Leggett, Application for Reconsideration [2025] PBRA 195 (11 September 2025) [2025] PBRA 195

PBRA
Leggett, Application for Reconsideration [2025] PBRA 195 (11 September 2025)
[2025] PBRA 195 · 2025-07-07
[1]This is an application by Leggett (the Applicant) for reconsideration of a decision (the Decision) of a panel (the Panel) of the Parole Board (the Board) dated 7 July 2025 not to direct his release. The decision was made following an oral hearing on 6 June 2025.[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 are: the application for reconsideration with written submissions dated 14 August 2025; the Decision; the case dossier of 798 pages; and an email dated 29 August 2025 from the Public Protection Casework Section (PPCS) of HM Prison and Probation Service on behalf of the Secretary of State. Request for Reconsideration[4]The application for reconsideration is dated 14 August 2025.[5]The grounds for seeking a reconsideration are as follows: i) The Decision was irrational in that it: placed undue reliance on a single incident in which the Applicant was involved in 2023; failed to take account of the fact that the three professional witnesses involved in the case agreed that no further offending behaviour work was required or available in custody; concluded that release could not be directed because the alcohol and trail monitoring testing which the Panel considered necessary for the management of the Applicant’s risks were not available to him; rejected the recommendation of all three professional witnesses that the Applicant was suitable for release without providing rational grounds for rejecting their views. ii) There was an error of law on the part of the Panel in that it failed to: give adequate reasons for rejecting the views of the Community Offender Manager (COM) about the sufficiency of the methods used to mitigate the absence of alcohol testing and trail monitoring; refer to the Applicant’s reduced mobility diminishing his ability to seek out his victim and enter the exclusion zone; take into account when expressing concern about the lack of identified accommodation that it is always the case that accommodation must be approved; explain why it disagreed with the professional witnesses’ opinion that, notwithstanding the potentially violent incident in which the Applicant was involved two years ago, he could still be safely managed; refer to the Applicant’s openness and honesty which would be highly relevant to risk management; apply to its conclusion that warning signs of risk would not be evident, its own acknowledgement that there would be many visible signs and that those caring for his significant physical needs would naturally be reporting should any concerns arise; consider adequately the extensive support available to the Applicant in the community which would translate into further monitoring and development of his internal controls. iii) Too much emphasis was placed on historical factors rather than current and future situations. Background[6]On 7 December 2009, at the Crown Court, the Applicant received an indeterminate sentence of imprisonment for public protection (IPP) for threats to kill and false imprisonment, and a concurrent fixed term of 12 months imprisonment for assault occasioning actual bodily harm. He had pleaded not guilty but was convicted of all three offences by a jury after trial. The minimum custodial term under the IPP was set at 3 years and the Applicant’s tariff expired on 20 April 2012.[7]The Applicant’s victim was vulnerable due to alcoholism and depression. The Applicant was 10 days short of his 51 st birthday when he committed the index offences on 18 April 2009.[8]The Applicant was at the victim’s home with a number of others and there came a point when he and she started arguing. He became aggressive, took a knife from the kitchen and threatened to kill her with it. Helped by others, he detained her against her will, sharpened the knife and taunted her querying which of her eyes he should remove first, asking whether he should take her fingers off one by one, take her lips off and slice out her tongue.[9]The Applicant then pulled back the victim’s head by her hair and held the knife against her throat. He forced her to swallow some cider and told her he would have sex with her before throwing her off a cliff, at which point the victim said the Applicant became sexually aroused. He told her he had a van outside for her body and that of her friend, and then proceeded to assault her by grabbing her, throwing her back on the sofa and striking her about the face, splitting her lip. The victim managed to secretly dial 999 and left her mobile phone switched on. When one of the others present who had been egging him on told the Applicant about the phone he forced the victim into the bathroom and threatened to smash her face on the sink. She was saved when the police arrived.[10]The victim had known the Applicant as an acquaintance for 2½ years. She said that he had thrown her down the stairs on her birthday the previous year when he was drunk and they had been fighting.[11]The Applicant had many previous convictions dating from 1975. They included convictions for taking a conveyance without authority, theft, robbery, burglary, possessing an offensive weapon in a public place, driving whilst disqualified, obtaining property by deception, inflicting grievous bodily harm with intent, unlawful wounding, criminal damage, obstructing police, assaulting police, and failing to provide a specimen for analysis. In 2002, the Applicant was sentenced to a community order for making threats to kill, committed when he was on bail, and on 4 November 2002, he was fined for breaching the order. On 27 March 2008, the Applicant was fined for criminal damage and no separate penalty was imposed for resisting a police officer.[12]The Applicant had a history of intimate partner violence within his relationship with the victim of the index offence and two earlier relationships.[13]During his trial, the Applicant alleged that the victim was lying and exaggerating. When seen for the purpose of preparing pre-sentence reports he continued to exhibit great hatred for the victim and threatened that, if he were ever released, he would kill her. He refused to enter the courtroom for sentencing and commenced a dirty protest in prison.