Scott - Muhammad, Application for Reconsideration by, [2025] PBRA 277 (18 December 2025) [2025] PBRA 277

PBRA
Scott - Muhammad, Application for Reconsideration by, [2025] PBRA 277 (18 December 2025)
[2025] PBRA 277 · 2025-10-30
[1]This is an application by Scott - Muhammad (the Applicant) for reconsideration of a decision of an oral hearing panel dated 30 October 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 application for reconsideration drafted by the Applicant's legal adviser and dated 20 November 2025, the decision of the oral hearing panel and the representations by the Secretary of State (the Respondent). Request for Reconsideration[4]The application for reconsideration is dated 20 November 2025.[5]The grounds for seeking a reconsideration are set out below. Background[6]The Applicant is serving a sentence of imprisonment for public protection. The sentence was imposed on 21 December 2007. The minimum tariff imposed by the sentencing judge was two years six months and twenty-three days. The Applicant's tariff expired in July 2010. The Applicant was aged 20 at the time of the imposition of the sentence. He was aged 38 at the time of the oral hearing. The index offence was rape. The victim was a person known to the Applicant. The victim had complained of being subject to violence throughout an earlier relationship. The relationship ended. The Applicant received a prison sentence and while in prison the former partner made contact with him. On release the Applicant visited the former partner. She made it clear that she did not wish to continue with a relationship. Although the partner was reluctant to offer overnight accommodation, the Applicant eventually persuaded the partner to allow him to stay. The former partner said she would sleep on the sofa and the Applicant could sleep on her bed. However, the Applicant physically pulled her into the bedroom. The Applicant had a history of previous violence towards her and she was scared. She told the Applicant to stop but he continued with his advances. The Applicant then had sexual intercourse with the victim without her consent. The victim reported that she was crying and asking him to stop. The Applicant had a number of previous convictions and cautions. There were convictions for offences of threatening behaviour, possession of a bladed weapon, common assault, assault occasioning actual bodily harm, inflicting grievous bodily harm (S20), robbery and attempted robbery. The index offence was committed at a time when the Applicant was on licence for offences of violence. Current parole review[7]At the time of the oral hearing the Applicant was resident in an open prison. He had been transferred to an open prison following a recommendation to the Respondent by an earlier Parole Board panel. The referral by the Respondent requested the Parole Board to consider whether the Applicant was suitable for release. The Applicant had moved to the open prison in March 2024.[8]The hearing took place on 17 October 2025. The panel consisted of an independent chair of the Parole Board, a further independent member of the Parole Board and a psychologist member of the Parole Board. Evidence was given at the hearing by a Community Offender Manager (COM), a Prison Offender Manager (POM) and a prison instructed psychologist. The Applicant was legally represented and gave evidence himself at the hearing. The Relevant Law[9]The panel correctly sets out in its decision dated 30 October 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)).[12]A decision to recommend or not to recommend a move to open conditions is not eligible for reconsideration under rule 28. This has been confirmed by the decision on the previous reconsideration application in Barclay [2019] PBRA 6 . Irrationality[13]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.[14]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. "
[15]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 (see below).[16]This test was adopted by a Divisional Court in the case of R(on the application of the Secretary of State for Justice) -v- the Parole Board 2022 EWHC 1282 (Admin).[17]As was made clear by Saini J this is not a different test to the Wednesbury test. The interpretation of and application of the Wednesbury test in parole hearings as explained in DSD was binding on Saini J.[18]It follows from those principles that in considering an application for reconsideration the reconsideration panel will not substitute its view of the evidence for that of the panel who heard the witnesses.[19]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 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. 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. The overriding objective is to ensure that the applicant's case was dealt with justly. Error of law[23]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.[24]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[25]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[26]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[27]The Respondent offered no representations. Discussion General[28]The Applicant's legal adviser offers a substantial number of submissions relating to the application for reconsideration. In general terms however the complaint is characterised by the comment by the Applicant's legal adviser that "The issue is not merely that the Applicant disagrees with the decision, but that the decision does not satisfy the minimum legal standards of rationality, fairness, and lawful application of the Public Protection Test. The reliance on speculative risk, untested intelligence, and assumptions unsupported by evidence renders the decision unsustainable under Rule 28."