Kelly, Application for Reconsideration [2026] PBRA 79 (14 April 2026) [2026] PBRA 79

PBRA
Kelly, Application for Reconsideration [2026] PBRA 79 (14 April 2026)
[2026] PBRA 79 · 2026-02-23
[1]This is an application by Kelly (the Applicant) for reconsideration of a decision of a panel of the Parole Board dated 23 February 2026. This followed an oral hearing held on 9 February 2026. The panel did not direct the Applicant's 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 reconsideration application, the response from the Secretary of State, the dossier which runs to 431 pages including the decision reasons, and three victim personal statements (VPSs) which were not disclosed to the Applicant.[4]The application for reconsideration has been made by legal representatives on the Applicant's behalf. The legal representative represented the Applicant at his oral hearing. For simplicity, I refer to the reconsideration application as being made by 'the Applicant'. Request for Reconsideration[5]The application for reconsideration is dated 13 March 2026.[6]The grounds for seeking a reconsideration are that the decision was irrational and/or procedurally unfair. In brief, the Applicant submits that in reaching its decision the panel relied on material which was not disclosed to the Applicant. The Applicant's legal representative submits that as the material was not disclosed, they were unable to take instructions on apparent discrepancies between one professional's understanding of an aspect of the Applicant's offending and material contained in the VPSs. The application also submits that the panel failed to give adequate weight to the recommendations of professionals and that the panel's decision did not provide rational reasons for rejecting them. Background[7]The Applicant is serving a 20-year sentence of particular concern (SOPC). This is an extended determinate sentence and relates to two counts of rape of a girl under the age of 13 and two counts of causing/inciting a girl under 13 to engage in sexual activity - no penetration. The sentence comprises a 19-year custodial element and a one-year period of extended licence. The is the Applicant's first review by the Parole Board since he reached his parole eligibility date on 23 September 2025. Current parole review[8]The Applicant's case was referred to the Parole Board by the Secretary of State for Justice on 9 December 2024. The Applicant's case was reviewed on the papers by a single member of the Parole Board and directed to an oral hearing. The hearing was listed for 5 December 2025 but was adjourned on the day for several reasons; a witness was not available, the risk management plan was incomplete, and the psychologist witness had not discussed the case with either the Prison Offender Manager (POM) or Community Offender Manager (COM). The three-member panel determined that it would not be fair to proceed with the Applicant's hearing in the circumstances.[9]Due to limited availability of the panel and so as not to delay the Applicant's review further, a three-member panel constituted of two members of the original panel and a new third member reconvened for the Applicant's hearing on 9 February 2026.[10]The Applicant submits that the panel relied unfairly on contents of the VPSs when assessing the reliability of the Applicant's account of his offending and his honesty, and the adequacy of the psychological formulation. The Applicant contends that this was unfair as he did not have the opportunity to consider or respond to it. The Applicant particularly highlights two references to a VPS made in the panel's written decision. The first records that the psychologist "accepted that [the Applicant's] account of his offending did not entirely correlate with the (non-disclosed) victim account which indicated that not all of the offending occurred at the home." The second relates to a part of the panel's conclusion which states, "[The psychologist] was unable to reconcile aspects of [the Applicant's] self-report with the victim personal statement or to provide a clear explanation of the link between the identified background factors and the specific nature of the offending."[11]The Applicant submits that because the material was not disclosed, his legal representative was unable to take instructions from him on the apparent discrepancies. It is stated that because the statement was non-disclosable, professionals had also not had the chance to discuss the discrepancies with him prior to the hearing. It is submitted that the undisclosed material was relied upon significantly (my emphasis) in rejecting the psychologist's assessment and formulation, and in forming the panel's view that the Applicant minimised his account of his offending and was dishonest. The reply on behalf of the Secretary of State[12]The Reconsideration Member received the following response by the Secretary of State on 2 April 2026:
"The Secretary of State notes the concerns raised by the legal representatives. A Victim Personal Statement (VPS) in parole proceedings is intended to give victims a meaningful voice by allowing them to describe, in their own words, the impact of the offence. The Secretary of State would be concerned if the Panel had placed weight on any non-disclosable information contained within a VPS. As the Panel identified a material gap in the evidence and appeared to associate this with the VPS, it may be helpful to clarify this point."
Discussion[13]The panel correctly sets out in its decision dated 23 February 2026 the test for release. Procedural unfairness[14]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.[15]In summary an a pplicant 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.[16]The overriding objective is to ensure that the a pplicant's case was dealt with justly.[17]The VPSs had been subject to a well-established non-disclosure application process before the Applicant's case had first been reviewed on the papers. A Duty Member of the Parole Board directed that the statements should be withheld from the Applicant and a gist of the content provided to him. The Duty Member also directed that the full statements should be provided to the legal representative if they gave an undertaking that they would not share the statements with their client.[18]The non-disclosure application was not appealed by the Applicant. The legal representative gave the necessary undertaking, and the material was disclosed in full to them.[19]There is no suggestion that the legal representative objected to any line of questioning related to the two points set out above or sought to highlight any potential or perceived unfairness in the panel's questions during the hearing.[20]The only area where the decision reasons highlight a difference in self-report and the victim's account is in relation to where the offending took place. It is correct to say that the victim statement indicates that it did not just happen in the home. However, this information is not exclusively contained in the VPS; it is also alluded to in the judge's sentencing remarks which state:
"It is made worse by the fact that you ejaculated on many occasions that you were abusing her and much of the abuse of her took place in her home, which normally would be regarded as a place of complete safety."
