Jordan, Application for Reconsideration [2025] PBRA 268 (05 December 2025) [2025] PBRA 268

PBRA
Jordan, Application for Reconsideration [2025] PBRA 268 (05 December 2025)
[2025] PBRA 268 · 2025-10-14
[1]This is an application by Jordan (the Applicant) for reconsideration of a decision of the Parole Board of 14 th October 2025 not to direct his release following an oral hearing.[2]Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2022) (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. The papers comprise:a. The dossier now comprising 520 pages including the decision letter (DL) issued following a hearing on 7 th October 2025 which is the subject of this application.b. Grounds dated 4 th November 2025 submitted on behalf of the Applicant.c. An email from the HMPPS Public Protection Group dated 17 th November 2025 stating that "PPCS on behalf of the Secretary of State for Justice offer no representations in response...". Request for Reconsideration[4]The grounds for seeking a reconsideration of the case submitted by the Applicant's legal representative are set out in summary below:
"Decision challenged: Parole Board decision dated 14 October 2025 Outcome challenged: No direction for release and no recommendation for open conditions Grounds: Irrationality and Procedural Unfairness "
Introduction and Legal Framework 1. This application is made pursuant to Rule 28 of the Parole Board Rules 2019 (as amended) on behalf of [the Applicant], in respect of the Parole Board's decision of 14 October 2025 to refuse his release and decline to recommend progression to open conditions. [The Applicant] maintains that the decision is irrational and procedurally unfair within the meaning of the governing authorities, and he invites the Board to reconsider the decision accordingly. "2. Under Rule 28, the test for reconsideration is deliberately narrow. The Board may only intervene where a decision is either (a) irrational — meaning one that no rational panel, properly directing itself on the law and on the evidence, could have reached; or (b) procedurally unfair — meaning that there was a failure in the fairness of the process itself which rendered the outcome unsafe. This position was confirmed in R (Ditchfield) v Parole Board [2021] EWHC 779 (Admin) and in the Parole Board's own Reconsideration Guidance (2024). The reconsideration process is not a rehearing, nor an opportunity for a prisoner to reargue matters of fact, but rather a safeguard against manifest legal or procedural error. "3. It is accepted that this threshold is high and that the Parole Board is entitled to reach its own evaluative conclusions about risk. However, [the Applicant] contends that the decision in his case falls outside the range of lawful outcomes because the panel departed from unanimous professional evidence without rational justification, made speculative and unevidenced findings about his sexual motivation, misdirected itself by relying on irrelevant factors — including the new two-year licence termination period — and failed to put adverse allegations to him for comment. "Summary of the Panel's Decision 4. The panel accepted that all three professional witnesses — [](Community Offender Manager (COM)), [] (Prison Offender Manager (POM)), and [] (psychologist) — supported progression, with [the COM] and [the POM] recommending release and [the psychologist] supporting open conditions as an appropriate intermediary step. Despite this, the panel concluded that [the Applicant's] risk remained too high for either release or open conditions. "5. In reaching this conclusion, the panel made several key findings. First, it rejected the professionals' view that [the Applicant's] offending was schema-driven rather than sexually motivated, concluding instead that the only reasonable explanation for his index and recall offending was an enduring sexual interest in children. Second, the panel found that [the Applicant] continued to demonstrate deception and an absence of genuine insight into his behaviour. Third, the panel concluded that because his licence would automatically terminate two years after any release, long-term supervision could not be guaranteed and therefore immediate release could not be justified. "6. [The Applicant] considers those findings to be fundamentally flawed, contrary to the evidence, and contrary to the statutory test under section 28(6)(b) of the Crime (Sentences) Act 1997. "Ground 1 - Irrationality 7. The decision was irrational in three key respects. "8. First, the panel departed from unanimous and consistent professional evidence without sufficient reasoning. All three professional witnesses were clear that they had considered and understood the risk formulation, including the role of schemas, and that they did not identify sexual interest in children as a current or likely risk factor. The psychologist [] explicitly stated that enough was known about [the Applicant's] offending