[29]As noted above, the law relating to irrationality and reasons is helpfully rehearsed in the case of Wells. For the purposes of this application I set out further extracts from that decision: " Irrationality and reasons 29. I [Mr Justice Saini] have set out the evidence before the Panel at some length above. That was necessary in order to properly assess the rationality challenge. The essential submission is that in the light of that evidence the Panel's conclusion that Mr Well's risks could not be safely managed in the community was irrational. As I explain below, I prefer to approach this Ground 2 (the rationality challenge) and the Ground 4 challenge (reasons challenge) together.[30]As is obvious, a rationality challenge in public law is always a substantial challenge for a Claimant; and particularly so, when dealing with a specialist quasi-judicial body which will have developed experience in assessments of risk in an area where caution is required.[31]A modern approach to the Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 (CA) test is not to simply ask the crude and unhelpful question: was the decision irrational?[32]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 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.[33]I emphasise that this approach is simply another way of applying Lord Greene MR's famous dictum in Wednesbury (at 230: "no reasonable body could have come to [the decision]") but it is preferable in my view to approach the test in more practical and structured terms on the following lines: does the conclusion follow from the evidence or is there an unexplained evidential gap or leap in reasoning which fails to justify the conclusion?[34]This may in certain respects also be seen as an aspect of the duty to give reasons which engage with the evidence before the decision-maker. An unreasonable decision is also often a decision which fails to provide reasons justifying the conclusion."30. It appears to be argued by the Applicant's legal adviser in this case that the conclusion of the panel did not follow from the evidence and that the conclusion of the panel was not justified by the evidence.31. The Applicant's legal adviser has set out a number of points in a narrative format which are said to support the contention that the conclusions of the panel were not supported by the evidence. For convenience and clarity, I have attempted to separate the individual complaints and deal with them sequentially. Most of the grounds are a direct reflection of the Applicant's legal advisers' submissions. Those copied submissions are in italics. Grounds Ground 132. It is submitted on behalf of the Applicant that " each professional described sustained positive behaviour over a significant period, constructive engagement, stability in open conditions, and meaningful progress in intimate relationships, particularly the current relationship with [Ms X], which all professionals indicated showed none of the historical concerns raised in previous reports." Discussion33. The Applicant was at the time of the oral hearing resident in an open prison. The Applicant's POM reported positively about the Applicant. The Applicant had been undertaking various forms of leave in the community and was working out of the prison. He had good reports from the employer. 34. Despite the positive view of the POM, there were a number of security entries provided by the prison. These entries related to confrontations with other prisoners and moving of drugs around the prison. Earlier entries, from the closed prison, from which the Applicant had been transferred, expressed concerns about the Applicant's behaviour towards a partner who was visiting. Some of the security entries were low-grade which was likely to mean that they came from prisoners; others were of a higher category. This intelligence was a matter of concern for the panel. As is not unusual with security information, the entries were not heavily detailed.[35]As noted below, the Applicant's legal adviser takes issue with reliance upon the security information because of the fact that it is "unproven" and "unparticularised" .[36]Whilst acknowledging the difficulties of challenging security information (the Applicant denied all negative entries) I am not persuaded that the panel were obliged to entirely ignore them. The entries amount to allegations. As is clearly set out in the case of Pearce R (on the application of Pearce and another) (Respondents) v Parole Board of England and Wales 2023] UKSC (Appellant) , the Supreme Court at paragraph 76 found as follows:
"In other circumstances, the Board may not be able to reach a conclusion that the relevant allegation is true or is untrue. It may be impossible to do so where the Board has not got the relevant evidence."
[37]At paragraph 87 (vii) Pearce states:
"In some circumstances, however, the Board may not be able to make findings of fact as to the truth of an allegation either because of an inability to obtain sufficiently reliable evidence or because it would be unfair to expect the prisoner to give an answer to the allegation when he is facing criminal or prison disciplinary proceedings in relation to that allegation."
