Harvey Application for Reconsideration of Parole Decision

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  Harvey, Application for Reconsideration [2026] PBRA 69 (26 March 2026)

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[2026] PBRA 69

Application for Reconsideration by Harvey

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Application

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1. This is an application by Tom Harvey (the Applicant) for reconsideration of a decision of an oral hearing panel dated 8 February 2026. The decision of the panel was not to direct release.

2. Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2025) (the Parole Board Rules) provides that applications for reconsideration may be made in eligible cases (as set out in rule 28(2)) either on the basis (a) that the decision contains an error of law, (b) that it is irrational and/or (c) that it is procedurally unfair. This is an eligible case, and the application was made in time.

3. I have considered the application on the papers. These are the dossier, the application for reconsideration drafted by the Applicant's legal adviser, the decision of the oral hearing panel and the representations by the Secretary of State (the Respondent).

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Request for Reconsideration

1. The application for reconsideration is undated but was received on 27 February 2026.

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

Background

1. The facts of the index offences and sentences are set out below. The Applicant was aged 34 at the time of the oral hearing decision. He was aged 26 at the time of sentence for the index offending.

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Current parole review

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1. The referral from the Secretary of State to the Parole Board requested the Parole Board to consider whether the Applicant should be considered for a direction for release.

2. The oral hearing panel in this case consisted of an independent chair of the Parole Board, a further independent member of the Parole Board and a psychology member of the Board. The panel considered the dossier in this case. Additionally evidence was given by a Prison Offender Manager (POM), a Community Offender Manager (COM) and a prison commissioned psychologist. The Applicant gave evidence and was legally represented.

The Relevant Law

1. The panel correctly sets out in its decision dated 8 February 2026 the test for release.

Parole Board Rules 2019 (as amended)

1. 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)).

2. 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

1. 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.

2. 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. "

3. 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).

4. 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.

5. 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.

6. 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.

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Procedural unfairness

1. 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.

2. 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.

1. The overriding objective is to ensure that the applicant's case was dealt with justly.

Error of law

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1. 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.

1. 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

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1. 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. "

2. 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

1. 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.

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The reply on behalf of the Secretary of State

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1. The Respondent offered no representations.

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Discussion and Grounds

1. This application for reconsideration has been drafted by the Applicant's legal adviser. The application is in a narrative format, and no individual grounds are cited. The basis of the application is that the panel has failed to explain, as it is required to do, the reason for reaching its conclusion not to direct release (see Wells above). Particular reference is made to the fact that there was support for the Applicant to be released by the Applicant's COM, and there was a substantive risk management plan. In addition, it is submitted that the Applicant had been moved to an open prison and had been successfully working in the community since this move. He was also well thought of by his community based employers.

Background

1. The Applicant, in this case, is serving an extended sentence of imprisonment totalling 18 years. The offences associated with this sentence comprise two single offences of rape of an adult, one series of rape offences which alleged at least four separate occasions of rape, one offence of assault by penetration, and three offences of assault occasioning actual bodily harm. The determinate period of this sentence is 13 years and the extension is 5 years. The Applicant became eligible for parole in relation to this sentence on 18 June 2025 and will be conditionally released in October 2029. The sentence expires in 2034.

2. The Applicant is also serving a determinate sentence of 13 years and 6 months in relation to a second offence of causing grievous bodily harm with intent. This is a determinate sentence. The conditional release date for this sentence has passed. The sentence end date for this determinate sentence is 2028.

3. Both offences relate to behaviour in intimate partner relationships. The facts of the extended sentence offence were that in 2009 the Applicant was living with a partner in Bournemouth. Over the two years following the onset of this relationship the Applicant was described by the sentencing judge as becoming "increasingly obsessed with controlling her in every way". The Applicant isolated the victim from her friends, restricting social media and limiting her movements. To control the victim the Applicant would push her about, drag her by the hair, slap her on multiple occasions and hit her around the temples with knuckles. The victim described being physically beaten on occasions when she had visited her mother and returned to the accommodation. The sentencing judge described various occasions where the Applicant caused bruising to the lip of the victim, grabbed her by the hair whilst driving a car, and hit her head against the interior of a car. Also described was an occasion where the victim was pinned to the bed and hit around the head. The victim also described occasions where her hands were tied and she was slapped and hit.

4. Towards the end of the relationship the victim described occasions when the Applicant would remove her clothing, tie her hands and feet together and rape her. Despite the victim struggling the Applicant persisted. The victim described an occasion where she was stripped and bound and orally raped and vaginally raped from behind. The victim also described at least four other occasions where she was raped in similar circumstances. She was routinely tied and left for some time before she was untied. The offences occurred before 2011. The victim did not report the matters to the police until 2013.

