Boswell, Application for Reconsideration [2025] PBRA 177 (22 August 2025) [2025] PBRA 177

PBRA

Boswell, Application for Reconsideration [2025] PBRA 177 (22 August 2025)

[2025] PBRA 177 · 2025-07-31

[1]This is an application by Boswell (the Applicant) for reconsideration of a decision of an oral hearing dated the 21 July 2025 not to direct the release of the Applicant.

[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

[3]I have considered the application on the papers. These are: · a dossier containing 428 pages, including an index; and · a written application dated the 31 July 2025 lodged by the Applicant's representatives, SL5 Solicitors. Request for Reconsideration

[4]The application for reconsideration is dated the 31 July 2025.

[5]The grounds for seeking a reconsideration of the panel's decision are as follows: · that the decision contains an error of law; · that the decision is irrational, and/or, · that the decision is procedurally unfair.

[6]The application was not made on the appropriate Parole Board pro forma but was put forward in a fully argued written application containing relevant submissions in support of the application for reconsideration. There was no need to seek further information. Background

[7]The Applicant was born in November 1979 and is now aged 45. In February 2009, when he was 29 years old, the Applicant received an indeterminate sentence of imprisonment for public protection ("IPP") with a minimum term of 2 years and 363 days. The date he became eligible for parole was the 22 February 2012.

[8]On the 18 October 2018, following an oral hearing, the Applicant was released from prison and in September 2019 he was recalled to custody. On the 24 January 2020 he was again released and then recalled on the 8 September 2022, returning to custody on the 12 September 2022. The oral hearing, which took place on the 9 July 2025 was the second review after recall of the Applicant's case by the Parole Board.

[9]The oral hearing was a combined review which involved an application for re-release and an application for the termination of the Applicant's IPP licence.

[10]The Applicant's index offences involved offences of sexual assault on a male child under the age of 13; sexual activity with a male child under the age of 13; causing a boy under the age of 13 to engage in sexual activity; taking indecent photographs of a child and possessing indecent photographs of a child; the breach of a Sexual Harm Prevention Order and failure to comply with his sex offender requirement order. The offences were committed between August 2007 and September 2008.

[11]Prior to the imposition of the indeterminate sentence the Applicant had 17 previous convictions for making, possessing, and distributing indecent photographs of children for which, in 2006, he received an extended determinate sentence which was in force until December 2009.

[12]The index offences were described as an escalation of offending which included contact offending against the 10-year-old son of his cousin, after the completion of a Sex Offender Treatment Programme. The offences are described in detail in the report from the prison psychologist at paragraph 4.8 - 4.12 of his report, at pp. 164 et seq. of the dossier.

[13]The Applicant was first recalled because a polygraph test indicated that he had used "Tinder" and was in possession of a memory card. In addition, his phone revealed that he was in possession of two indecent images. He received a 3-year community order in addition to his recall to prison.

[14]The Applicant's second recall followed the receipt of intelligence by the police that the Applicant had downloaded indecent images of children on two occasions from his IP address and numerous devices were seized by the police. In the event no further indecent images were found on any device and it was decided that there would be no further action taken by the authorities. In the meantime, the Applicant had been recalled to prison.

[15]The Applicant's previous offending and the circumstances leading to his recall to prison is described in paragraphs 4.10 to 4.12 of the report from the prison appointed psychologist. Current parole review

[16]On the 29 April 2024, the Applicant's case was referred to the Parole Board. On the 14 October 2024, the MCA member referred the case for an Oral Hearing. The panel first convened on the 6 May 2025 to hear the case but decided to adjourn to hear evidence from the police MOSOVO (Management of Sexual Offenders and Violent Offenders) officer, who was summonsed to attend the adjourned hearing which was held on the 9 July 2025. A MOSOVO report was filed by the officer which appears at page 402 of the dossier, and a police report at page 406, both of which indicated that no indecent images had been found.

[17]The panel was in possession of a dossier containing 406 pages. The panel received evidence from the following witnesses: the Prison Offender Manager ("POM"), the Community Offender Manager ("COM"), the prison appointed psychologist and the police MOSOVO officer.

[18]As noted above at the time of the hearing the Applicant was 45 years old, and his application was for re-release and the termination of his IPP licence. The Relevant Law

[19]The statutory test is set out in full in the annexe to the decision.

[20]In its decision letter dated the 21 July 2025, in the concluding paragraphs of the decision the panel refers to the test for release, without comment. The panel then goes on to examine 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)

[21]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)).

[22]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)).

[23]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

[24]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.

[25]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. "

[26]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) .

[27]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.