[38]It continues at (vii):
"In such circumstances the Board, having regard to public safety, may take into account the allegation or allegations and give it or them such weight as it considers appropriate in a holistic assessment of all the information before it, where it is concerned that there is a serious possibility that those allegations may be true. But the Board must proceed with considerable caution in this exercise because of the consequences of its decision on the prisoner."
[39]The panel in my determination undertook the exercise anticipated in the case of Pearce . The panel did not make findings of fact but were satisfied that the evidence of moving drugs around prison and confrontations were relevant to the issue of risk. I am therefore satisfied that on this topic the panel had credible and legally admissible evidence upon which to reach a conclusion relating to future risk. Ground 2[40]It is submitted by the Applicant's legal adviser that the prison commissioned psychologist confirmed " that all essential risk-reduction work had been completed, that remaining areas for development were appropriate for community-based work rather than further custodial intervention, and that dynamic risk factors were currently inactive" and therefore, by implication, it was safe to direct release. Discussion[41]So far as the psychological evidence was concerned, the panel fully acknowledged that the prison instructed psychologist was supportive of release, as was the COM for similar reasons. The panel noted that the psychologist was aware of some inevitable difficulty, in an assessment of the Applicant's risk, arising from the fact that the Applicant denied the index offence.[42]The prison instructed psychologist had taken the view that the Applicant had shown stability and maturity in recent times and that this was reflected in a current relationship which was being conducted without physical violence or sexual violence and differently to previous relationships. The psychologist had noted an increase in self perception and also took the view that the traits associated with historical lack of self-awareness and responsibility taking were not currently observed. The psychologist's recommendation included suggestions that the Applicant should undertake some psychoeducation to attempt to fully understand his personality traits and how those traits might affect risk or his response to supervision. Also suggested was input from personality services and mentalisation based therapy (MBT). The prison instructed psychologist took the view that the Applicant had completed relevant risk reduction work and that only consolidation was needed and that nothing was outstanding in terms of sexual or intimate partner violence risk. The psychologist acknowledged that it was difficult to know if sexual risk had been fully addressed but that she was satisfied with the Applicant's responses (in the course of the assessment by the psychologist), about consent and intimacy and was able to conclude therefore that further behavioural intervention would be a backward step.[43]The panel took a different view to the psychologist on particular issues. Although the panel acknowledged that there was evidence of a period of stability in recent times, the panel indicated that the Applicant's engagement with risk reduction work has been at times superficial. It was noted that the Applicant had involved himself in an inappropriate relationship with a facilitator whilst undertaking a behavioural programme in prison. This relationship led to him being removed from the programme. In reality he had had limited input from formal programmes relating to intimate partner violence and his index offence. The panel also observed from their own assessment of the Applicant's responses in the panel hearing that his pattern of minimisation and externalisation of blame persisted. The panel observed that within the hearing itself the Applicant had a tendency to attribute responsibility for his actions to others and was reluctant to fully acknowledge the harm he could cause. This raised doubts about the Applicant's ability to respond appropriately to supervision and to the management of his risk in the community.[44]The panel took account of the fact that there had been previous evidence within the index offence and elsewhere of coercive and controlling behaviour in intimate relationships. The panel acknowledged that the professional view was that concerns in this regard were reduced, the panel took account of the fact that the Applicant had begun a further relationship in prison and had expressed an intention to live with the partner and begin a family. The panel had taken the view that the proposed strategies to manage this new relationship, namely parenting courses and a safeguarding referral, would be insufficient to manage the risk of serious harm.[45]I have therefore considered with care whether the panel sufficiently explained the reasons why it rejected the views of the professionals that the Applicant met the test for release. The basis of that rejection was the observation by the panel itself in the hearing that the risk factors which were attributable to the Applicant were observable and active. The Applicant, in the view of the panel, attributed responsibility for his actions to others and was reluctant to fully acknowledge the harm he had caused. The panel concluded that minimisation and externalisation of blame were issues which continued to impact upon risk. These factors would also impact upon the Applicant's internal controls in the community.