5. The Applicant contested these matters before a jury but was convicted.

6. So far as the second offence of causing grievous bodily harm was concerned the Applicant pleaded guilty to an offence committed in November 2013. The offence was again committed in the circumstances of a relationship. Again, the relationship was controlling. The offence occurred when the Applicant attacked the victim in a fit of jealousy. He stripped the victim naked and bound her with masking tape and punched and strangled her. The violence continued for a two hour period. Eventually the Applicant was concerned about the seriousness of the injuries and took her to hospital, requiring her to give a false story about the reasons for the injuries. The police investigated and the Applicant was eventually charged.

7. The Applicant was held at various closed prisons during the early part of his sentence. In 2021 the Applicant completed the Building Better Relationships (BBR) intervention. He had been assessed by the prison psychology department who concluded that a "medium level" cognitive behavioural treatment programme was suitable. The intervention is specifically aimed at intimate partner violence however, significantly, the intervention does not focus on sexual abuse and sexual offending.

8. The Applicant also completed a number of personal development and educational courses while in custody.

9. In May 2024 the Applicant was transferred by the prison to an open prison.

10. The oral hearing panel members were told that the Applicant's prison progress was positive. Since moving to the open prison, he had been approved for Release on Temporary Licence (ROTL) and had secured employment in the community. The employer was keen to offer ongoing employment once he is released.

11. The primary focus of the panel in this case related to the risk of sexual offending and the availability of evidence that the Applicant had addressed this risk. This concern was clearly associated with the index offending which involved a number of grave and serious violent rape offences. The panel's major concern was that the Applicant had completed a moderate intensity programme which focused upon domestic violence but not sexual offending. The view of the panel, which was supported by professionals, was that it was surprising (and concerning) that the prison service had suggested the completion of a moderate intensity programme in the light of the grave nature of the sexual offending.

12. It appears that the prison service when assessing the Applicant for behavioural programmes had been influenced by the fact that, despite the convictions for multiple rape offences, the Applicant denied the sexual offending and the rape offences which are described above. This apparently led to the conclusion that the Applicant would not have been amenable to undertaking a more intensive sexual offence related programme.

13. The views of professionals were supportive of the concerns of the panel in this case. The view of the POM and the POM's manager (who was a senior probation officer) was that it would have been expected that the Applicant would have completed a high intensity programme. The prison instructed psychologist also took a similar view that the risk of serious harm in relation to sexual offending had not been addressed by any programme. The COM was less concerned about the intensity or focus of the programme and appeared to be content to accept that the Applicant had been assessed for a medium intensity programme and had completed it.

14. The panel asked the Applicant about his behaviour particularly in relation to the index offending and the sexual offending. The Applicant told the panel that his strategy in relation to sexual relationships in the future was that if they were not healthy or happy he would not have sex with the partner. The panel found this to be a simplistic approach to a serious issue relating to future relations and risk of sexual violence.

15. The Applicant told the panel that, as far as he was concerned, he did not pose a sexual risk. He denied the offending and the rape offences. The Applicant had been asked to keep a sexual thoughts diary but had not done so. He told the panel that he was not clear as to why the professionals were concerned about sexual thoughts. His position in general terms was that he was not thinking about sex as he was not in a relationship.

16. The Applicant's POM had indicated a concern about insight into sexual offending which would be challenging in terms of risk management in the community. The Applicant denied sexual offending despite the convictions. The concern would be that he would not be open in discussions about sexual thinking or about the risk to partners in relationships.

17. The prison instructed psychologist had suggested that there were difficulties, because of the fact that the Applicant denied sexual offending, and had therefore not undertaken any behavioural work in relation to that aspect of his risk of serious harm. The suggestion by the prison instructed psychologist was that the drivers underpinning offending were likely to be humiliation, punishment, dominance and the need to exercise control over partners. It was suggested that the Applicant feared isolation and separation from his family and abandonment by them which could be read over to a fear of losing a partner leading to the exercise of abusive control. The prison instructed psychologist was not confident that the Applicant had developed insight into the issue of sexual offending. It was acknowledged that there were a number of issues in relation to the Applicant's personal life, including early trauma, relational issues, attachment styles and emotional responses which had not been fully addressed which meant risk remained.

18. As indicated above the prison instructed psychologist had expressed some surprise that the Applicant had not been directed to a higher intensity of programme work to address sexual violence. The formulation suggested by the prison instructed psychologist (relating to sexual risk) was that power, control and domination were drivers. There could also be elements of sexual preoccupation. None of these issues could be discussed or assessed in the light of the Applicant's denial of the sexual offending. The position of the prison instructed psychologist was that there was a firm conclusion that the Applicant had not addressed important risk areas and should have done so in closed conditions. This created a difficulty because the prison had transferred the Applicant to an open prison.

