The Parole Board for England and Wales

 

 

[2025] PBRA 93

 

 

 

Application for Reconsideration by Seaward

 

 

Introduction

    

1.This is an application by Seaward (‘the Applicant’) for reconsideration of a decision of a panel of the Parole Board (‘the Board’) who decided on 3 March 2025 not to direct his release on licence or to recommend his transfer to an open prison.

 

2.The Applicant is serving a sentence of life imprisonment imposed on 28 April 2002 for a serious indecent assault. The circumstances of that offence and an associated offence of false imprisonment will be described below. His minimum term (‘tariff’) was set at three and a half years. He was released on licence in April 2018 but recalled to prison in September 2019 for what probation regarded as breaches of his licence. He remains in prison.

 

The application for reconsideration

 

3.Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2024) provides that applications for reconsideration of panel decisions may be made, either by the prisoner or by the Secretary of State for Justice, in eligible cases.

 

4.Rule 28(2) specifies the types of cases in which reconsideration applications may be made. They include cases, like the Applicant’s, where the prisoner is serving an indeterminate sentence.

 

5.A reconsideration application may be made on the ground         

 

(a) that the panel’s decision contained an error of law and/or        

(b) that it was irrational and/or                  

(c) that it was procedurally unfair.

 

6.In this case an application for reconsideration has been made on all three grounds by the Applicant himself.

 

7.The application has been made within the prescribed time limit (as extended by a Duty Member of the Board) and is therefore an eligible case.

 

8.I am one of the members of the Board who are authorised (as ‘Reconsideration Assessment Panels’) to make decisions on reconsideration applications, and this case has been allocated to me. I have not found it necessary to receive any oral evidence and I have considered the application on the papers.

 

9.The documents which have been provided to me and which I have considered for the purposes of this application are:

 

(a) the dossier of papers, now running to page 384, which was provided by the Secretary of State for the Applicant’s hearing;

(b) the representations made by the Applicant himself in support of this application;

(c) a covering letter from his solicitor; and

(d) an e-mail from the Public Protection Casework Section of the Ministry of Justice (“PPCS”) containing representations on behalf of the Secretary of State in response to this application.

 

 Background and history of the case

 

10.The Applicant is now aged 74. For much of his life he has been a law abiding citizen. However he has committed a number of serious offences over the years and on three occasions he has been convicted of serious sexual offences against women.

 

11.In March 1973, when he was aged 22, he received a 7 year custodial sentence for burglary with intent to rape and indecent assault on a female. The case for the prosecution, which the jury accepted, was that he had forced his way into a young woman’s home and forced her up to her bedroom at knifepoint. When she told him she was menstruating, he forced his penis into her mouth.

 

12.In March 1990, when he was aged 39, he received a 4 year custodial sentence for false imprisonment, indecent assault on a female child and assault occasioning actual bodily harm. The prosecution case, which the jury accepted, was that he grabbed a 14-year-old babysitter by the throat and punched her to the face several times before urinating over her hair. He tried, unsuccessfully, to force her to give him oral sex.

 

13.In August 2002, when he was aged 51, he committed the offences for which he is now serving a life sentence. On that occasion he pleaded guilty at a late stage, on his counsel’s advice, because there was DNA evidence on which the prosecution proposed to rely. He pleaded guilty to assaulting a young woman in his shop and falsely imprisoning her. The prosecution case was that he trapped her in the shop, forced her into a cupboard and made her strip before digitally penetrating her and forcing her to give him oral sex.

 

14.The Applicant maintains that he was not guilty of any of the sexual offences against women (including the ones to which he pleaded guilty). It is recorded that at some stages during his sentence he made some admissions of responsibility but he now says that the report writers either lied or misconstrued his words.

 

15.He has relatively recently instructed counsel to see whether there are any grounds for an appeal against his convictions for the sexual offences. He has apparently not yet received counsel’s opinion. He is aware that the Board is obliged by law to approach its assessment of his current risk to the public on the basis that the jury’s verdicts were correct. The Board has no authority or resources to re-investigate the cases.

 

16.A remarkable discovery was made at some time after the Applicant had received his life sentence. It was found that a witness (Mr B) who purported to be a qualified psychiatrist was not professionally qualified at all. Some of Mr B’s evidence was, it seems, unfavourable to the Applicant.

 

17.Mr B subsequently received a substantial prison sentence for his fraudulent behaviour. Some of the reports prepared by real professionals in the early stages of the Applicant’s sentence apparently placed some reliance on Mr B’s fraudulent report. I will need to return to this topic below.

