Elliot, Application for Reconsideration [2025] PBRA 259 (28 November 2025) [2025] PBRA 259

PBRA

Elliot, Application for Reconsideration [2025] PBRA 259 (28 November 2025)

[2025] PBRA 259 · 2025-10-17

[1]This is an application by Elliot (the Applicant) for reconsideration of a decision of an oral hearing dated 17 October 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)) 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 dated 17 October 2025 (the Decision) · The Reconsideration Application dated 5 November 2025 (the Application) · The dossier, which now consists of 1528 numbered pages, ending with the Decision

[4]I have also listened to the recording of the oral hearing. Request for Reconsideration

[5]The grounds for seeking a reconsideration are as follows:(1) Procedural unfairness - the panel failed to grant applications for an adjournment which would have resolved the weaknesses in the existing " embryonic " risk management plan (RMP).

(2) Procedural unfairness - an earlier panel (Panel B), which had heard full evidence in August 2024, recused itself from the case in April 2025 without providing a proper explanation for doing so.

(3) Irrationality - failure to properly consider the history of the case/relevant evidence.

[6]I will also consider a further ground, which has caused me real concern (and is the reason I listened to the recording). This is pleaded in the Application as an aspect of Ground (1). I will express it as a separate fourth ground, and consider it in due course: (4) Procedural unfairness - the manner in which the panel conducted the hearing gives rise to an impression that justice was not done or not seen to be done. Background

[7]The Applicant was born in 1969. He was 37 years old in 2006, when he received a sentence of life imprisonment with a minimum term of 7 years. This was for a sexual offence against a boy. The Applicant was living in hostel accommodation at the time, on licence from a 10-year sentence for indecently assaulting a 4-year-old boy. On the day of the index offence the Applicant had been to visit his mother. The visit did not go well. He thought of suicide, but instead, when he got off the bus, he saw a boy, followed him into a park and committed serious sexual and violent offences against him. The tariff for the life sentence expired in 2013: the Applicant is now 12 years over tariff.

[8]The Applicant already had a history of sexual and violent offending. When he was 14, he sexually abused a 2-year-old girl he was babysitting. 4 years later he sexually abused two boys aged 14 and 15. In 1989 he committed an offence of unlawful wounding which did not have a sexual element. In 1991, when he was 22, he committed indecent assaults on an 8-year-old boy. He received a further prison sentence in 1997 for indecent assault on a 10-year-old boy. The offence for which he received the 10-year prison sentence was committed in 2000, against a child whom he had been asked to babysit.

[9]The Applicant acknowledges a sexual attraction to children, whom he describes as " cute ". He has shown an aptitude to " groom " parents to obtain their trust and secure access to children. He has enticed children into his home in order to abuse them. In the index offences, he followed a child from the street into a secluded area in order to abuse him. As the panel commented, he demonstrates no specific " modus operandi" . His offences have been both planned and opportunistic, and committed against both children he knew and strangers.

[10]The Applicant has a diagnosed intellectual disability and brain injury. Current parole review

[11]The parole review commenced in January 2021. It has, therefore, a long history, very helpfully set out in the Application. A continuing problem, still present at the final oral hearing, was the absence of a complete Risk Management Plan (RMP), the particular difficulty, readily understandable in the light of the offending history outline above, being finding suitable accommodation for the Applicant on release and thereafter.

[12]In October 2021 a Member's Case Assessment directed the case to an oral hearing. In November 2022 an oral hearing was adjourned on the day, for multiple reasons, including an incomplete RMP. In April 2023 a new panel chair was appointed. It seems the previous chair's tenure had expired. A case conference took place in May 2023. Difficulties, including an incomplete RMP, meant that the hearing set for July 2023 was not viable, and a new date in September 2023 was set. That hearing proceeded as a directions hearing. A hearing in February 2024 was adjourned on the day. The reason was that some of the professional witnesses considered that it was necessary for the Applicant to undertake releases on temporary licence (RoTLs) as part of the assessment process. A further case conference in May 2024 settled on a date when a full hearing could take place. That hearing did take place, on 20 August 2024. There was a completed RMP, but the Community Offender Manager (COM) did not endorse it. On 22 August the panel adjourned the case, to be decided on the papers with an adjournment date of 6 January 2025. The panel sought further clarification of the RMP.

[13]Because someone did not comply with directions on time, a further case conference was directed for 7 February 2025. This was relisted, because of continuing non-compliance and witness non-availability. The case conference took place on 9 April 2025. The panel chair did not attend, because of illness. The panel was told that the then COM assessed the Applicant as presenting a very high risk to children and would not therefore be permitted to undertake overnight RoTLs, though escorted day releases would still be possible. The COM considered the Applicant's ability to cope with stress in the community as very low, and he pointed to the circumstances of the index offence. By this time the area being considered for release was a different area. A new COM was about to take over. A MAPPA meeting would take place on 17 April 2025, at which " buy-in " by a number of agencies would be required to take forward the RMP.

