Courtney, Application for Reconsideration [2026] PBRA 24 (23 January 2026) [2026] PBRA 24

PBRA
Courtney, Application for Reconsideration [2026] PBRA 24 (23 January 2026)
[2026] PBRA 24 · 2025-11-19
[1]This is an application by Courtney (the Applicant) for reconsideration of a decision of a single member panel of the Parole Board. The decision was within the Member Case Assessment (MCA) process. The decision is dated 19 November 2025. The decision 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 application for reconsideration drafted by the Applicant's legal adviser, the decision of the panel and the representations by the Secretary of State (the Respondent). Request for Reconsideration[4]The application for reconsideration is dated 8 January 2026.[5]The grounds for seeking a reconsideration are set out below. Background[6]The Applicant is serving an extended sentence of imprisonment consisting of a determinate period of four years and an extension of two years. The index offences involved breaches of a Sexual Offences Prevention Order (SOPO). The Applicant was aged 25 when sentenced. The Applicant is now aged 28. This was the Applicant's second review. The Applicant became eligible for parole on 17 May 2025. He is due for conditional release in September 2026. Current parole review[7]The panel consisted of a single member. The decision was made within the MCA process. The panel decision was dated 19 November 2025. The panel member considered representations by the Applicant's legal adviser when making the decision. The panel member also considered the dossier which consisted of 311 pages. The referral from the Respondent requested that the panel consider whether the Applicant should be subject to a direction for release. The Relevant Law[8]The panel correctly sets out in its decision letter 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[18]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.[19]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.[20]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 the cases of Osborn v Parole Board [2013] UKSC 61 , the Supreme Court comprehensively reviewed the basis on which the Parole Board should consider applications for an oral hearing. Their conclusions are set out at paragraph 2 of the judgment. The Supreme Court did not decide that there should always be an oral hearing but said there should be if fairness to the prisoner requires one. The Supreme Court indicated that an oral hearing is likely to be necessary where the Board is in any doubt whether to direct one; they should be ordered where there is a dispute on the facts; where the panel needs to see and hear from the prisoner in order to properly assess risk and where it is necessary in order to allow the prisoner to properly put his case. When deciding whether to direct an oral hearing the Board should take into account the prisoner's legitimate interest in being able to participate in a decision with important implications for him. It is not necessary that there should be a realistic prospect of progression for an oral hearing to be directed.[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. Discussion Background[27]The Applicant has a lengthy offence history relating to the possession, distribution and making of indecent images of children. The Applicant's criminal record indicates four convictions and 21 offences.[28]The index offence related to breaches of a SOPO, which had been imposed following convictions for earlier sexual offences. The Applicant was subject to the usual visits and inspections of devices arising from the SOPO. Following a police visit, the Applicant's mobile telephone was inspected, and it became apparent that the Applicant had been viewing child pornography and in contact with others discussing child pornography. The Applicant had in fact known that his mobile phone was due for a detailed police inspection and had replaced the device. However, material had automatically transferred from the original device to the replacement device which revealed the Applicant's continuing involvement in child pornography.[29]The sentencing judge described the Applicant as a " dangerous offender " who would no doubt go on to commission further similar offences thereby placing the public, namely very young children, at risk.[30]The Applicant's offending history indicates that despite court orders and interventions the Applicant has continued to commit similar (child indecent image) offences. Also noted in the dossier history is the attempt to conceal behaviour by disposing of enabled devices.[31]The Applicant's risk factors were identified by the panel as; poor consequential thinking; poor decision making; poor problem-solving; sexual preoccupation and a sexual interest in young boys; negative associates and a failure to consider the rights and welfare of others in particular children.[32]The Applicant had undertaken, in the community, (in 2018) a behavioural intervention aimed at addressing his risk of sexual offending. The programme is described as a strengths-based programme, which aimed to help improve thinking skills and the managing of life's problems. Despite undertaking this program, as noted above, the Applicant committed further offences.