 

18.As noted above the Applicant was released on licence but subsequently recalled to prison. The circumstances of the recall will be discussed below.

 

19.After his recall the Applicant’s case was referred by the Secretary of State to the Board to decide whether he should he re-released on licence. An oral hearing took place in May 2022 before three members of the Board. Four professional witnesses gave evidence to the panel. These were the Applicant’s Prison Offender Manager (‘POM’) Ms I, a prison psychologist Ms E, an independent psychologist Dr A and the Applicant’s Community Offender Manager (‘COM’) Mr G. All four supported the Applicant’s release on licence. The panel were satisfied that the Applicant’s recall was justified, and were not satisfied that the test for re-release was met. They therefore did not direct his re-release on licence.

 

20.Another prison psychologist (Ms M) had prepared a report in which she did not support re-release on licence. She had been replaced by Ms E in circumstances which will be discussed below.

 

21.The present review of the Applicant’s case commenced in October 2023. In April 2024 a Member Case Assessment panel decided that the case should proceed to an oral hearing, and it was allocated to another three member panel.

 

22.The hearing took place on 18 February 2025. The Applicant was represented by his solicitor. The panel considered both written and oral evidence. The written evidence was contained in the dossier which then ran to page 333 including closing submissions provided by the solicitor after the hearing.

 

23.As well as the Applicant himself the following witnesses gave oral evidence:

 

(a) a stand-in for the POM (Mr C),                               

(b) a prison psychologist (Ms S),                                           

(c) an independent psychologist (Dr A), and                               

(d) the COM (Mr G).

 

24.The stand-in POM was not in a position to make a recommendation to the panel.              The independent psychologist Dr A supported release on licence, but the prison psychologist Ms S did not, nor did the COM Mr G (who had supported it at the 2022 hearing).             

 

The Relevant Law        

 

The test for release or re-release on licence

 

25.The test for release or re-release on licence is whether the panel is satisfied that the Applicant’s continued confinement in prison is no longer necessary for the protection of the public. The panel cannot be so satisfied unless it considers that, if the prisoner were to be no longer confined in prison, there will be no more than a minimal risk of his committing a further offence which would cause serious harm to someone else.

 

The rules relating to reconsideration of decisions

 

26.Under Rule 28(1) of the Parole Board Rules 2019 (as amended in 2024) a decision is eligible for reconsideration if (but only if) it is a decision that the prisoner is or is not suitable for release on licence. The grounds on which an application may be made are as set out above (error of law, irrationality or procedural unfairness). As noted above the application in this case is made on all grounds. A decision not to recommend a move to an open prison is not eligible for reconsideration.

 

27.A decision that a prisoner is or is not suitable for release on licence is eligible for reconsideration whether it is made by:

(i) a paper panel (Rule 19(1)(a) or (b)) or

(ii) an oral hearing panel after an oral hearing, as in this case (Rule 25(1)) or

(iii) an oral hearing panel which makes the decision on the papers (Rule 21(7)).

 

Error of law

 

28.Examples of decisions made by a panel of the Board which may be ruled to be unlawful under the broad heading of illegality are where 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.

 

29.These are not the only possible reasons for a finding of error of law but they are the ones most commonly alleged. The task of the High Court or a Reconsideration Panel in evaluating whether a panel’s decision is unlawful 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 principle.

 

Irrationality

 

30.The power of the courts to interfere with a decision of a competent public authority on the ground of irrationality was defined in Associated Provincial Houses Ltd -v- Wednesbury Corporation 1948 1 KB 223 by Lord Greene as follows: “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 Parole Board is a public authority for that purpose, and the Wednesbury test therefore applies to applications to the High Court for judicial review of a panel’s decision. It also applies to applications to Reconsideration Panels of the Board for reconsideration of a panel’s decision on the ground of irrationality.

 

31.In R (DSD and others) -v- the Parole Board 2018 EWHC 694 (Admin) (‘the Worboys case’) a Divisional Court applied this test to Parole Board decisions in these words: “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.” The same test of course applies to “no release” decisions.

 

32.In R (on the application of Wells) -v- Parole Board 2019 EWHC 2710 (Admin) Mr Justice Saini set out what he described as a more nuanced approach in modern public law. This approach is “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 formulation of the 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).

 

33.As was made clear by Mr Justice Saini, 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 the Wednesbury and DSD cases) was of course binding on Mr Justice Saini. It is similarly binding on Reconsideration Panels.

 

34.It follows from these principles that in considering an application for reconsideration a Reconsideration Panel cannot substitute its own view of the evidence for that of the panel who heard the witnesses and were able to assess their reliability. The Reconsideration Panel will only direct reconsideration on the ground of irrationality if the Wednesbury test is satisfied.

