Howard, Application for Reconsideration [2025] PBRA 250 (14 November 2025) [2025] PBRA 250

PBRA

Howard, Application for Reconsideration [2025] PBRA 250 (14 November 2025)

[2025] PBRA 250 · 2025-10-13

[1]This is an application by Howard (the Applicant) for reconsideration of a decision of an oral hearing panel dated the 13 October 2025. The decision of the panel 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 application for reconsideration drafted by the Applicant’s 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 28 October 2025.

[5]The grounds for seeking a reconsideration are set out below. Background

[6]The Applicant is serving an extended sentence of imprisonment. The determinate period of the sentence is 17 years, and the extension period is four years. The index offences related to a child. The offences included a conviction for the offence of rape, two offences of attempted rape, an offence of assault by penetration, an offence of causing or inciting a child to engage in sexual activity and an offence of sexual assault of a female child. The offences were committed by the Applicant in a familial situation. The Applicant was aged 50 at the time of sentence he was aged 62 at the time of the oral hearing. This was the Applicant’s first review. Current parole review

[7]The Secretary of State requested that the Parole Board consider whether the Applicant should be subject to a direction for release.

[8]The oral hearing panel consisted of an independent chair of the Parole Board, a psychologist member of the Parole Board and the third independent member of the Parole Board. The panel heard evidence from a Prison Offender Manager (POM), two Community Offender Managers (COM), and from a prison commissioned psychologist. The Applicant was legally represented throughout. The Relevant Law

[9]The panel correctly sets out in its decision letter dated 13 October 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)).

[12]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

[13]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.

[14]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. ”

[15]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 ).

[16]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.

[17]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.

[18]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

[19]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.

[20]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.

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

[22]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.

[23]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

[24]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

[25]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

[26]The Respondent offered no representations. Grounds and Discussion Grounds

[27]The Applicant’s legal adviser submits that the decision of the oral hearing panel was irrational and inconsistent with the evidence presented at the hearing. The Applicant’s legal adviser argues that all professional witnesses supported release and that there was no evidential basis to conclude that the Applicant’s risk could not be safely managed in the community. The Applicant’s legal adviser sets out a summary of the points adduced by the professional witnesses in support of the release of the Applicant and also a short summary of the panel’s decision. Discussion

[28]As noted above it is well understood that in circumstances where a panel of the Parole Board has made a decision contrary to the opinions and recommendations of professional witnesses it is important that the panel should explain clearly its reasons for doing so and that it stated reasons should be sufficient to justify its conclusions. These requirements have been repeated in a number of decisions including R (Wells) v Parole Board

2019 EWHC 2710

[29]The Applicant in this case, as noted above, is serving an extended sentence of imprisonment. He became eligible for parole in June 2025. His conditional release date is in February 2031. The Applicant was residing at an open prison at the time of the oral hearing decision. He had been at the open prison since October 2024. His custodial behaviour had been positive, and he had undertaken day release and overnight release from prison.

[30]Prior to the Applicant’s arrival at the open prison, he had completed a programme which was aimed to address the factors that were problematic in his general life and which may have contributed to offending behaviour. The specific programme is one which does not require discussion of offences specifically or the offending in detail. The Applicant in this case, although convicted of various sexual offences against a child, denied that he had committed the offences and therefore does not accept the convictions. The specific programme intervention undertaken by the Applicant was one which did not require admission of the offences and was therefore suitable for those who maintained their innocence.

[31]The panel in its concluding remarks indicated that their major concern was that the Applicant’s potential risk factors and risk to children had not been identified. The panel therefore concluded that these risks had not been addressed by the Applicant.

[32]The panel received evidence from the POM, his COM, a prison instructed psychologist and the Applicant himself.

[33]The POM in evidence indicated that further time undertaking temporary leave in the community would not, in her view assist in identifying any risk that the Applicant might pose towards children. The POM considered that, in order for risk to elevate he would have to have an opportunity to groom a victim. The POM took the view that if the Applicant disengaged with supervision in the community this would be a sign that he was struggling to cope and possibly that his risk was rising. The panel took a different view to the POM. The panel took the view that there would be unlikely to be any warning signs and specifically that the Applicant would be unlikely to self-report on the basis of his stance relating to denial and to an extent victim blaming.

