Amess, Application for Reconsideration [2025] PBRA 202 (25 September 2025) [2025] PBRA 202

PBRA

Amess, Application for Reconsideration [2025] PBRA 202 (25 September 2025)

[2025] PBRA 202 · 2025-08-18

[1]This is an application by Amess ('the Applicant') for reconsideration of a decision of an oral hearing panel ('the panel') dated 18 August 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 application for reconsideration dated 1 September 2025, the dossier in the case which includes the panel's written decision dated 18 August 2025 and a report since the oral hearing confirming that the Applicant is ineligible at this time to complete the accredited offending behaviour programme Building Choices in custody. Request for Reconsideration

[4]The application for reconsideration is submitted by the Applicant's legal representative and is made on the grounds of irrationality. However, I consider that some of what is argued are potential grounds for an identified error of law, for example, failure of the statutory duty to give adequate and appropriate reasons as required by Rule 25(6)(b) of the Parole Board Rules.

[5]In summary, the Applicant submits:a. The panel disregarded professional recommendations supporting release, particularly from the Community Offender Manager (COM) who had known the Applicant for some time;

b. The panel applied the codified public protection test in a manner that overemphasised the potential for licence breaches rather than actual risk;

c. The panel questioned the effectiveness of the risk management plan due to non-compliance by the Applicant when it had been effective on two previous occasions, without further offending occurring;

d. The panel was wrong in considering that the Applicant underestimates his risks and lacks full insight; and

e. The panel relied on isolated security intelligence in respect of concerns about the manipulation of professionals. Background

[6]In November 2018, the Applicant received an extended determinate sentence comprising of five years in custody and a five-year extended licence following his conviction for sexual activity with a female child under the age of 16. He received concurrent determinate sentences for two offences of engaging in sexual communication with a child and an offence of an adult meeting a girl under the age of 16 following sexual grooming.

[7]These offences arose following the breakdown of the Applicant's marriage, him living alone, drinking more and befriending the two victims via social media. Following meeting one of the victims, the Applicant engaged in sexual intercourse with her despite knowing that she was intoxicated and underage. The Applicant was 33 years old when he started communicating with the victims who were then 15 years old.

[8]In sentencing the Applicant,

the Judge stated:

"You are a controlling and corrupting influence on young girls. These two girls were set up by you. They were plied with alcohol; they were there for one purpose and one purpose only. Sex. That is what you wanted."

[9]The Applicant has been released and recalled on two occasions. He was first released on 14 September 2022 and was recalled to custody on 3 March 2023. There were concerns about his behaviour on licence, including superficial engagement with Probation, dishonesty, that he was forming multiple relationships with women who were vulnerable and/or had children, that he failed to disclose his relationships to Probation, and that he was sexually preoccupied.

[10]On 10 June 2024, the Applicant was re-released but was recalled just over two months later on 15 August 2024. The present panel's review was the first time the Applicant's case had been considered by the Parole Board since his recall in August 2024.

[11]The Applicant's second recall followed concerns about his behaviour and breaches of several of his licence conditions, including his failure to disclose a relationship, his deletion of internet history and his possession of more than one mobile phone. He did not challenge his recall and accepted most of the breaches and behavioural concerns that had been reported about him.

[12]At the time Probation had raised concerns about " the extent of the breaches and paralleling behaviour that led to [a] previous recall in addition to ongoing dishonesty, he is not deemed to be manageable in the community at present."

[13]The panel considered the Applicant's recall at an oral hearing on 13 August 2025. It heard evidence from the COM, a previous COM, the allocated Prison Offender Manager (POM) and a replacement witness representing the previous POM.

[14]The COM noted that the Applicant had been isolated on licence and that this led to risky situations. The Applicant accessed internet dating sites, most likely wanted to be liked and to be seen as a good person and the COM felt that he was not necessarily seeking sex in a relationship.

[15]The COM did not identify a specific risk to children in the community in terms of the Applicant trying to contact children, although the COM noted that some of the women the Applicant had been in contact with had children and he could potentially have been in contact with them, placing himself in difficult and risky situations.

