Dowling, Application for Reconsideration [2025] PBRA 253 (24 November 2025) [2025] PBRA 253

PBRA

Dowling, Application for Reconsideration [2025] PBRA 253 (24 November 2025)

[2025] PBRA 253 · 2025-09-02

[1]This is an application by Dowling (the Applicant) for reconsideration of a decision of an oral hearing panel dated 2 September 2025 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 oral hearing decision, the dossier consisting of 468 pages, the application for reconsideration, the response to the application and the HMPPS document of 2020 relating to additional licence conditions for certain prisoners. Request for Reconsideration

[4]The application for reconsideration is dated 11 October 2025. The grounds for seeking a reconsideration are that the decision contained errors of law and fact in the interpretation and application of case law, statutory interpretation and legal principles.

[5]The submission is supplemented by written arguments and documentation relied on to which reference will be made in the Discussion section below. Background

[6]The Applicant received an extended sentence of 10 years comprising 5 years custody and 5 years extended licence on 25 October 2019. His conditional release date was 24 October 2024 and his sentence expiry date is in October 2029.

[7]The Applicant was aged 40 years at the time of sentencing and is now 46 years old. Current parole review

[8]The Applicant's case was referred to the Parole Board by the Secretary of State (the Respondent) in undated notice to consider whether or not it would be appropriate to direct his release.

[9]The case proceeded to an oral hearing via video conference on 2 September 2025. The panel consisted of three independent members. It heard oral evidence from the Applicant together with his Prison Offender Manger (POM) and Community Offender Manager (COM). The Applicant was legally represented throughout the hearing. The Respondent was not represented by an advocate. 10.The panel did not direct the Applicant's release. The Relevant Law

[11]The panel correctly sets out in its decision letter dated 26 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)

[12]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)).

[13]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 14.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. 15.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. " 16.In R(on the application of Wells) -v- Parole Board

2019 EWHC 2710

(Admin) 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). 17.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. 18.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. 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. Error of law

[19]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.

[20]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. The reply on behalf of the Secretary of State 21.The Respondent has submitted a response dated 5 November 2025 to which reference will be made in the Discussion session below. Discussion 22.The Application challenges the recall decision submitting that the panel were in error in concluding that the Applicant had an obligation to comply with the condition to reside in Approved Premises and in error regarding the need to complete risk reduction work, that there was no justification for the Applicant's continued detention and that the panel's assessment of risk or its imminency were wrong in law. 23.The Applicant's submissions fall into two main grounds, the lawfulness of the licence conditions and the necessity for the undertaking of courses. All his submissions are predicated on those two grounds. 24.Error of Law regarding licence conditions. The Applicant was released automatically from his extended sentence on 24 October 2024. He was released subject to licence conditions, some of which were standard and others bespoke. The Applicant, relying primarily on section 250 of the CJA 2003, submits that the imposition of some of the conditions were unlawful and in particular those requiring him to report to an AP, to be subject to a curfew and to sign in. He relies on an extract from a letter dated 3 November 2020 from the Deputy Director of HMPPS in which it is said:

" Following a legal challenge, we have identified a flaw of legislation in relation to current practice for setting licence conditions for offenders subject to Extended Determinate Sentences (EDS) and Sentences for Offenders of Particular Concern (SOPC). This is no one's fault, as the understanding which prevailed until now reflected the policy intention when the legislation was drawn up. Until now, we had interpreted the legislation to mean that for offenders serving these sentences: where the Parole Board direct release, it falls to the Board to set and vary the licence conditions; but where offenders are released automatically, licence conditions would be set under the delegated authority of the Secretary of State, either through the releasing prison or following release on licence through the internal probation licence variation processes. However, this legal challenge has highlighted that this interpretation was incorrect for some cases subject to EDS sentences, and for all those subject to SOPC. The correct approach, where these offenders are released automatically, is for any additional licence conditions to be set by the Parole Board, both on release and variation while on licence. That is, the Parole Board must still set and vary the additional conditions, even though they are not the authority directing release ." 25.The Respondent disagrees with the Applicant's submissions, noting that the legislation on which he relies was amended in June 2022, prior to his release, that his recall was for breach of standard licence conditions and that the Applicant failed to raise these legal challenges when he had the opportunity to do so at the hearing or in submissions thereafter. 26.Having considered the legal submissions raised, the legislation relied on and the many cases relied on by the Applicant, I am satisfied that this ground cannot succeed. The Deputy Director's letter of admission, clarification and correction is of limited relevance and assistance to the Applicant as the relevant legislation was amended in June 2022, before he was on licence. Prior to the amendment certain extended sentence offenders required licences imposed on them to have the approval of the Parole Board. As the Respondent states "

The revised section 250 (5A to 5C) makes clear that such additional licence conditions do not require the approval of the Parole Board where they do not direct release either in the first instance or following any subsequent recall. " 27.The cases relied upon by the Applicant do not advance his arguments, they are of historic interest and of no relevance to the arguments relating to the validity of the licence conditions or the principles to be applied in interpreting legislation, which in this case post-dates those cases. 28.I am satisfied that the Respondent did not fall into error with respect to the imposition of licence conditions and that the requirement for the Applicant to abide by them was not unlawful. None of these submissions were raised before the panel who cannot be said to have fallen in error by misinterpreting or misapplying legislation. However, even if brought to the attention of the panel it would have rejected the submissions for the same reason as I have done above as being inapplicable to the current case. In those circumstances the reasons given for finding recall to have been appropriate were soundly based on correct principles and not open to challenge. 29.Error regarding the need to complete risk reduction work. The Applicant submits that the panel had " become fixated on the completion of course or programmes ", that it is not known whether the participation in these courses reduces offending or risk. It is therefore irrational for the panel to require the completion of a course or programme to evidence something which cannot be achieved or delivered. 30.The Applicant's submissions in respect of unidentified courses or programmes, regarding the efficacy of risk reduction work is without sound foundation. He does not identify which course he is required to undertake which may not reduce offending or risk. The professional witnesses are best placed to understand and identify appropriate courses which it is hoped with proper engagement will produce the required results. The submissions at the hearing and in writing were focused on whether any work should be completed in custody or could be completed in the community and whether the delivery could be by way of individual rather than group courses. 31.The panel was not fixated on the need to complete courses. The Applicant had not completed any offending reducing work in respect of his risk factors. The Applicant's submission is based on a false premise with an illogical analysis which would produce the result, if correct and followed, that no courses or programmes should be completed as none could not evidence risk reduction. In evidence and in submissions he does not advance this argument. Rather he argued that group work triggered his PTSD, that he found groups of more than two could destabilise him and he confirmed the EMDR had helped him, an admission which rather undermined his submissions. The view of the professionals was that offence focused work was necessary to manage risk, a view which must have been based to a large extent on deliverability and achievability. The panel was entitled to rely on that conclusion, there was nothing irrational in doing so and there is no merit in this ground of appeal. Decision 32.For the reasons I have given, I do not consider that the decision was irrational or contained any error of law and accordingly the application for reconsideration is refused. Barbara Mensah 24 November 2025