 

Procedural unfairness

 

35.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 from the issue of irrationality which focusses on the actual decision.

 

36.Examples of procedural unfairness which may be a ground for quashing a panel’s decision on this ground are where:

 

(a)        express procedures laid down by law were not followed in the making of the relevant decision; or

(b)        the party was not given a fair hearing;

(c)        the party was not properly informed of the case against them;

(d)        the party was 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.

 

37.These are not the only possible grounds for a finding of procedural unfairness but they are the ones most commonly alleged. The overriding objective is to ensure that the Applicant’s case was dealt with justly.

 

The request for reconsideration in this case

 

38.The application in this case was made on 4 April 2025. It was made in two documents: one was a letter from the Applicant’s solicitor and the other, attached to that letter, was a 54 page document comprising (a) many pages of handwritten representations by the Applicant himself and (b) scanned copies of various other documents. The relevant details of the representations and my responses to them will be discussed below.

 

The response on behalf of the Secretary of State

 

39.PPCS on behalf of the Secretary of State has made two representations in

response to this application. The first it to correct an inaccuracy in the application (to which I will refer below). The second is as follows:

 

“PPCS can confirm that we have reviewed the scanned documents attached to [the Applicant’s] reconsideration application. However, we respectfully submit that these documents should be disregarded for the purpose of reconsideration, as they contain new information which was not before the Panel at the time of the original decision. [The Applicant] had the opportunity to submit representation or raise any concerns in advance of the hearing but did not do so. As such, the inclusion of this material at this stage does not meet the threshold for reconsideration.”

 

Documents considered

 

40.I have considered the following documents for the purpose of my decision:

 

(a)        the dossier;

(b)        the letter from the Applicant’s solicitor;

(c)        the 54 pages attached to it; and

(d)        the representations from PPCS.

 

Discussion

 

41.I should start by saying that PPCS are correct in their submission that any documents or information now put forward by the Applicant which were not before the panel should be disregarded: this is a reconsideration application and the panel’s decision can only be challenged on the basis of evidence or arguments which were put forward to them at the hearing. I must therefore ignore any new points advanced by the Applicant.

 

42.As noted above the Applicant relied on all three grounds for reconsideration. It is convenient to start the discussion by considering the contention that the panel’s decision was irrational. I have reminded myself of the test to be applied (was the decision unreasonable in the Wednesbury sense?).

 

  GROUND 1: IRRATIONALITY

 

43.To determine whether the ground of irrationality is made out I need first to examine the reasons given by the panel for their decision, to see whether I can detect any defect or flaw in their reasoning.

 

44.The panel’s reasons were very clearly set out in their decision letter. It is worth setting out the key points.

 

45.Under the hearing ‘Analysis of offending behaviour’ the panel wrote:

 

“The fact that [the Applicant] maintains his innocence of the index offence is not in and of itself a barrier to release, but it does mean that the triggers and reasons for his sexual offending are not fully understood. His strongly held reluctance to complete a structured intervention in custody, even where he would not have to admit responsibility for his actions, have added to the difficulties faced by professionals and the Parole Board with regard to identifying and assessing his insight into his behaviour and potentially risky situations or his ability to manage such situations in the future.

 

“The panel gave careful thought as to whether [the Applicant’s] denial could be a result of shame which in turn could protect against further serious sexual offending. However, it decided that this was not the case given that [the Applicant] has repeatedly committed sexual offences, all of which he denies. The panel also noted that the relevant convictions date from 1973, 1989 and 2003. However, it could give no weight in terms of the gaps in sexual offending demonstrating evidence of effective internal controls. The fact that he committed serious offences against female victims of different ages, without warning and after lengthy periods of desistence, actually adds to his risk profile.

 

“Given the lack of clarity as to the reasons why [the Applicant] commits serious sexual offences, in order for risk to be managed it is essential that he is open and honest and engages fully with professionals involved in his case alongside full compliance. Notwithstanding that he was in the community for a reasonable period of time, the panel was not confident that he would be fully open and compliant and this is relevant to his risk profile and management.

 

“The panel found that [the Applicant] can be rigid in his thinking and fixated on his own perspectives, presenting as only wanting to engage on his own terms and with grievances against all those who do not agree with him or do not accept his explanations and justifications. These tendencies have clear implications for his likely compliance and willingness to be open and honest with those managing him in the community, or to heed their advice.”

