Gwyther, Application for Reconsideration [2026] PBRA 152 (03 July 2026) [2026] PBRA 152

PBRA

Gwyther, Application for Reconsideration [2026] PBRA 152 (03 July 2026)

[2026] PBRA 152 · 2026-05-25

[1]This is an application by Gwyther (the Applicant) for reconsideration of a decision of an oral hearing panel dated 25 May 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 19 June 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. The sentence was imposed on 30 November 2012. The Applicant's tariff expired on 10 November 2018. The Applicant has been released and recalled on one occasion as noted below. The index offence involved a number of offences concerning the rape of a female child (six offences), inciting a female child to engage in sexual activity involving penetration, a sexual act with a female child family member involving penetration, the making of indecent images of children, sexual activity with a child (two offences) and meeting a child following sexual grooming (two offences). The offences related to sexual activity with a child family member and with two other children. The Applicant was aged 44 at the time of sentence. He was aged 57 at the time of the oral hearing. The sexual offences were committed between 2008 and 2011. The Applicant was released by a Parole Board panel in March 2019 and recalled in December 2021. Current parole review

[7]The referral from the Respondent requested the Parole Board to consider whether the Applicant should be made subject to a direction for release, and if not released whether there should be a recommendation that the Applicant be transferred to an open prison.

[8]The oral hearing panel consisted of an independent chair accompanied by a further independent member of the Parole Board and a psychologist member of the Parole Board. Evidence was given at the hearing by the Applicant's Prison Offender Manager (POM), a prison commissioned psychologist, a prisoner commissioned psychologist and the Applicant's Community Offender Manager (COM). The panel considered a dossier and heard evidence from the Applicant. The Applicant was legally represented at the hearing. The Relevant Law

[9]The panel correctly sets out in its decision dated 25 May 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)

[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 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. Procedural unfairness

[19]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;

(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

[22]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.

[23]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

[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 offered no representations. Ground and Discussion Ground

[27]The Applicant's legal adviser submits that the panel failed to give adequate reasons for rejecting the evidence of the majority of professionals who were recommending that the Applicant be transferred to an open prison. Discussion

[28]As noted above the Applicant is serving an indeterminate sentence for public protection which was imposed in November 2012. The index offences were sexual offences committed against a female family member when the family member was between 12 and 15. The offences included a number of counts of rape, two offences of causing a child to engage in sexual activity involving penetration, making indecent images of children, sexual activity with children and meeting a child following grooming. The grooming offences and sexual activity related to two other children who were not family members.

[29]The Applicant's explanation for the offending was that the family member had become interested in boys, and that the offending was to assist with educating the family member about sexual matters.

[30]The panel noted that the Applicant had had suffered adverse childhood experiences himself, involving bullying, sexual abuse and difficulties in forming trusting relationships.

[31]The Applicant's risk factors were identified as including distorted beliefs about sex and sexuality, consent and appropriate sexual boundaries relating to children. Also sexual preoccupation, the use of sexual behaviour to manage low self-esteem, rejection and inadequacy. Additionally identified were difficulties in intimate and nonintimate relationships, mistrust of professionals, minimisation, poor emotional regulation and a reluctance to discuss sexual matters with professionals.

[32]The Applicant had completed behavioural work while serving his initial sentence. That work included the Thinking Skills Programme and a substantive sexual offence related programme.

[33]Since his recall he had completed the programme called Kaizen (a training course designed for men convicted of violence and other serious offences).

[34]The Applicant was released by the Parole Board on licence in March 2019. He was recalled in December 2021. The reason for the recall was that he had been in breach of his condition relating to the reporting of relationships. It became apparent that the Applicant had failed to disclose that he had had sexual relations with a person on three occasions. He was not prepared when asked to disclose the identity of the person with whom he had sex. The person was male. The Applicant went on to disclose that he had met other men for casual sex in cars and on some occasions filmed the sexual activity and posted it online. He had also visited men at their home and engaged in group sex.

[35]Separately it became known to the probation service that the Applicant had posted online a diary note which included details of his offences and his own abuse. It was thought there was a possibility that the victim could have been identified by the posting.

