Bottomley, Application for Reconsideration [2026] PBRA 112 (21 May 2026) [2026] PBRA 112

PBRA

Bottomley, Application for Reconsideration [2026] PBRA 112 (21 May 2026)

[2026] PBRA 112 · 2026-04-14

[1]This is an application by Bottomley (the Applicant) for reconsideration of a decision of an oral hearing panel dated 14 April 2026. 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 2025) (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

[3]I have considered the application on the papers. These are the dossier, the application for reconsideration drafted by the Applicant's legal adviser, 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 4 May 2026.

[5]The grounds for seeking a reconsideration are set out below. Background

[6]The Applicant is serving a sentence of imprisonment for public protection (IPP). The offences relating to the IPP were convictions relating to sexual activity with a male child, the sexual assault upon a male child and inciting a child to engage in sexual activity. In addition, the Applicant was convicted of 17 offences of possessing indecent images of children which he received concurrent determinate sentences of two years for each offence. At this time, he was also convicted of breaching a sexual offences prevention order and failing to comply with notification requirements.

[7]The Applicant was aged 46 at the time of the oral hearing. He was aged 29 at the time of sentence. The Applicant has been released twice during the sentence. The first release was in October 2018. The second release was in January 2020. Current parole review

[8]The referral from the Respondent requested the Parole Board to consider whether the Applicant should be subject to a direction for release. If not, the Parole Board were asked to consider whether there should be an application that the Applicant be transferred to an open prison.

[9]The panel hearing took place on 1 April 2026. The panel consisted of an independent chair of the Parole Board and a further independent member of the Parole Board and a psychologist member of the Parole Board. Evidence was received at the panel hearing from a Prison Offender Manager, a prison commissioned psychologist, a prison service witness, the Community Offender Manager and an officer from a police force. The Applicant gave evidence and was legally represented. The Relevant Law

[10]The panel correctly sets out in its decision dated 14 April 2026 the test for release and the issues to be addressed in making a recommendation to the Secretary of State for a progressive move to open conditions. 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)).

[13]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

[14]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.

[15]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. "

[16]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).

[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

[20]Procedural unfairness means that there was some procedural impropriety or unfairness resulting in the proceedings being fundamentally flawed and therefore, producing a manifestly unfair, flawed, or unjust result. These issues (which focus on how the decision was made) are entirely separate to the issue of irrationality which focusses on the actual decision.

[21]In summary an Applicant seeking to complain of procedural unfairness under rule 28 must satisfy me that either:(a) express procedures laid down by law were not followed in the making of the relevant decision;

(b) they were not given a fair hearing;

(d) they were prevented from putting their case properly;

(e) the panel did not properly record the reasons for any findings or conclusion; and/or

(f) the panel was not impartial.

[22]The overriding objective is to ensure that the Applicant's case was dealt with justly. 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 Transfer to Open Conditions

[25]The test to be applied when considering the question of transfer to open conditions is the subject of a well-established line of authorities going back to R (Hill) v Parole Board

[2011] EWHC 809 (Admin)

and including R (Rowe) v Parole Board

[2013] EWHC 3838 (Admin)

, R (Hutt) v Parole Board

[2018] EWHC 1041 (Admin)

. The test for transfer to open conditions is different from the test for release on licence and the two decisions must be approached separately and the correct test applied in each case. The panel must identify the factors which have led it to make its decision. The four factors the panel must take into account when applying the test are:(a) the progress of the prisoner in addressing and reducing their risk;

(b) the likeliness of the prisoner to comply with conditions of temporary release

(d) the benefit the prisoner is likely to derive from open conditions.

[26]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. "

[27]Omitting to put information before a panel is not a ground for procedural unfairness, as has been confirmed in the decision on the previous reconsideration application in Williams

[2019] PBRA 7

. This is the case even where the information, had it been before the panel, would have been capable of altering its decision, or prompting the panel to take other steps such as putting the case off for an oral hearing where the new information and its effect on any risk assessment could be examined. This is because procedural unfairness under the Rules relates to the making of the decision by the Parole Board, and when making the decision the panel considered all the evidence that was before them. There was nothing to indicate that further evidence was available or necessary, and so there was nothing to indicate that there was any procedural unfairness. Reconsideration as a discretionary remedy

[28]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

[29]The Respondent offered no representations. Discussion Grounds 1 and 2

[30]The Applicant's legal adviser submits that the panel in this case when making an assessment of an allegation relating to the uploading of indecent images were procedurally unfair in their conclusions. It is submitted that the unfairness arises because the panel were unable to reach a conclusion upon an issue relating to the creation of an email address and relied solely upon the evidence that the images were sent to the Applicants IP address at which the Wi-Fi was password protected and used solely by the Applicant. Discussion

[31]The background to this submission relates to the circumstances of the recall of the Applicant. The Applicant is serving a sentence of IPP. The offences relate to sexual offences against children but at the same time of the conviction the Applicant was convicted and received determinate sentences for the offence of possessing indecent images of children.

[32]The Applicant was recalled in circumstances where the child exploitation agency (CEOP) had detected indecent images and videos being uploaded to a specific residential address and IP address. That residential and IP address was the Applicant's. The Applicant lived alone at the property and had accepted that the Wi-Fi system was password protected and used solely by the Applicant. CEOP had also detected a Gmail account at the address. The police investigated. The police secured all of the Applicant's devices that were found at the property. No indecent images were found on any devices. It was not possible to secure the identification details of the setting up of the Gmail account. The outcome was that the police did not pursue the matter to court.