[46]The panel were also concerned that the recommendation by the prison instructed psychologist included a view that various interventions relating to personality disorder services and relevant organisations in the community should be in place. The services had not been included in the risk management plan (RMP), which further undermined the confidence that the panel may have had in the recommendation by the prison instructed psychologist and COM.[47]The panel fully acknowledged that it was necessary for them to approach the positive recommendations by professionals with respect and caution. However, the panel were entitled to test the evidence themselves, indeed the entire purpose of an oral hearing is to undertake such a test. The panel were also entitled to make an assessment of the evidence presented by the Applicant himself and the historical evidence to reach their decision.[48]In my determination the panel set out the reasons why they did not support the view of the prison instructed psychologist despite the arguments having some force. In reality much of the basis of the view of the prison instructed psychologist, the COM and the POM in this case was that the Applicant had demonstrated a period of positive behaviour since moving to the open prison and to an extent in his last period in the closed prison. The limitations upon this assessment were that the Applicant had undertaken a very limited amount of work in relation to addressing the serious risk factors which were associated with the Applicant.[49]Briefly those risk factors were identified in the panel's decision as adverse childhood experiences and exposure to violence as a child leading to the Applicant using violence to resolve problems; association with negative peers associated with drug dealing and antisocial lifestyle; a diagnosed antisocial personality disorder indicating a pattern of disregard for the rights of others; and a high level of psychopathy (which had been observed and diagnosed in the past). A particular concern acknowledged by the panel was the controlling behaviours that he had demonstrated in the past, both in custody with new partners as well as associated with the index offending.[50]The panel therefore set out the reasons why it took a different view to the professionals. In brief the panel took a wider view of the Applicant's history and negative behaviour in the past and were not persuaded that the more stable behaviour in the open prison was sufficient to demonstrate a substantive reduction in risk. Their position was reinforced, so far as they were concerned, by the security information and by the inadequacy of the RMP. Ground 3[51]It is submitted by the Applicant's legal adviser that " the panel relied heavily on historic offending, relationship patterns from nearly twenty years ago, and speculative concerns about how [the Applicant] might behave in hypothetical future situations such as pregnancy or relationship breakdown." Discussion[52]Although this complaint by the Applicant's legal adviser is noted, I am not persuaded that the premise of the submission is entirely merited. Any assessment of risk will involve historical views of issues such as offending, personality, childhood experiences and historical associates. In my determination it is entirely logical for a panel to review the historical behaviour and assessments of the prisoner on the basis that they may give some indication of potential risks in the future. The panel in this case approached the assessment on the basis of an analysis of whether the potential risk factors (identified above) were at such a level that public safety was engaged. The essence of risk decision making is an analysis of historical behaviour set against any behavioural intervention programmes and general behaviour of the prisoner in more recent times. Having considered the decision in this case it is clear that the panel focused upon the current situation with an appropriate view of the historical risk factors which were to be considered. The panel considered the RMP, the most recent behaviour reports relating to the Applicant, and the evidence by the professionals of their view of his current risk. This approach appears to me to have been entirely reasonable. I am not persuaded that the panel engaged in "speculative " assessments. It was reasonable for the panel, as a starting point, to assess the historical behaviour of a prisoner and to assess whether the negative behaviour which occurred in the past was likely to re-occur or whether the evidence of change demonstrated by the prisoner indicated that those negative behaviours had been ameliorated. This was the approach of the panel in this case. Ground 4[53]It is submitted on behalf of the Applicant that the panel placed disproportionate weight on the Applicant's historic psychopathy scores and traits, despite the psychologist's clear oral evidence that these were predominantly based on past behaviour, were not currently observable, and did not present active risk in the present context. Discussion[54]The panel, as noted above, set out the risk factors identified as attributable to the Applicant. The Applicant had been identified in the past as having a high level of psychopathy. The panel acknowledged that the prison instructed psychologist took the view that the high level