[33]During the current sentence, in April 2025, the Applicant completed a further programme aimed at enhancing thinking skills and making appropriate choices. The Applicant reportedly engaged well with the programme and showed positive outcomes, however, some days after the completion of the programme the Applicant was involved in a physical altercation with another prisoner which resulted in an adjudication. Later there were two further adjudications for assaulting prisoners. In the dossier professionals note a concern about the fact that the Applicant had not been able to apply self-management skills which should have been learnt from the undertaken programme. It is of note however that the Applicant has no convictions for violent behaviour when in the community. The Applicant himself told professionals that the incidents which resulted in adjudications were out of character and occurred because of the strained atmosphere in the prison. Grounds and Discussion Ground 1[34]The Applicant's legal adviser asserts that the Parole Board panel, when assessing whether there should be a direction for release, failed to give proper weight to the progress made by the Applicant during his sentence. It is further submitted that the panel were wrong to place weight upon the completion of an accredited behavioural programme while failing to take account of the Applicant's prison behaviour, constructive engagement, work in education and positive employment. Discussion[35]The context of this submission is that the Applicant in this case had completed a generalised accredited programme relating to positive choices. To his credit the Applicant had accepted that he had a sexual preference associated with male children. For this reason, he was referred to a more intense accredited sexual health programme. He was accepted as a candidate for the programme but had been waiting for some time to be allocated to a group. The programme involved material delivered on an individual basis for between 12 and 30 hours. It was also noted in the dossier that it would be usual for a psychological risk assessment to be undertaken following the undertaking of the accredited programme to assess the effectiveness or otherwise of that programme and the need for any further consolidation or other work. The Applicant and his legal adviser appeared to accept the need for the programme to be undertaken, however the position of the Applicant was that he asked the panel to adjourn the review until the programme had been completed. The panel concluded that an adjournment would not be appropriate because of the length of time that was envisaged in relation to undertaking the programme and post programme assessments.[36]Decisions relating to adjournments of parole hearings are a matter which are dealt with in guidance which is published by the Parole Board. Guidance is not legally binding but is an important consideration as it gives consistency to both prisoners their legal advisers and to other parties as to how a panel would be expected to deal with a particular situation. So far as adjournments are concerned the guidance indicates that it is not appropriate to adjourn to await the outcome of interventions or programmes which are likely to go beyond a four-month period, particularly, as in this case, where a programme had not started. The rationale for this guidance is the need for a speedy and final review of referrals from the Respondent. It is also the case that in situations such as that affecting the Applicant, a realistic date for review in the future could not be identified or set for hearing.[37]As indicated Parole Board guidance is not binding upon a panel, however the panel took the view that because of the uncertainty about the undertaking of the accredited programme and any assessment work which might need to take place following the undertaking of the programme it would be inappropriate to adjourn the review.[38]As appropriately indicated by the Applicants legal adviser, a panel addressing a review, would be expected to take a holistic view of the evidence and to reach a conclusion upon the evidence in the round, including the evidence supporting or otherwise a further adjournment.[39]This was a case where the professionals, namely the Community Offender Manager and the Prison Offender Manager were not supporting a direction for release because they took the view that there was insufficient evidence that the Applicant's risk of serious harm to children could be managed with the suggested risk management plan.[40]The panel were not obliged to follow the recommendations of professionals, however those recommendations were highly relevant to a general consideration of the issues in this case.[41]In the panel decision, the panel noted that the Applicant had undertaken a relatively intensive programme in 2018, when in the community. This programme was aimed at supporting the Applicant's desistance from offending. The panel member in this case pointed out that, despite undertaking this programme the Applicant went on to breach sexual prevention orders which led to the current convictions.[42]The panel member was also concerned about the fact that there were reports of the Applicant becoming involved in physical assaults in prison prior to the panel hearing. The Applicant gave various explanations for this behaviour, however in the light of the fact that the Applicant had undertaken a course aimed at consequential thinking and positive choices, it was clear that there remained unaddressed issues which would clearly impact upon risk.[43]In the light of the fact: · That there was substantial evidence of unaddressed areas of risk in relation to the Applicant's sexual interest in male children; · That to manage the Applicant's risk (in the community) the view of the professionals and the panel, was that further interventions by way of programmes were necessary; · The Applicant had been involved in negative behaviour and adjudications prior to the panel hearing; · The Applicant had not been able to apply learning from earlier programmes and supervision; and · The panel were obliged to consider the risk of serious harm for the foreseeable future.