McMahon, Application for Reconsideration [2025] PBRA 270 (12 December 2025) [2025] PBRA 270

PBRA
McMahon, Application for Reconsideration [2025] PBRA 270 (12 December 2025)
[2025] PBRA 270 · 2025-11-04
[1]This is an application by McMahon (the Applicant) for reconsideration of a decision of an oral hearing panel. The decision was dated 4 November 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(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 decision of the oral hearing panel, the application for reconsideration drafted by the Applicant's legal adviser and the representations of the Secretary of State (the Respondent). Request for Reconsideration[4]The application for reconsideration is dated 19 November 2025.[5]The grounds for seeking a reconsideration are set out below. Background[6]The Applicant is serving an extended sentence of imprisonment comprising of a determinate period of eight years and an extension of two years. He was sentenced on 18 October 2016 when he was 58 years old. His conditional release date was 17 October 2024. He was automatically released at the conditional release date. The index offences comprised of the following: 10 counts of indecent assault on a female child; two counts of gross indecency with a child; four counts of making indecent photographs of children; and three counts of possessing indecent photographs of children. The contact offences were committed in a familial context. The Applicant was aged 67 at the time of the oral hearing. The Applicant had been recalled following his automatic release from the extended sentence. Current parole review[7]The Applicant's case was referred to the Parole Board by the Respondent to consider whether the Applicant should be subject to a direction for release.[8]The oral hearing panel consisted of a judicial chair of the Parole Board and a further psychologist member of the Parole Board. Evidence was given at the oral hearing by a Prison Offender Manager (POM), a prison commissioned psychologist and the Community Offender Manager. The Applicant was legally represented at the hearing and gave evidence. The Relevant Law[9]The panel correctly sets out in its decision letter dated 4 November 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)). Irrationality[12]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 b y 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.[13]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. "[14]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).[15]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.[16]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.[17]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[18]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.[19]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.[20]The overriding objective is to ensure that the Applicant's case was dealt with justly. Error of law[21]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.[22]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[23]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.[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 made no submissions. Background[27]The Applicant's legal adviser sets out, in a succinct analysis, a number of issues which are said to amount to mistakes of fact and which, it is submitted, amount to procedural unfairness.[28]As noted above (Alconbury) errors of fact are issues which have been addressed by courts in decisions in the past. In brief, when considering reconsideration; the mistaken fact must be established in the sense that it is uncontentious and objectively verifiable; the Applicant must not have been responsible for the mistake; and the mistake must have played a material " though not necessarily decisive " part in the panel's reasoning.[29]I have therefore considered the reconsideration application with the background of this decision, and taking account of the fact that, as correctly addressed by the Applicant's legal adviser, a panel of the Parole Board must demonstrate that the prisoner has been given a fair hearing. Issue 1[30]It is submitted that the panel were in error in suggesting that the Applicant had pleaded guilty to an earlier offence and yet maintains his innocence. It is submitted (on his behalf) that the Applicant had not (in fact) pleaded guilty to the earlier offence. It is also submitted that the panel " proceeded on the basis of his guilty plea ". It is submitted that the panel should not have proceeded on this basis because the Applicant had in fact been convicted after trial. Discussion[31]In brief, the timetable in relation to the Applicant's offending was potentially confusing. In 1994 there had been a sexual offence by the Applicant perpetrated against a male child. That offence led to a conviction and a prison sentence of 12 months imprisonment.[32]For some years prior to the 1994 conviction and offending, the Applicant had also been sexually abusing a female child in the same household. That offending did not come to light until many years later. The child did not disclose the abuse at the time of the 1994 conviction. The abuse of the female child was said to have come to an end in 1994, following the imposition of the prison sentence upon the Applicant.[33]In 2016 the Applicant was discovered to have indecent photographs of children on a device and was convicted of a series of offences relating to the possessing of those indecent images.[34]Also, in 2016 the female child who had been abused in the 1990s disclosed the abuse. The Applicant was tried for these offences and convicted. The sexual offences against the female child and the indecent image offences formed the index offences being considered by the 2025 panel.[35]As noted above, the complaint in relation to this issue relates to the panel recording that the Applicant had pleaded guilty to the 1994 offending (of the male child). There is also a reference to the Applicant " maintaining his innocence ". The Applicant's legal adviser indicates that the Applicant in fact pleaded not guilty and continues to maintain his innocence. The Applicant was apparently pleaded not guilty and was convicted after a trial in 1994.