Milton, Application for Reconsideration by, [2025] PBRA 206 (22 September 2025) [2025] PBRA 206

PBRA

Milton, Application for Reconsideration by, [2025] PBRA 206 (22 September 2025)

[2025] PBRA 206 · 2025-08-07

[1]This is an application by Milton (the Applicant) for reconsideration of a decision of an oral hearing panel dated the 7 August 2025 the decision was not to direct release.

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

(b) that it is irrational and/or

[3]I have considered the application on the papers. These are the dossier, the representations submitted by the Applicants legal adviser, the decision of the oral hearing panel and the representations by the Secretary of State (the Respondent). Request for Reconsideration

[4]The application for reconsideration is dated 27 August 2025.

[5]The grounds for seeking a reconsideration are set out below. The application was in a narrative format I have attempted to identify the grounds as indicated below. Background

[6]The Applicant was convicted after trial of a number of offences including attempted rape of a female under 16, indecent assault of a female (seven counts), ill-treating a child or young person and causing unnecessary suffering (two counts). The Applicant sexually abused three young children between 1995 and 1998. There was also a controlling atmosphere of fear and violence. The youngest child was said to be aged between four and five. The Applicant would have been approximately 21 years old at the time of the initial offending. He was 47 years old at the time of final sentencing. The Applicant was sentenced to an extended sentence consisting of a custodial period of 15 years and an extension period of one year. He was eligible for parole in August 2024. Current parole review

[7]The referral from the Respondent requested the Parole Board to consider whether the Applicant should be directed for release. The Applicant was aged 56 at the time of the oral hearing. The original oral hearing was convened in January 2025. The hearing was adjourned until June 2025 to secure further information.

[8]The panel hearing concluded on 26 June 2025. The panel chair was an independent Parole Board member. There was also a psychologist Parole Board member and a further independent member on the panel. Evidence was given by two Prison Offender Managers (POM). The Applicant had moved prisons during the adjournment period. Further evidence was given by a prison instructed psychologist and a Community Offender Manager (COM). The Applicant himself gave evidence. The Applicant was legally represented throughout. The panel considered a dossier consisting of 536 pages. The Relevant Law

[9]The panel correctly sets out in its decision letter dated 7 August 2025 the test for release. Parole Board Rules 2019 (as amended)

[10]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)).

[11]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

[12]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.

[13]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. "

[14]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).

[15]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.

[16]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.

[17]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

[18]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.

[19]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.

[20]The overriding objective is to ensure that the Applicant's case was dealt with justly. Error of law

[21]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.

[22]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

[23]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

[24]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

[25]The Respondent offered no representations. Grounds and Discussion Ground 1

[26]It is submitted on behalf of the Applicant that the panel failed to apply the correct test in their decision. Discussion

[27]The panel in this case (as is now standardised in Parole Board decisions) set out the correct test for release in the template area at the head of the decision.

[28]In a later paragraph of the decision the panel indicated as follows " the panel found that [the Applicant] had core risk reduction work which needed to be completed in custody and therefore he did not meet the test for release."

[29]It is argued, on behalf of the Applicant, that the panel misapplied the test for release. It is submitted that the test for release is not whether the Applicant has completed behavioural work, but whether it remained necessary in order to protect the public from serious harm that he be detained. It is therefore submitted that the panel applied a test which related to the completion of behavioural work, rather than focusing upon the protection of the public.

[30]I accept that the eliding of a belief in the need for further risk reduction work, and the test for release, could potentially lead to a legitimate concern that the panel had failed to apply the correct test. The panel could have (and should have) improved the clarity of the point that they wished to make by separating the fact that there was a belief that further core risk reduction work was required, from the reference to the test for release.

[31]I have carefully considered whether the panel in this case have applied, or may have applied, the wrong test. I determine that, whilst the wording, used by the panel, was not necessarily helpful, the full and correct test was set out at the outset of the decision and was clearly understood by the panel.

[32]At the conclusion of the decision, was a further detailed explanation of the Codified Public Protection Test. The meaning of the test is defined as is the supporting legislation. The test is fully explained and documented in these concluding paragraphs. The presence of these detailed references to the test within the decision itself is, in my determination, persuasive of the fact that the panel fully understood the test that they were required to apply and applied it. It was clear in the body of the decision that the panel concluded that the Applicant had a sexual interest in children, that that sexual interest had not been addressed, understood, or rendered manageable and therefore it remained necessary in order to protect the public (and in particular children) that he remain detained.

[33]Accordingly, I am not persuaded that this ground amounts to procedural unfairness which would render the proceedings fundamentally flawed. Ground 2

[34]The decision of the panel, it is submitted, was irrational, because the panel failed to take proper account of the evidence of two of the key professionals who gave evidence at the oral hearing. Discussion

[35]The background to this ground relates to the evidence adduced at the oral hearing. Three key witnesses gave evidence. The first was a POM who had been responsible for the Applicant between 2018 and 2025 (the Applicant's prison location changed in March 2025). The two other key witnesses were a prison instructed psychologist and the Applicant's COM. In terms of recommendations the Applicants POM indicated that she took the view that the Applicant did not meet the test for release. The Applicant's COM and the prison instructed psychologist were of the view that the Applicants risk could be safely managed in the community. There was therefore a difference in professional view.

[36]The Applicant's conviction timeline was slightly confusing. In October 1998 the Applicant was convicted of various sexual offences relating to intercourse with a child under 13. For these offences the Applicant was imprisoned for 54 months.

