Grigg, Application for Reconsideration [2026] PBRA 23 (21 January 2026) [2026] PBRA 23

PBRA
Grigg, Application for Reconsideration [2026] PBRA 23 (21 January 2026)
[2026] PBRA 23 · 2025-12-10
[1]This is an application by Grigg (the Applicant) for reconsideration of a decision of an oral hearing panel dated 10 December 2025. 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(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 dossier, the decision of the oral hearing panel, the application by the Applicant's legal adviser and the representations by the Secretary of State. Request for Reconsideration[4]The application for reconsideration is dated 7 January 2026.[5]The grounds for seeking a reconsideration are set out below. Background[6]The index offences were false imprisonment and assault occasioning actual bodily harm. The Applicant and the female victim were living in a house share. The Applicant approached the victim at a time when the house was empty. He had a roll of duct tape. Without warning or reason, he proceeded to attempt to tape the victim's wrists together. The victim was shocked and resisted. The Applicant continued to grip the victim's wrists and eventually forced her arms behind her back and taped her wrists together. She made it clear that this was an unwanted approach. The victim was then dragged to a couch in a room nearby. The Applicant then taped the victim's ankles and put tape over her mouth. The victim said she was terrified. The victim feared the possibility of being raped. Eventually the Applicant used a knife to remove the tape, and in the course of removing the tape the victim's skin was nicked. When the police investigated various (bondage associated) items were found in the Applicant's room. The Applicant was a serving police officer and handcuffs and duct tape and other items were seized. The Applicant was aged 36 at the time of sentence. He was 39 at the time of the oral hearing. The Applicant was sentenced to an extended period of imprisonment consisting of a determinate period of four years and extension period of two years. This was the Applicant's first review of his sentence. The Applicant was resident in an open prison at the time of the hearing. Current parole review[7]The referral from the Respondent requested that the Parole Board consider whether the Applicant should be subject to a direction for release. The oral hearing panel consisted of an independent chair of the Parole Board accompanied by two independent members of the Parole Board. Evidence was given at the hearing by a Prison Offender Manager (POM), a Community Offender Manager (COM) and a prison commissioned psychologist. The Applicant was legally represented. The Applicant gave evidence. The Relevant Law[8]The panel correctly sets out in its decision dated 10 December 2025 the test for release. 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;(c) they were not properly informed of the case against them;(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[21]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.[22]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[23]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[24]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[25]The Respondent offered no representations. Grounds and Discussion Ground 1[26]The Applicant's legal adviser submits that the panel failed to take account of the views of the professionals in this case, all of whom recommended release. It is suggested that there was insufficient evidence to meet the test for the Applicant to remain detained. Discussion[27]It is a well established principle 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 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. As was observed in the divisional Court in the case of DSD they have the expertise to do it.[28]However, if the panel make a decision contrary to the opinions and recommendations of professional witnesses it is important that it should explain clearly its reasons for so doing and those reasons should be sufficient to justify its conclusions as per Wells above.[29]In this case the panel acknowledged that the psychologist witness in the hearing supported a direction for release. The psychologist assessed that the Applicant had a low risk of further sexual violence and a low risk of future physical harm if in the community. The psychologist did not consider that the risk of serious harm was imminent. The psychologist took the view, however, that when there was less supervision there may be an increase in risk. The panel did not accept these assessments of low risk. The panel took the view that the triggers to the Applicant's offending were not well understood and therefore the risk was also not fully understood.[30]The panel recorded that the Applicant had spoken to his POM about his sexual interest in tying up women. The Applicant had emphasised that his fantasies in relation to tying a woman were in a consensual context. The Applicant had also told the POM that he was planning to address his sexual needs by using pornography in the future. The panel however were sceptical about the efficacy of this strategy because the Applicant had been using pornography before the index offence and this had not been sufficient to fully meet the Applicant's sexual needs and to prevent the offending. The panel also noted, with concern, that the Applicant appeared to have been aroused and motivated to act in the nonconsensual situation of the index offence. The panel therefore indicated that there was an inference that the Applicant derived arousal (sexual or otherwise) from nonconsensual situations which clearly impacted upon the issue of risk and its management.[31]In a report in the dossier, the COM acknowledged the seriousness of the offence. The COM also acknowledged that the seriousness was exacerbated by the fact that the Applicant was a serving police officer, and that he had implied in comments to the victim that the victim would have difficulty in reporting the matter because of his status. In the light of the recent history of sexual offending by police officers, the COM agreed that the Applicant's stance exacerbated the offending. The COM's general view, however, was that the prison sentence had a deterrent effect and that the Applicant was planning to change his lifestyle and to live with his parents some distance from where he was based as a police officer. The general view of the COM was that there would be further work to undertake in the community, but that the Applicant's risk could be managed safely by the proposed risk management plan.[32]The panel therefore appropriately acknowledged the views of the professionals. However, the panel did not accept that the professionals had fully addressed the potential risks posed by the Applicant.[33]The panel noted that the Applicant had provided contradictory accounts as to whether he was sexually aroused or not by the index offending. He had told the prison psychologist that he was not aroused, however he apparently told the POM that he was (in fact) sexually aroused. He later explained (in the hearing) that he may not have expressed himself clearly to the professionals. In evidence, given in the hearing, he told the panel that the motivation behind the offending was sexual arousal. The panel remained concerned, however, that the Applicant and professionals did not have a clarity of understanding as to the triggers to the offending. It seemed highly likely that the offending was sexually motivated, although it was also posited that there may be other explanations relating to negative behaviour and risk - such as control or humiliation.