[36]It appears that the 2025 panel drew information and their subsequent comments from a probation document on the dossier (called the OASys Assessment). This document, is a running record, routinely kept by the probation service in relation to those who have been referred to them over years. In a section relating to the Applicant's 1994 conviction the probation service in fact recorded that the Applicant had " pleaded guilty " and maintained his innocence. It is likely that this was a misrecording by the probation service which was taken up by the panel when drafting the decision. There appears to be no other independent information about the Applicant's plea, however, on balance it appears that, given the Applicant's denial at all times of the offending behaviour, his position was likely to have been one of a plea of not guilty and a conviction. On balance therefore it appears that the panel were mistaken in recording that the Applicant had pleaded guilty, he had in fact been found guilty by a jury.[37]I now consider whether this mistake played a material though not necessarily decisive part in the tribunal's reasoning. It seems to me that the two fundamentals relating to this issue are the fact that the Applicant was convicted of a sexual offence in 1994, and the fact that the Applicant denies the offending.[38]There is clearly an argument that the panel may have taken a negative view of the Applicant if they thought that he had pleaded guilty but continued to deny the offending. It should be said that situations where an offender facing trial; pleads guilty; but outside court maintains innocence are not unheard of or unusual. In this case the Applicant's denial of offending has been maintained throughout the series of convictions recorded against him.[39]I have taken account of the age of the initial conviction in 1994, the fact that there was a conviction and the fact that the Applicant has made consisted denials of further offences subsequent to the 1994 conviction. I have considered whether, there would have been any difference in the approach of the panel were they assessing the Applicant on the basis that he had been convicted after trial and was denying the offences. I have also considered with care whether the panel would have potentially taken against the Applicant on the basis that he had apparently pleaded guilty and was then subsequently denying the offending. Having considered with care this scenario it seems to me that in reality the panel were considering two issues.[40]Firstly, the fact that the Applicant abused a child in 1994 and secondly what effect in terms of his current risk would that abuse have upon a decision to direct release. Although the technicalities of the conviction itself and what exactly was being denied should have been recorded, I am not persuaded that the misrecording could have had any material effect upon the panel's decision making.[41]I therefore acknowledge that there was a mistake of fact by the panel, in that it seems likely that the Applicant pleaded not guilty, and therefore the panel should have recorded that they proceeded on the basis of a conviction (after trial) rather than a not guilty plea. As noted above however despite this error of fact being established, I do not consider it to be a material factor affecting the decision of the panel. Issue 2[42]As noted above the Applicant had been convicted of an offence against a male child in 1994. The (2025) panel recorded that the Applicant told the panel that the mother of the male victim had subsequently made a statement to the Applicant's solicitor recording that the complaint had been " made up ".[43]In the 2025 panel decision, the panel recorded that the Applicant had indicated that the victim's mother had said that " she " made it up. These references are in the paragraph which clearly is dealing with the offence where the Applicant was convicted of sexual assault on the male child. It seems therefore that the reference to " she " should have been a reference to " he ". From the context of the paragraph, it appears that the Applicant was reporting that the mother of the male victim, had made a statement to the Applicant's solicitor, (at some time) indicating that the (male) victim had made up the allegations.[44]This is a clear typographical error. It appears in the paragraph relating to the allegation concerned with the male child. The reality, in any event, was that the panel proceeded on the basis that the Applicant had been convicted and sentenced for an offence in 1994 against a male child. I am not persuaded that the panel's decision was affected by this typographical error. It is clear that the panel were discussing the male victim. The panel made clear that they had proceeded on the basis of a conviction in 1994 against a male child relating to sexual abuse. Again, although the typographical error should have been noticed, I am not persuaded that it is a matter which had any material effect upon the decision of the panel. Issue 3[45]The Applicant's legal adviser indicates that the Applicant gave evidence at his trial (relating to the viewing and downloading of indecent images) (in 2016). He had told the jury that he was at his place of work during the times when the images were said to be downloaded and viewed. He therefore denied the offending. Discussion[46]Whilst this may have been the evidence adduced at the trial by the Applicant, the Applicant was (in fact) convicted by a jury, and therefore the panel were entitled to proceed on the basis of that conviction. I am not persuaded that this issue amounts to an established fact. It was clearly one which was contested and which the jury were in all likelihood to have rejected because they returned a guilty verdict. Issue 4[47]As noted above, the timeline in relation to the Applicant's convictions needed care to consider. There were offences between 1989 and 1994 against the female child victim. These offences did not come to light until 2014.[48]There was a separate offence, relating to the male child in 1994, which led to a conviction and a prison sentence at that time (1994). The evidence also appears to be that following the conviction and sentence, the abuse of the female child ceased.[49]After some years, namely in 2014. The female child disclosed the abuse which occurred between 1989 and 1994.[50]At paragraph 1.6 the panel stated as follows " There is a clear pattern of sexual offending which has taken place over several years and appears to have been opportunistic in nature. [The Applicant] has sexually abused and assaulted two young children within the same household.... The index offences, although of the same nature, indicate an escalation from previous offending in seriousness. He continued to offend despite having served a custodial sentence for the first time."