[34]So far as the COM was concerned, she had noted the fact that the Applicant denied any sexual interest in children and denied any physical offending so far as the index offence was concerned. The COM took the view that the Applicant lacked insight and victim empathy and that his explanation about certain text messages (which formed part of the original index conviction) were implausible. However, despite these reservations the COM considered that the Applicant’s tendency to minimise his evidence about offending was his way of managing shame. The COM indicated that his maintenance of innocence and the aspect of shame could be a mitigating factor so far as risk was concerned.

[35]The panel noted that it did not agree with this assessment. The panel took the view that, in this case, the Applicant’s maintenance of innocence, and minimisation, were a barrier to the understanding by professionals of the drivers to offending. In the view of the panel this barrier actually increased the risk of a further offence because of the lack of understanding of the motivation and drivers behind the index offending. The panel also noted that the COM’s recommendation of a release direction was somewhat tentative.

[36]So far as the evidence from the psychologist was concerned. The psychologist took the view that the Applicant’s evidence about not thinking of sex at all was implausible and that there was a requirement to work towards “ normalising sexual thinking ”. The psychologist also acknowledged that there was difficulty in addressing these issues as they are reliant upon self-report and as noted above the Applicant’s general position was denial of any sexual interest both generally and in particular in relation to children. The psychologist indicated that there would be a difficulty in identifying the background and triggers to the Applicant’s offending, because of his maintenance of innocence and the absence of evidence that the Applicant would self-report. Despite these concerns, the recommendation of the psychologist was that the Applicant should be released and should take up behavioural work in the community. Again, the panel addressed this issue and made clear that they did not support this view. The panel were unable to identify how the Applicant’s triggers could be identified as they have not been disclosed by him and therefore not explored. The panel indicated that they had no confidence that the Applicant could recognise difficulties in relationships or in relation to any involvement with children. The panel did not consider that the potential risk factors in this case had been explored or addressed, mainly because the Applicant had been unable or unwilling to identify and explain them. Accordingly, the panel also rejected the recommendation of the prison instructed psychologist.

[37]The panel also assessed the evidence of the Applicant. The Applicant had told the panel that there was no risk of him committing offences in the future and that he had no sexual interest in children. He also told the panel that the sexual contact with the child by text messages had been initiated by the child, evidence which the panel (and the convicting jury) found implausible. The panel indicated that they considered that the Applicant’s insight into the impact on the victim to be poor.

[38]It is clear from the decision letter that the panel engaged with and addressed the competing evidence in this case. In particular the panel engaged with the views of the professionals who were recommending release. The panel disagreed with the conclusions reached by those professionals and set out the reasons why they disagreed in the decision letter itself.

[39]The panel had the advantage of an extensive dossier of reports and other material and had the advantage of seeing and hearing the Applicant as well as the witnesses. 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. It was observed by the divisional Court in DSD that panels of the Parole Board have the expertise to do this.

[40]Where a panel arrives at a conclusion, exercising its judgement based on the evidence before it, and having regard to the fact that they saw and heard the witnesses 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 indicated the areas with which they were not in agreement with the professional witnesses. In essence the panel took the view that the Applicant continued to pose a risk of serious harm in the community, particularly towards children. The panel were clear, in their view, that there was insufficient evidence that the Applicant had addressed the triggers and motivations leading to the serious index offences. The panel acknowledged that the Applicant’s stance in relation to maintenance of innocence and a denial of any sexual interest in children made it difficult to address the issues of risk which arose in this case. The panel however had an overriding duty, as indicated by the test for release, to protect the public. In my determination the panel’s decision was supported by evidence to justify its conclusions and there are therefore no compelling reasons for interfering with the decision of the panel. Accordingly, I decline to direct reconsideration. Decision

[41]For the reasons I have given, I do not consider that the decision was irrational and accordingly the application for reconsideration is refused. HH Stephen Dawson 14 November 2025