The Parole Board for England and Wales

 

 

 

 

[2025] PBRA 46

 

 

 

Application for Reconsideration by Morris

 

Application

 

1.   This is an application by Morris (the Applicant) for reconsideration of a decision of an oral hearing panel (OHP) dated 22 January 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 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 in time.

 

3.   I have considered the application on the papers. These are the dossier now consisting of 391 pages, the panel decision, and the application for reconsideration drafted by the Applicant’s legal adviser.

 

Request for Reconsideration

 

4.   The application for reconsideration is dated 12 February 2025.

 

5.   The grounds for seeking a reconsideration are set out below.

 

Background

 

6.   The Applicant was sentenced to an extended sentence consisting of a custodial period of four years and an extension period of five years. He became eligible for parole in June 2024. He will be automatically released on a conditional release date in October 2025. The Applicant was aged 58 at the time of sentence and was 61 at the time of the oral hearing (OH). The index offences related to attempts to engage in sexual communication with a child and attempting to meet the child under 16 years of age, following grooming. The Applicant made contact online with a person he thought to be a child but it was in fact a decoy police officer. He also arranged to meet the child and physically drove to a meeting point when he was arrested.

 

Current parole review

 

7.   The referral by the Secretary of State (the Respondent) requested the Parole Board consider whether the Applicant should be subject to a direction for release. The Applicant at the time of the hearing was in an open prison. This was the first review of the Applicant’s sentence by the Parole Board.

 

8.   The OHP consisted of an independent Parole Board chair, and two further independent members of the Parole Board. A dossier then consisting of 364 pages was considered by the panel. Evidence was received from a prison offender manager (POM), a community offender manager (COM) and a prison commissioned psychologist. The hearing was also observed by a member of the prison psychology department specialising in assessing offenders for sexual offences behavioural programmes.

 

The Relevant Law

 

9.   The panel correctly sets out in its decision letter dated 22 January 2025 the test for release.

 

Parole Board Rules 2019 (as amended)

 

10.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)).

 

11.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

 

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 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."

 

24.Omitting to put information before a panel is not a ground for procedural unfairness, as has been confirmed in the decision on the previous reconsideration application in Williams [2019] PBRA 7. This is the case even where the information, had it been before the panel, would have been capable of altering its decision, or prompting the panel to take other steps such as putting the case off for an oral hearing where the new information and its effect on any risk assessment could be examined. This is because procedural unfairness under the Rules relates to the making of the decision by the Parole Board, and when making the decision the panel considered all the evidence that was before them. There was nothing to indicate that further evidence was available or necessary, and so there was nothing to indicate that there was any procedural unfairness.

 

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 made no representations.

 

Discussion and Grounds

 

27.The application for reconsideration in this case was drafted by the Applicant’s legal adviser. It did not specifically numerate individual grounds for the application. However, the overall ground for the application appeared to be encapsulated in the comment by the Applicant’s legal adviser that the decision shows a “clear disregard from the panel for the views of [the prison commissioned psychologist] and the individuals who run [a sex offender programme in the prison]. Individuals who are also experienced with managing sex offenders.” It is argued, on behalf of the Applicant, that the panel ignored the views of professionals and were therefore irrational in reaching a conclusion that the Applicant was unsuitable for a direction for release.

 

Discussion

 

General Background

 

28.As noted above the Applicant in this case was serving a sentence of imprisonment in relation to attempting to commit sexual offences against children. The index offences were committed in October 2021. However, this case had a relevant and important history because the Applicant had been convicted in 2018 of similar offences (committed in 2017).

 

29.In 2017 the Applicant committed offences of attempting to arrange or facilitate the commission of child sex offences and the possession of an indecent photograph of a child. He made contact with a 13 year old child and attempted to incite her to engage in sexual activity. He was also convicted of contacting two other people who he believed were under 16 year old females and inciting them to engage in sexual activity. He also had in his possession an indecent photograph of one of the children.

 

30.This first set of offences resulted in a suspended sentence of imprisonment being imposed and a Sexual Harm Prevention Order (SHPO) being made. The SHPO meant that the Applicant was prohibited from being in contact with children.

 

31.As noted above the second set of offences were committed in October 2021. The Applicant, breaching the SHPO, made contact with a child who he believed to be a 13 year old female. The contact was in fact with an undercover police officer. The Applicant developed the relationship online and then made arrangements to make physical contact with the child. He was believed to have travelled a long distance in order to meet the child. He was arrested when he arrived at the rendezvous.

 

32.The Parole Board panel were considering a reference by the Respondent to consider whether the Applicant should be released before the conditional release date. He was subject to an extended sentence and had become eligible for parole.

 

33.The panel heard evidence from the POM, a prison commissioned psychologist and the COM. These three professionals were all recommending that the Parole Board panel direct release.

 

34.Whilst in prison, serving the sentence for the index offence, the Applicant had completed an accredited programme which was aimed to address factors that had been problematic in general life and which may have contributed to offending behaviour. The Applicant completed this programme.