scores were based on historical factors. Her preferred view of assessing the Applicant was to focus on observable behaviours and identifiable warning signs such as associating with antisocial peers, evidence of entitlement, attempts to control changes in case management, relationship breakdowns and possibly family issues such as pregnancy. The panel in their decision, again as noted above, indicated that they identified factors such as a relentless pursuit of intimate relationships while in custody; attempts to minimise or blame previous victims and partners; coercive and controlling behaviour; and placing his own needs ahead of others as being factors which were evidenced in the dossier. The panel were also of the view that the Applicant had been unable to fully address issues relating to attachment, fear of abandonment, trust and infidelity, and feelings of rejection and controlling of partners.[55]The panel therefore identified traits associated with psychopathic or personality issues. It is well understood that psychopathy is a pervasive trait, although it is also accepted that psychopathic traits are capable of management, by behavioural interventions, and support and supervision. The panel acknowledged that the Applicant's personality issues might be manageable in the future. Their view however was that as presenting at the oral hearing and on the basis of the RMP those risks could not yet be managed safely in the community. I am not persuaded that there is evidence in the decision of the panel that undue weight was placed by the panel upon psychopathy. However, not unreasonably, the panel assessed the Applicant's risk on the basis that he had clearly been identified as displaying traits of psychopathy and antisocial personality. The fundamental question for the panel was whether those antisocial and psychopathic traits had been appropriately addressed and could be managed in the community. The panel took a different view to the prison instructed psychologist; the view of the panel was that the historical traits were still observable and relevant to the current assessment of risk. The panel made that assessment based upon their observation of the Applicant himself and the evidence that the Applicant gave at the hearing. Ground 5[56]It is submitted by the Applicant's legal adviser that " the panel's characterisation of [the Applicant] as lacking insight, minimising, or externalising blame was inconsistent with the expert evidence, which expressly stated that behaviours associated with those traits had not been observed recently, and that improvement in his emotional regulation and interpersonal functioning was genuine and stable ." Discussion[57]It is clear from the panel decision that the panel took a different view to the professionals on this topic. The panel were able to observe the Applicant in the hearing itself and take account of his evidence. Again, as noted above the panel were entitled to take account of the evidence received at the hearing itself and in particular the evidence from the Applicant. The panel took the view that he continued to attribute responsibility for actions to others, he was reluctant to fully acknowledge the harm he has caused in the past, and he demonstrated a tendency to minimise and deflect responsibility. The panel doubted that the Applicant would respond to supervision and to management of his risk in the community in circumstances where he is externalising blame and minimised his own involvement in negative behaviours. As indicated above the panel were entitled and indeed obliged to assess the evidence independently of the professionals. They were also obliged to take respectful account of the views of professionals but were not bound by them. Ground 6[58]It is submitted by the Applicant's legal adviser that inappropriately " the panel's decision also relied on several allegations and items of security intelligence that it (the panel) expressly acknowledged it could not treat as fact, yet still used to infer risk. This reliance on material of low evidential weight, combined with its rejection [amounted to irrationality]." Discussion[59]I have addressed above the issue relating to allegations and security intelligence. Ground 7[60]It is submitted by the Applicant's legal adviser that " The procedure adopted by the panel was unfair in several respects, such that the Applicant was denied the opportunity to participate effectively in the hearing and to respond to material relied upon against him ...the panel relied upon unproven, unparticularised, and in some cases low-grade security intelligence concerning alleged confrontations, drug movement, or intimidation ... Despite acknowledging that it could make no findings of fact, the panel nevertheless treated these entries as relevant indicators of risk." Discussion[61]As indicated above I have dealt with the issue relating to allegations contained within the security information. In line with the decision in Pearce , the panel were not obliged to make findings of fact on each of the security considerations. The panel were obliged to give the Applicant an opportunity to address those issues, which they did. The panel were entitled to take account of the matters contained within the security reports if they concluded that there was a serious possibility that they may be true, but they were bound to take account of the caution expressed in the case of Pearce . In my determination the panel