Martin, Application for Reconsideration [2026] PBRA 22 (06 February 2026) [2026] PBRA 22

PBRA

Martin, Application for Reconsideration [2026] PBRA 22 (06 February 2026)

[2026] PBRA 22 · 2025-11-11

[1]This is an application by Martin (the Applicant) for reconsideration of a decision of a panel of the Parole Board dated 11 November 2025 making no direction for release and no recommendation for open conditions following an oral hearing on 7 November 2025.

[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 decision, the application for reconsideration and the dossier. Request for Reconsideration

[4]The application for reconsideration is dated 30 December 2025.

[5]The grounds for seeking a reconsideration are as follows:(i) It is submitted that the decision was irrational in that no rational decision maker could have reached this decision. To support that conclusion the Applicant relies in particular on the following matters: (a) The decision is inconsistent with the findings of the last two boards that considered the Applicant's case and recommended a move to open. (b) There was no evidence to support the panel's conclusion that the Applicant presented an imminent risk of serious harm to his partner. (c) The panel attached undue weight in reaching its decision on the denial of the index offence by the Applicant and has failed to balance against this denial other evidence of progress that the Applicant has made.

(ii) It is submitted that the decision is procedurally unfair because the panel has failed to properly apply the Parole Board's guidance on the approach to risk to be taken with prisoners who continue to deny their offending. Further the panel made errors of fact in that the panel has wrongly concluded that the Applicant denies one of his previous convictions for rape and has misunderstood his evidence in relation to the consequence of his erectile dysfunction. Background

[6]On 29 July 2004 the Applicant was sentenced to life imprisonment with a tariff of seven years for an offence of attempted rape. The victim was the Applicant's half sister who he attempted to rape while she was in a nursing home terminally ill with cancer. He was sentenced to life imprisonment under the "two strikes" legislation that was abolished with the introduction of the imprisonment for public protection (IPP) sentence. The judge in passing sentence said that if he had not been required by legislation to pass a life sentence he would have imposed a discretionary life sentence because of the seriousness of the offence. The Applicant had previous convictions for three offences of rape and other sexual offences. The Applicant was 52 at the time of his sentence and is 73 years old. He has never been released on licence, but he was in open prison from October 2021 to July 2023 when he was returned to closed for not complying with his licence conditions. Current parole review

[7]This is the 9th review of the Applicant's sentence. He is about three times over tariff. The Relevant Law

[8]The panel correctly sets out in its decision dated 11 November 2025 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)

[9]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)).

[10]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)).

[11]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

[12]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.

[13]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. "

[14]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) .

[15]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.

[16]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.

[17]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;

(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. Other

[21]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)

and 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.

[22]It is possible to argue that mistakes in findings of fact made by a decision maker result in the final decision being irrational, but the mistake of fact must be fundamental. The case of E v Secretary of State for the Home Department

[2004] QB 1044

sets out the preconditions for such a conclusion:

" there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter; the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable; the appellant (or his advisors) must not have been responsible for the mistake; and the mistake must have played a material (though not necessarily decisive) part in the tribunal's reasoning."

See also R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions

[2003] AC 295

, which said that in order to establish that there was a demonstrable mistake of fact in the decision of the panel, an applicant will have to provide " objectively verifiable evidence " of what is asserted to be the true picture. Reconsideration as a discretionary remedy

[23]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 (the Respondent)

[24]The Respondent has made no submissions in relation to this application. Discussion

[25]The important background to this application is that the Applicant has served 21 years on a life sentence where the tariff was seven years. He is now 73 years old and has never been released on licence. The Parole Board guidance following the decision of the House of Lords in the case of Osborn requires a panel when considering cases relating to prisoners who are over tariff to consider ever more anxiously whether the Applicant would be safe to be released.

[26]I have no doubt that the panel had the fact that the Applicant was three times over tariff very much in mind, but it is important that panels indicate in their decisions that they have applied the guidance given by the House of Lords.

[27]The Applicant complains that the decision not to recommend a transfer to open conditions is irrational in part because it is inconsistent with the decisions of the last two panels. Following a recommendation from the Parole Board the Applicant was in open conditions from October 2021 to July 2023 when he was returned for not complying with licence conditions. In December 2023 a panel recommended the Applicant be returned to open conditions. Both panels accepted there was no further core work to be done in closed conditions and that the Applicant was not an escape risk.

[28]While a new panel is entitled to disagree with the decision of previous panels as they hear different evidence and are making their own assessment of it, it is something which should be explained in the decision.

