Martin, Application for Reconsideration [2025] PBRA 236 (03 November 2025) [2025] PBRA 236

PBRA

Martin, Application for Reconsideration [2025] PBRA 236 (03 November 2025)

[2025] PBRA 236 · 2025-09-23

[1]This is an application by Martin (the Applicant) for reconsideration of a decision of a panel of the Parole Board dated the 23 September 2025 making no direction for release and no recommendation for open conditions following an oral hearing on 11 February 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

[3]I have considered the application on the papers. These are the decision, the application for reconsideration and the dossier. Request for Reconsideration

[4]The application for reconsideration is dated 13 October 2025.

[5]The grounds for seeking a reconsideration are as follows:

[6]It is submitted that the decision was irrational in that insufficient weight had been given to factors supporting release. One of these factors is said to be the length of time that the Applicant was over tariff which is not mentioned in the decision. The panel made findings which it could not make on the evidence and there was at least one mistake of fact in the decision which may have affected the decision.

[7]It is submitted that the decision is procedurally unfair because the panel has failed to properly apply the Parole Board’s guidance on the approach to risk to be taken with prisoners who continue to deny their offending.

[8]Finally it is submitted that consideration of a recommendation for open conditions has not been adequately explored. Background

[9]On 28 June 2001 the Applicant was sentenced to life imprisonment with a tariff of 4 years for an offence of rape and other sexual offences on two other prisoners. The sentence was made consecutive to a sentence of 12 years imprisonment that the Applicant was serving for sexual offences against children. The tariff was based on a determinative sentence of 8 years. The judge was required by law to sentence the Applicant to life imprisonment because this was his second conviction for serious sexual offences. Current parole review

[10]This is the eighth review of the Applicant’s sentence. He was 61 at the time of sentence, and he is 86 now. He is more than 20 years over tariff which is five times the original tariff.

[11]There were a number of adjournments before the oral hearing on 11 February 2025 to get the necessary reports. On that date the panel heard from a psychiatrist, the Prison Offender Manager (POM), and the Community Offender Manager (COM). The panel then further adjourned the review following the oral hearing to obtain an updated psychological risk assessment and then for written submissions from the Applicant’s legal representative. It took some time to obtain the risk assessment and the review was then completed on the papers. The panel consisted of three members including a psychiatrist. The Relevant Law

[12]The panel correctly sets out in its decision letter dated 23 September 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. Parole Board Rules 2019 (as amended)

[13]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)).

[14]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)).

[15]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

[16]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.

[17]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. ”

[18]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).

[19]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.

[20]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.

[21]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

[22]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.

[23]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.

[24]The overriding objective is to ensure that the Applicant’s case was dealt with justly. 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

(d) the benefit the prisoner is likely to derive from open conditions.

[26]It is possible to argue that mistakes in findings of fact made by a decision maker result in the final decision being irrational, but the mistake of fact must be fundamental. The case of E v Secretary of State for the Home Department

[2004] QB 1044

sets out the preconditions for such a conclusion:

“ there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter; the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable; the appellant (or his advisors) must not have been responsible for the mistake; and the mistake must have played a material (though not necessarily decisive) part in the tribunal's reasoning.”

See also R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions

[2003] AC 295

, which said that in order to establish that there was a demonstrable mistake of fact in the decision of the panel, an Applicant will have to provide “ objectively verifiable evidence ” of what is asserted to be the true picture. 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 has made no submissions in response to this application. Discussion

[29]I am very concerned about the situation for this Applicant. He received a life sentence as a result of the requirement at the time to pass one when the Defendant had been convicted on two separate occasions of serious offences. The sentence was introduced in 1997 and replaced in 2005 by Imprisonment for Public Protection (IPP). Many of the injustices that apply to IPP sentences and which are now recognised also apply to two strike life sentences, in that a prisoner can serve a length of time in prison which bears no relation to the severity of the offending.

[30]This Applicant was convicted of very serious offences but nevertheless he has now served in excess of 20 years for offences that carried a tariff of 4 years.

[31]I have considered all the matters complained of in the application for reconsideration. While I think some have been wrongly categorised as procedurally unfair I have considered all matters under both headings.