[14]A further problem was, and is, that it is no longer possible, at least for the time being, to oblige a prisoner on temporary release to wear a Buddi tag, to monitor his movements. On his previous RoTLs the Applicant wore such a tag, as an important aspect of the protection of the public.

[15]By Panel Chair Directions dated 18 April 2025 the panel deferred the case to another panel, giving reasons as follows: · "Despite the best efforts of everyone, this complex case had become very protracted. · [The Applicant's] case is due to be transferred to [a different area] where he will be subject of new MAPPA arrangements, a new COM, and further risk assessment as to his suitability for RoTLs or otherwise. · If RoTLs were approved then [the Applicant] would require a period of time to demonstrate he could be safely managed in the community. · A further oral hearing would then need to take place to assess whether [the Applicant] could safely be released into the community or otherwise. · This is all likely to take time. · In terms of objectivity and fairness to [the Applicant], the panel now consider it appropriate that this case be deferred to another panel who have had no previous involvement in the case."

[16]As appears above, complaint is made that the change of panel was made without providing a proper explanation of reasons.

[17]The final hearing, the outcome of which is the subject of this Application for Reconsideration, took place on 1 October 2025. The Applicant is now 56 years old. The panel consisted of a judicial member of the Parole Board as chair, sitting with a psychologist member and an independent member of the Board. The witnesses who attended and gave evidence were the two co-working Prison Offender Managers (POMs), a prison based and a prisoner commissioned forensic psychologist, and the COM. The Applicant had a legal representative, who, like the POMs, was in the room at the prison with him. Also in the room was a friend of the Applicant's, MI, to give him support. A member of the Board attended as an observer. Those attending who were not in the room were on a video link. In addition to the professional witnesses, the Applicant gave evidence. The application to the panel was for a direction for release. The panel made no direction for release in its Decision. I discuss the course of the hearing below. The Relevant Law

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

[19]This decision is eligible for reconsideration, and the Application was made in time. Irrationality

[20]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.

[21]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. "

[22]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)

[23]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.

[24]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.

[25]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

[26]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 focuses on the actual decision.

[27]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.

[28]The overriding objective is to ensure that the Applicant's case was dealt with justly. Other

[29]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.

[30]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

[31]Reconsideration is a discretionary remedy. That means that, even if an error of law, irrationality, or procedural unfairness is established, I am not obliged to direct reconsideration of the panel's decision. I 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

[32]The Respondent has chosen not to reply to this Application. Discussion

[33]The first matter I will consider is the issue I have formulated as Ground (4), whether the manner in which the panel conducted the hearing may give rise to an impression that justice was not done or not seen to be done.

[34]What happened was this. The Applicant's solicitor had, in earlier written submissions, suggested that if the panel was still not satisfied with the completeness of the RMP, it should adjourn so that the defects could be remedied. The panel chair, at the start of the hearing, informed the solicitor that it would consider an adjournment at that stage. Having done so, after hearing a certain amount of preliminary evidence on the issue, the panel declined to adjourn. The chair then asked the solicitor if she was content to have the case decided on the papers as they stood, or if she wanted a hearing. The chair said that the panel was satisfied it had sufficient evidence and would not require further information from the witnesses.

[35]At first sight, this looks close to an indication that the panel had made its mind up, and that any further evidence would not receive fair consideration. The solicitor, after discussion with her client, chose to have a hearing. At the panel's request she started by asking questions of the two POMs, and of the Applicant, with the panel asking follow-up questions. Thereafter the hearing took a more usual course, with the psychologist panel member leading the questioning of the psychologist witnesses, and the independent panel member leading the questioning of the COM. The solicitor dealt with what must have been the unexpected challenge of presenting the evidence extremely well. I have listened to the recording of the whole hearing. Having done so, I am satisfied that in fact the hearing was a fair one, and that any reasonable onlooker in full possession of the facts would take the same view.

[36]The Application submits that the course the panel took was procedurally unfair " as it amounts to the panel declaring that they had pre-determined the outcome without conducting an oral hearing and prior to taking oral evidence ." Further, " the declaration ahead of time that the panel did not need to take oral evidence leaves a clear impression that a decision had already been made and was thus procedurally unfair ."

[37]The reality of the case was, as the solicitor accepted at the time and accepts in the Application, that no reasonable panel properly directing itself on the evidence available at the hearing could have been satisfied that the Applicant passed the test for release. The evidence given in the oral hearing did not change that. In the circumstances, the panel was entitled to take the view that it had enough evidence in the dossier to enable it to come to a decision. Having listened to the recording, I am satisfied that if evidence had emerged during the hearing that made a difference to that basic position, the panel would have taken it into account: this is apparent from the way the panel asked its questions, taking the evidence seriously and exploring it further. The Applicant gave evidence that he considered that he had sufficient internal controls to refrain from offending in the community. The panel, having heard him, expressly found that it " does not consider that [he] has evidenced that he has sufficient internal skills to identify and manage his risk of serious harm were he to be unsupervised ." The panel accurately recorded in its Decision what the Applicant said:

" When I see a child in the community, I put my skills into practice ."

