Purcell, Application for Reconsideration [2026] PBRA 54 (06 March 2026) [2026] PBRA 54

PBRA
Purcell, Application for Reconsideration [2026] PBRA 54 (06 March 2026)
[2026] PBRA 54 · 2026-02-04
[1]This is an application by Purcell (the Applicant) for reconsideration of a decision dated 4 February 2026 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 (now consisting of 561 numbered pages), and the application for reconsideration. Background[4]On 26 April 1982, the Applicant was convicted of rape and received a sentence of life imprisonment. The tariff was set at seven years less time spent on remand and expired in December 1988. He was also convicted of burglary with intent to commit rape and indecent assault and received determinate sentences of four years and two years respectively.[5]Since the index offence, the Applicant has also been convicted of escape from lawful custody (1996), escape from lawful custody, false imprisonment and indecent assault (2003) and breach of a risk of sexual harm order (2019).[6]The Applicant was 20 years old at the time of sentencing and is now 64 years old.[7]The Applicant has been released and recalled four times on this sentence. He was most recently released on 9 April 2025 following an oral hearing in February 2025 (the 2025 hearing). His licence was revoked five days later on 14 April 2025, and he was returned to custody the following day. It is reported that he has refused to allow eSafe monitoring software to be installed on his mobile phone, attended an Enhanced Intensive Intervention and Risk Management Service (EIIRMS) meeting late and failed to return at the re-appointed time, and subsequently missed the 6pm sign-in and 9pm curfew at his designated accommodation, while remaining out of contact. Request for Reconsideration[8]The application for reconsideration has been submitted by the Applicant. It argues that the decision was irrational and/or contained an error of law.[9]The submissions are supplemented by written arguments to which reference will be made in the Discussion section below. Current Parole Review[10]The Applicant's case was referred to the Parole Board by the Secretary of State (the Respondent) in June 2025 to consider whether to direct his release. This is the Applicant's first parole review since his fourth recall.[11]His review proceeded to an oral hearing on 26 January 2026 before a two-member panel. Oral evidence was taken from the Applicant, a stand-in Prison Offender Manager (POM), the Community Offender Manager, and a witness who has supported the Applicant in prison and in the community. The Applicant was legally represented throughout.[12]The COM supported release. The stand-in POM did not feel able to give a professional opinion, but said she believed the allocated POM was " leaning to release " and nothing had been raised to show that she should consider a different view to the allocated POM.[13]Significantly, the panel noted the Applicant's extensive history of serious sexual offending and his further sexual offending when unlawfully at large. It also noted that, despite an extensive range of offending-focused work over many years, difficulties had emerged on each release, including repeated compliance issues.[14]Equally, the panel considered the evidence about the current risk management plan in the community. It recognised that any release would be subject to a comprehensive set of external controls, including a placement at designated accommodation and stringent licence conditions (including curfew and sign-in arrangements, monitoring, and ongoing engagement with supervision). However, the panel's assessment was that the plan was largely reliant on external controls and that those controls would only be effective if the Applicant complied with them.[15]Moreover, the panel was concerned that the Applicant had not complied on his last release and that there had been compliance issues across his releases more generally. In particular, it was not persuaded that there was no evidence of an increase in risk in the hours the Applicant was absent from his designated accommodation, given the reliance placed on the Applicant's account of events on licence.[16]Engagement with IIRMS on an ongoing basis since recall was acknowledged. However, the panel was not persuaded that there had yet been sufficient focus on understanding the Applicant's behaviour on licence and its relevance to risk. The panel considered that the work appeared to have focused more on avoiding future recall than on the behaviours that had led to recall, and that more in-depth intervention was required if there was to be confidence in any internal controls and a likelihood of compliance with external controls.[17]No direction for release was made, as the panel concluded that the Applicant presented a greater than minimal risk to the public, and therefore that it remained necessary for the protection of the public that he be confined. The Relevant Law[18]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)[19]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)).[20]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)).[21]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[22]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.[23]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 ."
