Brown, Application for Reconsideration [2025] PBRA 184 (29 August 2025) [2025] PBRA 184

PBRA
Brown, Application for Reconsideration [2025] PBRA 184 (29 August 2025)
[2025] PBRA 184 · 2025-07-08
[1]This is an application by Brown (the Applicant) for reconsideration of a decision dated 8 July 2025 not to direct his release. The decision was made by a panel following an oral hearing.[2]Rule 28(1) of the Parole Board Rules 2019 (as amended) (the Parole Board Rules ) provides that applications for reconsideration may be made in eligible cases (as set out in rule 28(2)) either on the basis(a) that the decision contains an error of law,(b) that it is irrational and/or(c) that it is procedurally unfair.[3]I have considered the application on the papers. These are the decision, the dossier (consisting of 747 numbered pages), and the application for reconsideration. Background[4]On 17 October 2000, the Applicant received a sentence of imprisonment for life following conviction for rape. The offence took place against the Applicant’s niece who was aged 17 at the time. The tariff was set at seven years and expired in October 2007.[5]The Applicant was 42 years old at the time of sentencing and is now 67 years old. Request for Reconsideration[6]The application for reconsideration is dated 6 August 2025 (after an extension has been granted) and has been drafted by solicitors on behalf of the Applicant. It submits that the decision was irrational. No submissions were made regarding procedural unfairness or error of law.[7]The submissions are supplemented by written arguments to which reference will be made in the Discussion section below. Current Parole Review[8]The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) in January 2023 to consider whether or not it would be appropriate to direct his release. This is the Applicant’s eighth parole review.[9]The case proceeded to an oral hearing on 3 July 2025, before a three-member panel including a psychologist specialist member. The panel took oral evidence from the Applicant, the Prison Offender Manager (POM), the Community Offender Manager (COM) and a forensic psychologist in training commissioned by HMPPS (the ‘prison psychologist’). The Applicant was legally represented throughout the hearing.[10]The panel did not direct release.[11]In its decision, the panel set out its reasons for refusing to direct the Applicant’s release. It considered the nature and gravity of the Applicant’s offending history in detail. The panel noted that the Applicant’s index offence - a violent sexual assault against a teenage family member - was particularly serious and demonstrated vengeful, entitled thinking in inflicting harm for his own gratification. It also observed that the Applicant had a long pattern of violent and criminal conduct, including assaults on strangers, authority figures, and those close to him, often committed while he was under the influence of substances.[12]From this background, the panel identified a range of enduring risk factors contributing to the Applicant’s potential for serious harm. These included the Applicant’s poor emotional and anger control, impulsivity, and willingness to resort to violence or intimidation to achieve his aims. The panel also noted his difficulty empathising or taking others’ perspectives, a tendency towards sexual preoccupation and a sense of entitlement that led him to violate personal boundaries, as well as a history of substance misuse and negative associations which had previously disinhibited his offending. The Applicant’s past lifestyle of heavy drug and alcohol use, in particular, was recognised as an aggravating factor that lowered his inhibitions during past offences. Collectively, these factors were seen as underlying drivers of the Applicant’s offending behaviour and areas of ongoing concern for risk management.[13]The panel acknowledged the positive steps the Applicant had taken towards rehabilitation during his time in custody. He completed multiple accredited offending behaviour programmes (addressing issues such as anger management, thinking skills, sexual offending, and substance misuse) and he engaged in prison employment and education, earning good reports for his work ethic. The Applicant also demonstrated sustained abstinence from drugs and alcohol in recent years, an achievement for which he was given due credit by the panel. These efforts reflected genuine progress in some areas and were duly noted as commendable.