Connolly, Application for Reconsideration [2025] PBRA 266 (03 December 2025) [2025] PBRA 266

PBRA
Connolly, Application for Reconsideration [2025] PBRA 266 (03 December 2025)
[2025] PBRA 266 · 2025-11-07
[1]This is an application by Connolly (the Applicant) for reconsideration of a decision of an oral hearing panel dated the 7 November 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(c) that it is procedurally unfair. This is an eligible case, and the application was made in time.[3]I have considered the application on the papers. These are the dossier, the representations submitted by the Applicants legal adviser, the oral hearing panel's decision and the representations by the Secretary of State (the Respondent). Request for Reconsideration[4]The application for reconsideration is dated 14 November 2025.[5]The grounds for seeking a reconsideration are set out below. Background[6]The Applicant is serving an extended sentence of imprisonment consisting of an 18-year custodial period and a six year extension. The Applicant was sentenced in February 2013 when he was aged 42. The Applicant was 54 years old the time of the oral hearing. The index offences were as follows; two offences of raping a female under 16; three offences of sexual assault upon a female child aged under 13; two offences of assaulting a female child under 13 by penetration; an offence of distributing an indecent photograph of the child; and four offences of possessing indecent photographs of children. The offences were all directed towards the same child in a familial situation. The Applicant became eligible for parole in April 2025. His conditional release date is March 2031. Current parole review[7]The panel hearing was conducted by an independent chair of the Parole Board and a further independent member of the board. The hearing took place on 28 October 2025. The panel took account of the dossier as well as evidence from a Community Offender Manager (COM), a Prison Offender Manager (POM) and a prison commissioned psychologist. The Applicant himself also gave evidence and was legally represented. The Relevant Law[8]The panel correctly sets out in its decision letter dated 7 November 2025 the test for release. Parole Board Rules 2019 (as amended)[9]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)).[10]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[11]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.[12]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. "[13]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).[14]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.[15]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.[16]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[17]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.[18]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;(c) they were not properly informed of the case against them;(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.[19]The overriding objective is to ensure that the Applicant's case was dealt with justly. Error of law[20]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.[21]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[22]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[23]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.[24]The Respondent offered no representations. Discussion Ground 1[25]The Applicant's legal adviser submits that the decision of the panel was irrational as the panel failed to acknowledge the positive factors set out by the prison instructed psychologist namely that risk (of serious harm) was not imminent; the risks were specific and situational; and that there was a robust risk management plan. It is submitted that no adequate reasoning was provided for rejecting the psychologist's evidence. The psychologist was recommending release. Discussion[26]As noted by the Applicant's legal adviser this was a case where there was a difference of opinion from the witnesses giving evidence. As is well understood the oral hearing panel were not bound to adhere to any particular opinion. Their duty was to reflect upon the evidence in the round and to apply the public protection test. In this case the panel acknowledged that, so far as prison behaviour was concerned, there were no negative views. The Applicant had been an enhanced level prisoner with no concerns about behaviour. It is clear however that the panel considered that positive behaviour in prison, alone, was not sufficient to demonstrate a reduction in risk.[27]This was a case, as pointed out by the panel, where the judge who heard the evidence and sentenced the Applicant took the view that the Applicant and his co-accused had committed " an appalling catalogue of serious sexual offending ". The victim of the offending was a 12-year-old child. The offending required a degree of manipulation in relation to the co-defendant who was a family member of the child. The sentencing judge pointed out that the Applicant had blamed his co-accused and shown no remorse for the offending.[28]The reality therefore was that the panel had evidence that the Applicant was the perpetrator of serious sexual offending over a lengthy period of time. The panel therefore appropriately sought evidence that the inevitable risk of serious harm arising from such offending had been addressed. At the point of the panel oral hearing the Applicant had not undertaken any core risk reduction work. This has been partly because of his denial, and partly because of the fact that he would have had to have moved prisons in order to undertake an intervention. It was suggested that the undertaking of an intervention would be some evidence of addressing and understanding his risks.[29]The position at the hearing was that the Applicant's COM and POM both took the view that there was a requirement, in this case, for some evidence of addressing risk and of attempting to understand the triggers and background to the behaviour which led to the conviction. Inevitably in cases where there is a denial of offending, it is a challenge to demonstrate that risk has been addressed. Despite that challenge the panel were obliged to apply the public protection test and to ensure that the public were protected before directing release.[30]It is well established that a denial of conviction or of offending is not a barrier to a direction for release, however the reality is that in the realm of offences such as those committed by the Applicant, there are inevitable difficulties in demonstrating a measurable reduction in risk. The reality in this case was that there was no evidence of addressing risk factors associated with sexual offending and children. Any assessment of risk management in the community was therefore entirely dependent upon external risk intervention factors. The Applicant's denial of offending meant an obvious absence of any interventions or learning in relation to sexual offending upon which a judgment could be made.