McKnight, Application for Reconsideration [2025] PBRA 194 (10 September 2025) [2025] PBRA 194

PBRA
McKnight, Application for Reconsideration [2025] PBRA 194 (10 September 2025)
[2025] PBRA 194 · 2025-07-25
[1]This is an application by McKnight (the Applicant) for reconsideration of a decision of an oral hearing panel dated the 25 July 2025, the decision was not to direct release, however the panel recommended that the Applicant be transferred to an open prison.[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(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 were the dossier, the oral hearing decision, the representations on behalf of the Applicant submitted by the Applicant’s legal adviser and the response by the Secretary of State (the Respondent). Request for Reconsideration[4]The application for reconsideration is undated but was received by the Parole Board on 20 August 2025.[5]The grounds for seeking a reconsideration are set out below. Background[6]The Applicant is serving a sentence of imprisonment for public protection (IPP). He was initially released after a Parole Board hearing in June 2023. He was recalled in January 2024. The Applicant was aged 41 at the time of sentence. He was aged 57 at the time of the oral hearing panel. The Applicant was convicted of a series of offences relating to a female child. The convictions included three offences of indecent assault of a child, two offences of sexual activity with a child, an offence of engaging in sexual activity in the presence of a child and three offences of rape of a female child. The offending occurred over a considerable period of time. This was the Applicant’s first recall following release. Current parole review[7]Following the recall this matter was sent by the Secretary of State to the Parole Board by way of a referral to consider whether the Applicant should be directed for release. If not directed for release the Secretary of State requested that the Parole Board consider whether there should be a recommendation to transfer the Applicant to an open prison.[8]The oral hearing was delayed by adjournments. The details of those adjournments were included in the decision letter. The Applicant is profoundly deaf. The hearing took place with the support of two BSL interpreters. The Applicant was legally represented throughout.[9]The oral hearing panel consisted of an independent chair of the Parole Board, a further independent member and a psychologist member of the Parole Board. Evidence was given at the hearing by a Prison Offender Manager (POM), a Community Offender Manager (COM) and a prison instructed psychologist. The Applicant also gave evidence.[10]The panel correctly sets out in its decision letter dated 25 July 2025 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. The Relevant Law Parole Board Rules 2019 (as amended)[11]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)).[12]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)).][13]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[14]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.[15]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. ”
[16]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).[17]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.[18]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.[19]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;(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. The overriding objective is to ensure that the Applicant’s case was dealt with justly. Error of law 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.[24]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[25]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) , and 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.[26]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[27]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[28]The Respondent offered no representations. Grounds and Discussion[29]This application for reconsideration was in a narrative format. No individual grounds were identified, however the substance of the complaint appears to be that the panel failed to take into account relevant factors which would support the release of the Applicant. This was particularly focused on the fact that further material was produced in writing after the oral hearing which was sought to clarify issues which arose during the hearing. The panel assessed that evidence on paper and considered that evidence together with the oral evidence taken at the oral hearing and reached their conclusion. Discussion[30]The Applicant is serving an IPP. He was released, on licence, after a Parole Board hearing in June 2023 and was recalled in January 2024. The index offences related to serious sexual abuse involving a child. The offences included rape and indecent assault. The offences were committed over a considerable period of time.[31]The panel identified various risk factors when considering whether to direct release. Those factors included sexual violence; sexual preoccupation; sexual deviance; a sense of sexual entitlement; attitudes supportive of child abuse and rape; an inability to manage emotional and mental well-being; impulsivity; poor problem solving; a lack of insight; desire to seek thrills and take risks; an inability to comply and be honest; and negative attitudes to authority.[32]The recall occurred in circumstances where there had been concerns about the Applicant’s compliance with supervision and licence conditions. He had failed to attend an appointment for probation supervision. He had failed to attend three polygraph tests. He had been involved in selling items online which could attract children, and despite being instructed not to do so, he had continued with these transactions. The Applicant had also made contact with an individual in the community in breach of a licence condition. The precursor to recall was the discovery by a supervising officer that the Applicant’s mobile phone revealed evidence of a website entitled “Secret Love Club”. The inspection also revealed the opening of a basic account on this site with the name of “James” and the Applicant’s mobile telephone number. At the time of this inspection the Applicant said he had no knowledge of the site and had not created the account. The account had numerous messages sent from women to the account holder named James. It was also indicated that the date of birth used for the account was applicable to a 17 year old.[33]During the course of the oral hearing, evidence was received that the Applicant had (after recall) discussed the content of the dating site with a probation officer. The probation officer recorded that the Applicant had acknowledged that he had created a profile with an incorrect date of birth, however he told the probation officer that this date of birth was recorded “in error”.[34]By the time of the oral hearing the Applicant’s position appeared to have shifted and he was indicating that he did not join the dating site at all, and did not speak to women online.[35]A factor which was considered was that the Applicant is profoundly deaf.[36]At the time of the oral hearing the professional positions from the prison instructed psychologist, the POM and the COM were that the Applicant’s risk could not be managed in the community.[37]The rationale for these professional recommendations was that the Applicant lacked insight regarding the concerns relating to his recall and lacked an ability to take responsibility for behaviour which elevated risk, particularly behaviour which related to managing sexual arousal.