[14]Nonetheless, the panel remained concerned that this progress had not been reliably translated into the Applicant’s day-to-day behaviour. His custodial record showed a continuing pattern of problematic conduct and poor compliance with rules. While the Applicant could at times be cooperative and productive, he also accumulated numerous warnings and adjudications for hostile, threatening, or aggressive behaviour towards staff and other prisoners. Several such incidents - including a proven adjudication as recently as June 2025 - arose when the Applicant felt challenged by staff. Rather than managing his frustration appropriately, he reacted with verbal abuse or defiance, demonstrating an ongoing inability to exercise self-control in the face of perceived provocation. In the Applicant’s view, he was simply being “ assertive ” in response to what he perceived as bullying by officers, and he dismissed these episodes as inconsequential “ little things ” or petty rules, insisting that his reactions were justified. In the panel’s assessment, this attitude reflected a significant lack of insight, as the Applicant did not recognise when his supposed assertiveness crossed the line into aggression, nor did he appreciate how such behaviour was perceived by others or how it could escalate the risk of violence. The panel further noted that the Applicant had been inconsistent in accepting responsibility for his past offences - for example, even within six months of the hearing he was still partially blaming the victim of his index offence - a position suggesting that his remorse and understanding remain limited.[15]All three professional witnesses who gave evidence (the POM, COM and the prison psychologist) agreed that the Applicant did not meet the test for release. They emphasised that the Applicant still exhibited entrenched problematic personality traits - for instance, a grandiose attitude and a failure to accept responsibility for his actions - which continued to impede his progress and required further intervention. Indeed, the psychologist’s assessment noted that the Applicant even believed there was a “ conspiracy ” among professionals to keep him in custody, reflecting his tendency to externalise blame rather than recognise his own role in his situation. The professionals unanimously recommended that the Applicant undertake additional risk-reduction work in custody, including developing better insight into the impact of his behaviour on others and improving his coping strategies when facing frustration or perceived unfairness. They pointed out that when the Applicant feels upset or thwarted, he often resorts to unhelpful and risky responses (such as self-harming, refusing to cooperate, or becoming aggressive) instead of using pro-social coping skills. The panel placed significant weight on these opinions. It also noted with concern that the Applicant had, on occasion, declined to engage with specialist interventions aimed at addressing his personality and offending-related needs, thereby missing opportunities to consolidate his learning with professional support.[16]Ultimately, having weighed all of the evidence, the panel was not satisfied that the statutory test for release was met. None of the professionals considered the Applicant’s risk to be manageable in the community, and the panel fully agreed with that assessment. In the panel’s judgment, the progress made by the Applicant to date was insufficient to mitigate the clear ongoing risks he poses. It determined that the Applicant’s risk of causing serious harm could not yet be safely managed on licence, and that it remained necessary for the protection of the public that he continue to be confined in custody. Accordingly, the panel made no direction for the Applicant’s release. The Relevant Law[17]The Parole Board will direct release if it is no longer necessary for the protection of the public that the prisoner should be confined. Parole Board Rules 2019 (as amended)[18]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)).[19]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)).[20]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[21]The power of the courts to interfere with a decision of a competent tribunal on the ground of irrationality was defined in Associated Provincial Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA) by Lord Greene in these words:
“ if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere ”
. The same test applies to a reconsideration panel when determining an application on the basis of irrationality.[22]In R(DSD and others) v Parole Board [2018] EWHC 694 (Admin) the Divisional Court applied this test to Parole Board hearings in these words (at [116]):
“ the issue is whether the release decision was so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it .”