behaviour and internal controls for his risk to be managed effectively in a lower security setting. Both the COM and POM confirmed their confidence in his capacity to maintain risk management in the community within a robust multi-agency plan which includes ERRMS supervision and approved premises accommodation. "9. In rejecting these conclusions, the panel substituted its own analysis, asserting that the only plausible explanation for his offending was sexual interest. It described his account as "implausible" but provided no evidence-based rationale for that assertion. Such reasoning amounts to a lay assessment of clinical material that was beyond the panel's expertise. The panel did not cite any contrary psychological evidence or risk formulation supporting its alternative conclusion. The decision therefore suffers from the same flaw identified in R (Watts) v Parole Board [2019] EWHC 2626 (Admin), where the court held that a panel acts irrationally when it rejects the unanimous view of professionals without a clear evidential basis or by substituting its own interpretation of risk. "10.Secondly, the panel's conclusion regarding sexual motivation was speculative. The panel relied on circumstantial elements, such as historic references to "semen-stained underwear" and patterns of online activity, to infer a persistent sexual interest. He maintains that those inferences are inaccurate and that the events in question were mischaracterised. His explanation, set out clearly in oral evidence, was that the 2022 incident arose from a mistaken link sent by a cross-dresser with whom he had communicated online regarding gender identity issues, not from any sexual attraction to children. That explanation was consistent with his account to the police and with his evidence to the psychologist. There is no suggestion of continued access to indecent material following that incident until the subsequent breakdown several months later. "11.The panel's refusal to accept that explanation, in the face of supporting professional evidence and without any contradictory expert opinion, was an irrational departure from the evidence. The law does not prohibit the panel from disagreeing with experts, but it must do so on an evidential foundation. Here, there was none. "12.Thirdly, while the panel was entitled—indeed required—to consider long-term risk, including how risk might be managed once licence supervision ends, its treatment of the automatic two-year licence termination provision went beyond a lawful application of the section 28(6)(b) Crime (Sentences) Act 1997 test. The statutory question is whether confinement remains necessary now for public protection, assessed holistically with regard to foreseeable management arrangements and their likely durability. In this case the panel appeared to elevate the statutory termination point into a decisive obstacle to release, without analysing the specific safeguards during the licence period (ERRMS oversight, MAPPA coordination, Approved Premises containment, psychological input), the evidence of current stability and internal controls, or why risk at the end of two years would necessarily exceed the "more than minimal" threshold. That approach effectively recast the test as one of permanent safety, which the authorities do not require. Properly directed, the termination provision could be a relevant factor within a rounded evaluation; it should not have been treated as determinative in the absence of case-specific reasoning demonstrating an unavoidable increase in unmanageable risk beyond the licence period. "Ground 2 - Procedural Unfairness 13. The decision was also procedurally unfair. [The Applicant] contends that several adverse findings were not properly put to him during the hearing, denying him the opportunity to respond. In particular, the panel's assertion that he engaged in "active deception" by using a computer registered at another address (paragraphs 4.17–4.18) was not raised with him directly in the course of oral evidence. He therefore had no opportunity to clarify or challenge that allegation. A finding of dishonesty, especially one central to the assessment of risk, cannot lawfully be made without giving the prisoner an opportunity to comment. Failure to do so renders the process unfair within the meaning of R (Robinson) v Parole Board [2019] EWHC 256 (Admin). "14.Further, the panel's treatment of the psychological evidence was selective and misleading. The decision records that the psychologist's formulation was "built on a false premise" and therefore "could not be relied upon". However, there is no indication that the panel sought clarification from [the psychologist] or identified any factual error in her assessment. The psychologist's evidence was that [the Applicant's] risk was fully formulated, that his schema-driven behaviours were well understood, and that he had demonstrated measurable progress. Rejecting