Charnock, Application for Reconsideration [2025] PBRA 183 (28 August 2025) [2025] PBRA 183

PBRA

Charnock, Application for Reconsideration [2025] PBRA 183 (28 August 2025)

[2025] PBRA 183 · 2025-07-08

[1]This is an application by Charnock (“the Applicant”) for reconsideration of a decision of a panel of the Parole Board (“the panel”) at an oral hearing which took place on 8 July 2025, not to direct his release.

[2]Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2024) (the Parole Board Rules) provides that applications for reconsideration may be made in eligible cases (as set out in rule 28(2)) either on the basis(a) that the decision contains an error of law,

(b) that it is irrational and/or

[3]I have considered the application on the papers. These are: · the dossier provided by the Secretary of State (“the Respondent”) which now contains 385 numbered pages; · the panel’s decision letter issued 15 July 2025 (“DL”); and · the application for reconsideration (“the application”) submitted on behalf of the Applicant by his solicitor. Request for Reconsideration

[4]The application is dated 4 August 2025.

[5]Reconsideration is said to be sought on the basis of both irrationality and procedural unfairness in reliance on three grounds which I will consider within the Discussion section of my decision. Background

[6]The Applicant is now aged 31. On 12 March 2018, at the age of 24, he received an extended determinate sentence of imprisonment for rape comprising a 10 year custodial element and a four year extended licence together with determinate sentences of imprisonment for battery, criminal damage and failing to comply with the notification requirements of the Sex Offender Register.

[7]The parole eligibility date is given as 30 June 2024, the conditional release date as October 2027 and the sentence expiry date as December 2031.

[8]The offences of battery and criminal damage were committed against the Applicant’s partner at their home address. The offence of rape (of which he was convicted after a trial) was committed three days later against the same victim during the course of a prolonged sexual assault during which the Applicant slapped, punched, strangled, suffocated and pulled the hair of the victim. She lost consciousness on a number of occasions as a result of his placing his hands around her throat and preventing her from breathing.

[9]The Applicant had prior convictions for battery and criminal damage involving a previous partner and her 3 year old daughter together with a police caution for inciting a female under the age of 16 to engage in sexual activity.

[10]The panel found that at the time of the index offending the Applicant’s behaviour revealed a pattern of using violence within the context of intimate relationships and different partners and that his risk factors, apart from the use of physical and sexualised violence, included sexual preoccupation and entitlement, relationship difficulties, the use of steroids, minimisation and a lack of victim empathy and honesty with professionals. Current parole review

[11]The Applicant’s case was referred to the Parole Board by the Respondent in October 2023 to consider whether or not it would be appropriate to direct his release. This was the first review.

[12]The case was allocated to a three-person panel of independent members of the Parole Board, one of whom chaired the panel.

[13]The Applicant was represented by his solicitor who sought a direction for release.

[14]At the hearing evidence was given by: a) the prison offender manager (POM); b) the community offender manager (COM); c) the Applicant; and d) a psychologist instructed by HMPPS (the psychologist). The Relevant Law

[15]The panel correctly sets out in the DL the test for release.

[16]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)). Irrationality

[17]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.

[18]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. ”

[19]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).

[20]As was made clear by Saini J this is not a different test to the Wednesbury test. The interpretation, and application, of the Wednesbury test in parole hearings as explained in DSD was binding on Saini J.

[21]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.

[22]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

[23]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.

[24]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.

[25]The overriding objective is to ensure that the Applicant’s case was dealt with justly. Reconsideration as a discretionary remedy

[26]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

[27]By email dated 11 August 2025 the Public Protection Casework Section (PPCS) confirmed that the Respondent offers no representations in response to the application. Discussion

[28]In dealing with the grounds for reconsideration, it is necessary to stress certain matters of basic importance. The first is that the Reconsideration Mechanism is not a process by which the judgement of the panel when assessing risk can be lightly interfered with. Nor is it a mechanism in which the member carrying out the reconsideration is entitled to substitute his/her view of the facts in place of those found by the panel, unless, of course, it is manifestly obvious that there was an error of fact of an egregious nature which can be shown to have directly contributed to the conclusion arrived at by the panel.

[29]The second matter of material importance is that when deciding whether a decision of the Parole Board was irrational, due deference has to be given to the expertise of the Parole Board in making decisions relating to parole.

[30]Finally, where a panel arrives at a conclusion, exercising its judgement based on the evidence before it and having regard to the fact they saw and heard the witnesses, it would be inappropriate to direct that the decision be reconsidered unless it is manifestly obvious that there are compelling reasons for interfering with the decision of the panel.

[31]I move now to consider the grounds put forward by the Applicant.

[32]It is submitted that his case should be reconsidered as the decision not to direct his release was both irrational and procedurally unfair due to:(a) (A) failure to give adequate reasons;

(b) (B) failure to adjourn for further information; and

[33](A) I have carefully read the DL from which it is evident that the panel gave detailed consideration to the evidence of the professionals (POM, psychologist and COM) and their unanimous professional opinion that the Applicant could be safely released under the proposed risk management plan (RMP) and closely questioned those professionals on a number of issues.

[34]The panel acknowledged those factors which were supportive of release and the closing submissions of the Applicant’s legal representative while, throughout the DL, setting out its key findings and its reasons for diverging from the opinions of the professionals. These included the following:

[35]The panel found that the Applicant’s protective factors were somewhat limited, relying on external controls, and, although he had completed work in respect of healthy relationships, he had not completed specific offence-focused work related to sexual violence, something which the panel assessed to be a critical risk area.