[38]The Applicant’s COM also took the view that the Applicant lacked openness and honesty in reporting upon his behaviour. The COM took the view that the Applicant sought to place blame for his own behaviour on others and failed to take responsibility himself for his behaviour, a view which impacted upon risk.[39]The oral hearing was concluded, however the panel (before reaching their decision) requested that the COM provide further material from probation records about the Applicant accessing the sexual chat site. That additional material was provided and appeared to indicate that the site which was being accessed by the Applicant was one which advertised itself as only being available to users aged over 18.[40]The professionals were asked to make any further submission upon the additional material. This further information apparently led the prison instructed psychologist to conclude that it appeared that the Applicant (if he had been using the site) would have been communicating with adults over the age of 18. This information led the psychologist to conclude that there was no evidence of the Applicant having an ongoing sexual interest in underage females. The prison instructed psychologist therefore changed the recommendation to suggest that the Applicant could be safely released into the community.[41]This change in recommendation was at odds with the view of the COM which was that open conditions would be required to test the ability of the Applicant to comply with conditions, disclose relationships and comply with restrictions.[42]The Applicant’s POM also changed position having been told about the age of the users of the sexual chat site and indicated support for immediate release.[43]The panel having considered both the evidence at the oral hearing and the further evidence provided by the probation service, set out their rationale for their final decision. The panel accepted the possibility that, regardless of the records, the Applicant may not have stated that he was 17 years old when connecting with the dating site, however the panel took the view that there remained a risk given that the site involved females from the age of 18 as against the Applicant’s age of 57.[44]There also remained a fundamental issue, which was that the Applicant was not in fact arguing that he had registered and made contact with females over the age of 18. The Applicant’s final stance appeared to be that he had not used the chat site at all and that the use of a name, his telephone number and an incorrect date of birth had arisen through some form of mistake.[45]The panel’s major concern, in assessing the evidence, was that they took the view that the Applicant had not conducted himself in a fully honest and open manner with his probation officer, or with a clear understanding and insight into how to manage his risks appropriately. The factual situation was that, on balance, the Applicant had accessed a dating website without appropriately discussing the matter with his probation officer and overseeing police officer. His explanations as to how the material came to be on his mobile phone were unpersuasive. The panel were entitled to conclude, on the basis of the evidence, that the Applicant’s explanations of the registration age and his reasons for making use of the dating site, lacked consistency and credibility. The Applicant had failed to attend polygraph testing. Apparently, the absences from the polygraph testing arrangements had been deemed acceptable, although this clearly prevented the probation service from accessing an important element of supervision information, and doubtless added to the concern that the panel may have had that the Applicant was deliberately masking his behaviour in relation to a fundamental risk factor associated with the Applicant, namely, sexual preoccupation.[46]There had also been use of an online selling site, potentially of interest to children, which persisted after directions from the probation service to desist.[47]Convening a further oral hearing - the Applicant’s legal adviser suggests that the panel failed to appropriately consider the material which had been presented after the oral hearing. It is submitted that the panel should have recalled all parties and continued the hearing and received oral evidence to enable the Applicant to give further evidence relating to the additional material.[48]As indicated above the additional material consisted substantively of a screenshot of the page of the Secret Love Club website. The screenshot appeared to reveal that the chat site was advertised as being restricted to those over 18, this appears to have led to the prison instructed psychologist and POM to have changed their recommendations and recommended that the Applicant be released. In the light of the fact that the Applicant was submitting in evidence that he had no knowledge of the website and had made no contacts on the website, I am not persuaded that reconvening the entire hearing would have made a material and substantial change to the evidential basis of the decision.[49]The core of the panel’s decision was a concern, in the light of the index offences and the Applicant’s risk factors, that the Applicant was not open and honest with those charged with supervising his risk. The use of the chat line website had initially been denied by the Applicant. Later he appeared to accept that there may have been some involvement although his evidence was ambiguous and unconvincing. Given the Applicant’s requirements to be open and honest in supervision, the COM’s argument, namely that a lack of credibility and openness could lead to a risk of serious harm to potential victims (particularly sexual harm to young people) was understandable.[50]The panel itself indicated that this was a finely balanced decision. 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. Panels must make up their own minds on the totality of the evidence that they hear and read including 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 in the divisional Court in DSD they (the panel) have the expertise to do it.[51]It is acknowledged however that if the panel were to make a decision contrary to the opinions and recommendations of professional witnesses it is important that they should explain clearly the reasons for doing so and the reasons should be sufficient to justify the conclusions. Where a panel arrives at a conclusion, exercising their judgement based on the evidence before it, and having regard to the fact that they saw and heard the witnesses (in particular the Applicant), it would be inappropriate to direct that the decision be reconsidered unless it is manifestly obvious that there are compelling reasons for interfering with that decision. In this case the panel have set out a clear analysis of the reasons for their decision. The panel appropriately acceded to a request for further material following the oral hearing. That further material, and representations received upon the material, were appropriately considered by the panel before they reached their decision.[52]In all the circumstances I am not persuaded that the decision was so outrageous or irrational in the sense expressed above to warrant reconsideration. The application for reconsideration is therefore declined. Decision[53]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 10 September 2025