[51]The Applicant's legal adviser indicates that this paragraph cannot be said to accurately reflect the position. The particular complaint is the wording relating to the index offences indicating an " escalation from previous offending " in seriousness " despite having served a custodial sentence ".[52]The wording of this paragraph is unhelpful. Some elements are factually correct. It is unarguable that there is a pattern of sexual offending. It is also unarguable that the sexual offending took place over several years and was opportunistic in nature. This is evidenced by the fact that there were two children who were victims and the abuse of the female child was over a 5-year period.[53]The difficulty relates to the phrase " the index offences, although of the same nature, indicate an escalation from previous offending in seriousness ." The best interpretation of this phrase is that the sexual offending was of the same nature, in the sense that it was associated with sexual abuse of children. The facts seem to indicate that the abuse of the female child was more serious. It appears therefore that the panel were suggesting that the abusing of the female child amounted to an escalation in seriousness because of its nature and possibly the length of time that it continued.[54]The following phrase is also somewhat ambiguous. The phrase indicates that the Applicant " continued to offend despite having served a custodial sentence for the first time ". In purely factual terms, the reality was that the Applicant had served a custodial sentence in 1994. He then committed various noncontact indecent image offences in 2014. Therefore, factually he had continued to offend despite having served a custodial sentence.[55]The Applicant's legal adviser notes that the offending relating to the female child, although tried and sentenced in 2014, related to a period of time before the Applicant had been sent to prison. It is therefore argued that the impression given by the phrase in the above-mentioned paragraph, is that the offending against the female child occurred after the Applicant had served the custodial sentence, and therefore the Applicant's culpability and possibly risk were increased by the fact that he had not been deterred by the prison sentence.[56]I fully acknowledge that this was a poorly phrased paragraph. It should not be necessary to undertake a forensic analysis of the wording of a paragraph in a decision letter. However, taken on a purely factual level, the Applicant had served a prison sentence for sexually abusing a young male child and had then later been involved in offences relating to abusive images of young children. The later discovery of the offending against the female child was also indicative of the fact that the Applicant's offending before 1994 was more serious than may have been believed when he was sentenced in 1994.[57]The overall meaning of the paragraph which is indicated in the earlier sentences is that the Applicant's behaviour demonstrates a pattern of sexual offending relating to children over several years.[58]Whilst, as I have indicated, this was a poorly phrased paragraph I again have to set it against the test as to whether firstly it is a mistake and secondly if it was a mistake whether it played a material part in the panel's reasoning. I have no doubt that the pattern of offending alluded to by the panel did play a part, which was material, in reaching the conclusion. Although this form of wording was unhelpful, I am not persuaded that the overall meaning of the paragraph could be said to be in error. The Applicant's record of offending was clearly indicative of a pattern of offending relating to children. Whilst the argument could have been better phrased, the principle of the argument is well evidenced by the Applicant's historical behaviour.[59]I am also not persuaded that the panel were proceeding on the basis that they believed that the Applicant had served a prison sentence for abuse, was released and then undertook the abusive behaviour against the female victim.[60]The panel appeared to be noting the fact that the Applicant's abusive behaviour relating to children had continued, albeit in the form of online abuse. The panel also appeared to be noting the fact that once disclosed it was apparent that the Applicant had been involved in abuse of greater seriousness than initially believed because of the disclosure by the female victim.[61]For this reason, I do not find that this poorly worded paragraph amounts to a material mistake, indeed it is arguable whether it is a mistake or merely poorly recorded opinion on the facts. Issue 5[62]The Applicant's legal adviser submits that the 2025 panel were in error in recording that the Applicant was released by a Parole Board panel. In fact, his first release was an automatic release at his conditional release date. Discussion[63]Again, it is apparent that the 2025 panel were in error when they recorded the fact that there had been a release decision by a Parole Board panel, rather than an automatic release. In fact, the template of the decision letter itself indicates in the summary of the Applicant's prison progress and records that he was first released automatically and subsequently recalled. The panel had therefore correctly recorded the circumstances of his release on the headnote of the decision.[64]Whilst again this is a factual error, it is clearly one which would have played no material part in the final decision of the panel. The mechanism of his release was a matter of no relevance to future risk. Issue 6[65]The Applicant's legal adviser indicates that an electronic device which formed the basis of the Applicant's recall was not " taken from " the Applicant by the police or any other authority but remains in the possession of the Applicant. Discussion[66]This appears to be a fine point argued on behalf of the Applicant. The wording in the decision letter is that " an electronic device was taken from his possession and allegedly found to have a search history including sexual content relating to children ". The panel do not assert that the device was retained. The issue relating to the electronic device was firstly that the Applicant was not permitted to own or secure a device without giving appropriate notice to his probation officer or police officer responsible for his case. The Applicant explained that he had used the device for everyday purposes such as banking, but had also viewed adult pornography. He denied searching child-related sexual content but suggested that any search results would be linked to " pop-ups " generated when he was viewing adult pornography. The panel's final assessment in relation to the electronic device was that they accepted that there was no evidence that indecent images of children were viewed, but there was a serious possibility that he had searched for such material.