 

35.An issue, which was addressed at the hearing, was the fact that the Applicant had not undertaken a second potential (sexual offence related) programme in prison, namely one which would be suitable for those assessed as having offences related to particular sexual interests (in this case in children). The prison psychology department had reached the conclusion that the Applicant was not suitable for the prison programme aimed at those with offences related to sexual interests in children. This was because both the prison commissioned psychologist and the psychology department had assessed that there was insufficient evidence (despite the convictions) that the Applicant had a sexual interest in pubescent or prepubescent children. This issue (was the offending precipitated by a sexual interest in children? Or was his sexual preoccupation grounded in poor self-esteem and stress?) was fundamental to the decision of the panel.

 

36.At the OH the Applicant’s POM gave evidence. The POM reported that the Applicant’s behaviour in prison had been positive and there were no negative views relating to prison conduct. The Applicant was in an open prison. The POM recommended that the panel direct release.

 

37.The panel set out, at paragraph 2.15 of the decision, reasons why they felt unable to rely upon the recommendation of the POM. Their main concern was that the POM was recommending release in circumstances where he himself had been concerned about the assessment of risk (being inaccurate) and the credibility of the Applicant’s assertions relating to sexual thinking (being questionable). It appeared therefore (in the view of the panel) there was an irreconcilable conflict between the recommendation and the recorded view of this professional.

 

38.The panel were also not persuaded by the evidence of the prison commissioned psychologist and the COM.

 

39.So far as the COM was concerned it was noted that she took the view that the Applicant was a person who had an undeclared sexual attraction to children. The COM took the view (contrary to that of the prison commissioned psychologist) that the Applicant (as part of managing his risk) should have completed a behavioural programme which was directly and specifically aimed at those who are assessed as having committed offences related to identifiable sexual interests (in this case in children). However, despite this differing view, the COM (in evidence in the hearing) took a pragmatic view of the timing of the hearing in the sense that the Applicant was due to be released automatically in a few months from the hearing date. The COM’s pragmatic approach was that the Applicant’s risk of grooming another child and offending in a similar fashion would not change over the short period between the time of the hearing, and the time of the automatic release. Accordingly, the COM took the view that remaining in custody would accrue no particular benefit. For that reason, and on the basis that the risk management plan being suggested was robust, the COM was recommending that the Applicant be released.

 

40.So far as the prison instructed psychology witness was concerned, there was, as noted above, a strongly debated issue about whether the Applicant’s offending and behaviour was indicative of a sexual preference for children.

 

41.The psychologist had analysed the evidence relating to the offences and had reached the conclusion that there was no evidence of the Applicant being aroused by the features of a child’s body and therefore (in the view of the psychologist) there was no evidence of the Applicant having a specific sexual interest in children. The prison commissioned psychologist indicated that her view was that the Applicant had a general sexual preoccupation and had “overcome age barriers” and was aroused by children not because of a sexual interest in children but because of other factors in his life, such as poor self-esteem and stress.

 

42.The prison instructed psychologist’s professional position therefore was that all appropriate offending behaviour work had been undertaken, and importantly, that further child specific behavioural work was not appropriate to the Applicant. Having analysed the risk management plan, and the support factors in the community, the prison commissioned psychologist reached the conclusion that the Applicant’s risk could be safely managed in the community.

 

43.The panel considered the totality of the evidence in this case. The panel reminded themselves that they were obliged to consider risk at any time in the future, rather than confine themselves to the short period up to his scheduled automatic release.

 

44.The panel acknowledged that the Applicant has behaved extremely well in custody, however, the panel also noted that it is not unusual for someone with an offence profile like that of the Applicant to comply with custodial rules and to build good relationships with those in custody. The panel also noted that good compliance does not necessarily indicate a likelihood of compliance with licence conditions in the community (as evidenced by the breach of the SHPO by this Applicant).

 

45.The panel noted that the Applicant had said that he was not attracted to children but to the thought of being able to teach them about sex. He said his interest in children was driven by his own lack of self-esteem and that he had an emotional congruence with teenage girls rather than a sexual interest in them. The panel accepted that this was also a view adopted by the prison commissioned psychologist.

 

46.However, the panel noted that the COM, who had experience in managing sex offenders in the community, did not agree with this assessment.

 

47.The panel, reflecting upon the various views of the professionals, came to the conclusion that the raw facts in this case were that the Applicant had demonstrated an interest in sexual contact (both online and physically) with pubescent and post pubescent children. In relation to the index offending, he had not only undertaken contact online, but had undertaken a substantial journey in order to specifically meet the child, having in advance suggested sexual activity and suggested ways of avoiding detection from members of the public.

 

48.The panel noted that this index offence had been committed following a number of behavioural interventions and programmes in the community before and after sentencing for the first set of offences. The panel’s conclusion was that the Applicant was motivated to seek sexual contact with children. The panel came to the conclusion that the Applicant’s evidence that he was sexually naive in adult relationships and thereby sought contact with younger people was at odds with his actual sexual experience with adult women. The panel concluded that the Applicant’s behaviour, evidenced over two sets of offences, was indicative of a sexual interest in children. The panel also took the view that the Applicant’s sexual interest in children had not been fully addressed and therefore remained a substantial risk.