[37]The Applicant was released from prison. In 2017 he stood trial for offences which were committed between the years 1995 and 1998. The victims of the offences were three children. These offences had not come to light at the time of the conviction in October 1998. These matters led to a series of convictions and amounted to the index offences.

[38]So far as the 1998 matters were concerned, the Applicant admitted the offending. His explanation for the 1998 convicted offending was that he was suffering a decline in mental health and a failed relationship and therefore felt closer to children. Hence the offences against the child.

[39]So far as the offences committed between 1995 and 1998 in relation to other children concerned, the Applicant denied the offending at the trial but was convicted. His position at the oral hearing was that he continued to deny the offending. The sentencing judge when describing the offending in relation to the three children indicated that the Applicant had conducted " a campaign of sexual abuse ". The judge also indicated that the Applicant had created an "atmosphere of fear and violence".

[40]The oral hearing panel identified risk factors, in relation to the Applicant, which were set out in the decision. Those risk factors were sexual entitlement; deception and coercive behaviour to meet his own ends; a sexual attraction to children including prepubescent children; denial; manipulation and problems with intimate relationships.

[41]In assessing the Applicant's current risk, the oral hearing panel received evidence from the key witnesses. The POM took the view that there was a distinction between the offending against the single child which involved a conviction for intercourse with a child, and the convictions in relation to the other children. In brief the suggested distinction was that, in the view of the POM, the evidence indicated that the Applicant had displayed coercive and controlling behaviour in relation to the three children and that he had also displayed a sexual interest in children (particularly young children). The POM took the view that there was insufficient evidence to indicate that the Applicant had addressed these serious risk factors and therefore took the view that the risk of serious harm remained.

[42]A contested area, in the course of the oral hearing related to whether the Applicant did indeed have a sexual interest in children, as suggested by the panel in their listed risk factors. The alternative being that the offending against children was related to other factors, possibly emotional difficulties.

[43]Despite the obvious nature of the convictions, there was some divergence of opinion about the Applicant's sexual interest in children.

[44]One piece of evidence cited by the panel were civil proceedings (conducted some years before) and a judicial decision in those proceedings relating to the Applicant. In a detailed judgement which included analysis of evidence from the police and others, a civil court judge concluded on the balance of probabilities that the Applicant had been responsible for instigating internet searches and for the presence of unlawful images relating to children on his computer. The judge further concluded that the presence of the searches " demonstrates a current sexual interest in children". The Applicant had denied at the time of the civil judge's review and to the oral hearing panel that he had any sexual interest in children or that he had viewed or seen any images.

[45]The panel noted that there had been no charges in relation to child images and no convictions and therefore the only reliance could be on the basis of the finding on the balance of probabilities by the civil court judge.

[46]The prison instructed psychologist was asked at the hearing about the topic of a sexual interest in children. The psychologist told the panel that she did not consider that there was conclusive evidence of a sexual interest in children. She indicated that this was her clinical opinion. She had considered the police reports and the findings of the civil court judge. She indicated to the panel that she needed " conclusive evidence " in order to change her opinion.

[47]The prison instructed psychologist had taken the view that rather than a sexual interest in children, the offending had occurred because of an " emotional connection " between the Applicant and the children concerned. The view of the psychologist was that the triggers and motivations for all offending both the earlier conviction and the later convictions had occurred at the same time and therefore the risks were similar and did not amount to a sexual interest in children.

[48]The panel disagreed with this formulation. The panel took the view that the prison instructed psychologist had failed to contribute sufficient weight to the fact that the offending had occurred in relation to several children, that there was coercive behaviour, that there was evidence of some interest in searching internet sites relating to children, and that limited reliance could be placed upon the Applicant's self-report. The panel therefore rejected the view of the prison instructed psychologist and, in my determination, set out clear reasons why they had rejected that view.

[49]So far as the COM was concerned, the view taken was that the COM did not believe that there was any further work that could be completed particularly in the light of the denial of offending by the Applicant. The COM appeared to accept that there were concerns relating to Internet searches of children but took the view that this aspect of risk could be managed in the community. The COM also took the view that the Applicant's sexual offending was not predatory and that there would be warning signs should risk elevate.

[50]The panel disagreed with the view of the COM for similar reasons to their views in relation to the prison instructed psychologist. The panel took the view that the Applicant had an untreated sexual interest in children. There had been no offending behaviour work which might have addressed or ameliorated the sexual interest that the panel found. The panel also took the view that the Applicant himself underplayed his risk and minimised his behaviour. The panel also found that he was not wholly open and honest with them. Although noting their concern about the Applicant's minimisation, the panel made it clear that their major concern was the risk of serious harm and the fact that there was no evidence that that risk had been ameliorated or addressed. Accordingly, the panel took the view that it remained necessary in order to protect the public that the Applicant be detained.

[51]The panel had the advantage of an extensive dossier of reports and other material. They had the advantage to of seeing and hearing the Applicant as well as the witnesses. The Applicant was also legally represented throughout. Where there is a conflict of opinion, it was plainly a matter for the panel to determine which opinion they preferred. Provided the reasons given are soundly based on evidence, as well as rational and reasonable at least not so outrageous in the sense set out above it will be inappropriate to direct that the decision be reconsidered unless it is manifestly obvious that there are compelling reasons for interfering with that decision.

[52]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 proposed. They must make up their own minds on the totality of the evidence that they hear, including any 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 by the divisional Court in DSD, panels of the Board have the expertise to carry out this duty.

[53]Accordingly, I am not persuaded in this case that there is evidence of irrationality or procedural unfairness, and I therefore refuse the application for reconsideration. Decision

[54]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 Stephen Dawson 22 September 2025