 

46.Later in the decision letter the panel considered the risk assessments made by probation. These are of two kinds, statistical and clinical. The statistical assessments are based on the prisoner’s record of offending and are aimed at providing an estimate of the risk of the prisoner committing further offences of one kind or another. The clinical assessments are estimates of the level of risk which the prisoner is likely to pose to various categories of people in the event of his reoffending.

 

47.In this case the statical assessments indicate that the risks of general re-offending, violent reoffending, nonviolent reoffending, noncontact sexual offending and serious recidivism are low, whereas the risk of contact sexual offending is high. The COM was of the opinion that the low assessments were under-assessments. The panel wrote:

 

“Given the serious nature of the index offence and some of [the Applicant’s] past offending and the absence of sufficient and compelling evidence pointing to a reduction in risk or effective internal controls the panel was not confident that these scores are an accurate reflection of his criminal record or of his risk profile. In reaching that view the panel took into account [the Applicant’s] age and physical health.”

 

48.The panel added that in this case the statistical risk of contact sexual offending (high) was of greater relevance than the others.

 

49.In the ‘Conclusion’ section of the decision letter the panel summarised their overall conclusions, which were as follows:

 

“The panel gave very careful consideration to the written evidence and the oral evidence adduced over the course of a lengthy hearing. It also took into full account the comprehensive closing submissions made by the legal representative.

 

“The panel accepted entirely that it must make its own independent assessment of risk, and was particularly interested as to the reasons for [the COM Mr G’s] change of professional opinion, and the differences of opinion between successive psychologists instructed by His Majesty’s Prison and Probation Service (HMPPS). It took into full account the reasons given by [the prisoner commissioned psychologist Ms P] for her recommendation that [the Applicant] should be released.

 

“The fact that [the Applicant] maintains his innocence is not a bar to release but it does mean that he is an untreated sex offender, that the triggers to and motivation for his sexual offending are not understood and that the panel must look carefully for evidence that his risk can nevertheless be managed in the community.

 

“Denial can, in some cases, act as a protective factor as an admission of guilt would be too shameful and to reoffend would cast significant doubt on the assertions of innocence. In this case the panel could not accept that denial is a protective factor because [the Applicant] has a history of sexual recidivism and he maintains innocence of all sexual offences. The panel also noted that he minimises his non-sexual offences including violence and drink driving, along with his repeated breaches of his licence conditions.

 

“Neither could the panel give positive weight to the argument that gaps in sexual offending demonstrate effective internal controls. The fact that he committed serious offences against female victims of different ages, without warning and after lengthy periods of desistence, actually adds to his risk profile.

 

“The current panel was perhaps less persuaded than the 2023 panel that it is essential that he completes a structured intervention prior to release although this would be of benefit, not least because it would demonstrate a willingness on [the Applicant’s] part to engage with his sentence plan and to attempt to build on his motivation to work with professionals in the community. The panel also accepted that there could be benefit to him undertaking an intervention in the community alongside the relational approach espoused by [Ms P] and which [Ms S] acknowledged would be important.

 

“However, on the evidence available to it, and the submissions notwithstanding, the panel considered that the protection of the public would be reliant on external controls. Those controls can only be effective if [the Applicant] openly, honestly and fully engages with them and with the probation service. He repeatedly expressed grievances against professionals who do not agree with him and his overall attitude towards a wide range of professionals including probation simply raises a very significant doubt that he will engage positively and appropriately with them.

 

“Furthermore, the panel had concerns that any engagement will be on his terms and his terms only, and that his failure to accept responsibility for his boundary pushing and breaches, or to recognise the seriousness of this in terms of the protection of the public, raises questions as to whether he will recognise and/or disclose any risk related thoughts, behaviours, feelings or situations he finds himself in.

 

“The panel acknowledged [the Applicant] has exercised self-management in custody where his behaviour has been of a good standard both prior to release and following recall. However, it could not be confident that this will continue when he returns to the community. There is insufficient evidence to show that either his internal controls or external measures can be relied upon in the longer term.

 

“The panel must consider and apply the codified public protection test when making a decision about release. The Board must not give a direction for release unless the Board is satisfied that it is no longer necessary for the protection of the public that [the Applicant] should be confined. In coming to that view the panel must find that there is no more than a minimal risk that [the Applicant] would commit a further offence which would cause serious harm.

 

“On the totality of the evidence the panel could not find that the test for release is met.”

 

50.I cannot detect any irrationality in any of these passages in the panel’s decision letter. However I must now examine the Applicant’s arguments in order to see whether they reveal any errors or weaknesses in the panel’s decision. I will consider those arguments under various headings.