19. The psychologist also suggested that, even taking into account the Applicant's admitted behaviour, namely stripping a victim naked and binding and punching her, the Applicant had struggled to consider how the victim would have felt about this behaviour and how the victim would have considered this to be sexually assaulting her.

20. The view of the Applicant's COM was nuanced. The COM accepted that areas of risk remained. The COM accepted that sexual risk had not been fully addressed. However, despite these concerns the COM was recommending release. This recommendation was based to an extent upon the fact that the Applicant had complied well with the temporary releases into the community from the open prison. It was also felt by the COM that no more risk reduction work could be completed in the open prison, and any work that could be undertaken would have to be undertaken in the community.

21. The panel were therefore considering various competing views from the professionals. The POM and the prison instructed psychologist both took the view that the Applicant's risk could not be safely managed in the community because he had not had the opportunity to demonstrate an ability to manage his risk of sexual violence. One of the ways of addressing that risk would have been undertaking a high intensity programme although other methods of intervention are offered by the prison service including one-to-one work. As noted above, the major difficulty in this case was that the prison service had moved the Applicant to an open prison and had presumably concluded that the medium intensity programme that he had undertaken was sufficient to manage his risk in the open prison.

22. Whilst the decision in relation to the transfer of prisoners is entirely a matter for the prison service unless referral is made to the Parole Board, the consensus of opinion from the professionals was that this was a case where there was unmet need in relation to the addressing of the risk of sexual violence. In the light of the gravity of the offending, particularly the denied offending, the views of professionals were understandable.

23. As noted above, a Programme Needs Assessment (PNA) had been undertaken by the prison service and that assessment suggested a medium level intensity treatment programme. Also in the dossier was reference to a Post Programme Report (PPR) which confirmed positive engagement on this programme by the Applicant. The transfer to the open prison appears to have taken place following this PPR. It appears that no full psychological risk assessment was undertaken prior to the decision to transfer the Applicant to an open prison.

24. The first full psychological risk assessment was commissioned by the Parole Board at the Member Case Assessment (MCA) stage. The Applicant was, at that time, in the open prison. Although the PPR indicated positive engagement the (PPR) report was not a risk assessment and not independent of the programme providers.

25. The transfer of the Applicant to an open prison without commissioning a risk assessment potentially created a situation where the holistic programme needs, in terms of management of risk, were not fully addressed or indeed made clear to the Applicant.

26. The issue of transfers to open conditions of indeterminate prisoners was addressed in a substantial report in May 2006 (An Independent Review of a Serious Further Offence case: Anthony Rice). In that report (which referred to a life sentence prisoner rather than an extended sentence prisoner) the issue of transfers to an open prison of prisoners who remain at high risk was considered. A substantive theme of that report was reflected in a comment by the report writers as follows: " We certainly support the positive use of open prison conditions as part of a phased programme leading to release ... But we believe that consequent expectations about open conditions need clarifying with all involved, including confirming that there will be a clear priority focus on giving proper weight to the nature of the risk of harm to others still posed by the prisoner. We appreciate that this would be difficult to establish, raising questions for example about how best to handle prisoners whose release plans get "stalled" while in open prison conditions." (See paragraph 10.2.17.)

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1. The report also addressed the difficulties of meeting the expectations of prisoners who are transferred to an open prison. The report commented as follows: " Hence we find a problematic ambiguity in the role of the open prison conditions phase for a life sentence prisoner that we believe needs to be addressed. In theory the idea is that a spell in open prison conditions provides an opportunity for the prisoner to be tested both on what he has learnt from his treatment and on how he consequently behaves - leading to a final decision about his release. We understand and certainly support this principle. But we consider that in practice the expectation by the prisoner is often significantly different from this: 'You are now in the last phase before release unless you blow it completely you will be out before long.'" (10.2.17.)

2. The Rice report indicated that two issues require caution in relation to a decision to move the prisoner to an open prison. Firstly when assessing risk the assessment should be independent of the providers of the programme being assessed. As occurred in this case (albeit after the transfer to an open prison) the assessment should be undertaken by a psychologist or professional who has not been involved in the delivering of any programme. The second issue related to the expectations raised by the decision to transfer to an open prison. As noted above the report writers took the view that the priority focus should be upon giving proper weight to the nature of the risk of harm to others which is still posed by the prisoner, rather than treating the presence in an open prison as meaning that " release had now become a matter of 'when' not 'if'". (10.2.17.) The Rice report is not cited as a clear parallel to the Applicant's case, however the principles of caution in relation to risk assessment before a transfer to an open prison is a matter which clearly applies to this Parole Board decision and has been comprehensively addressed in past reports.

3. As indicated above, the Applicant's complaint in this case, as articulated by the Applicant's legal adviser, is that the panel failed to properly explain why it considered that the test for release was not met.

4. However, in clear and cogent terms, at paragraph 4.3 of the panel decision, the panel set out the detailed reasons why they concluded that the test for release was not met. They also cite the evidence upon which they reached that conclusion.

