The Parole Board for England and Wales

 

[2025] PBRA 39

 

 

 

Application for Reconsideration by Fanshawe

 

 

Application

 

1.   This is an application by Fanshawe (the Applicant) for reconsideration of a decision of a panel of the Parole Board (the Panel) dated 30 December 2024 not to direct his release. The decision was made following a review conducted by way of an oral hearing on 17 December 2024.

 

2.   Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2024) (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 within the prescribed time limit.

 

3.   I have considered the application on the papers. These are: the application with written representations dated 10 January 2025, the written decision, the case dossier, and the email message in response dated 24 January 2025 from the Public Protection Casework Section (PPCS) of HM Prison and Probation Service on behalf of the Secretary of State (the Respondent).

 

Request for Reconsideration

 

4.   The grounds for seeking a reconsideration are as follows:

 

The decision was irrational in that it was not based on fact but on conjecture and it failed to take properly into account the conclusions of professional witnesses that the Horizon Programme successfully undertaken by the Applicant had been the only relevant core risk reduction work available to him. The Panel had rejected without justification the opinions of all the professional witnesses involved that he could be safely managed in the community.    

 

Background

 

5.   On 13 April 2018, having pleaded guilty to ten offences including one of rape, three of indecent assault, two of unlawful sexual intercourse with a girl under 13, one of indecency with a child, two of sexual activity with a child and one of sexual assault, the Applicant received a number of concurrent sentences. For the three most serious offences extended sentences were imposed, comprising a custodial term of 10 years and an extended licence period of five years. For the remaining offences fixed terms of imprisonment ranging from one to two years were imposed.

 

6.   A Sexual Harm Prevention Order was imposed restricting contact with females under the age of 16, accessing internet based sites for communication with females under 16 and prohibiting him from unauthorised contact with the victims of the index offences. The Applicant will also be subject indefinitely to registration requirements as a registered sex offender.  

 

7.   The Parole Eligibility Date (PED) under the extended sentences was 20 May 2024, the Conditional Release Date (CRD) when the Applicant will automatically be entitled to release on licence is September 2027 and the Sentence Expiry Date (SED) is September 2032.

 

8.   There were four victims. Between December 1997 when the Applicant was between the ages of 10 and 13, he sexually abused two victims who were aged between 5 and 6.  Between February 1999 and February 2000, when the Applicant was 11, he indecently assaulted another victim, then aged 6, in her family home. He went on to rape and sexually assault her between February 2005 and February 2007. That victim also described being physically beaten by the Applicant.            

 

9.   Two offences of sexual activity with a child were committed between January and December 2015, involving another victim. She was aged 13 at the time and he was 28 or 29. The offences were committed in the family home. The victim was a vulnerable child, and she had initially developed a bond of reliance on the Applicant who then went on to exploit her vulnerability.      

 

10.The Applicant had other convictions between 2006 and 2012 for criminal damage, theft, and three offences of battery. On 18 August 2017 he was sentenced to 8 weeks imprisonment suspended for 12 months for keeping a child from a responsible person. The child had been reported as missing from care and she was found at the Applicant’s address. Although she was said to be his girlfriend, both denied having had sex at the time.     

 

11.The author of the pre-sentence report identified a clear sexual interest in children and severely distorted sexual attitudes, behaviour and urges which were deeply entrenched. There was a clear pattern of offending and the Applicant was assessed as presenting a high risk of sexual harm towards girls. The sentencing judge agreed with these conclusions and concluded that he was a dangerous offender as defined by the Sexual Offences Act 2003.  

 

12.The Applicant is reported to have had a dysfunctional childhood, involving a transient lifestyle and subjection to both physical and sexual abuse. There has also been reference to Attention Deficit Hyperactive Disorder (ADHD). Although substance misuse, specifically cocaine, had featured as part of the Applicant’s lifestyle, it was not considered to be a factor in the index offences. More recently, he had been diagnosed with Post Traumatic Stress Disorder (PTSD) following a knife attack by other prisoners in prison and had undergone therapy.       

 

13.This was the first review of the Applicant’s case. He made sufficient progress in custody to be transferred to open conditions in April 2023. In December that year he completed the Horizon Programme which is designed for adult males to address sexual offending and to enable them to build constructive lives that do not involve further offending.     

 

Current parole review

 

14.The Respondent referred the Applicant’s case to the Parole Board by notice dated September 2023 for the Board to consider whether to direct his release. It was not invited to advise about his continued suitability for open conditions.  

 

15.The review was conducted by a Panel of the Board (the Panel), comprising an independent member as chair, another independent member and a psychologist member, on 17 December 2024 at an oral hearing conducted by way of video-link to the Applicant’s current prison. The Applicant, now aged 37, attended and was represented by his legal advocate Taeylor Cook of Emmersons Solicitors.

 

16.The case dossier of 350 pages included a recent Psychological Risk Assessment Report (PRA) by a prison psychologist and reports from the Applicant’s Community Offender Manager (COM) and Prison Offender Manager (POM).

 

17.Oral evidence was given by the psychologist, by the COM, by the POM and by the Applicant himself. Written submissions were subsequently provided by the legal representative.