 

Mr B’s bogus psychiatric report

 

51.There is no doubt that the sentencing judge was misled into thinking that Mr B’s report had been written by a professionally qualified psychiatrist, and the authors of the early prison reports were similarly misled.

 

52.There is a reference in the Applicant’s representations to an appeal which he evidently made to the Court of Appeal. It is unclear (a) whether that appeal was against his conviction or sentence (or both), and (b) whether one of the grounds on which he relied related to the bogus psychiatric report. One thing is clear, and that is that the appeal cannot have been successful. That is not surprising: the Applicant had pleaded guilty to the offences (see further below) and given the nature of those offences and his previous sexual offences a life sentence was clearly appropriate.

 

53.The relevant question for present purposes is whether the present panel’s decision might have been influenced in any way by having seen the judge’s sentencing remarks which were in the dossier and which included some references to the evidence of the bogus report by Mr B.

 

54.I am satisfied that the answer to that question is ‘No’ and that the panel reached their own conclusions about the Applicant’s current risk to the public on a careful assessment of the evidence placed before them. They stated explicitly at the beginning of their decision letter: ‘At the start of the hearing the Panel Chair made it clear that the panel would place no weight on any evidence arising from the fraudulent report’ and there is nothing to suggest that they departed from that very clear statement.

 

55.One passage in the part of the panel’s decision letter which referred to the evidence of the prison psychologist Ms S states: ‘When asked about her concerns about [the Applicant’s] possible sexual fantasies, she said that this opinion was not influenced by [the] fraudulent report but was based on the concerns raised by the index [offence] and previous matters.’ The panel clearly, and reasonably, accepted Ms S’s evidence about that.

 

56.The Applicant is still obsessed by the discovery of the fraud but it will be in his best interests from now on to understand that that is a thing of the past and is not going to affect the current and future assessments by professionals of his risk to the public (including assessments by panels of the Board).

 

The HMPPS psychologist Ms M

 

57.The Applicant is also clearly still obsessed by the report by the psychologist Ms M in 2022 which did not support his release on licence. He states that Ms M placed considerable reliance on Mr B’s bogus report, which she should not have done as it had been exposed some time previously as being fraudulent and unreliable.

 

58.The Applicant has now provided as part of his 54-page representations an incomplete copy of a document entitled ‘Closure Decision Form’ which I accept must have been issued by Ms M’s professional body as a result of a complaint which the Applicant made to that body about her report. This document is clearly incomplete and does not state the outcome of the Applicant’s complaint. It does however state that ‘the registrant’ (i.e. Ms M) was no longer employed by HMPPS.

 

59.Neither this nor any other document appears to have been presented to the panel at the hearing to substantiate the Applicant’s evidence about Ms M’s report. Hence, immediately after the passage quoted in paragraph 54 above, the panel stated:

 

“…. [The Applicant] continues to be fixated on the report as demonstrated by his evidence and submissions following his instructions to his solicitor which includes reference to a complaint he made about a psychologist leading to her dismissal, although the panel has received no evidence to support the accuracy of this claim.”

 

60.It was entirely correct for the panel to deal with the matter in that way given the absence of evidence presented to them by the Applicant on this topic.

 

61.Having noted the Applicant’s representations on the topic I considered carefully whether, having regard to the principle referred to by PPCS and in paragraph 41 above, I should simply disregard the ‘Closure Decision Form’.

 

62.However, I think it is only fair to the Applicant to attach some weight to it. He had raised at the hearing his assertion about Ms M’s report being wrongly reliant on the bogus report and her being ‘dismissed by HMPPS’ as a result. PPCS, unlike the Applicant, should know (or be able to find out) whether that is the case. I therefore invited PPCS and the Applicant (through his legal representative) to provide further information to clarify the position.

 

63.The information provided by the Applicant’s legal representative is rather limited. It does not include any further document but explains that the Applicant assumed from the statement in the ‘Closure Decision Form’ that Ms M had been dismissed by HMPPS or struck off by her professional body. The legal representative states further: ‘[The Applicant] has confirmed that the document does not confirm that his complaint was upheld.’

 

64.PPCS have not provided any further information on this topic.

 

65.Whilst I can accept that [Ms M’s] report was unsatisfactory and unfair to the Applicant insofar as it placed reliance on the bogus report by Mr B, that serious error can only be relevant for present purposes if it can be shown that it unduly influenced the panel’s decision.