[67]I am therefore not persuaded that this issue amounts to an error. The panel, in my determination made a fair assessment of the position relating to the electronic device. Whether it was retained by the authorities or by the Applicant was not a relevant factor in terms of assessment of risk. The major issue was a deliberate breach of a requirement to report the ownership of such devices and the obvious potential link with the earlier offences relating to indecent images of children. Issue 7[68]The Applicant's legal adviser indicates that the Applicant had two relationships in the past. The first was with Ms A the second with Ms B. Ms A had made historical allegations of sexual abuse which were not pursued to a criminal prosecution. The panel incorrectly ascribed the allegations (of serious sexual abuse) to Ms B rather than Ms A. Again, it appears that a factual error in identifying the partner who had made the allegations was recorded by the panel. However, of importance, is the fact that the panel entirely disregarded the complaint and allegations, as noted in the decision letter. For this reason, it is clear that the error played no material part in the panel's decision. Issue 8[69]The Applicant takes issue with the fact that the decision letter records that the Applicant has received " no recent adjudications ". The complaint is that this comment paints a misleading picture because throughout his time in custody he had never received an adjudication.[70]The Applicant also notes that the male POM is referred to as " she " in the decision letter. Discussion[71]Panels of the Parole Board are not routinely supplied with a prisoner's history throughout their time in prison. The panel would not therefore be in a position to confidently assert that the Applicant had never had an adjudication during his time in prison. I am not persuaded that the phrase used by the panel chair in referring to adjudications was aimed at creating a misleading outcome or picture. The panel notes in the paragraph relating to custodial behaviour that the Applicant's behaviour since recall was " good ". The panel did not therefore rely negatively upon prison behaviour when reaching its decision about release.[72]So far as the mistaken pronoun in relation to the POM is concerned, this appears to be a simple typographical error and appears to have no impact upon the meaning of the paragraph. Issue 9[73]The Applicant's legal adviser points out that there is reference in the decision to the Applicant being subject to a Sexual Harm Prevention Order (SHPO). It is indicated that the Applicant is not in fact subject to such an order. Discussion[74]Having perused the dossier "page 41" it is evident that recorded in the probation notes is an indication that the Applicant is subject to an SHPO. However, it is also noted later in the dossier that the Applicant is not subject to such an order.[75]Again, this indication in the decision amounts to a factual error. However, it is clearly not an error which could have any material effect upon a decision to release or a decision relating to risk. The absence of such an order may have been an issue for a panel, however upon a reading of the decision the panel were not engaged with the nature of judicial orders. For this reason, I am not persuaded that this amounts to an error which could be said to have material effect upon the decision of the panel. General[76]I have considered with care the position relating to the complaints that are listed above. In reality the majority of the issues do not amount to errors which would have any material impact upon the decision of the panel. The issue which required careful analysis was that relating to the timetable of the offending. It is clear that if the panel had incorrectly deduced that the offending against the female child had occurred after the Applicant had served a sentence of imprisonment and therefore that the Applicant had appeared to have failed to be deterred or learned from the conviction and sentence and had moved on to commit a similar series of offences on the second occasion, this would have been a serious misunderstanding.[77]However, although the paragraph concerning this issue is poorly drafted and might be considered ambiguous, I am not persuaded that the panel made their decision on the basis that they believed that the Applicant had served a prison sentence and then abused the female child. It seems apparent to me that the panel were indicating that the Applicant had served a prison sentence and despite having been warned by the service of that sentence, which related to abuse of a child, he continued to be involved in criminal activity namely the accessing of indecent images of children and exchanges online in relation to indecent images. The point being made by the panel was that there was a continuation of a pattern of offending relating to sexual abuse of children. That point is, in my determination, unarguable on the basis of the factual matrix and timetable in this case.[78]Thus, despite the draughtsmanship in this case I am not persuaded that the errors amount to material errors which played a substantive part in the panel's reasoning. Although panels should strive for clarity and accuracy in decision writing, as noted in Oyston (above) Lord Bingham indicated that " it would be wrong to require elaborate or impeccable standards of draughtsmanship " .[79]I would also note, on the question of draughtsmanship, that the application for reconsideration in this case, which was drafted by the Applicant's legal adviser, was commendably succinct and clearly focused forensically upon the relevant issues to be raised in the application. Decision[80]For the reasons I have given, I do not consider that the decision was procedurally unfair and accordingly the application for reconsideration is refused. HH Stephen Dawson 12 December 2025