 

49.The panel in their decision, accepted that, so far as the professionals were concerned, there had been a difference of opinion. The panel noted that there had been reliance upon the Applicant’s contention that he did not have a sexual interest in children, despite the facts of the offending indicating the contrary.

 

50.The panel carefully analysed the competing views in this case. They were obliged to apply their evidential conclusions to the test for release. They concluded that the facts plainly indicated that that the Applicant was motivated to seek sexual contact with children. The panel identified a continuing high risk of harm. The panel took the view that the external controls in the risk management plan would be insufficient to manage the Applicant’s potential risk, particularly in circumstances where there was concern about the Applicant’s openness and honesty.

 

51.The panel had the advantage of an extensive dossier of reports and other material. They also had the advantage of seeing and hearing the Applicant as well as the witnesses. The Applicant was also legally represented throughout. Where there is a conflict of evidence, it was plainly a matter for the panel to determine the evidence they preferred. Their decision must rest upon reasons which are soundly based on evidence, as well as rational and reasonable or at least not outrageous in the sense expressed above.

 

52.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 (while also protecting the prisoner from unnecessary incarceration) if they failed to do just that. As was observed by the Divisional Court in DSD, they have the expertise to do it.

 

53.However, if a panel were to make a decision contrary to the opinions and recommendations of some or all of the professional witnesses, it is important that it should explain clearly its reasons for doing so and that its stated reasons should be sufficient to justify its conclusions, per R (Wells) -v- Parole Board 2019 EWHC 2710.

 

54.Where a panel arrives at a conclusion, exercising its judgement based on the evidence before it and having regard to the fact that they saw and heard the witnesses, it would be inappropriate to direct that the decision be reconsidered unless it is manifestly obvious that there are compelling reasons for interfering with the decision of the panel.

 

55.In this case the panel gave clear reasons for their decision. They found that the Applicant’s assertion that he was not sexually attracted to children, lacked credibility in the light of the facts of both the index offences and the preceding offences. While respecting the professional expertise of the prison commissioned psychologist, the panel were not persuaded by the assertion that the Applicant was not driven in his offending by a sexual interest in children; in their view this flew in the face of the facts of the offending. The Applicant was not, in the view of the panel, open and honest about interests. The Applicant had also not undertaken offence specific work relating to a sexual interest in children which was another concern leading to the panel’s conclusion. I am satisfied that the panel’s conclusion was reasonable and rational and based upon credible and demonstrable evidence, for that reason I am not persuaded that this is a case where the decision was irrational in the sense set out above.

 

Other issues

 

56.It is asserted by the Applicant’s legal adviser that the Applicant’s evidence relating to masturbation was incorrectly appraised by the panel.

 

57.Comment - I have considered whether this was a material consideration in the decision of the panel. The issue goes to the Applicant’s credibility. The panel set out a number of reasons why they did not accept that the Applicant was fully open and honest. The overarching factor was his denial that he had a sexual interest in children, something which the panel did not accept. I do not therefore find this detailed point to be persuasive.

 

58.It is asserted by the Applicant’s legal adviser that the Applicant’s evidence relating to recording of sexual thoughts was misunderstood.

 

59.Comment - The recording or otherwise of sexual thoughts did not appear to be a material factor in the panel’s overall decision.

 

60.It is asserted by the Applicant’s legal adviser that the Applicant’s evidence relating to managing sexual thoughts by the Applicant was misunderstood. It is submitted that the Applicant was being asked about managing sexual urges in the future (in the community rather than in prison). The Applicant had indicated that he was confident that he had control of his urges and also had mentioned a physical technique (bending a finger until it hurts to distract).

 

61.Comment - This does not appear to be an issue which was explored in any detail in the hearing. However the panel were conscious of the fact that the Applicant had given a number of indications (of his ability to manage his sexual urges) prior to sentencing for the preceding set of offences. The Applicant accepted (in the hearing) that he was not likely to have been honest with himself or the professionals at that time (as he went on to commit further offences). In essence the 2025 panel were not convinced that the Applicant’s assertions about his ability to manage his urges and preoccupations was supported by the historical evidence. In my determination the panel understood the issues relating to the Applicant’s assertions about managing sexual urges, but were not persuaded that there was evidence of an ability to manage them in practice.

 

62.It is asserted by the Applicant’s legal adviser that the Applicant’s evidence relating to the availability of software to manage internet usage was incorrect.

 

63.Comment - A point is raised that the panel were told (by the probation officer in the hearing) that the local probation office did not (at the time) have the resources to pay for licences for such software. The Applicant’s legal adviser appears to have had contact with the local police who confirm that they (the police) use the software. Reconsideration does not engage upon evidence not specifically introduced in the hearing. However, in any event, it does not appear from the content of the decision of the panel, that the availability or otherwise of internet usage software was a fundamental or material issue in this decision.

 

Decision

 

64.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

03 March 2025