 

66.Ms M’s report is not in the dossier and was therefore not seen by the panel. They were aware of it because it had been referred to in the decision of the 2023 panel. The panel referred to it as follows in summarising the evidence which had been before that panel. Their summary was as follows:

 

“Prior to the 2023 oral hearing HMPPS Psychologist (Ms M) recommended that [the Applicant] should remain in custody and should be assessed for [an accredited risk reduction programme] although she raised concerns that his personality traits might impact on his capacity to engage with the programme. [Dr A] (a Forensic Psychologist instructed by acting Solicitors) recommended release. [Ms E] (a HMPPS Forensic Psychologist) prepared an addendum report  ([Ms M] was not available) and agreed that [the Applicant] should be released, a view shared by the POM and COM [Mr G].

 

“The 2023 panel did not accept those recommendations, having found that [the Applicant’s] behaviour on licence was offence paralleling and he was an untreated sex offender, that there was core work outstanding and they were not persuaded by the professional arguments that [the Applicant] would engage in a community based intervention. They did not consider [the Applicant] to be a credible witness, finding that he minimised his behaviour and struggled to take responsibility for his behaviour which in the panel’s point of view he would have known was risky.”

 

67.I am afraid that I can find no evidence to support any suggestion that the present panel were in any way influenced in making their decision by their knowledge that Ms M had not recommended the Applicant’s release in 2022. As explained above they gave their own reasons for their own view, based on the evidence before them, of the Applicant’s current risk to the public.

 

The recall

 

68.The Applicant makes a series of criticisms of the decision to recall him. It may very well be that in some respects the grounds on which that decision was made were not as strong as others. That is not uncommon as probation always have to make their decision on the basis of the evidence available to them at the time, and further evidence may come to light. However, I am satisfied that it was not unreasonable for the present panel, like the 2023 panel, to find that the decision to recall was appropriate.

 

69.The panel summarised the evidence leading to the recall as follows:

 

“As set out in the 2023 decision letter, [the Applicant] appeared to make good progress following his release in 2018.

 

“However, concerns were raised due to significant responses during polygraph examinations, and it transpired that he had had some contact with the seven year old granddaughter of a man he had befriended. The man is variously described as blind or partially sighted which had limited his capacity to safeguard the child. At the current review [the Applicant] repeatedly called the issue into question by emphasising that the grandfather was not blind and therefore could supervise the contact, and that the contact had anyway been minimal and he had not initiated it.

 

“In addition, [the Applicant] had failed to reside as directed, having travelled twice to Cornwall to visit his boat. He reportedly said he thought he only needed permission to reside elsewhere if he was staying away from the approved address for three nights or more. At the current hearing [the Applicant] was keen to reiterate that contrary to reports that he slept in his camper van he had in fact travelled in his car as evidenced by the fact that he was captured by APNR when he was speeding on the motorway.

 

“There were also concerns that [the Applicant] was having unauthorised but indirect contact with a convicted sex offender. This came to light because [the Applicant] reportedly deleted information from his phone and had an undisclosed relationship with the sister of this individual. [The Applicant] explained to the current panel that when he used his phone material popped up from women wanting sex, and he had asked probation to delete it. He said that the woman was a friend.”

 

70.The Applicant’s explanations were not entirely convincing. For example the fact (if it was the fact) that the grandfather was partially sighted rather than blind did not alter the fact that the Applicant’s unauthorised contact with the child was contrary to the relevant licence condition; and another breach was that he failed (even if it was due to a failure to make sure that he understood his licence obligations) to seek permission to spend a night away from his approved address.

 

71.Views might, I think, have reasonably differed as to whether the Applicant’s breaches were sufficiently serious to justify a recall: some panels might have regarded them as insufficient while others might not. Applying the Wednesbury test I cannot find that this panel’s acceptance of the recall as being appropriate was irrational.

 

The Applicant’s denial

 

72.The Applicant criticises the panel’s statement that ‘The fact that [the Applicant] maintains his innocence is not a bar to release but it does mean that he is an untreated sex offender, that the triggers to and motivation for his sexual offending are not understood and that the panel must look carefully for evidence that his risk can nevertheless be managed in the community.’

 

73.The Applicant objects to this statement on the basis that he was not found guilty by a jury but pleaded guilty on the advice of his solicitors and barrister and his barrister admitted in a letter to the Court of Appeal that ‘his advice made the Applicant plead guilty’. In law, the Applicant suggests, that means that the plea of guilty was not his but his barrister’s. He goes on to state that he has maintained his innocence throughout and that ‘there were no triggers then, so why should there be any now?’

 

74.I am afraid that this ground is misconceived. The law is not as the Applicant suggests it is. As I have already explained, unless and until his conviction is quashed by the Court of Appeal the Board is obliged to proceed on the basis that he was guilty of the offences of which he was found guilty.

