Baveystock, Application for Reconsideration [2025] PBRA 181 (28 August 2025) [2025] PBRA 181

PBRA

Baveystock, Application for Reconsideration [2025] PBRA 181 (28 August 2025)

[2025] PBRA 181 · 2025-07-21

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

[3]I have considered the application on the papers. These are the dossier, the oral hearing decision, the application for reconsideration dated 11 August 2025 and the representations from the Secretary of State (the Respondent). Request for Reconsideration

[4]The application for reconsideration is dated 11 August 2025.

[5]The grounds for seeking a reconsideration are set out below: Background

[6]The Applicant was convicted after trial. The index offence was rape. The brief facts of the index offence were that the Applicant came across the victim, after she had suffered problems with her motor vehicle and had stopped awaiting a breakdown service. The Applicant offered to assist, but eventually took the victim in his vehicle to a secluded area and committed the offence of rape which involved both physical and psychological harm. The Applicant was aged 21 at the time of sentence. He was 31 years old at the time of the oral hearing. He was sentenced to an extended sentence of imprisonment consisting of a 15 year determinate element and a 5 year extension. The Applicant was eligible for parole in March 2025. The Applicant’s conditional release date is in March 2030. Current parole review

[7]The oral hearing panel were requested by the Secretary of State to review the Applicant’s sentence consequent upon him being eligible for parole. The Applicant was resident in an open prison at the time of the hearing.

[8]The oral hearing panel consisted of an independent chair of the Parole Board and two further independent members. Evidence was received at the oral hearing from a Prison Offender Manager (POM) and a Community Offender Manager (COM). The Applicant was legally represented. The Applicant himself gave evidence. The Relevant Law

[9]The panel correctly sets out in its decision letter dated 21 July 2025 the test for release. Parole Board Rules 2019 (as amended)

[10]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)).

[11]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

[12]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.

[13]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. ”

[14]In R(on the application of Wells) -v- Parole Board

2019 EWHC 2710

(Admin ) 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).

[15]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.

[16]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.

[17]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 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

[21]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.

[22]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

[23]It is possible to argue that mistakes in findings of fact made by a decision maker result in the final decision being irrational, but the mistake of fact must be fundamental. The case of E v Secretary of State for the Home Department

[2004] QB 1044

sets out the preconditions for such a conclusion:

“ there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter; the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable; the appellant (or his advisors) must not have been responsible for the mistake; and the mistake must have played a material (though not necessarily decisive) part in the tribunal's reasoning.”

See also R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions

[2003] AC 295

, which said that in order to establish that there was a demonstrable mistake of fact in the decision of the panel, an Applicant will have to provide “ objectively verifiable evidence ” of what is asserted to be the true picture.

[24]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

[25]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

[26]The Respondent indicated the COM and POM in this case had seen a copy of the independent psychological report, however the contents were not referred to or addressed in the hearing. Grounds and Discussion Ground 1

[27]It is submitted on behalf of the Applicant that the panel should have considered whether additional information would have assisted them, before making their decision, and adjourned the case after the conclusion of the oral hearing. The context of this ground is that the Applicant’s legal adviser had secured an independent psychological report. The Applicant’s legal adviser had applied to the panel to admit the independent report to the hearing and call the psychologist. The panel hearing date had been set. The timing of the hearing had been on the basis of the original number of witnesses. The panel were prepared to admit the evidence but indicated that there would be insufficient time at the scheduled hearing. To admit the additional evidence would require an adjournment. It appears that the Applicant instructed his legal adviser that he did not wish to adjourn and wished to proceed. The matter therefore proceeded without the introduction of oral or written evidence from the independent psychologist. Discussion

[28]The argument submitted on behalf of the Applicant, is that the panel acted with procedural unfairness. It is submitted that the panel “ should have adjourned the case after the hearing ”. The submission is that the adjournment should have taken place to seek further information as the panel had concluded not to direct release. Decisions by panels of the Parole Board are made upon the basis of the evidence presented at the hearing. Omitting to put information before a panel is not a ground for procedural unfairness. This principle has been confirmed in earlier decisions relating to reconsideration in particular the case of Williams

[2019] PBRA 7

[29]This would be the case even where the information, had it been before the panel, would have been capable of altering the decision or prompting the panel to take further steps, such as putting the case off for new information. The rationale behind this principle is that procedural unfairness under the rules relates to the making of the decision by the Parole Board at the hearing. When making that decision the panel considered all the evidence that was before them at that hearing. The panel were required to consider the referral on the basis of the dossier and the oral evidence presented. I am not persuaded that there was any duty upon the Parole Board to adjourn the matter, after a hearing, on the basis that there may have been some further material to consider. This was not a case where the panel were refusing to adjourn or refusing to admit evidence. The Applicant and his legal adviser were aware of the situation and made the decision to agree to proceed with the case rather than take up the offer of an adjournment at a later date. This was not in my determination procedural unfairness as set out in the definition above. Ground 2