[21]It is also referenced in the COM's OASys assessment thus:
" I note from the victim's statement that at least one incident of abuse occurred whilst out in [the Applicant's] car, suggesting that on this occasion he would not have been intoxicated and so fully conscious of his actions and the consequences of his actions."
[22]This entry provides some context to why the location of the offending may have been relevant in as much as it pertains to the risk factors involved, one of which in the Applicant's case may have been the disinhibitory effects of alcohol. It also shows that the COM was aware of the content of the VPS. While it was likely an inadvertent disclosure of non-disclosed material, it did mean that the specific issue of discrepancy about the location of the offending and its relevance to the understanding of the Applicant's drivers for offending was available to the Applicant and to his legal representative.[23]I am satisfied that there was sufficient evidence available from disclosed material for the Applicant to be able to rebut or address any inconsistency about where his offending took place. And in any case, having reviewed the decision reasons as a whole, I do not agree that any reference to non-disclosed material from the VPSs formed a substantive part of the panel's decision. It was one of many factors considered by the panel and contributed (but was not definitive) to the panel's assessment that there was not a clear explanation of the links between identified background factors and the specific nature of the Applicant's offending.[24]On this basis, I do not agree that the Applicant was not properly informed of the case against him or that the undisclosed material was relied upon significantly in rejecting the psychologist's assessment and formulation. Indeed, as discussed below, the panel did not reject the psychologist's assessment and formulation, but expressed a view that alternative explanations for the Applicant's offending had not been sufficiently explored. Irrationality[25]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.[26]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. "
[27]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).[28]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.[29]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.[30]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.[31]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. "
[32]The Applicant submits that the panel failed to give adequate weight to the recommendations of the professionals, particularly of the psychologist. The application accepts, rightly, that professional recommendations do not bind the Parole Board.[33]The Applicant submits that the psychological formulation provided a coherent explanation of the pathway to offending behaviour and that the decision reasons do not sufficiently identify any evidential basis for concluding that the psychological formulation was inadequate.[34]In its decision reasons, the panel explained that it was not persuaded that the psychological formulation sufficiently accounted for the escalation of the Applicant's behaviour from a longstanding sexual preoccupation and risk-taking behaviour to serious sexual offending against the victim. It noted that alternative explanations to the formulation were explored during the hearing and provided examples of those.[35]So, while the psychological formulation provided a hypothesis for why the Applicant offended, the panel did not accept this. Or rather, the panel did not accept that it was the only possible hypothesis, and it found this materially important because it meant it could not be satisfied as to the drivers of the Applicant's offending and the circumstances in which risk may reemerge. I am satisfied that this was a reasonable conclusion for the panel to reach.[36]The Applicant also submits that disclosures concerning pornography use, extra-marital relationships and other behaviour were relied upon by professionals as evidence of increasing openness and honesty and that the panel did not adequately explain why this did not, in its view, support the professional view that he had become more reflective.[37]The panel's reasoning, read as a whole, demonstrates that it did consider these matters but did not accept that they resolved its concerns about the Applicant's insight and risk management. The panel identified continuing minimisation, elements of externalisation of responsibility, and aspects of the Applicant's language which appeared to understate the gravity of his behaviour. It also noted examples of dishonest conduct in custody, grievance-based attitudes and manipulative interpersonal behaviour in the past. These matters were relevant to the panel's assessment of how the Applicant may manage intimate relationships and sexual behaviour in the community.[38]While the reasoning could have been more explicitly structured in balancing the professional evidence of openness against these concerns, the panel was entitled to conclude that the available evidence did not sufficiently demonstrate a stable or well-understood pathway to offending or a clear basis upon which risk could be reliably managed in the community. The absence of accredited intervention work addressing sexual preoccupation, together with the panel's concern that the formulation did not adequately explain the escalation to serious sexual offending, were matters rationally open to it on the evidence.[39]A rationality challenge cannot succeed merely because the panel did not accept the professional recommendation or because greater weight could have been given to evidence of progress. The panel provided a reasoned explanation for its conclusion that there remained a material gap in its understanding of the drivers of offending and the circumstances in which risk might re-emerge. That conclusion was within the range of decisions reasonably open to the panel on the evidence before it.[40]Reading the decision as a whole, the panel identified the evidence relied upon, explained why it was not satisfied that risk could be safely managed in the community at this stage, and gave adequate reasons for declining to direct release. It cannot be said that the decision was one which no reasonable panel could have reached. Decision[41]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. Sally Allbeury 14 April 2026