McKeon, Application for Reconsideration [2026] PBRA 18 (13 January 2026) [2026] PBRA 18

PBRA
McKeon, Application for Reconsideration [2026] PBRA 18 (13 January 2026)
[2026] PBRA 18 · 2025-12-09
[1]This is an application by McKeon (the Applicant) for reconsideration of a decision dated 9 December 2025 not to direct his release. The decision was made by a panel following an oral hearing.[2]Rule 28(1) of the Parole Board Rules 2019 (as amended) (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.[3]I have considered the application on the papers. These are the decision, the dossier (consisting of 625 numbered pages), and the application for reconsideration. Background[4]On 4 December 2009, the Applicant was convicted of rape of a girl under 13. He received a sentence of imprisonment for public protection (IPP) with a tariff of eight years.[5]On the same occasion he was further convicted of two counts of rape of a female under 16, receiving two concurrent IPP sentences each with a six year tariff, two counts of gross indecency with a child (girl) under 16, receiving two further concurrent IPP sentences each with a six year tariff, and indecent assault on a female under 14, receiving a further concurrent IPP sentence with a six year tariff.[6]The longest IPP tariff expired on 4 December 2017.[7]The Applicant pleaded not guilty to all charges and maintains his innocence of the index offences.[8]He was released on licence in December 2021 following an oral hearing before the Parole Board. His licence was revoked in July 2022 following an allegation of rape and he was returned to custody. The complainant reportedly refused medical examination and has since died. The Applicant maintains that he was falsely accused.[9]The Applicant was 37 years old at the time of sentencing and is now 53 years old. Request for Reconsideration[10]The application for reconsideration has been submitted by the Applicant.[11]The submissions are supplemented by extensive written arguments to which reference will be made in the Discussion section below. Current Parole Review[12]The Applicant's case was referred to the Parole Board by the Secretary of State (the Respondent) in January 2025 to consider whether or not it would be appropriate to direct his release. This is the Applicant's fourth parole review.[13]The case proceeded to an oral hearing on 20 October 2025, before a three-member panel, including a psychologist specialist member. The panel heard oral evidence from the Applicant, the Prison Offender Manager (POM), the Community Offender Manager (COM), a forensic psychologist commissioned by HMPPS, and a forensic psychologist commissioned by the Applicant. The Applicant was legally represented throughout the hearing.[14]The HMPPS psychologist and the COM did not support release. The prisoner-commissioned psychologist supported release. The POM did not offer a professional opinion as she did not feel that she had known the Applicant long enough to do so.[15]The hearing adjourned to enable the COM to explore the availability of specialist designated accommodation. Updated reports were provided, together with closing written legal submissions on the Applicant's behalf.[16]The panel concluded that the statutory test for release was not met and made no direction for release. The Relevant Law[17]The Parole Board will direct release if it is no longer necessary for the protection of the public that the prisoner should be confined. Parole Board Rules 2019 (as amended)[18]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)).[19]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)).[20]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[21]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 (CA) 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.[22]In R(DSD and others) v Parole Board [2018] EWHC 694 (Admin) the Divisional Court applied this test to Parole Board hearings in these words (at [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 ."
[23]In R(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 the Divisional Court in R(Secretary of State for Justice) v Parole Board [2022] EWHC 1282 (Admin).[24]As was made clear by Saini J in Wells, 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.[25]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.[26]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. Error of law[27]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/orf. improperly delegates decision-making power.[28]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. The reply on behalf of the Respondent[29]The Respondent has offered representations in response to this application which will be considered in the Discussion section below. Discussion[30]The Applicant has made a considerable number of points in his application. These do not make any specific legal argument about why the panel's decision was procedurally unfair, irrational or contained an error of law. While it is not for me to construct the Applicant's case, I am mindful that he submitted this application without legal assistance, and therefore in fairness to him, I have reviewed his submissions in detail to determine whether there is anything which could give rise to an arguable case for reconsideration.[31]I have taken great care to review the dossier, the decision, and the Applicant's extensive submissions seeking reconsideration of the decision of the panel not to direct his release. It is very clear that the Applicant is unhappy with the way in which his review has been conducted and the reliability of the evidence before the panel. The Respondent refutes the Applicant's claim that the Probation Service is retaining any documentary evidence relating to his case.[32]There is nothing within the application that persuades me that there has been any procedural unfairness, irrationality or error of law on the part of the panel.[33]The Applicant may disagree with the panel's conclusion or the reliability of the evidence upon which it is based, but this does not, in itself, establish grounds for reconsideration. It is for the panel to make its own assessment of risk based on the evidence before it, and to determine its independent view of the reliability and veracity of any such evidence. Decision[34]For the reasons set out above, the application for reconsideration is refused and the panel's decision not to direct release becomes final. Stefan Fafinski 13 January 2026