[31]The prison instructed psychologist in this case took the view that the risk of future offending was not imminent. The panel accepted that assessment, however it is also well understood that the test for release is not dependent upon an assessment of imminence. It is clearly the case that where the risk of serious harm is imminent, a prisoner is unlikely to attract a direction for release. However, the fact that the risk of serious harm is not imminent is but one factor to consider in relation to the statutory test. Of importance is the fact that the test is not governed by any temporal restrictions, the panel were therefore obliged to consider risk throughout any time that the Applicant would be in the community.[32]The panel, in their decision, were clear that they rejected the view of the prison instructed psychologist. The opinion of the prison instructed psychologist was that the facts of the offending were offence and circumstance specific and were unlikely to be repeated. The psychologist adopted this view despite the absence of evidence of addressing risk factors. The panel noted that the recommendation of the prison instructed psychologist was that it would be more advantageous in terms of public protection to direct release of the Applicant to allow him to " get on with reintegration " rather than to rely on offending behaviour programmes, which in the view of the prison instructed psychologist had dubious effectiveness.[33]The Applicant's COM did not support release in this case. She took the view that there was a necessity to undertake core risk reduction work which would be followed by a psychological risk assessment in order to provide evidence of a reduction in risk and an understanding by the Applicant of that risk. This was also the view of the POM.[34]The panel clearly balanced these two competing views. The panel took the view that until there was a clear understanding of risk, an understanding that most professionals involved with the Applicant currently lacked, it remained difficult to identify the specific scenarios in which his risk may manifest and therefore to implement and have in place appropriate controls.[35]The panel therefore concurred with the view of the COM and POM that the Applicant's risk could not be safely managed in the community and that core risk reduction work could assist with understanding and reducing risk.[36]The Applicants legal adviser submits that the panel's conclusion that risk was not fully understood was " speculative rather than evidential ". I am not persuaded by this submission. The conviction itself was indicative of a sexual interest in children. What was not known is whether the interest was specific to the Applicants circumstances at the time of the offending. Whether it was offending which had a wider implication in terms of children generally. The Applicant's stance in relation to rejecting the conviction, as indicated above, made an understanding of his triggers and motivations extremely challenging.[37]The Applicants legal adviser also submits that the absence of a " complete understanding " of risk is not a bar to directing release. The Applicant's legal adviser is correct in indicating that the test for release is specific, however the panel's duty was to firstly identify the risk, secondly to consider the seriousness and imminence of such a risk and having made that assessment to apply the public protection test. The panel were also obliged to ensure that the public were protected by a reassurance that the risk of serious harm would be managed by the Applicant's internal controls together with the external controls set out in the risk management plan. The panel made it clear that, on the basis of the evidence presented at the hearing, risk was not fully understood. The offending was extremely serious; the Applicant himself did not acknowledge the offences or the offending behaviour; and no behavioural interventions had been undertaken.[38]The panel in this case had the advantage of the dossier and the reports and other material. They also had the advantage of seeing and hearing the Applicant as well as the witnesses. 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 above; it would be inappropriate to direct that the decision be reconsidered unless it is manifestly obvious that there are compelling reasons for interfering with the decision of the panel.[39]In this case I am satisfied that the panel explained its reasons for rejecting the views of the prison instructed psychologist. Those reasons, in my determination, were sufficient to justify its conclusions upon the evidence available at the hearing and therefore the panel complied with the principles of the case of Wells above. Ground 2[40]The Applicants legal adviser submits that the Applicant's allocated POM was unavailable due to a bereavement. The role of POM was taken by a replacement member of staff. The Applicant's legal adviser indicates that the panel deprived the Applicant of the opportunity to test evidence from his allocated POM. Discussion[41]The panel noted the fact that the POM was absent. The panel had a written report from the Applicant's allocated POM. The report was comprehensive and had been written a month or so before the oral hearing. The Applicant clearly had an opportunity to test the evidence relating to prison behaviour with the replacement POM. The Applicant's legal adviser was also at liberty to apply for an adjournment to secure the attendance of the allocated POM either at the outset of the hearing or at the conclusion of the hearing. There is no evidence of such an application. There is also no evidence of the content of any issues which the Applicant might have wished to test which were not dealt with at the oral hearing. In my determination there is insufficient evidence in this ground to amount to a procedural irregularity as suggested by the Applicant's legal adviser. Ground 3[42]It is submitted that the panel made an error of law in indicating that uncertainty about risk was a factor in concluding that the risk of serious harm could not be managed in the community. Discussion[43]The panel set out the legal test for release correctly. The panel were obliged to be satisfied that it remained necessary in order to protect the public from serious harm that the Applicant be detained. To come to a conclusion about the necessity to protect the public from serious harm it was clearly necessary for the panel to have a clear understanding of risk and therefore the potential harm. The panel appropriately concluded that the absence of an understanding of the Applicants risk by both professionals and by the Applicant himself, was a cogent factor in assessing the statutory test for release. The approach of the panel in my determination was appropriate and as noted above the reasoning for the decision was clearly set out in the panel's decision letter.[44]It is also submitted that the panel placed undue reliance upon the Applicant's denial of guilt. As noted above it is well understood that a denial of guilt in itself would not be a factor to justify declining to direct release. However, it is also well understood that a denial of guilt creates difficulties for the prisoner, professionals and panels when assessing the triggers and motivations and long-term risk of a prisoner. The panel had a duty when considering protection of the public to understand potential risk in order to make an assessment of whether that risk could be safely managed in the community. Again, I am not persuaded that this argument engages an error of law. Decision[45]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 03 December 2025