5. The panel noted that the POM and the prison instructed psychologist took the view that the programme completed was not of the right intensity to address the risk posed by the Applicant in terms of sexual violence.

6. The panel themselves took the view that looking at the case holistically there was insufficient evidence that the Applicant had completed a level of intensity of work which would address the risk of sexual offending.

7. The panel determined that the Applicant posed a high risk of causing serious harm, that harm being potentially a sexual offence as well as violence. The evidence supporting this contention was clearly the facts of the index offences and the use of extreme violence towards partners.

8. The panel also referenced the fact that the Applicant denied the factual elements of the sexual offending which was clearly both a barrier to addressing sexual offending in terms of programmes, but also potentially meant that the Applicant lacked insight into his own potential risk of sexual violence towards partners.

9. It is axiomatic that denial of offending is not a total bar to a direction for release, however the reality is that, in cases such as this, the denial of the sexual offending, in the light of its gravity and seriousness, acts as a barrier to the Applicant demonstrating evidence of having addressed his potential risk of sexual violence in the future. The Applicant's denial also created a situation where the assessment process by professionals, in particular psychology departments, is constrained in the sense that the Applicant is unlikely to be eligible for interventions which require some degree of acceptance of the offending behaviour.

10. The Applicant's legal adviser argues that the panel failed to outline the nature of the work which was felt to be unaddressed. As is well understood the Parole Board is an adjudicating body. Responsibility for sentence planning is in the hands of the prison service and the Applicant. However, the panel noted in the decision that the Kaizen programme (a high intensity programme aimed to meet the criminogenic needs of those with sexual offence convictions) would have been the expected level of behavioural intervention as it addressed sexual offences and high risk offenders. All parties however acknowledged that because of the move of the Applicant to an open prison, the Applicant's opportunity to undertake further accredited behavioural work and to demonstrate reduction in risk was hampered.

11. The Applicant's legal adviser indicates that the panel failed to take account of the robust risk management plan and licence conditions in assessing whether the risk could be safely managed in the community.

12. The panel at paragraph 3.4 (of the panel decision) addressed the risk management plan. The panel took the view that because of the outstanding treatment needs and the fact that the Applicant had not addressed his sexual offending they, and professionals, were not confident that he would disclose to professionals that he was struggling with risk-related matters. The panel took the firm view that the Applicant did not have the skills or tools to self-manage his risk. The panel therefore concluded that the risk management plan, absent of insight from the Applicant himself about his risks, would not be sufficient to manage the risk of serious harm in the community.

13. The Applicant's legal adviser also submits that the panel's decision leaves the Applicant in a position where he is not able to understand what further progression is required. As is clear by the earlier comments in this reconsideration decision, the panel's concern was the absence of evidence that the Applicant had addressed his risk of sexual violence evidenced in the index offences. The prison instructed psychologist had indicated that a high intensity programme, such as Kaizen, would be the suggested pathway to address the risk of sexual violence.

14. The Applicant's legal adviser indicates that the Applicant " has completed all professionally assessed interventions, has no identified outstanding sexual treatment needs, has demonstrated sustained compliance and insight, has successfully engaged in extensive real-world testing, and has proposed a robust and enforceable community supervision package. His supervising professional has recommended release. The decision under challenge relies on speculative risk, over emphasis on historical offending, and insufficient justification for rejecting professional assessment and demonstrated risk reduction."

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1. I have considered the submissions. The Applicant had completed the assessed intervention. The Applicant has demonstrated compliance to the prison regime. There was an extensive risk management plan. However, as indicated above, there were identifiable sexual treatment needs namely the need to address the risk of sexual violence. The panel also took the view that the Applicant was not insightful, in the sense that he denied the serious sexual offending which was subject to a trial, and resulted in convictions. So far as speculative risk is concerned, the risk is based upon historical evidence of a serious episode of sexual violence towards a victim. The panel in my view were entitled to rely upon the evidence of that sexual offending when considering their decision.

2. In all the circumstances I am not persuaded that the decision of the panel could be described as irrational or procedurally unfair in the sense set out above.

3. The Applicant has some cause to be disappointed by the fact that he was not offered a more substantial behavioural programme and was transferred to an open prison which created an obstacle to demonstrating his ability to manage his risk. However, as is indicated in this decision, the responsibility for assessing and providing risk management programmes rests with the prison and with the Applicant himself and his advisers. The responsibility for assessing the risk to the public remained with the Parole Board panel. The panel were obliged to apply the public protection test appropriately regardless of whether the Applicant was in an open prison or indeed had undertaken behavioural work suggested to him by the prison service.

Decision

1. 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.

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HH S Dawson

26 March 2026

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URL: https://www.bailii.org/ew/cases/PBRA/2026/69.html