[28]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.

[29]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.

[30]A fortiori if there is no professional support for a panel's conclusion it is imperative that a panel explains why it has taken a different view to the evidence provided by the witnesses. Procedural unfairness 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. 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;

(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. The overriding objective is to ensure that the Applicant's case was dealt with justly. Error of law

[34]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.

[35]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.

[36]In my judgement the decision of the panel in this case does require consideration as to whether the panel has approached the case of Pearce correctly. Reconsideration as a discretionary remedy

[37]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

[38]The Secretary of State did not seek to make any representations. Discussion

[39]The Applicant relies upon three grounds in order to seek reconsideration of the panel decision, including a submission that the panel failed to correctly approach the conclusions of the Supreme Court in the case of Pearce when considering allegations made against an individual.

[40]I have considered the written decision of the panel and it describes in some detail the evidence the panel received. The evidence of each witness is summarised, and their conclusions are reported.

[41]The POM, the COM and the prison appointed psychologist did not dissent from the conclusions they had arrived at in their reports that the Applicant could, in their opinion, be released. The evidence was that the risk management plan was sufficiently robust, containing as it did, a number of licence conditions.

[42]The MOSOVO police officer's oral evidence suggested that there was some suspicious activity by the Applicant in that he had downloaded two indecent images but there was no evidence that anything of consequence had been found in his possession.

[43]The decision of the panel summarises the levels of risk and identifies the risk factors but without any further comment. The panel reviewed the risk management plan in detail, including the licence conditions.

[44]The Applicant's evidence is also reported in some detail. The panel in its decision has referred to the allegations made against him and reports that he stated that the IP address and name used was not him. No conclusion about this is provided by the panel. Moreover, whilst the panel reports that the police officer stated that " she thought there was more behind the allegation " the panel makes no formal finding of fact to indicate what view they took of the evidence that had been provided by the police officer.

[45]Moreover, in the concluding paragraphs of the decision the panel states that they have been unable to make a finding of fact "due to there being no evidence of images on devices examined" . I note that the panel states that "a forensic digital investigation found no evidence of the images...." Nevertheless, the panel later continues by referring to the case of Pearce and asserting that the "allegation is central to [the Applicant's] current risk assessment and ongoing risk management". The panel then goes on to explain this by stating that the professionals were concerned about the allegations; that the police officer " thought there was more behind the allegation" and that " indecent images had featured in 2006, 2009, 2019 and the allegation in 2022".

[46]The decision does not explain clearly what the conclusion was relating to the allegations. The decision of the panel suggests that they had concluded, unfairly in my judgement, that there is " no smoke without fire ".

[47]The panel then failed to explain why this conclusion about the unproven allegations should have driven them to conclude that the Applicant should not be released.

[48]In addition, the decision does not satisfactorily explain why the panel concluded that although the professional witnesses, the POM, COM and psychologist, all supported the release of the Applicant the panel took a different view.

[49]In examining the concluding paragraphs, in particular paragraph 4.4, it is clear that the panel stated what the evidence was but without explaining why it was relevant to their findings that the professionals were wrong.

[50]Guidance to panel chairs makes it quite clear that where the panel takes a different view to the professional witnesses the decision must explain why their view diverges. Moreover, it is important that a prisoner should understand why the panel does not accept his evidence, particularly where he has been suspected of further misdoing.

[51]The panel decided not to remove the IPP licence and gave reasons for that decision but the panel did not separate out consideration of the licence from the decision which they had been asked to make, namely, the one relating to release, for which there was considerable supporting evidence.

[52]In addition, whilst the panel did go on to consider the issue of a transfer to the open estate and provided reasons to indicate that they could not recommend a transfer to the open estate, the panel based that conclusion in part on the "allegation" and in part on the fact that they had concluded that the Applicant had not completed all core risk reduction work, for which there was no evidential support.

[53]I have therefore concluded that when viewed overall the submissions of the Applicant are correct. There has been an error of law because the decision of the panel does not adequately state the reasons for the panel's conclusions. It leads to the conclusion that there was a procedural irregularity and, based upon the evidence received there was an irrational conclusion arrived at by the panel. Decision

[54]Accordingly, I do find that there has been a procedural irregularity and, accordingly, an error of law. In all the circumstances I also take the view that the panel arrived at an irrational conclusion. I do consider, applying the test as defined in case law, that the decision not to release the Applicant is irrational and procedurally unfair. I do so solely for the reasons set out above.

[55]The application for reconsideration is therefore granted and the case should be reviewed by a fresh panel by way of an oral hearing. H. H. Nick Coleman 22 August 2025