[24]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).[25]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.[26]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.[27]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[28]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.[29]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[30]The Respondent has submitted no representations in response to this application. Discussion Ground 1: Alleged irrational departure from the February 2025 panel's assessment[31]The Applicant submits that the panel acted irrationally by departing from the conclusions reached by the panel at the 2025 hearing, which had assessed his risk as manageable in the community, without providing an adequate explanation.[32]It is well established (and acknowledged by the Applicant) that the Parole Board is not bound by the conclusions of an earlier panel. Each panel is required to assess risk on the evidence before it at the time of its decision. A difference in outcome does not of itself give rise to a presumption of irrationality, nor does it require exceptional justification. The question is whether the later panel identified a rational basis for reaching a different conclusion.[33]In this case, the panel was considering the Applicant following a recall to custody within days of release. That recall was not treated as a technical or minor breach. It arose from failures to comply with core licence conditions, including failures to attend and a period during which the Applicant was absent from his designated accommodation. The panel was not persuaded that there was no evidence of an increase in risk during this absence. The panel was entitled to regard that episode as a significant and material development in the risk picture, bearing directly on the practical question of whether risk could be safely managed in the community.[34]The panel did not suggest that the Applicant's underlying sexual risk factors had increased since February 2025. Rather, it focused on the Applicant's demonstrated inability or unwillingness to comply with the external controls upon which confidence in community management had previously depended. That provided a clear and intelligible basis for distinguishing the earlier decision. The panel's approach cannot properly be characterised as an unexplained or arbitrary departure, still less as an irrational one. Ground 2: Alleged speculative reasoning regarding IIRMS work and risk management[35]The Applicant contends that the panel engaged in speculative reasoning by questioning the effectiveness of his IIRMS work and by suggesting that further work was required, despite evidence of engagement with that intervention.[36]When the decision is read fairly and as a whole, it is clear that the panel accepted the Applicant had undertaken IIRMS work. The issue for the panel was not the fact of completion, but whether the learning from that work had translated into sustained and observable behavioural compliance in the community.[37]The panel's reasoning was anchored in the Applicant's recent conduct on licence. It noted that risk management in the community was heavily dependent on external controls, including supervision, monitoring, and adherence to licence conditions. Against that background, the Applicant's rapid recall following release, coupled with the period during which he was absent from his designated accommodation with no independent account of events, provided an evidential basis for the panel's conclusion that the work undertaken had not yet been sufficiently internalised.[38]That reasoning does not involve speculation. It reflects an evaluative judgement drawn from demonstrated behaviour. The panel was entitled to assess whether claimed insight and learning were borne out in practice. Disagreement with the weight the panel attached to those matters does not meet the high threshold required to establish irrationality. Ground 3: Alleged failure to obtain or rely upon up-to-date psychological evidence (irrationality and, in the alternative, error of law)[39]The Applicant argues that the panel acted irrationally, and alternatively unlawfully, by proceeding without directing an updated psychological risk assessment and by relying on existing reports said to be outdated.[40]The panel expressly considered whether further psychological evidence was required and concluded that the existing material was sufficient to enable it to assess risk. That was a matter squarely within the panel's discretion. There is no general legal obligation on a panel to obtain fresh psychological evidence, and whether such evidence is necessary depends on the issues to be determined and the adequacy of the material already available.[41]In this case, the panel's decision did not turn on disputed diagnoses, evolving psychological formulations, or matters requiring specialist clarification. Its central concerns related to compliance, credibility of account, and the practical operation of risk management arrangements in the community. Those matters were capable of assessment on the basis of the existing psychological evidence, together with recent supervision and recall information.[42]The Applicant has not demonstrated that the panel misunderstood the psychological evidence, relied upon materially inaccurate summaries, or treated outdated opinions as determinative in circumstances where they could not rationally bear the weight placed upon them. Nor is there any indication that the absence of a fresh report resulted in procedural unfairness (or any submission suggesting that it did). In those circumstances, the decision not to direct a further psychological assessment does not render the decision irrational and does not disclose any error of law. Ground 4: Alleged misapplication of the codified public protection test[43]The Applicant submits that the panel irrationally concluded that he continued to present more than a minimal risk of serious harm and thereby misapplied the codified public protection test.[44]The panel correctly identified and directed itself to the statutory test. The challenge advanced is not, in substance, one of legal misdirection, but of disagreement with the panel's evaluative assessment of the evidence.[45]The panel explained why it was not satisfied that the risk of serious harm could properly be regarded as minimal. Central to that assessment were three key matters. First, the Applicant's failure to comply with licence conditions almost immediately upon release. Second, the absence of a reliable account of his whereabouts during a period when he was uncontactable having failed to return to his designated accommodation. Third, the consequent erosion of confidence in the effectiveness of external controls. The panel was entitled to conclude that where risk management depends upon compliance, demonstrated non-compliance undermines the ability safely to manage risk in the community.[46]That reasoning provides a rational evidential bridge between the facts found and the conclusion reached. It does not disclose a misunderstanding of the statutory test, nor does it approach the high threshold required to establish irrationality. Conclusion[47]Considering the application both ground by ground and in the round, I am satisfied that it does not disclose any properly arguable basis upon which the reconsideration test is met.[48]The Applicant has not identified any misdirection as to the applicable statutory test. He has also not demonstrated that the panel reached a conclusion that was unsupported by evidence or that was outside the range of decisions reasonably open to a properly directed panel on the material before it.[49]What the application amounts to is, in substance, a disagreement with the panel's evaluative judgement as to risk. It seeks to re-argue the weight to be attached to completed interventions, to invite a more benign interpretation of the Applicant's post-release behaviour, and to contend that the panel should have reached a different conclusion on manageability in the community. That is not the function of the reconsideration jurisdiction, which is not an appeal on the merits nor a mechanism for substituting one reasonable assessment of risk for another.[50]When the decision is read fairly and as a whole, it cannot be said to be one that no reasonable panel, properly directing itself, could have reached. Accordingly, the application does not meet the high threshold for reconsideration on the grounds of irrationality or error of law. Decision[51]For the reasons set out above, the application for reconsideration is refused. Stefan Fafinski 06 March 2026