[34]It was acknowledged in evidence that the Applicant had a long held sexual interest in bondage. He had apparently (before the point of the index offending) managed that interest by undertaking it with women, consensually. The index offence was clearly a serious escalation from consensual behaviour to nonconsensual behaviour involving humiliation, physical restraint and injury. In the light of the Applicant's employment, the index offending involved a substantial risk to the Applicant's future and a high likelihood of the actual outcome (namely a prison sentence). The professional view was that there was an absence of understanding as to why the Applicant embarked upon the offending. The lack of the rationale for the offending was a concern of the panel and was one of the reasons why the panel rejected the views of the professionals that the risk was understood and could be managed. The panel took the view that the Applicant's highly risky and harmful behaviour, undertaken despite the obvious potentially serious consequences, was not understood and therefore could not be adequately managed in the community.[35]The panel also rejected the view that there would be sufficient warning signs for the elevation of risk in the community. The warning signs had been identified as an appearance of withdrawing, the Applicant isolating himself, the Applicant being upset or lacking in interest in activities, a decline in mental health, an increase in masturbation associated with fantasies and sexual thoughts, and collecting paraphernalia relevant to his sexual interests. The panel noted that these suggested warning signs were dependent upon the Applicant's self-report. The panel took the view that the Applicant had been reticent to talk to professionals about detailed personal issues (possibly because of fear or shame), and therefore there remained a risk that the warning signs would not be identified in a timely manner.[36]In summary the panel took the view that the Applicant was not able to evidence sufficient understanding of his triggers and therefore could not demonstrate that he would be able to self manage the risk that he poses of serious harm. The panel also took the view that the external controls such as licence conditions would not be sufficient because of the concern that the panel expressed that the Applicant would not self-report any markers leading to an escalation of risk.[37]The panel also noted that the plan was for the Applicant to move to a different probation area which would mean a new COM would be appointed. The panel took the view that a firm and established relationship between the Applicant and his COM was essential to ensure that the Applicant disclosed his sexual thoughts and emotions and accordingly that his risk factors could be managed while subject to licence conditions.[38]This was clearly a troubling case. The panel had the advantage of the dossier of reports and other material, and of seeing and hearing the Applicant and the witnesses in this case. Where a panel arrives at a conclusion, exercising its judgement based upon the evidence before it, and having regard to the fact that they saw and heard the witnesses, it would be inappropriate to direct that the decision be reconsidered unless it is manifestly obvious that there are compelling reasons for interfering with the decision of the panel.[39]As noted above ( Wells ) the panel was obliged to justify its conclusions. The panel in my view set out the reasons for concluding that the Applicant's risk of serious harm could not be managed in the community. Those reasons, in my determination, were evidentially based and explained the basis for rejecting the views of the professionals. I do not therefore find that the panel's decision was irrational in the meaning set out above. Ground 2[40]It is submitted that the panel incorrectly assessed that the triggers to the Applicant's offending were unclear. On the contrary it is submitted on behalf of the Applicant, that the Applicant himself had said that his offending resulted from his mental health difficulties (low mood), at the time when the offence was committed. Discussion[41]Although the Applicant's legal adviser submits that the triggers to the Applicant's offending were "understood", it was clear from the panel's decision that the Applicant himself had not been able to identify clearly the triggers that led to this level of offending. The Applicant attributed the offending to his low mood. However, the panel took the view that there remained unexplored areas of potential risk. The panel noted that humiliation (of a victim) was a potential unexplored trigger. The panel also noted that the Applicant displayed evidence of victim blaming and (as noted above) was not entirely clear (before the hearing) as to whether he was sexually aroused or not from the offending. The panel decision therefore does not indicate that there was clarity in relation to the motivation for the offending in this case. Indeed, the panel's decision was premised upon the concerns that they had about the absence of a clear understanding of how the offending could have occurred, which clearly is associated with managing risk in the future. Ground 3[42]It is submitted that the professionals took the view that the risk of serious harm was "not imminent" and that the Applicant's COM and the prison commissioned psychologist took the view that his risk could be managed in the community. Discussion[43]The panel fully acknowledged that the professionals took the view that the Applicant's risk could be managed in the community (as is noted above). The fact that the Applicant's risk of serious harm was not imminent was a relevant, but not conclusive, factor so far as the test for release is concerned. The test, as is well understood, relates to the Applicant's potential risk in the foreseeable future. The panel were told, by the reporting psychologist, that there was a concern about the elevation of risk once supervision began to reduce. I am not persuaded that this ground amounts to a basis for reconsideration. Ground 4[44]It is submitted that the panel unfairly attached weight to the fact that the Applicant had used "jokey comments" to the victim when she was bound and struggling. Discussion[45]In the written decision the panel accepted that the victim would not have seen the circumstances as "jokey". It is clear that the purpose of an oral hearing is to allow the panel to reflect upon evidence from a prisoner as well as to allow the prisoner an opportunity to present his case to the panel.[46]The panel took the view that, despite his apparent acceptance that the circumstances of the offending were by no means amusing, the Applicant's description of this aspect of the offending (within the hearing) appeared to demonstrate a continuing lack of insight and minimisation of his behaviour.[47]This was clearly a matter for the panel to assess, based upon the evidence which they heard in the hearing itself. The panel were entitled to reach a conclusion about the ability of the Applicant to accept full responsibility and understand the seriousness of his offending. The panel appeared to take the view that the Applicant had not fully understood the obvious fact that the victim would have been terrified rather than amused by any aspect of the offending behaviour. I am not persuaded that this ground amounts to a basis for engaging reconsideration in this case. Decision[48]For the reasons I have given, I do not consider that the decision was irrational and accordingly the application for reconsideration is refused. HH S Dawson 21 January 2026