[29]The reasons why this panel decided not to release or recommend a transfer to open conditions were that the panel were not satisfied that the risks and triggers as to why the Applicant attempted to rape his half sister have been sufficiently explored or addressed (para 4.5 of the decision) and that this was particularly relevant as the Applicant is in a relationship with MM who is physically vulnerable and has mobility issues. In consequence of that the panel was concerned that the Applicant poses a greater than minimal risk of sexual violence or sexual offending against MM and that the imminence of serious offending is moderate to high.

[30]There are a number of problems in my view with these parts of the decision. First, while at 4.6 the panel correctly states that it is the Applicant's right to deny the offence and that does not of itself prevent release, it goes on to say that it makes the analysis of risk of future offending more difficult, as it involves assessing the Applicant's motivations and triggers for past offending. The panel comments the triggers for his attempted rape of his dying half sister remain unexplored. In practice they are very unlikely to be explored ever as the Applicant has denied the offence for over 20 years and is unlikely to change his mind. Neither of the last two panels have taken the view that this prevents progression and nor do the professionals.

[31]If this view is taken by successive panels, it means that the Applicant will never be released and will die in prison. The panel does not indicate that it has referenced the Parole Board guidance on the maintenance of innocence which is based on the decision of the Court of Appeal in Oyston

[2000] EWCA Crim 3552

. It would be better if the panel had referenced the guidance in the decision to show that they had balanced the denial against other progress that had been made as required by the guidance. The Applicant has admitted two other rapes which were serious and have been explored with the professionals. The Applicant has completed a number of different courses to reduce his risk of sex offending which he has completed satisfactorily. His behaviour in closed has been good so there are certainly some factors that needed to be balanced against the denial of the offence. It is not clear from the decision that this has been done.

[32]The Applicant was convicted of a further rape which he denied at trial on the basis that the sexual intercourse was consensual. This was an acquaintance rape where the victim was both drunk and under the influence of drugs. It appears in the passage referenced by the Applicant in the dossier that the Applicant has accepted the possibility that the victim was unable to consent because of her condition. The panel asserted that the Applicant continued to deny the offence. I do not think this should or did make any significant difference to the decision.

[33]At para 2.17 the panel said " A previous COM [Community Offender Manager] highlighted MM was at risk due to her physical condition and limited mobility. His current COM considered [the Applicant's] partner was supportive and a positive influence on [the Applicant]. Having met her and spent time with her, his COM said MM was "very strong willed" and able to speak up for herself. His COM no longer classed her as vulnerable, although recognised she had health problems."

[34]The panel seemed to have preferred the view of the previous COM who they did not hear from to that of the present COM from whom they did hear evidence. While the panel are entitled to do that, more explanation is in my judgment required to explain that conclusion. The Applicant did not have the opportunity to cross examine the previous COM.

[35]The Applicant also complains that the panel misreported his evidence when they say that he equated his erectile dysfunction with an inability to commit sexual offences. The Applicant says that this is not what he was saying. There is some support for this in that the Applicant is reported as saying he bypassed his erectile dysfunction in his intimate relationship with his partner. Whether this is a misunderstanding or not, it is not a matter which seems to me to have contributed significantly to the decision.

[36]The reconsideration mechanism does not apply to decisions whether or not to recommend transfer to open conditions. I will not therefore give a view on whether it was irrational not to recommend a move to open conditions. I have to consider whether the decision not to release was irrational.

[37]The last two panels have taken the view that the Applicant needs to be tested in open before being released. The Applicant has been in prison in closed conditions for a very long time and it is often considered necessary to test whether the lessons learnt in prison can be achieved in practice before release.

[38]When last tested in open the Applicant failed to comply with the conditions of his licence. While there may be argument about how that came about there can be no doubt that the licence conditions were breached.

[39]The Applicant has committed very serious offences in the past and it is important that before release the Parole Board is satisfied that he will comply with the conditions of his licence in order to ensure that he doesn't offend again.

[40]In those circumstances, despite the difficulties in reasoning in the decision that I have set out, I am satisfied that the decision not to release was not irrational nor was it procedurally unfair. There was evidence from the COM which supported it and the panel were entitled to adopt the COM's reasoning.

[41]In those circumstances, despite my findings as to the panel's reasoning, I would not as an exercise of discretion order reconsideration of the decision not to release. Decision

[42]For the reasons I have given, I do not consider that the decision not to release was irrational or procedurally unfair and accordingly the application for reconsideration is refused. John Saunders 06 February 2026