were permitted in law to take account of the entries as relevant to risk and were not obliged to make express findings of fact (on the balance of probabilities) on each of the allegations. There is also no evidence on the face of the decision that the Applicant was denied any opportunity to participate in the hearing. The Applicant was legally represented and his views and replies are recorded within the decision itself. Ground 8[62]It is submitted on behalf of the Applicant, by his legal adviser, that " the Applicant was effectively disadvantaged by inconsistencies and confusion arising from the professional witnesses, particularly the COM's contradictory evidence concerning the likely duration of the Approved Premises placement ... The panel treated this inconsistency as though it undermined the viability of release planning, even though the inconsistency arose from professional misunderstanding, not from any failure or risk associated with the Applicant." Discussion[63]It is clear from the panel decision that an important, though not decisive, factor in the conclusion - that risk could not be safely managed - was the position relating to the RMP. The panel took the view that the arrangements for accommodation and employment on release were unrealistic and that they risked undermining the effectiveness of supervision and support. This was a case where the professionals had taken the view that the Applicant (if in the community) would need a substantial amount of support and would need to be supported by outside agencies to address personality and other potentially problematic issues and manage risk. The panel were presented with uncertainty regarding the Approved Premises arrangements and support by personality services. The supervision input from the probation service was to be by the use of caretaking probation arrangements. The panel were also unimpressed by the proposal that the Applicant would be living in one area of the country and working in another. The panel took the view that achieving this by way of a commuting arrangement would be challenging. It was also noted that the Applicant intended to take up full-time employment immediately on release. Whilst a commendable ambition, the panel understandably expressed concern as to how the various services which were planned to support the Applicant in the community could be engaged in circumstances where the Applicant was working full-time and commuting for a substantial amount of time every day. In essence the panel took the view that the RMP was incapable of managing the Applicant's risk in its current format. It should also be noted that it would not be the panel's duty to reconstruct or create a RMP. The panel's duty was to consider a plan which is presented to them as a panel. The Parole Board are a decision-making body dependent upon the parties presenting evidence for consideration. Ground 9[64]It is submitted by the Applicant's legal adviser that " The Board [when considering reconsideration] may also argue that gaps in the risk management plan justified refusal. However, the alleged "gaps" resulted from professional uncertainty rather than deficiencies attributable to the applicant. It is procedurally unfair to treat professional confusion as evidence of risk. Moreover, the statutory test requires an assessment of whether risk can be managed not whether the plan is flawless. The panel did not engage with available safeguards such as GPS monitoring... " Discussion[65]As indicated under ground 8 (above), the role of the Parole Board panel is to receive evidence from the parties, to assess that evidence and test it, take account of the Applicant's evidence, and to reach a conclusion applying the statutory test in relation to release. The panel's prime duty is to assess public risk. The panel also has a clear duty to act fairly towards the Applicant. A reading of the decision of the panel is indicative of the fact that the panel's view was that the RMP was insufficient to protect the public from serious harm.[66]There is evidence that the Applicant's COM expressed some confusion when asked about the period of time that the Applicant may be in the approved premises. The panel were also of the view that the Applicant would benefit from a specialised Approved Premises which took account of his personality issues and which would then be able to offer more intensive support during the early part of any release - as well as offering a longer time within approved premises. Whilst the panel were entitled to express a view, the panel had no power to direct or construct the RMP. I am not persuaded that the panel were unreasonably seeking a "flawless" plan. However it is entirely proper for the panel to investigate and test the robustness of any plan as part of its overall decision relating to risk and release. Ground 10[67]The Applicant's legal adviser submits that the panel acted unfairly. " In particular, the panel relied heavily on its own estimation of commuting times to [the proposed place of work], concluding that daily employment would be unrealistic and therefore increase stress. The panel did not present this estimated travel time to the applicant or any witness for comment, nor was any travel evidence provided ... The panel's adoption of unstated assumptions about travel feasibility constitutes procedural unfairness because it was not explored..." Discussion[68]The panel appropriately investigated the proposed plan for