[16]The panel accepted that the decision to recall the Applicant to custody had been appropriate. It noted that he had been in contact with multiple women, had met at least two of them without disclosing this to Probation and that those two women had children. The panel considered his actions to be deceitful and that his compliance on licence had been superficial.

[17]The two POM witnesses outlined the Applicant's custodial behaviour, much of which had been positive. There was reference to " alleged manipulation of staff and playing them off against each other" but otherwise much of the report about the Applicant was positive. He had been accepted to move to a specialist regime at another prison but the Applicant had rejected the move because he feared it might delay his review by the Parole Board.

[18]In his evidence to the panel, the Applicant confirmed that he had rejected the move to a specialist regime because he was not willing to put back his Parole review and potential release. In his view, the specialist regime would not have been any different to the work he had done in custody for the same length of time. He detailed in cell work, engagement with Alcoholics Anonymous (AA) and his own strategies for managing himself. In his view, he was getting better at being open and honest with professionals.

[19]In their oral evidence, neither POM witness at the hearing felt able to offer a recommendation to the panel about whether the Applicant should be released because they did not feel that they knew him well enough. However, it was noted that the former POM, who was unable to attend the hearing, had been supportive of re-release.

[20]The COM's oral evidence set out a need for the Applicant to continue to address his risk to children. The COM noted that an accredited offending behaviour programme called Building Choices would be available in custody and in the community. Her plan was for the Applicant to complete Building Choices on licence so that he could continue his work on sexual offending, which he had commenced in custody through another course prior to his initial release.

[21]The COM supported the Applicant's re-release, felt that he had maintained good contact since his recall and that he appeared to be more open without fearing judgement. It was not clear from the panel's written decision whether the former COM expressed a view about the Applicant's re-release.

[22]The COM detailed the proposed release plan and licence conditions. In its written decision, the panel doubted the likely effectiveness of the release plan because it had concerns about the Applicant's compliance.

[23]It is worth detailing what the panel said in full about the proposed release plan because it becomes a relevant consideration in determining the application for reconsideration:

"3.6. This risk management plan was considered by the panel but it was determined that no risk management plan was robust enough to safely manage him at this time until he had satisfactorily addressed his risk factors and shown that he could apply his learning. 3.7. The panel did not agree that this risk management plan is sufficiently robust to manage any risk that he poses in the community. [The Applicant] has been released into the community twice and recalled on both occasions after a relatively short period. The circumstances of his recalls gave the panel significant concern regarding his likely compliance with licence conditions. 3.8. The panel did not believe that this, or any risk management plan could manage or be effective in managing his risks in the community as they currently present. 3.9. If he was to be released a risk management plan would rely upon a good degree of insight, motivation, and compliance on his part. The panel did not feel that the risk management plan is sufficient to manage his risk due to a lack of confidence that he would comply. 3.10. This panel is concerned that his levels of future compliance, in the absence of a significant shift in insight and attitude on his part, would be in serious doubt. Based on the information provided this panel assesses that in these current circumstances the Risk Management Plan remains insufficient to manage his risk of serious harm if released."

[24]In its written decision, the panel declined to direct the Applicant's release. It noted that his behaviour on licence evidenced an escalation in risk and as such he had failed to implement " any skills and learning from his previous release and that his key risk factors remained active ... ".

[25]The panel stated that the Applicant's disregard for his licence conditions showed a lack of insight into the level of risk he posed to children.

[26]It noted that since recall he had " shown some improved insight into the reasons for his recall, what support he would need in the future to help manage his decision making, how to open up more and who to turn to for help." It also noted his behaviour in custody had been generally good.