[14]In 2010, during the course of the current sentence, it was reported that the Applicant encouraged other prisoners at the prison he was in to engage in concerted ill-discipline after he had been denied permission to enter the exercise yard.[15]On 10 March 2023, the Applicant received a negative warning for going on to the Vulnerable Prisoner (VP) Wing. He and two other prisoners had seen that the VP Unit gate was open and explained that if they had seen one of the sex offenders they would have probably had a fight because of the crimes they had committed. He told the panel conducting his review on 15 March 2023 that, if he had come across one, he would probably have “ given him a good kicking ” or “ done him in ”.[16]Psychological risk assessments have confirmed that the Applicant has a definite diagnosis of Antisocial Personality Disorder, Borderline Personality Disorder and a probable diagnosis of Histrionic Personality Disorder and Narcissistic Personality Disorder. He is said to have a high level of psychopathy traits. Current parole review[17]On 23 October 2023, the Secretary of State referred the Applicant’s case to the Board to consider whether or not it would be appropriate to direct his release and, if not, to advise whether he should be transferred to open conditions.[18]The review was conducted by the Panel, comprising a psychologist member and two independent members, at an oral hearing on 6 June 2025 conducted by way of video-link to the prison where the Applicant is currently located. It had been adjourned on 10 October 2024 because there was no accommodation available to the Applicant due to the proposed exclusion zone. The Panel then reconvened on 13 February 2025 but the hearing had to be adjourned as a result of the Applicant’s admission to hospital in the early hours of that day.[19]The Applicant, then aged 67, attended the final hearing and was legally represented. There was no attendance by or on behalf of the Secretary of State (the Respondent).[20]The case dossier of 751 pages included reports by the Applicant’s COM, his Prison Offender Manager (POM) and a psychologist instructed by the Prison Service, all of whom attended the hearing. In her updated report of 8 April 2025, the COM assessed the Applicant as posing a very high risk of serious harm which would be imminent on release. This was based on the fact that he had continued to express thoughts of retribution against his victim with a long and documented history of making threats to kill her when released. His latest position was that he no longer has malicious feelings towards her.[21]Oral evidence was given by the COM, the psychologist, a prison officer standing in for the POM, a prison mental health nurse, a member of the prison forensic mental health team, and two local authority social workers.[22]According to the latest reports the Applicant was assessed as being in a group posing a medium static risk of reconviction and, applying dynamic risk measures, the probability of re-conviction for both violent and non-violent re-offending was medium. The risk of serious recidivism over two years was assessed as low and the Spousal Assault Risk Assessment (SARA) put hm at a high risk towards future partners.[23]In the event of any re-offending in the community, the risk of serious harm to a known adult was assessed as very high. To the public, namely people witnessing violent behaviour, to people convicted of sexual offences (PCOSOs), and to prison and probation staff, it was assessed as high.[24]These assessments were endorsed by the COM at the hearing and accepted by the Panel. The psychological risk assessment concluded that the Applicant’s risk of serious harm was dynamic and that it was not imminent. If he suffered humiliation, weaknesses, grievance thinking or believed that violence would resolve problems his risk would be high when combined with a deterioration in mental health or the influence of alcohol.[25]There had been no repetition of the type of behaviour which led to the 2023 warning. The Applicant had maintained a high level of compliance with the prison regime and continued to hold enhanced status under the Incentives and Earned Privileges (IEP) Scheme.[26]The Panel concluded that the Applicant’s risk of causing serious harm was not imminent. However, it expressed concern about whether any escalation of risk would be detectable before harm was caused. He did not have the benefit of an approved premises placement where at least for a period of up to 12 weeks his compliance could be monitored by professionals.[27]A local authority had accepted responsibility for his housing needs and a combination of adult social care assessments had been completed and the Applicant would be placed in accommodation which the COM confirmed would not undermine his risk management or place the public at risk. The supervising professionals would be dependent on reports from those who were providing care for him in the community.[28]The POM, COM and prison psychologist all expressed support for the Applicant’s release. The prison psychologist referred to the Applicant having managed his behaviour pro-socially in situations where he had been aware of PCOSOs. However, the Panel concluded there was insufficient evidence that he recognised the risk he posed to them or to others whom he may be persuaded to behave anti-socially towards.[29]The risk management plan (RMP) involved a combination of supervision with licence conditions appropriate to his risks, monitoring at an appropriate level under Multi Agency Public Protection Arrangements (MAPPA) and management of the Applicant’s physical and mental health needs. In order to plan for his complex mental health needs and to review his progress and co-ordinate his treatment, he would continue to have a care co-ordinator.[30]The Panel concluded that the RMP was undermined by the fact that both trail and alcohol monitoring were not available, although the COM indicated measures which would compensate for this. It did conclude, however, that probation would be able to veto unsuitable accommodation, that the Applicant would have sufficient support in the community and that the additional monitoring was appropriate and proportionate.