[44]I determine that the decision of the panel could not be considered to be procedurally irregular or irrational in the sense outlined above.[45]So far as an adjournment is concerned, the panel member was obliged to reach a conclusion upon the Applicant's risk on the basis of the evidence as presented to the panel member on the date of the hearing. It is clear that an adjournment would have been for an excessive period of time, and would not have been able to have been appropriately scheduled, because of the fact that the Applicant was waiting to undertake a programme and would probably need to be assessed by a psychologist following the programme. I do not find that the panel acted with procedural irregularity by not acceding to the request for an adjournment. In my determination this ground does not engage reconsideration. Ground 2[46]It is submitted that by failing to adjourn the Applicant's case or to grant an oral hearing (in order to delay the final decision), the panel may have prevented the Applicant from being prioritised in terms of the waiting list for undertaking programmes. The Applicant's legal adviser suggested that the prison service may have been more likely to prioritise the Applicant's case because of a forthcoming adjourned panel hearing.[47]It is also submitted that the failure to adjourn (by the panel) created a situation where the Applicant is unlikely to have sufficient time to undertake the programme, before he is released, thereby remaining a risk in the community. Discussion[48]Whilst the Applicant's legal adviser presents a relatively novel argument for managing prison waiting lists (namely adjourning to allow the prisoner to move to the front of the queue). I am not persuaded that this could be an appropriate strategy to be adopted by a Parole Board panel. The panel reference requires the Parole Board to consider whether the Applicant should be subject to a direction for release. It would not be appropriate for a Parole Board panel to adjourn cases or set hearing dates with a view to attempting to create prioritisation for any single prisoner. Prioritisation is firmly in the hands of the prison. It is for the prison to provide sufficient resources to assist in ensuring that the risk to the public is addressed. In this case there is a very real possibility that the Applicant may not be able to undertake the work which should be undertaken to address his risk before his release. Whilst regrettable, (particularly as the Applicant himself is keen to undertake the programme) this is not a matter which a Parole Board panel could be expected to change by way of adjournments or setting oral hearing dates. As I have indicated, I am fully cognisant of the pragmatic approach by the Applicants legal adviser, however I am not persuaded that this is an argument supporting a finding of an irrational decision or a decision which was procedurally unfair by the panel in this case. Ground 3[49]It is submitted by the Applicant's legal adviser that, (citing the case of Osborn and others), if the panel had directed an oral hearing, there would be a delay which might have had the effect of applying " pressure " to encourage the prison to allocate an earlier place for the Applicant on an appropriate intervention. It is further submitted that there would then have been sufficient time before the hearing was scheduled for the programme to be completed. Discussion[50]With respect to the Applicant's legal adviser, this ground appears to be a similar argument to that adduced in earlier grounds. The Applicant's legal adviser candidly argues that adjourning the case for an oral hearing would have had the effect of applying pressure to the prison service to provide a place on a course aimed at addressing his risk of serious harm. Again, as indicated above I am fully sympathetic with the pragmatic approach suggested by the Applicant's legal adviser, however the decision to direct an oral hearing must be on the basis of the Parole Board rules and guidance (and the principles in the case of Osborn).[51]As is now well established, the case of Osborn suggests various circumstances, identified by the court indicating that an oral hearing should be directed. Those circumstances include; where facts are in dispute and require significant explanation; where the Board cannot on the basis of the papers properly and fairly make an independent assessment of risk without seeing or questioning the prisoner; where there are tenable grounds for arguing that a live interaction between the prisoner and the Parole Board is a necessary pre-condition to assessing risk; where there are issues within the representations on behalf of the prisoner which relate to the future management of the prisoner in prison or in future reviews.[52]Osborn also requires a panel to consider whether further assessments of risk might be required or helpful; the prisoner's legitimate interest in participating must always be considered and fairness to the prisoner is paramount.[53]I have considered the Osborn principles as they apply to this case. This is not a case where there is substantial factual dispute. The Applicant is candid about his risks and understands the need to demonstrate that those risks can be managed. There is an identifiable and clear pathway in relation to progressing his management of risk in the future. For these reasons I am not persuaded that this was a case where a procedurally irregularity occurred arising from the Osborn principles. It is well acknowledged that an oral hearing will not be appropriate in every case despite the wide-ranging remit of the Osborn principles. In my determination this was not a case where the panel's decision could be characterised as procedurally unfair. Decision[54]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 23 January 2026