Phillips, Application for Reconsideration [2026] PBRA 76 (09 April 2026) [2026] PBRA 76

PBRA

Phillips, Application for Reconsideration [2026] PBRA 76 (09 April 2026)

[2026] PBRA 76 · 2016-02-16

[1]This is an application by Phillips (the Applicant) for reconsideration of a decision of an oral hearing panel dated the 16 February 2016 not to direct his 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

[3]I have considered the application on the papers. These are the oral hearing decision, the dossier consisting of 748 pages and the application for reconsideration. Request for Reconsideration

[4]The application for reconsideration is dated 5 March 2026. It has been drafted by representatives on behalf of the Applicant. It submits that the decision was procedurally unfair, contained an error fact and was irrational.

[5]This submission is supplemented by written arguments to which reference will be made in the Discussion section below. Background

[6]The Applicant received a sentence of imprisonment for public protection on 25 September 2008, following conviction for indecent assaults and sexual assaults of children under 14 and under 13 and gross indecency with a child. His tariff was set at 5 years (less time spent on remand) and expired on 24 November 2012.

[7]The Applicant was 47 years old at the time of sentencing and is now 64 years old. Current parole review

[8]The Applicant's case was referred to the Parole Board by the Secretary of State (the Respondent) in June 2024 to consider whether or not it would be appropriate to direct his release. If the Board did not consider it appropriate to direct release, it was invited to advise the Respondent whether the Applicant should be transferred to open conditions.

[9]The case, after first listing had to be adjourned on two occasions for reasons related to witnesses and reports, proceeded to an oral hearing via videoconference on 5 February 2026. The panel consisted of two independent members and a psychologist member. The panel heard evidence from the Applicant together with his Prison Offender Managers (POMs), Community Offender Manager (COM), a prison psychologist and a member of the police service. The Applicant was legally represented throughout the hearing. The Respondent was not represented by an advocate.

[10]The panel did not direct the Applicant's release nor make a recommendation for open conditions. It is only the release decision that is open for reconsideration. The Relevant Law

[11]The panel correctly sets out in its decision dated 16 February 2026 the test for release and the issues to be addressed in making a recommendation to the Respondent for a progressive move to open conditions. Parole Board Rules 2019 (as amended)

[12]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)).

[13]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)).

[14]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

[15]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.

[16]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. "

[17]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) .

[18]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.

[19]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. 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. Error of law

[23]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.

[24]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. The reply on behalf of the Secretary of State

[25]The Respondent has submitted no representations in response to this application. Discussion Procedural Unfairness

[26]The application complains about the process leading to the hearing, the changes in professionals and length of time before the case was heard, submitting that the panel did not apply anxious scrutiny to the case. The grounds submit that the questioning of the POM by the panel was aggressive and unfair, reducing her to tears, which had an impact on the Applicant's own emotional wellbeing and ability to articulate himself in the best way possible. It is also submitted that the panel, in describing the Applicant's evidence as making them feel "uncomfortable", was punishing him for being honest and open.

[27]There is no evidence that the panel did not apply anxious scrutiny to the case. On the contrary, it was due to the anxious scrutiny of the panel that the case did not go ahead on the previous occasions when it was clearly not ready to proceed due to issues with the psychological risk assessment and due to lack of preparedness of witnesses.

[28]It is very clear that the POM had got herself into an embarrassing situation in sending an email to her probation colleagues after her "mock interview" with the Applicant, which she had not perhaps realised would be added to the dossier. The email did not speak positively about the Applicant's attitudes and she found herself in the even more embarrassing situation of having to answer questions about the email when she was sitting in the same hearing room next to the Applicant. She chose not to support what she had written in the email soon after the "mock interview" but to resile from it with further explanation. It was right that the panel should question and challenge her about her evidence. If she was distressed it may have been as a consequence of the embarrassing difficulty in which she had placed herself and her discomfort of having to explain herself or backtrack in close proximity to the Applicant. If her distress impacted on the Applicant and his ability to give his best evidence, he could and should have made that clear to his representative and/or to the panel during the hearing. This is not an instance of procedural irregularity. Neither he nor his representative alerted the panel to this claim that he was prevented from putting his case properly, nor did the representative raise this claim in her submissions. Nor do the grounds provide any examples of what evidence he was unable to present or present fully to the panel. The decision of the panel not to direct release was not only based on his evidence but on all the evidence presented. As is clear from the decision, there were many reasons given for the panel not to direct release.

[29]There is no evidence that the panel were punishing the Applicant for being open and honest. The discomfort felt by the panel, which was echoed in the psychological risk assessment, was with regard to his attitudes and behaviour, exhibiting " deviant sexual interest in young females " and " beliefs that children can be sexually active and initiate sexual activity ". There was nothing procedurally unfair in the panel finding that evidence uncomfortable.

[30]The application does not explain which procedures were not followed. None of the matters raised amount to procedural unfairness and therefore this ground must fail. Error of fact

[31]The application submits that there is a contradiction in the panel's account as to whether an assault against WW took place. I agree that the conclusion regarding the allegation of assault appears to be unclear in one paragraph (4.1 as against 2.45 and 4.45). In dealing with the allegation the panel applied the correct test, that set out in Pearce [2023] , and read as a whole it is clear that the panel's conclusion is that the Applicant assaulted WW. The explanation in paragraph 4.1 may be that when considering the recall, whether or not there was an assault, it was " the circumstances and presenting risks" which made recall appropriate. I do not consider the panel's decisions on the allegation as an error of fact.

[32]The Applicant states that when expressing his views about children he was speaking about the "old me" and his views at the time of the index offence. He did not, when he could have done, make this clear in the hearing and I do not find therefore that the panel's acceptance of his account as given amounted to an error of fact.

[33]No errors of fact are identified in the application and this ground must fail. Irrationality

[34]The application seeks to reargue submissions regarding accommodation and submits that the professionals supported re-release and did not consider there remained any core risk reduction work to be undertaken. The application also submits that the panel's evaluation of risk and protective factors was irrational and that the decision failed to give adequate reasons for not making a recommendation for open conditions.

[35]The panel clearly dealt with the question of accommodation at some length in the decision. The decision gives clear and fully reasoned conclusions for not directing release.

[36]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 any evidence from the Applicant. They would be failing in their duty to protect the public from serious harm if they failed to do just that. It is up to the panel, giving appropriate and proper reasons as they did, what evidence they accept, or to which they afford weight, and what they reject. The panel, which included a specialist psychologist member, formed its own conclusions and judgment on the evidence. Those conclusions cannot be described as irrational.

[37]The decision regarding no recommendation for open conditions is also clearly, adequately and properly reasoned. The application is seeking to re-argue matters that have been dealt with in the hearing and in submissions and do not raise any submission that can identify irrationality in the panel's reasoning.

[38]This ground therefore also fails. Decision

[39]For the reasons I have given, I do not consider that the decision was irrational, procedurally unfair or contained any error of fact and accordingly the application for reconsideration is refused. Barbara Mensah 09 April 2026