[27]Although mindful that there was support for release from the COM and former POM, the panel disagreed. It declined to release the Applicant and noted a number of reasons for this, including his limited insight into the risk he posed to children, a report of him being manipulative in custody, his reflection that work he had completed was comparable to the work he would have undertaken in a specialist regime, that his partner (a relationship he had failed to disclose to Probation on licence) had three young children, that the Applicant had not thought through his relationship, that an earlier psychological report had established a need for consolidation work to be completed, that the Applicant's risk to children needed to be addressed in custody, that he would need to complete Building Choices in custody rather than in the community, and that the Applicant still had unaddressed risk factors linked to his sexual attraction to children. The Relevant Law

[28]The panel correctly sets out in its decision letter dated 18 August 2025 the test for release. Parole Board Rules 2019 (as amended)

[29]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)).

[30]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

[31]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.

[32]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. "

[33]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).

[34]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.

[35]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.

[36]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 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. 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

[42]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

[43]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 (the Respondent)

[44]By email, on 16 September 2025, the Respondent confirmed that he would not be offering any representations. Discussion

[45]Much of what is argued by the Applicant does not meet the high bar of irrationality. The panel was required to complete its own independent assessment of risk and it did that. The Applicant may disagree with much of the panel's conclusion but that does not mean that the panel's determination was so unreasonable as to meet the grounds of irrationality.

[46]I do not accept the Applicant's view that the risk management plan was effective because it led to his recall on two occasions without further offending. That is a general and simplistic approach to the question of risk management and each case must be assessed on its own facts.

[47]It is right that on some occasions the external controls of a release plan will be sufficient in managing risk and can lead to a direction for release or re-release. However, in the Applicant's case, when considering previous release plans, on each release he failed to comply with his licence in similar ways and on the second release he evidenced multiple breaches and compliance issues within a very short period.

[48]The risk management plan, certainly on the last occasion, was not effective because it was solely reliant on Probation staff having the skill and resource to find out what the Applicant was doing in the community given that he was deceitful and his engagement was superficial.

[49]For the avoidance of doubt, my reflection at this point is on the panel's assessment (and the Applicant's opposing view) about the effectiveness of past risk management. The question of future risk management, in the panel's analysis of the proposed risk management plan if re-release were to be directed, is a separate matter and is dealt with later (see below).

[50]I note that the Applicant raises concerns about the panel's view of his insight and understanding of his risk. I have some sympathy for his position. For example, as raised by the Applicant, at paragraph 4.15 of the written decision the panel stated:

"[The Applicant] is reported by professionals as being manipulative and plays professionals off against each other. This gives concern with regard to his openness and honesty."

[51]It is difficult to see why the panel attached such weight to the point of manipulation and playing staff off against each other when there is only a passing reference to the matter in the panel's written decision prior to its conclusion. Aside from this, the Applicant's custodial behaviour had been largely without issue and the panel had noted this. It might be reasonable to consider that the various positive reports would have outweighed this particular negative point.

[52]It is not difficult to see why the panel would be concerned about the Applicant's lack of insight into what a specialist regime might deliver and the Applicant believing that his own work had covered much of what might have been on offer . The specialist regime that had been proposed would have been intensive and structured, and whatever the Applicant had completed in the interim on his own initiative would not be comparable. However, the Applicant's own efforts should not be discounted and were a relevant consideration in determining if or how risk had reduced.

[53]In respect of him declining to move to the specialist regime, I have some sympathy with the Applicant because he had waited for his oral hearing for a long time and understandably had struggled with the concept of potentially losing out on the chance of a hearing and his potential release if he opted to move to the specialist regime. The panel had acknowledged the dilemma in its detail of the evidence it considered but did not reflect on it as perhaps it might have done when coming to the conclusions it did about the Applicant's view of the specialist regime, what it could offer and why he had opted to not engage with it.

[54]Ultimately, this was a case about a man who had committed sexual offences against children, had completed work in custody in an attempt to address his risk, had been released twice and on each occasion had evidenced risky behaviour and poor compliance. The key questions for the panel were whether re-release would be any different, if issues emerged how these might be managed by Probation, what might be different in the Applicant's approach to managing himself safely and whether further work that had been identified by his COM could be completed on licence without placing the public at risk, or whether the Applicant's risk was such that any work would need to be undertaken in prison prior to the potential for a safe re-release.

