Mitchell, Application for Reconsideration by, [2025] PBRA 285 (30 December 2025) [2025] PBRA 285
PBRA
Mitchell, Application for Reconsideration by, [2025] PBRA 285 (30 December 2025)
[2025] PBRA 285 · 2025-12-01
[1]This is an application by Mitchell (the Applicant) for reconsideration of a decision of an oral hearing dated 10 November 2025 not to direct release.[2]Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2024) (the Parole Board Rules) provides that applications for reconsideration may be made in eligible cases (as set out in rule 28(2)) 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 Oral Hearing Decision (the Decision), · The Application for Reconsideration, · Reconsideration Representations (the Representations) drafted by the Applicant's solicitor and dated 1 December 2025, · The dossier, which currently consists of 594 numbered pages. Request for Reconsideration[4]The Applicant challenges the decision not to direct his release on the basis that it was irrational.[5]The Representations supplement the application and suggest a number of distinct grounds on which the decision was irrational. These grounds are outlined below. Background[6]The Applicant was convicted in 2018, receiving a 13-year sentence, made up on an extended sentence of 8 years (7 years imprisonment, 1 years extended licence), and a consecutive 5 year determinate sentence. His convictions relate to gross indecency and indecent assault on one child victim, and gross indecency, indecent assault, and assault occasioning actual bodily harm, on another child victim. The victims were sisters, and the offences took place between 1995 and 2001, after the Applicant became friendly with their family.[7]The Applicant was 48 years old at the time he was sentenced. The Applicant has a previous record for a variety of offences but had no previous convictions of a similar nature. Current parole review[8]The Applicant is now 56 years old. The Applicant's case was referred to the Parole Board by the Secretary of State (the Respondent) in May 2023.[9]The case eventually proceeded to oral hearing via videoconference on 4 September 2025. The panel consisted of three independent members. It heard evidence from the Applicant, his Prison Offender Manager (POM), his Community Offender Manager (COM) and a Forensic Psychologist. The Applicant was legally represented by his solicitor, who had the opportunity to question the witnesses and make submissions on the Applicant's behalf. The Relevant Law[10]The panel correctly sets out in its decision letter dated 10 November 2025 the test for release. Parole Board Rules 2019 (as amended)[11]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)).[12]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[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) 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).[16]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.[17]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.[18]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. Reconsideration as a discretionary remedy[19]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[20]The Respondent offers no representations in response to this application. Discussion[21]The Applicant's legal representative raises a number of grounds of challenge to the decision, which are set out with sub-headings.[22]An initial point was made around the professionals' majority view relating to the imminence of the risk of serious harm. This was supplemented with a submission concerning the test for release, specifically relating to whether release would cause more than a minimal risk of serious harm.[23]The decision has not been challenged under error of law grounds, nor has there been any suggestion that the panel applied an incorrect test. I did not consider this was a distinct ground of challenge, but rather an introduction setting out general context. Ground 1- Accredited Work[24]The Applicant makes several distinct arguments under this general ground: · The panel did not give reasonable consideration to the content of previous interventions the Applicant had undertaken in custody. In particular, it is suggested that the panel did not acknowledge work completed around sexual offending. · The maintenance of innocence does not necessarily increase risk, and the Applicant should be given credit for completing such interventions whilst maintaining his innocence. · The panel's finding that the Applicant has outstanding work to complete is not supported by the evidence, and in particular, professionals considered the Applicant had no further core risk reduction work to complete in custody and supported his release. · The Applicant suggests that he has received a letter from the Programmes Team at HMP Rye Hill indicating that he has no further work to complete in custody.[25]These arguments taken as a whole, essentially amount to a challenge to the panel's views on the sufficiency of the work completed by the Applicant.[26]As noted above, the panel was not bound by the professional assessments, either with respect to release, or to the necessity of further work. The decision clearly highlights the panel's concerns around the lack of understanding into why the Applicant committed his index offences, particularly when he continues to maintain his innocence, and denies any sexual attraction to children. This was a completely reasonable area of concern considering the evidence the panel heard.[27]Whatever the content of the interventions undertaken by the Applicant, that cannot change the fact that he does not accept he has committed sexual offences against children, which means he would not be directly addressing specific sexual risk factors. The decision specifically notes that the Applicant relied on non-sexual offending during accredited work (paragraph 2.24). The panel noted that the Applicant had developed internal skills related to general risks (paragraphs 2.13 and 4.3,) but were not satisfied that such skills would extend to sexual offending. Again, this was a reasonable conclusion on the facts of the case. Similarly, whether or not professionals supported further interventions, or whether in fact, such interventions were available to the Applicant in custody, the panel could legitimately conclude that the interventions the Applicant had completed had not addressed his risks appropriately, and something further was required.[28]Equally, the panel was entitled to conclude that without engagement regarding his index offences and sexual motivations, professionals would not be able to fully understand the risks the Applicant posed.[29]The letter from the programmes team appears to be new evidence and is included in the dossier after the decision letter. As a matter of procedure, the introduction of information which was not available to the panel at the time the decision was made, should be introduced by way Rule 28(A) and the Set Aside Mechanism, although it is debateable whether this would be new information considering the professional evidence given in the hearing. Procedurally, new evidence cannot be adduced in reconsideration applications. Notwithstanding these issues, I was satisfied the content of the letter offered no new evidence, and for the reasons cited in the previous paragraph, would have made no difference to the panel's decision making.