 

75.As I have also explained above the Applicant’s appeal to the Court of Appeal cannot have been successful. The fact that his barrister confirmed that he had advised the Applicant to plead guilty and the Applicant had followed that advice was a relevant factor for the Court of Appeal to consider but they also had to consider all the rest of the evidence in order to decide whether the Applicant’s conviction was safe. It is clear that they were satisfied that it was. They will of course have been well aware that barristers do often have to give unpalatable advice to their clients: it is part of their job.

 

76.The Court of Appeal can only reconsider a case which has already been considered by it if the case is referred to it by the Criminal Cases Review Commission. So far as I can see no application to that body has yet been made, and will only be made if counsel advises that there is a realistic chance of success. If counsel believes that the matters referred to in the Applicant’s reconsideration representations (and any other matters) carry sufficient weight to justify the making of an application to the Commission, no doubt an application will be made. It will then be a matter for the Commission to decide whether to refer the case back to the Court of Appeal, and if they do it will be a matter for the Court of Appeal to decide whether the conviction is safe. However, for present purposes I am obliged to ignore those matters when I make my decision on this application for reconsideration.

 

77.In these circumstances the panel’s observations about triggers must be regarded as entirely rational and indeed clearly correct.

 

Incorrect factual information in OASys

 

78.OAsys is the compendious risk assessment system used by probation. It can (and should be) updated from time to time to include any new risk-related information and to correct any errors. The OAsys quite commonly does contain errors of fact which should be corrected when they are discovered.

 

79.An undated document in the dossier is a helpful list prepared by the Applicant of what he believed were errors of fact in the OASys.

 

80.In the introductory section of their decision letter the panel summarised the position in relation to the correction of errors as follows:

 

“[The Applicant] also raised his understandable concern that there are a number of inaccuracies that keep being repeated in OASys. Any factual inaccuracies must be removed. [The COM Mr G] explained that he had been unable to have direct contact with [The Applicant] since 2023 or to update OASys as the Probation Local Delivery Unit had been in ‘amber measures’ due to the amount of work and lack of resources. [Mr G] apologised for the situation and was able to give assurances that matters should be resolved in the near future as the LDU should be moving into the ‘green’ stage.”

 

81.This was clearly an unacceptable situation and the Applicant was fully justified in complaining about it. The question which I need to consider, though, is whether the panel’s decision might have been in some way adversely influenced by probation’s failure to make the necessary corrections.

 

82.I have considered the panel’s decision letter very carefully and I am satisfied that, however regrettable probation’s failure was, it cannot have influenced their decision.

 

Risk assessments in OASys

 

83.The Applicant challenges probation’s assessments of (a) his risk of committing future contact sexual offences and (b) his risk of causing serious harm to the public if he reoffends as high. The panel accepted those assessments and the Applicant suggests that they should not have done.

 

84.As regards his risk of committing future contact sexual offences, I can see no grounds for challenging probation’s and the panel’s assessments. The Applicant is, as the panel noted, an untreated sex offender who has been found guilty on three separate occasions of committing serious sexual offences against vulnerable victims. I am in complete agreement with the panel’s view that his denial cannot be regarded as a protective factor.

 

85.Equally I can see no grounds for challenging probation’s and the panel’s assessments of his risk of causing serious harm if he reoffends. It is clear that a repetition of the kind of offences of which he was convicted would be likely to cause serious harm to the victim(s).

 

86.There is therefore no substance in the Applicant’s observations under this heading.

 

Likelihood of compliance

 

87.The Applicant objects to the panel’s statement that: ‘The panel found that [the Applicant] can be rigid in his thinking and fixated on his own perspectives, presenting as only wanting to engage on his own terms and with grievances against all those who do not agree with him or do not accept his explanations and justifications. These tendencies have clear implications for his likely compliance and willingness to be open and honest with those managing him in the community, or to heed their advice.’

 

88.The Applicant asserts that when on licence he has always been open and honest with those managing his case. He points out that even when he had had two serious operations he always attended supervision sessions. That is of course greatly to his credit and for the most part he does seem to have complied well with the requirements imposed on him.

 

89.However, the panel had the advantage of hearing and seeing the Applicant give evidence and it is a panel’s responsibility to make their own assessment of a prisoner’s presentation. Unless there is a clear indication that the panel’s assessment is in some way unfair it is not for a Reconsideration Panel which has not seen or heard the evidence to substitute its own assessment for that of the panel (see paragraph 34 above).