 

18.By the time of the oral hearing, the Applicant had successfully completed the Horizon Programme. The post programme report indicated that he had developed the ability to open up within relationships, talk about feelings, recognise early warning signs, better identify the difference between right and wrong and how to avoid acting impulsively. The latest Offender Assessment System (OASys) Report confirms that through completion of Horizon, the Applicant is able to explain the skills he has developed using the Great 8 techniques which include ‘in their shoes, stop and think, praise and rewards and asking for help’. His self-esteem appeared to have improved and he had developed skills on assertiveness which showed that he could deal with conflict and communicate in an appropriate manner rather than avoiding difficult situations and becoming isolated. He had subsequently undergone trauma therapy where he worked on coping strategies to promote resilience and self-regulation.   

 

19.There had been no significant behavioural concerns since the Applicant moved to open conditions and he has maintained Enhanced Status under the Incentives and Earned Privileges Scheme. His breach of the exclusion zone condition when on his first release on temporary licence (ROTL) did not lead to any adjudication procedure. The Prison Governor re-instated the ROTLs after concluding that he had not been provided with the relevant map.

                    

20.The Panel identified the Applicant’s risk factors as including lack of self-esteem, poor communication skills, belief in sexual entitlement, sexual deviance, controlling behaviour and minimisation. It referred to the psychologist’s assessment in her report that risk factors still active at the time of the report were attitudes that support or condone sexual violence, problems with self-awareness and, to a limited extent, attitudes towards offending.       

 

21.According to the latest OASys Report the Applicant’s static risk factors place him in the group of offenders whose risk of re-offending generally is low. When applying dynamic factors, the likelihood of both violent and non-violent reoffending was assessed as medium. In the latest COM report the assessment of violent re-offending was reduced to low. The risk of direct contact sexual re-offending was also assessed to be medium and dynamic risk of serious recidivism was assessed as low at 2.77% over the next two years. The risk of serious harm in the event of any reoffending by the Applicant in the community was assessed as high to children and known adults. The Panel considered that the statistical scores represented an underestimate of the Applicant’s risk of sexual re-offending taking into account his offending history.

 

22.In her report dated 10 May 2024, the prison psychologist assessed the Applicant as posing a moderate risk of future sexual violence which was not imminent. She confirmed that assessment at the hearing. In her report, the psychologist recommended that the Applicant remain in custody within open conditions to allow him to complete periods of overnight release on temporary licence to provide evidence of his ability to effectively manage his risk. He also needed to further reflect on the cognitive distortions that allowed him to offend and discuss with his supervisors such matters as future intimate relationships and how to manage situations when meeting children and their carers.

 

23.Since the date of the psychologist’s report, the Applicant had undertaken four   ROTLs to Probation Approved Premises. He had undertaken no work on healthy relationships. On the morning of the hearing, he admitted to the POM for the first time that he had raped one of the victims. The POM confirmed that, over time, he had opened up to her about his sexual offending and how he manages his sexual urges.  

 

24.At the hearing, the Applicant explained his motivation for behaving lawfully in the community, his objectives and his support network.    

 

25.The Risk Management Plan (RMP) involved release in the first instance to designated premises with probation service monitoring and support. There were to be licence conditions in force to manage the Applicant’s risks, including restrictions on unsupervised contact with children, contact with the victims, exclusion zones and polygraph testing. He would be required to undertake further work in the community to address sexual offending. Supervision and licence conditions would continue after he moved on to suitable accommodation.  

 

26.At the hearing the prison psychologist confirmed her view that there was no outstanding core risk work and she recommended the Applicant’s release. The POM also recommended release. She described how the Applicant had opened up to her over time. In her view sexual gratification had been the trigger for offending and that, prison having been a turning point for him, he now had good insight. The Panel’s decision noted that, when asked how the risk of offending by inappropriate relationships for sexual gratification had been addressed she was “not sure how to answer”.  

 

27.The COM did not support release at the present time and he recommended further testing in open conditions. The principal reason appears to be that the Applicant appeared to have agreed licence conditions without understanding them which “renders managing risks in the community extremely problematic”. This does not appear to have taken into account the Governor’s decision. There had been no contact by the probation service with the Applicant’s mother and others in his support network, in particular two longstanding pro-social friends.

 

28.The Panel expressly took into account the legal representative’s written final submissions including that the Applicant’s offending stemmed from “a want to be close to the victims” and that in his evidence he noted that “in the past he did attempt to minimise situations as a result of him feeling ashamed of what he did.” The submissions also referred to exemplary custodial behaviour, engagement with substance misuse and mental health services, completion of core risk reduction work, and that the breach of licence conditions was a misunderstanding rather than an inability to understand licence conditions.

 

29.The Panel provided a summary of the matters it considered to be of concern namely the serious and extensive nature of the Applicant’s offending history with a pattern of sexual offending over a long period of time involving children, concerns about the use of violence and aggression in relationships, the assessment of serious harm to children as high, references in both the PRA and the OASys to the Applicant’s extreme minimisation of his offending and the assessment of both the COM and his predecessor that there should be further testing on periods of release on temporary licence.