the Applicant were he to be released. Part of that plan was apparently the arrangements whereby he would be living in one area of the country and commuting to employment in a factory in another area. The panel expressed some scepticism about such an arrangement considering the distance between these areas and taking account of the fact that at the time of the hearing the Applicant had not completed his driving test arrangements. The panel had apparently been told by the Applicant that the journey would be approximately one hour and 45 minutes. The panel, however, took the view that the journey time would be likely to be longer. Whilst it may have been helpful to identify the exact commuting time, this would have been difficult, as the exact location of the proposed approved premises was not then known. In general terms however, I determine that the panel were not irrational, in taking a view that a lengthy commute on a daily basis by a prisoner who had recently taken a driving test and who has been in prison for many years would be challenging to a point of possibly being unrealistic. Ground 10[69]It is submitted on behalf of the Applicant by his legal adviser that " the panel failed to properly explore the use of licence conditions that could mitigate perceived risks. Although the panel later suggested that a GPS tag would have been necessary had release been directed, it failed to explore this option during the hearing..." Discussion[70]Having considered the panel's decision in this case it is clear that there was a careful analysis of the RMP. References are found at paragraph 3.7-3.13. The panel indicated that the licence conditions appeared to be a sensible addition to the RMP. The panel indicated that a GPS tag could be added. It is clear that the basis of the panel's decision not to direct release was not an absence of licence conditions, but a more holistic concern about the RMP and about the risk of serious harm which the panel felt was still relevant in relation to the Applicant. Ground 11[71]The Applicant's legal adviser indicates that the panel were wrong to rely upon " speculative future scenarios such as relationship breakdown, pregnancy, or future stressors as reasons to conclude that confinement remained necessary. These are not evidential risk factors, but hypothetical possibilities. The Public Protection Test requires a focus on the current evidence of risk, not imagined scenarios that may never arise. The panel therefore applied a higher threshold than the law permits. " Discussion[72]I am not persuaded that this argument has merit. The basic essentials of risk management involve an assessment of past behaviour, an assessment of current behaviour, an assessment of any learning or interventions which might reduce or ameliorate risk, an assessment of the prisoner himself and of his views and approaches to risk, an assessment of the views of professionals, and a realistic assessment of future risk scenarios. A risk assessment is of little value if it does not identify the potential future risk which is being addressed. In this case the Applicant had a long history of serious concerns about the treatment of partners and the management of relationships. He had a history of violence towards partners. The panel were entitled to address a potential risk to partners in the future. Ground 12[73]The Applicant's legal adviser submits that the panel inappropriately dealt with the fact that the Applicant maintained his denial of the index offence. The Applicant's legal adviser indicated as follows:
" The panel did not explain how denial materially increased present risk, nor why professional assessments of insight and behavioural stability were insufficient. The treatment of denial was therefore inconsistent with the legal authorities."
Discussion[74]At paragraph 4.6 of the decision the panel set out the legal position relating to considerations by Parole Board panels of cases where the prisoner denies the index offending. The panel indicated that denial " in some cases may be a significant factor and may even be determinative. However, it should not be treated as necessarily conclusive against the grant of parole."[75]The panel's approach was that the Applicant's denial was of some relevance in relation to assessing risk. The panel's findings were that the Applicant's oral evidence at the panel hearing was inconsistent with the evidence in the dossier. The panel indicated that the Applicant's position was that he said that he was " accountable and responsible for his actions ", however in evidence he placed responsibility on others for his behaviour. The panel's conclusion was that this approach by the Applicant amounted to a lack of acceptance about his past behaviour and would be likely to interfere with and undermine supervision. It also raised a question about the level of insight of the Applicant into his own risk factors and into the efficacy of management of risk in the future. In my determination the panel appropriately explained their approach. They took the view that there should be weight attached to the Applicant's denial because of the obvious fact that from the Applicant's perspective he had not offended (he denied the rape conviction) and he was therefore not in a position to gain insight into his potential risk factors. The panel noted that the Applicant had shown evidence of coercive and controlling behaviours towards women while in the community and while