 

90.In this case I can find no valid reason for me to criticise the panel’s assessment. On the contrary I am afraid that some of the Applicant’s reconsideration representations do rather tend to confirm the picture painted in the panel’s observations about the Applicant and his attitudes and beliefs.

 

Conclusions on irrationality

 

91.It is regrettable that several things went wrong in this case through no fault of the Applicant but for the reasons explained above I cannot find any basis for finding that the panel’s decision was in any way irrational within the Wednesbury test. As I have explained there was no flaw in the panel’s reasoning and none of the arguments advanced by the Applicant stand up to close examination.

 

92.In addition to the points discussed in paragraphs 44-90 above the Applicant has raised a number of other points which I have examined closely but which I cannot find provide any support for the suggestion that the panel’s decision was in any way irrational. I do not need to discuss them all.

 

GROUND 2: PROCEDURAL UNFAIRNESS

 

93.Some of the matters raised by the Applicant might (as is sometimes the case) have been raised under the heading of procedural unfairness. Since I have dealt with those matters under the heading of irrationality I do not need to deal with them under the alternative heading of procedural unfairness.

 

94.One matter raised by the Applicant which clearly comes under the heading of procedural unfairness is his assertion that he only received the parole dossier 10 minutes before the hearing.

 

95.This is the matter in respect of which PPCS submitted representations in response to this application for reconsideration. PPCS’s response was as follows:

 

“PPCS can confirm that [the Applicant] was provided with the initial parole dossier, which he signed for on 02/01/2024. While [the Applicant] has claimed that he did not receive his dossier until 10 minutes before the parole hearing, the POM has confirmed that additional documents were also provided at a later date, starting from the page following the initial dossier. Although the exact date the full dossier was given couldn’t be provided, the POM has confirmed that [the Applicant] would have had access to the complete documentation at least one week prior to the hearing. Therefore, PPCS submits that [the Applicant] was provided with the relevant materials in sufficient time.”

 

96.It is a pity that PPCS are unable to provide the precise dates when documents were provided to the Applicant. However, it seems pretty clear that the Applicant had the bulk of the documents in the dossier in his possession for a long time before the hearing. He certainly had the various versions of the OASys because he was able to submit an impressive (but undated) list of matters needing correction which was added to the dossier but, as explained above, was not acted upon by probation.

             

97.I note that there was clearly some considerable delay in the Offender Management Unit (‘OMU’) at the prison providing additional documents to the Applicant as the hearing approached. On 5 February 2025 his solicitor submitted a Stakeholder Response Form (‘SHRF’) pointing out that the hearing was due to take place on 18 March 2025 and that repeated requests for provision of the outstanding documents to the Applicant had not been acted upon. PPCS do not appear to have responded to the SHRF but on 10 February 2025 the Panel Chair responded, stating: ‘In order for the hearing to be viable and to proceed fairly, [the Applicant] must be provided with a copy of the dossier urgently.’

 

98.I do not know when the outstanding documents were provided by the OMU but I cannot believe that they had not been provided until the morning of the hearing. I am quite sure that, if they had not been, the Applicant’s legal representative would have continued to chase them up and would have taken the matter up at the start of the hearing, requesting time for the Applicant to absorb the new material.

 

99.I think that what the Applicant refers to as having happened 10 minutes before the hearing must in fact have been the provision of a copy of the Police National Computer (‘PNC’) record of the Applicant’s convictions. This document is referred to in the introductory section of the panel’s decision letter as having been added to the dossier during the hearing. Of course the Applicant was only too well aware of his record of convictions, and would not have needed time to read the PNC print-out.

 

100.At all events, whilst the delay in the OMU providing the necessary documents to the Applicant is of course regrettable, and might possibly be regarded as procedural unfairness, I do not think that it could amount to a ground for directing reconsideration of the panel’s decision. The reason for that is that reconsideration is a discretionary remedy and a Reconsideration Panel should not direct reconsideration on the ground of procedural unfairness if the panel’s decision would inevitably have been the same if the unfairness had not occurred.

 

101.I am satisfied that that is the case here and that I cannot direct reconsideration on this ground.

 

GROUND 3: ERROR OF LAW

 

102.I cannot detect any error of law in the panel’s decision in this case.

 

Decision

 

103.For the reasons which I hope I have explained so that the Applicant will understand them clearly, I am afraid that I am obliged to refuse this application. There was no irrationality in the panel’s decision within the Wednesbury test; there was no error of law; and if there was any procedural unfairness it could not have affected the panel’s decision.

 

 

 

Jeremy Roberts

8 May 2025