[32]My primary concern is that the panel have not made specific reference to the fact that the Applicant is so long over tariff. In the guidance relating to IPP sentences the Parole Board quotes from the Osborne case in which the House of Lords provided guidance as to how the Parole Board should consider the cases of prisoners who are over tariff. The guidance says this:

“It is worth remembering that in the case of Osborn -v- Parole Board [2013] UKSC 6130 where the Supreme Court gave guidance as to how the Board should take into account that a prisoner serving an indeterminate sentence was over tariff. At para 2 (6) in a summary of its findings the Court said: ‘When dealing with cases concerning post-tariff indeterminate sentence prisoners, it should scrutinise ever more anxiously whether the level of risk is unacceptable, the longer the time the prisoner has spent in prison following the expiry of his tariff.’”

[33]Osborn was concerned with a prisoner serving a life sentence so the guidance applies in this case.

[34]The panel make no mention of the length of time that the Applicant was over tariff. I have no doubt that they were aware of it, but it is important for the Applicant’s benefit that they mention it and explain how they have applied the House of Lords guidance.

[35]The Applicant complains that the panel do not mention the Parole Board guidance in relation to denials of offending and how they have applied it. Applying this guidance is not straight forward as denials of his offending can make it difficult for the Applicant to do some of the work which may help reduce his risk but I agree that the guidance should have been mentioned and an explanation given as to how the panel applied it.

[36]At para 2.3 of the decision the Applicant points out that the panel made a factual error in that they say that the Applicant remains in the high security estate. Currently, the Applicant is not within the high security estate. While it is important that decision letters are factually accurate I do not consider that this error made any difference to the decision of the panel and was not of any significant importance in reaching the decision not to release.

[37]I am concerned that at para 2.5 the panel says that it put little weight on allegations made against the Applicant which were graded as low intelligence and come from another prisoner. It is apparent from para 2.6, where the panel put no weight on some drawings, that the panel did distinguish between little weight and no weight. In my view they should have attached no weight to the allegations referred to in para 2.5.

[38]I am also concerned that the psychological risk assessment was never tested in evidence. Reliance was placed upon it by the panel despite the lack of testing. I understand that it was undesirable to adjourn for a further oral hearing and the Applicant’s representative did not ask for the opportunity to test the evidence but it was regarded as significant evidence by the panel and the psychologist had not heard the other evidence given at the hearing. It was not ideal in my view.

[39]However, having reviewed all the evidence and the reasoning of the panel, I do not think the panel would have been correct to direct the Applicant’s release. All of the professionals, except the POM, were of the opinion that the Applicant could not safely be released. The POM was not in favour of release but of transfer to an open prison. If the matter were sent back for a reconsideration in my judgment a new panel would inevitably come to the same conclusion as this panel. Accordingly, as an exercise of my discretion, I will not direct a reconsideration.

[40]I would have liked to have seen a more detailed consideration of a transfer to open conditions in the decision but it is not possible to direct reconsideration for a failure to recommend a transfer to open conditions.

[41]I do however consider that the Prison Service should be making strenuous efforts to prepare the Applicant for release. I understand the difficulties but I have no doubt that more can be done. If these efforts are not made the Applicant will die in prison having spent five times his tariff in closed conditions. While the evidence was that the COM was not satisfied that the Applicant’s sexual desires would remain non-existent if he was released into the community, it would be inevitable that they will have diminished. Rehabilitation is not made any easier because of the Applicant’s limited intellectual ability but again that should not mean that he could not at some stage be released.

[42]If possible, the Respondent should consider referring the Applicant for a further review sooner rather than later. He is now old and the opportunities for release are diminishing. This present review was directed in October 2022 and took a very long time to complete. Reports took much longer to prepare than they ought to have done. Another review is overdue. In the meantime, efforts should be made to see whether the Applicant could be safely transferred to open conditions as a prelude to release even if it would mean getting access to sheltered accommodation for him after release. Decision

[43]For the reasons I have given, while I consider that some aspects of the decision can properly be criticised, I do not think that a decision on reconsideration would be any different and accordingly in the exercise of my discretion, I refuse the application. John Saunders 03 November 2025