[23]In R(Wells) v Parole Board [2019] EWHC 2710 (Admin) Saini J set out what he described as a more nuanced approach in modern public law which was “ to test the decision maker’s ultimate conclusion against the evidence before it and to ask whether the conclusion can (with due deference and with regard to the panel’s expertise) be safely justified on the basis of that evidence, particularly in a context where anxious scrutiny needs to be applied ”. This test was adopted by the Divisional Court in R(Secretary of State for Justice) v Parole Board [2022] EWHC 1282 (Admin).[24]As was made clear by Saini J in Wells, this is not a different test to the Wednesbury test. The interpretation of and application of the Wednesbury test in parole hearings as explained in DSD was binding on Saini J.[25]It follows from those principles that in considering an application for reconsideration the reconsideration panel will not substitute its view of the evidence for that of the panel who heard the witnesses.[26]Further while the views of the professional witnesses must be properly considered by a panel deciding on release, the panel is not bound to accept their assessment. The panel must however make clear in its reasons why it is disagreeing with the assessment of the witnesses. The reply on behalf of the Respondent[27]The Respondent has advised that no representations will be offered in response to this application. Discussion[28]The Applicant argues that the decision is irrational as the panel’s conclusion does not follow from the evidence and rests on an unexplained leap in reasoning. In particular, he says the panel placed determinative weight on his “ assertive ” or verbally aggressive reactions to perceived challenge, yet there is no evidence of actual violence or of harm meeting the OASys definition of “serious harm,” so inferring a significant risk of such harm from verbal conduct alone is speculative and disproportionate. He relies on his account that any heated responses reflected frustration born of being significantly over-tariff and feeling powerless, rather than an intention to cause harassment, alarm or distress, and submits that the panel failed to give proper weight to his custodial progress and completion of accredited programmes. On that basis, he argues the release refusal is not safely justified by the evidence and should be reconsidered.[29]It is acknowledged that the Applicant can act assertively/aggressively when he perceives that others are mistreating him and/or causing him harm in some way.[30]Taking the Applicant’s first point, the panel’s chain of reasoning was anchored in concrete material rather than conjecture. The decision records contemporaneous incidents, security intelligence, expert assessments of current risk (including violence risk), and a clear explanation of why recent behaviour and limited insight undermined the Applicant’s case for safe community management. Read fairly, there is no leap from evidence to conclusion and no missing step of logic; the panel set out the evidence, analysed it, and then drew a conclusion that followed.[31]As to the submission that the panel irrationally treated “ assertive ” or verbally aggressive reactions as determinative, the panel was entitled to evaluate whether the Applicant’s pattern of threats, abuse and defiance could escalate into violence, particularly against the background of his history and the professionals’ consistent view on volatility and poor emotional regulation. The record includes proven adjudications up to June 2025 for threatening and abusive behaviour, security intelligence of intimidation and threats, and an incident described as “ swinging ” a chair towards an officer, alongside the Applicant’s repeated minimisation of such conduct as “ little thing s”. The professionals explicitly warned that reactions to challenge could increase the risk of violence, and OASys assessed high risk of serious harm to the public, known adults and children, with the psychologist identifying high violence risk in the community. On that material, the inference that verbal aggression could escalate was open to the panel and cannot fairly be characterised as speculative.[32]The Applicant then contends that his reactions were explained by frustration at being significantly over-tariff, rather than any intention to cause harassment, alarm or distress, and that the panel failed to take proper account of that context. The panel did record his explanations and the mitigation he advanced, but it was entitled to place limited weight on them where the same evidence showed ongoing grievance thinking, externalisation of blame (including talk of a “ conspiracy ”), and a tendency to justify or minimise his own behaviour as a response to perceived “ mistreatment ”. Those features were not treated as neutral; they were rationally treated as indicators of limited insight and of the speed at which frustration could tip into threatening or aggressive conduct. That evaluative judgment, grounded in the Applicant’s presentation to the prison psychologist and to the panel, is not irrational.[33]Next, the submission that there was “ nothing to indicate ” a direct link between the behaviours and a risk of serious harm overlooks the structured assessments and manageability analysis set out by the panel. The OASys risk of serious harm scores were high to the public, known adults and children; the prison psychologist assessed a high risk of violence in the community; and the COM questioned whether warning signs would reliably be visible on licence. The panel also identified the plan’s heavy reliance on external controls and recorded concerns about the Applicant’s internal controls and insight, and the robustness of community supervision over time. Those are valid and uncontroversial public protection considerations, not leaps of logic, and they provide the missing link which the Applicant says is absent.[34]Finally, the assertion that the panel failed to recognise progress and accredited work is not borne out by the decision. The panel expressly credited the volume of programmes, work ethic, and sustained abstinence, before explaining why the Applicant had not consistently translated learning into behaviour, noting recent adjudications, negative entries, rejection or reluctance toward further pathway work, and continuing problematic personality traits that professionals regarded as a barrier to progression. The panel’s weighing of positive and negative features was explicit and its conclusion that progress was insufficient for safe release was evaluative and rational. Decision[35]For the reasons set out above, I am not satisfied that the panel’s decision was irrational. The application for reconsideration is therefore refused. Stefan Fafinski 29 August 2025