[36]The panel remained concerned that the Applicant demonstrated a lack of insight into the distinction between “rough sex” and sexual violence and shared the POM’s view that strangulation was a particularly troubling aspect of the case, finding that the Applicant had not demonstrated sufficient insight into the very significant risks that this behaviour created and that his approach was simplistic and one-dimensional.

[37]The panel considered that the Applicant was not able to articulate clear strategies for desisting from sexual violence in the future and felt that, at times, there was a blurring between consensual sex and sexual violence.

[38]The panel did not agree with the professionals that his risks in relation to sexual violence had been sufficiently explored or addressed.

[39]The panel was concerned that the Applicant did not have sufficient insight into the triggers of his sexual violence, that he had not undertaken any offence-focused work which directly addressed this sexual violence and that he failed to recognise that the function and triggers for his use of physical violence within relationships and his use of sexual violence may be different.

[40]The panel was unable to say with confidence that risk would not escalate rapidly and with little warning in the community, especially if the Applicant were to return to substance misuse or struggle to cope in the community.

[41]The panel recorded that it had listened very carefully to the recommendations of report writers; however, after considering all of the information before it, and completing its own assessment of risk, the panel found that the proposed RMP would not be sufficient to manage the risk which the Applicant poses.

[42]Finally and helpfully at DL 4.4 the panel set out the evidence in support of release and set against this its particular findings and concerns which had led it with “little difficulty” to find that the Applicant did not meet the test for release. These matters included: · The seriousness of the index offences and antecedent history. · Concern around the strangulation element and whether the Applicant had developed sufficient insight into the risks in this behaviour. · Concerns relating to his insight into his primary risk factors and the risk he poses, including the risk of sexual violence. · The accredited programme he had undertaken focused primarily on violence within relationships rather than sexual violence. · The panel found that his risk of sexual violence is discrete and separate from his risk of physical intimate partner violence and that the two had been conflated, which had led to a gap in understanding and treatment and that there had been an overreliance on the theory that the two are wholly interconnected. · The proposed RMP is overly reliant on external controls and the panel was not persuaded that the Applicant yet had the skills, strategies and insight to manage his own risk. · The Applicant remains a high risk to the public, a high risk for contact sexual offending, and utilizing the Spousal Assault Risk Assessment tool, his risk is also high. · The panel found, on the basis of the evidence, that risk could escalate quickly and without warning.

[43]Having carefully considered the DL, I am satisfied that the panel gave careful consideration to the totality of the evidence before it, attributed weight where appropriate (which is a matter pre-eminently for the panel) and arrived at its conclusions, which it set out fully, following an exercise of its judgement.

[44]I also find that the Applicant and all those who gave evidence to the panel will have been left in no doubt as to the reasons for the panel’s decision and why it was disagreeing with the views and conclusions of the professionals which it had obviously fully and properly considered.

[45](B) This ground appears to derive from the panel’s comment that it was “somewhat surprised , that a structured risk assessment had not been completed in order to understand his risks of sexual violence more fully”. [DL 2.33].

[46]This appears to be based on the concern expressed in evidence by the POM that a specific assessment tool had not been used to assess the Applicant’s risk of sexual violence. The psychologist acknowledged this but felt confident that the risk had been covered more broadly within her assessments. However, the panel agreed with the POM that this risk had not been fully explored or understood.

[47]It does not appear that any application was made on behalf of the Applicant in closing submissions, nor subsequently by way of written application for a further adjournment, for the preparation of such an assessment.

[48]In any event, whilst expressing “surprise”, it is clear that the panel did not feel that an additional assessment was necessary to enable it to reach a decision in this case but, rather, it was satisfied that it had sufficient information to come to a conclusion and I find that the DL sets out a number of other factors and findings which enabled it to fairly reach a decision on the referral.

[49](C) It is submitted on behalf of the Applicant that a full and fair assessment of the Applicant’s risk was not made because the panel did not include a specialist member (i.e a psychologist or a psychiatrist) and this suggestion appears to rely on the diagnosis of autistic spectrum disorder (ASD) which the Applicant received in May 2024.

[50]The Applicant’s ASD does not feature in the DL other than for the panel to record the fact and his solicitor's submission (which the panel noted) that the diagnosis of ASD has helped the Applicant in his own understanding and that of professionals.

[51]The COM, apart from noting the diagnosis, did not suggest that any special measures needed to be undertaken to allow the Applicant to take a full part in the proceedings, nor did his solicitor, and it would appear that the Applicant had no difficulty in participating in his review and answering the questions put to him.

[52]Also, although the formal diagnosis dates from May 2024 (over one year before the date of the hearing), it is noted in the assessment report (dossier p.324) that the Applicant had been referred to the relevant service in October 2023 “ because you had asked for an autism assessment in a previous prison and the diagnosis was mentioned in medical records.”

[53]Thus, from the date of the referral of this case to the Parole Board in October 2023 it had been open to the solicitor for the Applicant or any professional (through PPCS or otherwise) to suggest that it would be appropriate for the panel to include a specialist member and to make the relevant application. No such application was made.

[54]It is not essential that a specialist member is added to every panel dealing with an Applicant who has an ASD diagnosis and, in this particular case, I find that the Applicant’s ASD added no complexity and that the panel was well able to identify and address the relevant issues and has demonstrated a proper understanding and grasp of the evidence.

[55]Accordingly, I find that there is no substance in the three grounds put forward to support the application for reconsideration. Decision

[56]I find that the application is without merit and, for the reasons I have given and applying the appropriate tests, I do not consider that the decision was procedurally unfair or irrational and, accordingly, the application for reconsideration is refused. Peter H. F. Jones 28 August 2025