her expert opinion without engaging with its substance, and without giving her the opportunity to respond to perceived inconsistencies, amounts to procedural unfairness. "15.The panel also appears to have misunderstood the statutory test. The decision repeatedly refers to whether [the Applicant] had achieved "complete insight" and whether further work might theoretically be beneficial. The statutory question is not whether the prisoner is risk-free or whether all possible work has been completed, but whether it remains necessary for the protection of the public that he be confined. The test is one of necessity, not perfection. By imposing a higher threshold, the panel misapplied the law, resulting in procedural unfairness. "[The Applicant's] Position 16. [The Applicant] accepts responsibility for his past offending and for the distress his actions caused. He does not seek to diminish the gravity of his index offences. However, he has worked consistently and intensively to address his risk. He has completed every intervention made available to him, including accredited offending behaviour programmes and extensive one-to-one psychology sessions. His progress has been recognised by all supervising professionals. He has been accepted onto the Enhanced Resettlement and Risk Management Service (ERRMS), which ensures intensive, multi-agency oversight on release. He has maintained excellent custodial conduct, is motivated to work and reintegrate, and has developed internal coping mechanisms that have been tested in stressful environments. "17.The professionals who know him best all agree that his offending was not sexually motivated, that his risk is now well understood, and that it can be managed safely in the community. Against that backdrop, he cannot understand why the panel concluded that his offending was inherently sexually motivated and that he remains too high a risk for any form of progression. "18.[The Applicant] also expresses concern that the panel relied heavily on the sentencing remarks from nearly twenty years ago while disregarding the significant rehabilitative progress made since. Those remarks were made in a very different context, long before the psychological understanding of schema theory had been applied to his case and before any of the modern risk assessments were undertaken. The decision fails to reflect that temporal distance and thereby risks freezing him in the characterisation of the person he was decades ago, not the person he is now. "Submissions 19. While acknowledging that the panel provided detailed reasons, [the Applicant] respectfully submitted that the cumulative effect of the errors identified above renders the decision unsafe. "20.The panel's reliance on speculation about sexual motivation, rejection of unchallenged professional consensus, and consideration of irrelevant statutory provisions combine to produce a decision that falls outside the range of reasonable outcomes. The process by which those conclusions were reached was procedurally unfair because adverse findings were made without proper challenge or opportunity for response, and because key evidence was mischaracterised. "21.The decision is therefore irrational and procedurally unfair in the public law sense. It cannot be said that the decision was made on a proper understanding of the evidence or within the lawful parameters of the statutory test. "Conclusion 22. For these reasons, [the Applicant] respectfully submits that the decision of the Parole Board dated 14 October 2025 should be set aside and reconsidered. "23.The panel's findings were irrational in that they departed from the unanimous professional evidence without evidential justification, relied upon speculative and unfounded assertions regarding sexual motivation, and took account of irrelevant considerations relating to the automatic termination of licence. The process was procedurally unfair in that adverse allegations were not put to the prisoner and professional evidence was misrepresented." Background[5]The Applicant is now 65 years old. In 2007 he was convicted of 20 offences and sentenced as follows: For nine offences of making indecent photographs or pseudo-photographs of children, contrary to Section 1(a)of the Protection of Children Act 1978, eight offences of incitement to commit an offence under Section 2(2)(a) of the Sexual Offences (Conspiracy and Incitement) Act 1978 Act 1978, and three offences of distributing such material: Imprisonment for Public Protection with a specified term of 5 years less the time he had spent in custody awaiting trial. His "tariff" expired in January 2012.