[31]The Panel was not confident that the concerns expressed by the COM in her latest report about his new but untested attitude towards the victim of no malicious feelings could be mitigated by the RMP. It was concerned that an escalation of risk might not be detectable before harm was caused.[32]The Panel concluded that its decision was finely balanced. There was much that was positive about the Applicant’s journey through custody. However, it was not confident that he had sufficient internal controls to manage his risks in the community. In its view, the Applicant had expressed clear evidence at the hearing of the grievance thinking that had underpinned the incident in 2023. Despite his engagement in intensive intervention, he had not been able to put his learning into practice and apply appropriate skills. He still considers contact with the victims of his abuse to be appropriate. Threats made to the victim during his sentence had put him at a very high risk level and that assessment of risk has not changed.[33]In these circumstances the Panel was not satisfied that it was no longer necessary for the protection of the public that the Applicant be confined and therefore did not direct his release. It further concluded that, although he was no more than a low risk of absconding, the outstanding unresolved factors which led to its decision not to direct release applied equally to his risks in open conditions where he could be in the community unsupervised on licensed temporary release. The Panel therefore did not recommend the Applicant’s transfer to open conditions. The Relevant Law[34]The Panel correctly sets out in its Decision document 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. Parole Board Rules 2019 (as amended)[35]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)).[36]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)).[37]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[38]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.[39]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. ”
[40]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) .[41]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.[42]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.[43]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. No submission of procedural unfairness has been made in the Applicant’s case. Error of law[48]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.[49]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[50]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[51]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[52]In its email dated 29 August 2025, PPCS on behalf of the Respondent confirmed that she had no representations to make in respect of the Application. Discussion[53]The Applicant’s health conditions mean that an RMP is unlikely ever to include residing in the highly controlled and supervised environment of Probation Approved Premises. However, such provision is always short lived, being measured in weeks, and the immediate placement of the Applicant in formal social care will provide a measure of supervision which is absent in the majority of cases.[54]In its Decision, the Panel analysed all the written and oral evidence and subjected it to critical analysis. It reflected on the opinions expressed by the professional witnesses and noted a degree of caution in their opinions. It considered his long history of violent and threatening behaviour, the length of time that had elapsed since the 2023 incident and the record of the Applicant’s compliance thereafter.[55]It balanced against the assessment of the Applicant’s risk of serious harm, his learning from offending behaviour programmes undertaken, his cognitive and physical impairment and the external controls to be imposed under the RMP.[56]The overriding objective of a panel is to ensure that an individual’s case is dealt with justly. In this case the Panel was scrupulous in its a critical analysis and in my judgment applied its collective mind to any inconsistencies fairly and objectively.[57]I do not agree that the Panel placed undue reliance on the single incident that occurred in 2023. It carefully considered the length of time that had elapsed since then and determined the risk arising from that in the context of other risk factors.[58]Although the views of professional witnesses should always be properly considered by a panel deciding whether or not a prisoner should be released, it is not bound to accept their assessment of the efficacy of risk management in the community. However, it should make clear in its decision reasons why it disagrees with their recommendations. In this case the Panel went to great lengths in so doing. In particular it provided reasons why it was concerned about whether an escalation in risk would be detectable before harm was caused.[59]The lack of alcohol and trail monitoring was not the sole reason for the Panel’s decision not to direct release. It did consider the wider range of monitoring and, when this was taken into consideration alongside the remaining risk analyses, the Panel reached a conclusion which was objective and rational.[60]As the legal representative points out in the submissions, there is some overlap in factors relating to irrationality and those relating to an error in law. The elements set out in the submission relating to irrationality are expanded on in the submissions relating to errors in law. I do not consider that the Panel failed to give adequate reasons for rejecting the COM’s views.[61]Furthermore, the Panel dealt with the issues in respect of mitigating the absence of alcohol and trail monitoring, the absence of identified accommodation, the Applicant’s reduced mobility, his openness and honesty generally and at the hearing, and the support and monitoring available in the community. The Panel took a balanced and proportionate approach to all these matters. Decision[62]It is not the function of an individual conducting a reconsideration process to endorse or reject the conclusion reached by a decision maker but to analyse its rationality. For the reasons I have given, I do not consider that the decision was irrational or unfair and nor was there any error in law. Accordingly the application for reconsideration is refused. HH Judge Graham White 11 September 2025