[30]The Applicant’s legal adviser submits that it was believed that one of the professional witnesses (who gave evidence at the oral hearing) had read the independent psychological report which had been commissioned on behalf of the Applicant, (and which is mentioned in ground 1 above). It is submitted that this placed the panel at a “ disadvantage “ and rendered the decision procedurally unfair. Discussion

[31]It is clear from the panel’s decision that the panel took account of the evidence which was presented both within the dossier and by oral evidence given by witnesses. It is well understood that witnesses at parole hearings will have had access to material additional to that uploaded to the dossier. The probation service, in particular, will have had access to additional material from other sources often the police, children services and the like. The role of the Parole Board panel is to assess the evidence presented both orally and in writing and to reach a fair determination upon that evidence. The Applicant’s legal adviser was also in a position to adduce such evidence as was thought helpful to the Applicant at the hearing itself. The Applicant himself was able to present oral evidence. I am not persuaded that the fact that a witness may have read collateral material amounts to procedural unfairness. Ground 3

[32]The Applicant’s legal adviser lists some factual inaccuracies recorded in the panel decision; for example, the fact that a suspension of temporary leave (from the open prison following a rule breach) was inaccurately recorded as being for three months rather than 28 days. It is also submitted that the panel inaccurately recorded details of meetings by the Applicant, with a female partner. Discussion

[33]As indicated above mistakes in findings of fact can result in a decision being irrational. The mistake of fact must be fundamental and must have played a material, though not necessarily decisive, part, in the tribunal’s reasoning. I am not persuaded that these minor factual differences could amount to irrationality in the sense set out above. Ground 4

[34]It is submitted that all the professionals in this case were supportive of a release decision. Discussion

[35]It is well recognised that panels of the Parole Board are not obliged to adopt the opinions and recommendations of professional witnesses. It is their responsibility to make their own risk assessments and to evaluate the likely effectiveness of any risk management plan proposed. They must make up their own minds on the totality of the evidence that they hear, including any evidence from the Applicant. They would be failing in their duty to protect the public from serious harm (while also protecting the prisoner from unnecessary incarceration) if they failed to do just that. As was observed by the divisional Court in DSD they have the expertise to do it.

[36]However, where a panel makes a decision contrary to the opinions and recommendations of professional witnesses, it is important that it should explain clearly its reasons for doing so and that its stated reasons should be sufficient to justify its conclusions (see Wells above).

[37]In this case the panel recognised, and recorded, that the opinions of the professionals were that the Applicant’s risk could be safely managed in the community, and therefore recommended a release direction. The panel acknowledged that there was a risk management plan and the detail of that plan. The panel accepted that it was as robust as it could be in the circumstances. The panel also took account of the legal submissions submitted on behalf of the Applicant, by the Applicant’s legal adviser. As noted by the panel, however, there were fundamental issues which meant that the Applicants risk, in their determination, could not be safely managed at the time of the oral hearing. The panel acknowledged that the Applicant had undertaken some core risk reduction work and that he had a very good work record at the prison’s that he had been allocated.

[38]However, the panel’s major concern as set out in paragraph 4.3 of the decision was a view that the Applicant continued to lack an understanding of his risk factors, and that these risk factors had not been adequately explored or addressed during his sentence. The particular risk factors were listed as sexual preoccupation; sexual entitlement and sexual violence. The panel had carefully taken account of the evidence, particularly of the Applicant. The panel took the view that the Applicant’s account of the index offending lacked credibility. Despite the serious nature of the sexual offending and the use of physical violence towards the victim, the Applicant appeared to be maintaining that he had misunderstood the victim’s position regarding consent. He denied removing the victim’s clothes, denied that the victim resisted, and denied any preplanning despite the facts of the offending being indicative of all these factors. The panel found that there was evidence of significant and relevant minimisation and victim blaming.

[39]On the basis of these findings the panel concluded that the Applicant had not adequately addressed the serious risk factors which underpinned his offending. The panel acknowledged that the Applicant had been moved to an open prison which would normally be indicative of the completion of core risk reduction work. However, the panel also noted that the move had been a decision of the prison. The panel took the view that the decision to move the Applicant may well have been made without adequately considering whether his risk factors had been sufficiently addressed.

[40]It was not for the panel to advance the Applicants sentence plan, although the panel indicated that it took the view that further behavioural work, aimed at addressing risk, was required to address the factors that they set out in detail in the decision.

[41]Having considered the decision in its totality the panel set out clearly the reasons for rejecting the recommendations of professionals. The evidential basis for that rejection was based upon the evidence on the dossier and the oral evidence received at the hearing itself and in particular the fact that the Applicant appeared to continue to have a limited insight into the basis of his offending, and therefore his potential risk in the future.

[42]I am therefore not persuaded that this ground amounts to irrationality in the sense set out above. Decision

[43]For the reasons I have given, I do not consider that the decision was irrational or procedurally unfair and accordingly the application for reconsideration is refused. HH S Dawson 28 August 2025