearly manipulative and deceitful, it also appeared that the prison instructed psychologist had placed little or no reliance upon the serious allegations which led to the recall. In the circumstances the decision of the panel not to support the recommendation of the prison instructed psychologist is understandable and, in my determination rational.[87]It is submitted that the panel failed to explain the reasons why they reached their decision. I am not persuaded that this is reflected in the panel's decision. The panel appropriately assessed the history of the Applicant which indicated a persistent pattern of attempting to secure access to young boys to satisfy a sexual attraction. Despite the length of time since the original conviction, the Applicant was undertaking very similar behaviour prior to his recall. The Applicant had been subject to reasonably intensive supervision by way of a probation officer and a police officer both of whom were involved in regular contact with the Applicant. Despite all this contact the Applicant was able to associate with a family involving two young boys for some two or three years without the approaches being disclosed or discovered by professionals or the police. The evidence of the Applicant's behaviour in the community strongly underpinned their conclusion that, however robust the RMP appeared to be, the Applicant was capable of finding a pathway to avoid supervision and indulge in highly risky behaviour placing children at risk of serious harm.[88]As noted above the panel's role was focused entirely upon public protection and the potential for harm, in particular to children, by the Applicants behaviour. I am not persuaded that the absence of any available behavioural programs or of any long-term testing of the Applicants renewed commitment to prosocial behaviour, would be sufficient argument to ignore the overall requirement to protect the public and to adhere to the test for release. The panel's reasoning was clear and unambiguous. I am not persuaded that their decision making could be characterised as irrational in the meaning set out above. Ground 6[89]It is submitted that the panel placed weight on historical intelligence and allegations in the past. Discussion[90]The situation in this case was that there were allegations of inappropriate behaviour in the past. The panel, before the hearing, had investigated those earlier matters, in the sense that they requested a police officer to secure as much information as possible about the allegations. Information was secured and was available to all parties. The information again disclosed a pattern of behaviour similar to that which led to the convictions of the index offending and the later allegations of approaching young boys. The panel did not, in their concluding remarks indicate that they placed much or any weight upon those specific allegations, however in my determination they were entirely properly included in the decision and would have supported the view that the Applicant demonstrated a pattern of behaviour over very many years of highly risky sexually inappropriate behaviour in relation to children and young persons. Ground 7[91]It is submitted that the panel failed to appropriately address the issue of open conditions. Discussion[92]As noted above the decision relating to a recommendation for open conditions is not within the scope of the rules relating to reconsideration. Ground 8[93]It is submitted on behalf of the Applicant that the panel erred in law by applying a statutory test which implied complete reliability, absolute honesty or risk-free behaviour. Discussion[94]As indicated above the panel set out in some detail the rationale for the decision. The correct test was applied and was recorded in the panel decision. The panel concluded that the risk of serious harm to children was high. They also concluded that the evidence that that risk could be safely managed in the community was insufficient to set aside the test for release namely that it was necessary in order to protect the public from serious harm that the Applicant be confined. Ground 9[95]It is submitted that the panel failed to apply the Respondent's directions relating to open conditions. Discussion[96]As noted above open conditions are not amenable to the rules relating to reconsideration. Ground 10[97]The Applicant's legal adviser submits that, when applying the test for open conditions, the panel conflated the release test with the open conditions test. Discussion[98]As noted above open conditions and the application of the open conditions test are not amenable to applications for reconsideration. Ground 11[99]It is submitted that the panel's decision fails to provide an analysis of the progress that the Applicant has made, why that progress was insufficient, how the panel assessed abscond risk and how the panel linked its concerns to the direction criteria. Discussion[100]Again, this ground relates to the criteria for open conditions which are not amenable to a reconsideration decision. Decision[101]For the reasons I have given, I do not consider that the decision was irrational/procedurally unfair and accordingly the application for reconsideration is refused. HH Stephen Dawson 23 March 2026

Cited in 100 later judgments

and 41 more of the most senior

Showing the 50 most senior of 100.