in custody. Inevitably a finding that the Applicant lacked insight was a crucial factor in the panel's final conclusion. Ground 14[76]It is submitted by the Applicant's legal adviser that " the panel did not merely diverge from one professional; it departed from unanimous expert opinion without identifying any flaw in the experts' reasoning or methodology. A panel cannot lawfully reject unanimous, consistent professional evidence unless it provides a clear, reasoned explanation grounded in identifiable weaknesses in that evidence. Such an explanation is absent here. General assertions about discretion cannot cure an irrational evidential departure." Discussion[77]This ground is a restatement of the principles of the case of Wells set out above. I am not persuaded that the fact that all the professionals took the view that the Applicant could be made subject of a release is a decisive factor. It is well understood that panels of the Parole Board are not obliged to adhere to the recommendations of professionals. However, there is a clear obligation to explain the reasons why the decision has been made and in particular to explain why the views of the professionals have been rejected.[78]In this case the panel clearly set out its reasons for rejecting the professional opinion. The panel were not supportive of the view of the psychologist that the Applicant's positive behaviour in prison in recent times is determinative of his risk in the community. The panel were obliged to consider risk over the entirety of his potential time in the community. The Applicant had undertaken some, although very limited, intervention work. He had been recommended for more intensive behavioural work in connection with his personality difficulties. For various reasons he had not undertaken this work and had eventually been transferred to an open prison. There were remaining considerations of concern relating to security reports. There was also an inadequate RMP. In my determination these and the other matters raised in the decision sufficiently explained the reasons why the panel did not follow the recommendations by the professionals. I am satisfied that there was sufficient evidence to support the panel's contrasting views of the Applicant's risk. I am therefore satisfied that the panel adhered to the requirements of the case of Wells and that their decision could not be characterised as " 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." (DSD) Ground 15[79]It is submitted by the Applicant's legal adviser that " a decision may list evidence yet still be irrational if the conclusion does not logically follow from the evidence relied upon. In this case, hypothetical situations, historic issues, and untested intelligence were given determinative weight despite the psychologist's clear conclusion that dynamic risk is low and manageable. Listing evidence is not the same as drawing rational inferences from it." Discussion[80]The implication in this ground is that the panel merely listed evidence without an analysis of that evidence. I am not persuaded that this is the case. The panel referred to the evidence adduced both in the dossier and in the oral hearing. They reflected upon that evidence and indicated their views and conclusions upon the evidence. It was of particular relevance that the panel took account of the Applicant's own evidence adduced in the hearing. The panel had the advantage of an extensive dossier of reports and other material. They also had the advantage of seeing and hearing the Applicant as well as the other witnesses. As noted above panels of the Parole Board are not obliged to adopt the opinions and recommendations of professional witnesses; it is their responsibility to make their own risk assessments and to evaluate the likely effectiveness of any RMP proposed. They must make up their own minds on the totality of the evidence that they hear including the evidence from the Applicant. They would be failing in their duty to protect the public from serious harm (while also protecting the prisoner from unnecessary incarceration) if they failed to do just that. As was observed by the divisional Court in DSD they have the expertise to do it. However, as also noted above the panel must explain clearly its reasons for a decision contrary to the opinions of professional witnesses and the reasons should justify the conclusions.[81]Where a panel arrives at a conclusion exercising its judgement based on the evidence before it and having regard to the fact that they saw and heard the Applicant and the witnesses 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. The reconsideration mechanism is not a process whereby the judgement of the panel when assessing risk can be lightly interfered with. Nor is it a mechanism where I should expect to substitute my view of the facts as found by the panel, unless of course, it is manifestly obvious that there is an error of an egregious nature which can be shown to have directly contributed to the conclusion arrived at by the panel. I do not find in this case that there is such an error.[82]In all the circumstances therefore I determine that, for the reasons set out above, this is not a case for reconsideration. Decision[83]For the reasons I have given, I do not consider that the decision was irrational or procedurally unfair, nor is there an error of law, and accordingly the application for reconsideration is refused. HH S Dawson 18 December 2025