[55]In my assessment, having reviewed the Applicant's case in detail, the written decision by the panel and the Applicant's grounds for reconsideration, the determination of whether the application for reconsideration succeeds comes down to two key points:a. Did the panel properly explain why it disagreed with the witnesses who recommended re-release and did the panel explain why the Applicant's risk could not be managed in the community.

b. Did the panel properly consider and apply the codified public protection test and explain its reasoning.

[56]The Applicant is of the view that the panel should have given greater consideration to the COM's knowledge of him in deciding whether to accept the recommendation made for re-release. The written decision reflects the COM's knowledge of the Applicant's case, including the time the COM had been involved in the Applicant's case. However, the panel was not bound to accept the COM's assessment and, in the main, it did set out why it disagreed.

[57]However, it is not clear to me from the panel's written decision as to why the need for further offence focused work needed to be completed in custody and could not, as the COM had proposed, be completed in the community. I reach that conclusion because paragraphs 3.6 - 3.10 of the panel's written decision (as set out above) lacks clarity.

[58]Much of what is put forward in paragraphs 3.6 - 3.10 repeats the general theme of concerns about compliance and the panel's doubt that the Applicant understands his risk factors or can apply learning from offence focussed work he has already completed.

[59]I can understand the panel's doubts about compliance and this is properly detailed in the written decision. As previously noted, the Applicant had been recalled twice on his sentence and on both occasions this was due to concerning behaviour, deceit and multiple licence breaches.

[60]It is difficult though when reviewing paragraphs 3.6 - 3.10, to be confident as to the reasoning for the panel's concerns about the Applicant's lack of understanding of his risk factors or his application of learning and, most importantly, why that would lead the risk management plan to be ineffective.

[61]The panel sets out its concerns about the Applicant's insight and understanding of risk elsewhere in the written decision, but not why this was fundamentally incompatible with the likely effectiveness of the release plan. It may be that they had good reason and, if I were to substitute my own view, that reason may likely have been because of the lack of compliance meaning that understanding of risk and the need to comply so that risk can be managed and monitored was lacking. However, it is the panel's view that counts and its assessment of this aspect of why the risk management plan would not be effective is not clear from the written decision.

[62]In my view, paragraphs 3.6 - 3.10 do not adequately explain the Panel's conclusions given the repetitive nature of those paragraphs and the lack of clarity as I have outlined (above).

[63]The codified public protection test imposed by virtue of S.59 of the Victims and Prisoners Act 2024 includes the following:

"When making a public protection decision about a prisoner, the following matters must be taken into account by the decision maker- (a) the nature and seriousness of the offence in respect of which the relevant sentence was imposed; (b) the nature and seriousness of any other events for which the prisoner has at any time been convicted; (c) the conduct of the prisoner while serving the relevant sentence (whether in prison or on licence); (d) the risk that the prisoner would commit a further offence (whether or not specified in Schedule 18B) if no longer confined; (e) the risk that, if released on licence, the prisoner would fail to comply with one or more licence conditions; (f) any evidence of the effectiveness in reducing the risk the prisoner poses to the public of any treatment, educational training the prisoner has received or participated in while serving the relevant sentence; (g) any submissions made by or on behalf of the prisoner or the Secretary of State (whether or not on a matter mentioned above). "

[64]The Applicant submits that the panel applied the codified public protection test in a manner that overemphasised the potential for licence breaches rather than actual risk. I disagree. It perhaps might have assisted understanding the panel's application of the test if its reference to it came at the start rather than at the end of the conclusion (section four of the written decision). However, in the main, it answered the key points raised in the codified public protection test. Decision

[65]Although the Applicant's application is made on the grounds of irrationality, I am not persuaded that the panel's decision was irrational. I am however persuaded that there has been an error of law in the panel's failure to give adequate reasons in terms of its assessment of the risk management plan. Accordingly, the application for reconsideration is granted and the case should be reviewed by a fresh panel by way of an oral hearing. Robert McKeon 25 September 2025