[36]The Applicant challenged the decision to recall him. He took the view that casual sex was a different circumstance to the licence condition which referred to intimate or developing relationships. He told the panel that he did not regard one night stands as relationships and did not view consensual adult sexual activity or consensual filming as being concerning or wrong.

[37]As noted above the Applicant, after recall, completed a further behavioural intervention namely the programme called Kaizen.

[38]The oral hearing panel heard evidence from various witnesses. The Applicant's POM was not recommending release but took the view that the Applicant needed to consolidate the work that he had done earlier in relation to managing his risk and that the consolidation could be completed in an open prison.

[39]A psychologist instructed by the Applicant was also not supportive of release but suggested a transfer to an open prison. This was again on the basis that core offending work had been completed but that further time was needed to consolidate the work and to prepare for release.

[40]The prison instructed psychologist and the COM both took a different view. Their analysis was that they had remaining concerns relating to the Applicant's risk. The view of these two professionals was that core risk factors still required further work. The psychologist identified factors including low self-esteem, rejection, continuing sexual interests, attachment difficulties, relationship difficulties, issues relating to sexual interests and continuing mistrust of professionals. Additionally, it was thought that the Applicant had difficulty understanding why behaviours were considered risky. The Applicant was also identified as continuing to have concerning attitudes towards children and their sexual knowledge.

[41]The panel made a holistic assessment of the evidence in this case. The panel's conclusions were that there continued to be a lack of full understanding of the triggers and drivers associated with the Applicant's sexual offending and sexual interests. The panel also took the view, contrary to that of the Applicant, that the Applicant's sexual behaviour when on licence - namely engaging in casual group sex with strangers, sex in public places, and filming the material and posting it online - amounted to potentially highly risky behaviour. Although the sexual activity itself was not unlawful, the panel's view was that given the Applicant's background of offending, coupled with the fact that the circumstances of the sexual behaviour involved strangers with limited accountability and blurred sexual boundaries, led to a heightened concern about the potential risk of serious harm posed by the Applicant.

[42]Despite having undergone a substantial intervention prior to his release the Applicant took the view that the behaviour relating to casual encounters with men and the posting of his own abuse history online did not amount to concerning or risky behaviour. The panel took the view that the Applicant appears to not fully understand the drivers to his sexual needs and behaviour and that the Applicant was liable to heavily underestimate the risks which arise within highly sexualised situations and could fail to take appropriate action.

[43]In the concluding remarks the panel noted that there was a risk management plan, however it was not felt that the plan would provide sufficient protection against the risk of serious harm in the community. The panel took the view that the Applicant's sexual interests and drivers had not been sufficiently explored by the Applicant or those supporting him. In particular it was the view of the panel that the Applicant would be unable to recognise the risks associated with such behaviour. The panel noted in evidence that the Applicant had continued to minimise both (parts of) the index offences and the concerns leading to recall. The Applicant had an inadequate understanding of how potentially consenting sexual behaviour could become risky in highly sexualised anonymous situations where there was no accountability. The panel were also concerned that the Applicant could not be relied upon to recognise or disclose highly risky situations to those concerned with managing his risk.

[44]For these reasons the panel indicated that it had concluded that it remained necessary in order to protect the public from serious harm that the Applicant be detained. Accordingly the panel did explain the reasons for its decision. The panel acknowledged that the Applicant had made some progress in the sense that he had completed Kaizen. However, despite completing this programme and earlier programmes, the panel noted in evidence, in the oral hearing, that the Applicant still retained concerning views relating to the management of his risk of serious harm. I am not therefore persuaded that this is a case where the panel failed to explain appropriately the basis upon which they concluded that the Applicant met the codified public protection test.

[45]So far as open conditions are concerned, as noted above reconsideration is not engaged in connection with decisions relating to a transfer to an open prison or a recommendation.

[46]For the reasons set out above I do not find that this is a case which meets the criteria for reconsideration and the application is therefore dismissed. Decision

[47]For the reasons I have given, I do not consider that the decision was irrational and procedurally unfair and accordingly the application for reconsideration is refused. HH S Dawson 03 July 2026