[6]In July 2020 following a Parole Board decision he was released on licence. In April 2023 he was arrested on suspicion of the commission of further offences of possession of indecent images and recalled to prison. On 11 th June 2024 he was sentenced to a total of 10 months imprisonment for offences of making indecent images and breach of the Sexual Harm Prevention Order made at the time of his conviction for the index offences. In April 2024 a Parole Board panel declined to order his release. Current parole review[7]The case was referred to the Parole Board by the Secretary of State for Justice (the Respondent) in November 2024. On 7 th May 2025 his case was directed to an oral hearing. The Relevant Law Parole Board Rules 2019 (as amended)[8]Rule 28(1) of the Parole Board Rules provides the types of decision which are eligible for reconsideration. This is an eligible decision save that Rule 19 of the Parole Board Rules which specifies the decisions amenable to reconsideration does not include the decision to recommend or not to recommend a prisoner's transfer from closed to open conditions. Irrationality[9]In R(DSD and others) -v- the Parole Board 2018 EWHC 694 (Admin) a Divisional Court set out the test for irrationality to be applied in judicial reviews of Parole Board decisions. It said, at paragraph 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. "
[10]This test was set out by Lord Diplock in CCSU v Minister for the Civil Service [1985] AC 374 . The Divisional Court in DSD went on to indicate that in deciding whether a decision of the Parole Board was irrational, due deference had to be given to the expertise of the Parole Board in making decisions relating to parole. The Board, when considering whether or not to direct a reconsideration, will adopt the same high standard for establishing "irrationality". The fact that Rule 28 contains the same adjective as is used in judicial review shows that the same test is to be applied.[11]The DSD case is an important case in setting out the limits of a rationality challenge in parole cases. Since then another division of the High Court in R (on the application of Secretary of State for Justice v Parole Board [2022] EWHC 1282 Admin) (the Johnson case) adopted a "more modern" test set out by Saini J in R (Wells) v Parole Board [2019] EWHC 2710 (Admin) .[12]In Wells, Saini J set out "a more nuanced approach" at paragraph 32 of his judgment:
"A more nuanced approach in modern public law is to test the decision-maker's ultimate conclusion against the evidence before it and to ask whether the conclusion can (with due dereference 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."
[13]It must be emphasised that this is not a different test to the Wednesbury reasonableness test. In the Wells case Saini J emphasised at paragraph 33 that this approach is simply another way of applying the Wednesbury irrationality test.[14]What is clearly established by all the authorities is that it is not for the reconsideration member deciding an irrationality challenge on a reconsideration - or a judge dealing with a judicial review in the High Court - to substitute his or her view for that of the panel who had the opportunity to see the witnesses and evaluate all of the evidence. It is only if a reconsideration member considering the application decides that the decision of the panel did not come within the range of reasonable conclusions that could be reached on all of the evidence, that he or she should allow the application.[15]Panels of the Board are wholly independent and are not obliged to adopt the opinions or recommendations of professional witnesses. The panel's duty is clear and it is to make its own risk assessment and to evaluate the likely effectiveness of any proposed risk management plan. That will require a panel to test and assess the evidence and decide what evidence they accept and what evidence they reject.[16]Once that stage is reached, following the guidance provided by such cases as Wells a panel should explain its reasons whether or not they are going to follow or depart from the recommendation of professional witnesses.[17]The giving of reasons by a decision maker is "one of the fundamentals of good administration" ( Breen v Amalgamated Engineering Union [1971] 2 QB 175 ). When reasons are provided, they may indicate that a decision maker has made an error or failed to take a relevant factor into account. As I understand the principles of public law engaged in deciding this application, an absence of reasons does not automatically give rise to an inference that the decision maker has no good reason for the decision. Neither is it necessary for every factor to be dealt with explicitly for the reasoning to be legally adequate in public law.[18]The way in which a panel fulfils its duty to give reasons will vary depending on the facts and circumstances in any particular case. For example, if a panel is intending to reject the unanimous evidence of professional witnesses then detailed reasons will be required. In Wells at paragraph 40 Saini J said:
"The duty to give reasons is heightened when the decision-maker is faced with expert evidence which the panel appears, implicitly at least, to be rejecting."