 

30.The Panel went on to set against those concerns the following positive factors: the assessments of the POM and the psychologist that the Applicant’s risk could be safely managed in the community; his positive engagement with both the POM and the COM; his largely successful completion of periods of release on temporary licence; completion of Horizon with a positive post programme review; his presentation to the Panel which appeared to show some insight into his risk factors and strategies to manage them; and the RMP with its elements of monitoring and support. 

 

31.Having acknowledged that the exclusion zone breach had not been intentional, the Panel was not persuaded that further periods of testing during release on temporary licence was necessary. It was more concerned with the issue of whether the risk of sexual offending and the risk of violence and aggression within relationships had been fully explored and addressed. There had been references in one COM report to physical abuse, of bullying behaviour, and of intimidation of victims through others. None of these had been explored in any depth with the professionals directly involved in his case or by the psychologist. Nor had they addressed issues of compliance arising out of breaching bail conditions by contacting his wife and breaching restrictions on contact with vulnerable girls.

 

32.Extreme minimisation is referred to in the PRA as partially present and the Panel identified a number of instances described. It concluded that this was an area requiring further exploration. There had been insufficient time for professionals to explore with the Applicant what lay behind his late admission of raping the victim and its implications for risk assessment.

 

33.Noting that the COM had said there needed to be contact before release with the Applicant’s support network, the Panel expressed the view that the relationship with one of them in particular needed to be explored. Contrary to the assertion in the legal representations, the Panel saw no basis for the view that this had been “risk assessed”.

 

34.Finally, the Panel decided that the emphasis in the Horizon post programme review on the Applicant’s improved assertiveness did not satisfactorily address the issue of sexual entitlement, sexual deviance and controlling and bullying behaviour. These had been identified as significant risk factors and, in the Panel’s view, the statement by the psychologist in her oral evidence that beliefs in sexual entitlement “probably would have been” was not a satisfactory basis for it to conclude that this had been addressed.      

 

35.Balancing the matters it outlined, the Panel concluded that triggers to offending behaviour and the current position in respect of risk factors had not been fully explored or addressed and therefore could not be satisfied that risk had been reduced to a level such that the Applicant could be safely managed in the community. It decided that it was therefore still necessary for the Applicant to remain confined for the protection of the public and made no direction for his release.                                 

 

The Relevant Law

 

36.The Panel correctly sets out in its decision dated 17 December 2024 the test for release.

 

Parole Board Rules 2019 (as amended)

 

37.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)).

 

38.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)).

 

Irrationality

 

39.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.

 

40.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.”

 

41.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).

 

42.As was made clear by Saini J this is not a different test from the Wednesbury test. The interpretation of and application of the Wednesbury test in Parole hearings as explained in DSD was binding on Saini J.

 

43.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.

 

44.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.

 

Reconsideration as a discretionary remedy

 

45.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 a 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

 

46.PPCS has confirmed that no representations are offered by the Respondent.

 

Discussion

 

47.In their written representations, the Applicant’s legal representative refers to the reasons provided by the Panel for its conclusion that the RMP was not sufficiently robust to manage the Applicant in the community at this stage. The legal representative highlights the fact that no other work is available for him to complete and points to the reference by the Panel in its decision that in the psychologist’s opinion the Applicant “would not meet the criteria for HSP (Healthy Sex Programme) and that appropriate consolidation work in the community would be by way of completing Maps for Change…”.     

 

48.After setting out the five domains of the Horizon Success Wheel, the legal representative argues further that an adjournment would have provided an opportunity for further reports from the programme to establish whether the identified risk factors had in fact been fully explored.  

     

49.In my view, the Panel adopted an entirely objective approach in its analysis of the Applicant’s risks, the protective factors in place and the effectiveness of risk management in the community. It conducted a careful balancing exercise. The fact that it did not adjourn the proceedings does not mean that the Panel failed to adequately evaluate the material in the post programme report and it also had the benefit of obtaining the opinions of the professional witnesses.     

 

50.The Panel properly applied its own judgment to the risk assessments in the OASys Report and reached an objective conclusion that they were underestimated.   

 

51.The risk of non-compliance and further offending is linked to the risk of serious harm. The need for the Applicant to remain confined has to be read in the context of the type of harm from which the public needs to be protected, in this case to young girls. The fact that the Applicant’s risk of serious harm may lack imminence at the point of release does not mean that a risk does not exist.

 

52.In its decision, the Panel carefully considered all the points raised in the Applicant’s closing submissions and dealt with all of them in a logical manner. It considered the Applicant’s past and present conduct, attitudes, insight and motivation. The fact that any or all professional witnesses have expressed an opinion about the imminence of a prisoner’s risk and their suitability for release does not mean that a Panel has to accept it. In this case, professional opinion was divided.

 

53.Having read the written case material and heard all the oral evidence, the Panel was in the best position to apply its own independent judgment. It has done so in this case consistently, objectively and logically. There is no foundation for the submission that its decision was not based on fact but on conjecture.       

 

Decision

 

54.For the reasons I have given, I do not consider that the decision was irrational and therefore the application for reconsideration is refused.

 

 

 

HH Judge Graham White

04 March 2025