[33]The panel determined that they were obliged to consider the recall evidence in the context of the material being an allegation that the Applicant had downloaded indecent images and therefore issues of risk arose. The panel heard evidence from a police officer who investigated the matter and considered the evidence from CEOP. The panel also heard evidence from the Applicant. The panel concluded that on the balance of probabilities the Applicant had been responsible for the downloading of the images. They came to this conclusion mainly on the basis that the images have been downloaded to the Applicants IP address. That address was linked solely to the Applicant's property. The Applicant lived there alone at the time. The Wi-Fi was password protected and therefore used solely by the Applicant. A further obvious point was the Applicant's propensity to download such images as indicated by his historical convictions.

[34]The Applicant's legal adviser argues that because the identity of the owner of the email address had not been secured, the decision of the panel was flawed and irrational and procedurally unfair. The Applicant's legal adviser argues that the email address was " linked " and could not be separated from the evidence relating to the IP address. As such it is argued that the panel could not have reached a rational conclusion in relation to the downloading of the indecent images without being satisfied about the identity of the user of the email address.

[35]I have considered the submission. The submission indicates that the email address and the use of the IP address are inextricably linked, however no supporting argument is adduced as to why this is so. The panel had evidence that indecent images had been downloaded to the Applicants IP address. That the Applicant was the sole user of the IP address. That the Wi-Fi system was password protected. The Applicant had not argued that any other person had had access to the password or to the IP address. In the circumstances I am not persuaded that the panel acted unfairly or irrationally in concluding that the Applicant had been responsible for the downloading of the indecent images. The test to be applied by the Parole Board is the balance of probabilities and not the test required for a criminal trial. In my determination the panel properly applied the case of Pearce and the requirements for making a finding relating to allegations in Parole Board matters. I am not therefore persuaded that this ground amounts to procedural irregularity or irrationality. Ground 3 and 4

[36]The Applicant's legal adviser argues that the decision of the Parole Board panel was irrational and procedurally unfair because the panel concluded that the Applicant did not meet the test for release despite the fact that all professionals were recommending release and all had recommended release even in circumstances where the conclusion of the panel was that the Applicant had downloaded indecent images as was alleged. Discussion

[37]As noted by the Applicants legal adviser, the panel were obliged to explain the reasons for their decision. This particularly being the case where the panel's decision is contrary to the recommendations of professionals. The panel's explanation for their decision was;

[38]Firstly, that having reached the conclusion that the Applicant, once again, had downloaded indecent images of children, the panel noted that this behaviour fell into a persistent pattern of offending during the last two decades.

[39]Secondly that the Applicant was recorded as having completed offending behaviour work in 2006 but went on to commit contact sexual offences following that behavioural work. The Applicant was convicted in November 2020 of indecent image offences.

[40]Thirdly the Applicant (as noted above) was again found by this panel to have downloaded indecent images - indicating that any behavioural work undertaken in the past appeared to have limited substantive or long-lasting effect.

[41]Fourthly the Applicant himself accepts that he is sexually attracted to young boys and has in the past had a craving or addiction driving that sexual attraction.

[42]Fifthly the panel heard evidence from the Applicant that he masturbated infrequently and did not access pornography. He also said he infrequently or fleetingly experienced feelings of sexual attraction to young boys. The panel took the view that the Applicant was likely to be downplaying or withholding his sexual thinking and behaviour. He had not disclosed to his police management of sexual offenders and violent offences officer or to his probation officer experiencing sexual thoughts about young boys. The panel found this both surprising and concerning given that the management of sexual attraction to children is highly associated with the need to disclose sexual thoughts and interests to professionals. The downloading of the images was likely to be indicative of the Applicant minimising or masking the intensity or frequency of any sexual thoughts.

[43]The panel made it clear that they did not agree with the assessment by the professionals. The panel took the view that the Applicant remains a person who poses a high risk of sexual offending. The panel were particularly concerned about noncontact sexual offences; however, the Applicant had committed serious contact sexual offences against a child - that offence being inextricably linked with the Applicant's sexual interest in young boys.

[44]The panel also took the view that the management of the Applicant's risk was complicated by the fact that the Applicant (in the determination of the panel) minimises responsibility for his actions and was not fully open and honest with professionals about his sexual thinking and behaviour. Also noted by the panel was the fact that the downloading of images which had been the finding by the current panel had occurred in circumstances where the Applicant had appeared to professionals to be settled and managing his life and emotions. The panel were therefore concerned that the Applicant presents with superficial compliance, but that his risk of serious harm to children remains.

[45]It is well understood that 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 risk management plan proposed. They must make up their own minds on the totality of the evidence that they hear, including any 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.

[46]However, if a panel make a decision contrary to the opinions and recommendations of professional witnesses, it is important that they should explain clearly the reasons for doing so and that it stated reasons should be sufficient to justify its conclusions as per R (Wells).

[47]In this case, as set out above, I am satisfied that the panel explained its reasons for the decision which was contrary to the opinions and recommendations of the professional witnesses. The panel clearly took a different view of the risk posed by the Applicant. Contrary to the views of the professionals, the panel also took the evidence relating to the downloading of images which resulted in the recall to be a serious indicator of the risk of serious harm posed by the Applicant.

[48]For these reasons I am not persuaded that the decision of the panel was irrational or procedurally unfair. Decision

[49]For the reasons I have given, I do not consider that the decision was irrational or procedurally unfair and accordingly the application for reconsideration is refused. HH Stephen Dawson 21 May 2026