[30]The panel acknowledged evidence from the Forensic Psychologist (paragraph 2.12) that maintenance of innocence does not mean the Applicant does not have insight. Whilst maintenance of innocence does not necessarily increase risk, it is not necessarily protective either. It was open to the panel to conclude that the maintenance of innocence was a factor which raised concerns about the level of insight into the Applicant's risk factors, and how they could be safely managed. Ground 2- Family and Friendships[31]This ground of challenge relates to the panel's conclusions on the need for further exploration of the Applicant's family and friendship group, concerning the nature of support or protection they may provide.[32]The Applicant raises evidence which was in the dossier concerning contact different COMs have had with his family/support network.[33]At paragraph 2.31, the panel highlighted the Applicants evidence around his support in the community. At paragraph 3.13 the panel summarised the potential sources of support the Applicant could have.[34]There is a distinction between whether the Applicant's family and friendship group would be supportive, or whether they would be protective. The evidence in the dossier indicates that professionals considered they would be supportive. The panel raised concerns about the nature of such support, and notably, the protection they may offer. Again, this was a conclusion open to the panel, especially when they had concerns about internal skills related to sexual offending. Ground 3- Resettlement Plans[35]Whilst the Applicant refers to paragraph 4.4(a), which relates to resettlement plans, and indicates their disagreement with the conclusion, the submissions primarily relate to the adequacy of the risk management plan, including the proposed exclusion zone, his willingness to abide by licence conditions, and his residence in an approved premise upon release. The submissions acknowledge that no accommodation plans are settled after the Applicant leaves the approved premises, and a Duty to Refer is planned, and that he has consented to a CAS3 and an adult social services referral.[36]The panel's concerns around the adequacy of the risk management plan were linked to the previously noted concerns around the limitations of the professional assessments in light of the Applicant's maintenance of innocence. That was a logical step; it is difficult to fully form a risk management plan when there are aspects of risk that are not properly understood. As noted, the panel's conclusions around the Applicant's risks and the professional insight into them was entirely reasonable. As such, the panel's concerns about how those risks could be managed was equally reasonable.[37]Addressing the specific issue of the adequacy of the resettlement plans, the Applicant has accepted there was no clear accommodation plans beyond the approved premises. The lack of move on accommodation after the approved premises was something the panel was entitled to give significant weight to. Ground 4- Insight, risk and internal controls[38]The Applicant made several submissions under this ground: · The Applicant has addressed his substance misuse issues. · The Applicant will be unable to demonstrate internal controls until he is released but has demonstrated them in custody. It is essential that he is afforded the opportunity to demonstrate them whilst under supervision. · The risk management plan is robust, and the Applicant must be awarded the opportunity to demonstrate compliance with the risk management plan. · Considering his custodial compliance, there is a lack of evidence that the Applicant would not comply as instructed on licence.[39]I note the submissions on this ground do not address the decision making of the panel directly but effectively make submissions which should have been made at the oral hearing rather than as part of a reconsideration application.[40]Interpreting the submissions as widely as possible, I make the following observations: · The panel noted that the evidence concerning the Applicant's progress around substance misuse. They clearly considered it as part of their decision-making process. · The Codified Public Protection Test does not involve a balancing exercise between the risk to the public and the benefits of release to the prisoner ( King [2016] 1 WLR 1947 ; Johnson [2022] EWHC 1282 (Admin) ). It is not the case that the Applicant earns the privilege of being released due to positive custodial behaviour; it is solely whether the panel was satisfied it was no longer necessary for the protection of the public that he remain confined. · As noted in the previous ground of challenge, the adequacy of the risk management plan was addressed by the panel. · With respect to custodial compliance, the panel noted his positive behaviour in custody, and the professional assessment of his current compliance. However, the panel's concerns centred around sexual offending against children, and compliance with respect to that specific concern cannot be assessed as general custodial compliance. This was a factor the panel clearly gave weight to. Other[41]The final ground of challenge relates to a comment the panel noted the Applicant made during his evidence ("refusers" at paragraph 2.5). The Applicant disputes he used this word, although his representatives do not expand on why this would lead to an irrational outcome.[42]I have listened to the portion of the recording of the oral hearing that related to paragraph 2.5 of the decision, at around 1.47:30 seconds onwards. The Panel did not hear the Applicant use the term "refusers" and it is unclear why the decision references it as a quote.[43]However, I am satisfied that nothing turns on this particular point. Despite the inaccurate quote, Paragraph 4.5 is an accurate reflection of the evidence given by the Applicant in response to that question asked, and I could identify no link to any suggestion of irrationality. General observations[44]With respect to irrationality challenges in reconsideration applications, it is important to note that the conclusions of the original panel should not easily be interfered with. Neither is it a process where the member undertaking the reconsideration should substitute his/her views for those of an experienced panel, who saw and heard the witnesses, unless it is manifestly obvious that there are compelling reasons to interfere with that decision.[45]Having considered the entirety of the Applicant's submissions, I was satisfied that they substantially amounted to challenges to the weight the panel afforded to particular aspects of the evidence. There was nothing in the Applicant's submissions which came close to meeting the bar of irrationality, either individually, in combination with each other, or in their entirety. Decision[46]For the reasons I have given, I do not consider that the decision was irrational and accordingly the application for reconsideration is refused. John Marley 30 December 2025