[38]There were a number of reasons for there being at the time of the hearing, as the Application puts it, " an 'embryonic' risk management plan with no confirmed release address. This was at a point where the review had been ongoing for almost 5 years with a lengthy history of direction non-compliance and factual disputes with regards to the level of risk [the Applicant] is assessed to pose ." Those reasons included the necessity for a MAPPA level 3 meeting to take place before there could be a full and final RMP. The solicitor accepted that this was the case in the course of the preliminary discussion, before the panel considered the question of an adjournment. Apparently there have been several attempts to set up such a meeting, but they have failed. There was discussion at the beginning of the hearing about when such a meeting would take place, and the result seems to be that one would be scheduled in October.

[39]Other, intractable, problems remained. The professional witnesses could not support release on licence without suitable accommodation. The proposed Approved Premises would be available from January 2026, but before going there the Applicant would need to complete sufficient trial RoTLs, particularly bearing in mind that he committed the index offences while resident in Approved Premises. He completed a number of unaccompanied day releases in 2024, and three overnight RoTLs to Approved Premises. However, when his risk assessment was raised to very high, RoTLs and unescorted day leave (RDRs) ceased. The assessment of risk for the purposes of RoTLs is a matter for the Probation Service, and unless and until that assessment changes back to High it is not possible to see RoTLs resuming. There were no proposals for move-on accommodation.

[40]The assessment of the Applicant as posing a very high risk of serious harm in the community means the Probation Service considers his risk to be imminent, that is, likely to be realised at any time and without notice. Such a conclusion is consistent with the Applicant's record of offending, particularly the circumstances of the index offence. It is within the power of the Parole Board to direct the release of a prisoner subject to such an assessment. No-one, apart from the Applicant himself, suggested this was realistic, or would have been rational, in the circumstances of this case: the RMP as it stood was on any basis insufficiently complete to protect the public from his risk of serious harm.

[41]During the oral hearing these matters were explored, without any change resulting. In the circumstances, the only possible conclusion for the panel was that it should not direct release.

[42]The real question, therefore, is whether the panel should have granted an adjournment to enable the RMP to be strengthened: the Application understandably puts this as Ground (1). The panel concluded after hearing preliminary evidence on the point that " Having carefully considered [the history], and acknowledging this was a complex case, the panel could see nothing on the horizon to suggest that the ... issues would be resolved if the hearing was adjourned again for 6 months. " This was a conclusion to which the panel was entitled to come. At the end of the hearing, when the solicitor renewed her application, nothing had changed. There had been numerous adjournments already, and there was little indication that a further adjournment would improve matters. The decision not to adjourn at the end of the hearing, like the decision not to adjourn at its start, was a rational and procedurally fair one.

[43]Complaint is made (Ground (2)) that the earlier panel (Panel B) did not adequately explain why it recused itself in April 2025. I doubt very much whether, if this complaint were made out, it could properly be considered as procedural unfairness: the focus of procedural fairness is on what took place in arriving at the decision. However, I do not agree that Panel B did not make it clear why it was recusing itself, and I consider its reasons to be good ones. It had heard evidence in August 2024. Through no fault of the panel's (or the Applicant's) the case was no further forward in April 2025, nor did it show any sign of being so. A delay of 9 months, and counting, between hearing evidence and the decision would run a serious risk of the panel's recollection of significant detail being reduced, and, of course, of it being difficult to put into context any changes that occurred in the interim. The panel's decision to recuse itself put the Applicant in the position of starting afresh with a fresh panel, but without the delay implicit in deciding the case on the papers and the whole process having to start again. An oral hearing within 6 months of Panel B's recusal was the beneficial outcome of its decision, even though, in the event, the problems had not been resolved.

[44]The panel in October 2025 did not consider evidence heard by the previous panel, nor should it have done so. A panel must reach its decision on the evidence before it, not on evidence before another panel on another occasion.

[45]Complaint is made (Ground (3)) that the panel did not properly consider the history of the case and/or relevant evidence. The panel had the task of deciding whether the Applicant satisfied the test for release. There can be no doubt that, on the evidence before the panel, and given the inadequacy of the RMP, he did not. The complaints made about errors in the panel's discussion of the facts do not begin to affect that position. None of the suggested errors (I have not investigated whether they are indeed errors) was important to the decision, or even relevant to the central problems of or issues in the case.

[46]I should add that, having listened carefully to the evidence during the hearing, I find no indication that the Applicant, or any other witness, was in any way at a disadvantage as a result of the panel's approach. The Applicant expressed himself fluently and at length. The Application does not suggest otherwise.

[47]In any event, it seems to me that the outcome of the case was inevitable on the facts as they stood at the hearing. In the circumstances, even if I had found there to be procedural unfairness, I would have exercised my discretion not to direct reconsideration. I do not, however, find that procedural unfairness (or any other ground for reconsideration) is made out, so the issue does not arise. Decision

[48]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.

[49]I am grateful to the Applicant's solicitor for the clarity of her presentation of his case. HH Patrick Thomas KC 28 November 2025