[19]When considering whether this decision is irrational, I keep in mind that it is the decision of the panel who are expert at assessing risk; importantly it was the panel who had the opportunity to question the witnesses and to make up their own minds what evidence to accept. As I have already observed, it is extremely important that I do not substitute my judgment for theirs. My function is to decide whether the panel in this case erred in law or reached a decision that was Wednesbury unreasonable and/or procedurally unfair in some respect. Procedural unfairness[20]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.[21]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.[22]The overriding objective is to ensure that the Applicant's case was dealt with justly.[23]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."
[24]In considering this issue I have been assisted by the case cited in the Grounds - R v(Robinson) v Parole Board [2019] EWHC 256 (Admin). The reply on behalf of the Secretary of State[25]The Respondent has offered no representations in respect of this application. Discussion[26]The mistaken assumption that the decision whether or not to recommend open conditions is amenable to the reconsideration process has unfortunately affected the force of what are otherwise clear and well-presented grounds.a. The panel did not depart from "unanimous" recommendations or a "unanimous" consensus. The recommendations were by a majority of two to one, the psychologist witness not recommending release. The dictum in the case of Watts cited above thus has no direct relevance to this case.b. I have thus considered the application against the background of the helpful references to the decided cases (in particular R (DSD and Others), and Wells ) on "irrationality" set out above.[27]I have listened to the recording of the hearing. Irrationality[28]The panel in every case, and of course this case in particular, is required to assess the evidence and to decide whether to accept it. At paragraphs 4.4-4.27 the panel explained both clearly and rationally why it declined to direct release.[29]The index and recall offences clearly point to a previous and continuing sexual interest in children (paragraphs 4.6-4.11 of the DL).[30]The panel rightly tried to gain better knowledge of the Applicant's reasons for accessing the indecent material both at the time of his index offences and following his release on licence. They were clearly entitled to conclude that whatever the other ways in which the Applicant has in the past and more recently sought to meet "his psychological needs for praise or affirmation" he has continued to do so by "resorting to sexualised or illegal" means and doing so in a way which he hoped would avoid detection (paragraphs 4.12-4.18 of the DL).[31]The reasoning process at paragraphs 4.19-4.25 is likewise impeccable.[32]It is clear from the terms of paragraph 4.27 that the decision was based on the matters referred to in the previous paragraphs rather than the discussion at paragraphs 4.28-4.37 and would have been the same whatever the operative period of licence conditions.[33]It is therefore unnecessary for the consideration of this application for the ground put forward concerning the panel's consideration of the risk period and the recent changes in the law which would lead to the ending of the applicant's IPP licence two years from his release if not recalled before then, rather than the previous 'regime' which would have meant that he would have been on licence for at least 10 years following release and with the licence only terminated following "a thorough investigation of his risk of serious harm" (DL paragraph 4.29).[34]The panel makes clear - and the grounds rightly concede - that the Boad is required to look at the risk posed by an offender indefinitely.[35]I have listened to the recording of the hearing and can understand the disappointment felt by the applicant at its result. However - again as the grounds and the authorities cited concede - the "bar" of "irrationality" is set very high. Neither individually nor cumulatively in my judgment do the grounds submitted surmount that high bar. Procedural unfairness[36]Adverse findings. The finding concerning the computer at the mother's address was inevitable. His explanation(s) is/are set out clearly within the dossier e.g. at pp 206, 239, 248, 443, 447, 455, 463 and in the Parole Board DL of April 2024. It was not irrational of the panel to reject an explanation which has not been believed before by courts and/or previous Parole Board panels.[37]The "false premise". The DL accurately recalls that the psychologist "considered that whilst there may be an element of sexual interest in his offending, the main driver was his need to please...." And later:
"Whether or not there was a sexual element in his offences, [the psychologist]...."
. And as has already been pointed out the panel did not reject her recommendation that he remained confined - the only matter amenable to the reconsideration process.[38]The misunderstanding of the statutory test. Once the panel had - rationally - come to the conclusion referred to above, at paragraphs 4.22-4.26 of the DL, the only procedurally fair way to proceed was the one set out at paragraph 4.27. Decision[39]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. Sir David Calvert-Smith 05 December 2025