Moroney Application for Reconsideration - Parole Board Decision

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  Moroney, Application for Reconsideration [2026] PBRA 67 (19 March 2026)

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[2026] PBRA 67

Application for Reconsideration by Moroney

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Application

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1. This is an application by Moroney (the Applicant) for reconsideration of a decision of an oral hearing panel dated 19 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 dated 3 March 2026.

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

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Background

1. The Applicant is serving a sentence of imprisonment for public protection which was imposed on 7 July 2008. The Applicant was aged 54 at the time of the sentence. He was 72 at the time of the oral hearing decision.

2. The index offences consisted of four offences of sexual activity with a female child aged between 13 and 17; two offences of sexual activity with a child under 16; seven offences of causing or inciting prostitution or pornography involving a child between 13 and 17; twelve offences of making indecent photographs of children; five offences of inciting a child to engage in sexual activity; five offences of inciting a child under 16 to engage in sexual activity; there were 17 other offences which were left to lie on file.

3. The Applicant's tariff expired on 23 November 2013. The Applicant has been recalled on two occasions. He was released on 9 February 2016 by the Parole Board after a hearing and recalled on 8 April 2016. In relation to the current application for reconsideration, he was released on 31 January 2019 and recalled on 27 July 2021.

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1. The facts of the index offences relate to two children aged 12 and 13. The Applicant had access to these children in a familial situation. The offences involved the rubbing and kissing of the breasts and the vaginal areas of the victims, digital penetration and oral sex. The victims were also persuaded to masturbate the Applicant. The Applicant recorded the victims performing sexual acts upon each other and a substantial amount of child pornographic material was found in his possession.

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1. The Applicant's first recall occurred in circumstances where, within two months of release, he sent a friend request on two occasions to the mother of one of the victims. This was a breach of his licence conditions.

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1. The Applicant was released following this recall. However, in July 2021 the Applicant was seen to be spending time with two 12 year old girls. He had entered his flat with the children and then taken them in a car. The Applicant denied engaging in grooming behaviour which was suspected. The Applicant said that he was friendly with the grandfather of one of the children and that he had taken them into his flat for some cake and then to the shops for treats. After recall, it became apparent that the Applicant had failed to reveal details about partnerships. He had not told his Community Offender Manager (COM) about the end of one partnership and had failed to disclose that he had begun a relationship with a woman with a 12-year-old grandchild. He had also travelled to Ireland without securing detailed consent from his COM which was a breach of his licence.

2. The Applicant admitted breaches of his licence conditions but denied any sexual thoughts about the children with whom he had contact. He accepted that he had not been honest with his COM about the new partnership or the children.

3. The Applicant came before a Parole Board panel in September 2022. That panel concluded that, on the basis of assessments by psychologists, the Applicant had outstanding needs in relation to addressing his risk of serious harm to children. The suggestion at that time was that the Applicant undertake the Healthy Sex Programme (HSP). At the time of the first oral hearing the Applicant had indicated that he had no unhealthy sexual thoughts and no risk of having them in the future. This meant he was not eligible for the programme. At the time of this first oral hearing it was thought that the Applicant could undertake some motivational work or possibly one-to-one work.

4. As noted below the Applicant did undertake some one-to-one work with a psychologist and some work with a COM. He did not however undertake the formal accredited intervention.

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Current parole review

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1. The referral from the Secretary of State requested that the Parole Board consider whether the Applicant would be suitable for a direction for release, and if not whether he should be subject to a recommendation to be transferred to an open prison.

2. The oral hearing took place on 16 February 2026. The panel consisted of an independent chair and two further independent members of the Parole Board. Evidence was given by a Prison Offender Manager (POM), two prison instructed psychologists, and a COM. The Applicant was legally represented and gave evidence himself.

3. So far as recommendations to the Parole Board panel were concerned, one of the prison instructed psychologists originally reported in January 2025 and did not support release or a move to an open prison. The rationale at that time was that there were outstanding areas of treatment which amounted to core risk reduction work, and the concern that the Applicant had barriers to internalising and applying the skills and knowledge that he may have gained through earlier interventions. The prison instructed psychologist provided a later update report. Although there had been no major change in behavioural work undertaken, the prison instructed psychologist by that time had concluded that the Applicant would benefit from a transfer to an open prison as he could demonstrate compliance in less restrictive conditions. The Applicant's COM and POM were also recommending transfer to an open prison. There was no support for a direction for release by any of the professionals.

The Relevant Law

1. The panel correctly sets out in its decision letter dated 19 February 2026 the test for release and the issues to be addressed in making a recommendation to the Secretary of State for a progressive move to open conditions.

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)).

3. A decision to recommend or not to recommend a move to open conditions is not eligible for reconsideration under rule 28. This has been confirmed by the decision on the previous reconsideration application in Barclay [2019] PBRA 6.

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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

1. The test to be applied when considering the question of transfer to open conditions is the subject of a well-established line of authorities going back to R (Hill) v Parole Board [2011] EWHC 809 (Admin) and including R (Rowe) v Parole Board [2013] EWHC 3838 (Admin), and R (Hutt) v Parole Board [2018] EWHC 1041 (Admin). The test for transfer to open conditions is different from the test for release on licence and the two decisions must be approached separately and the correct test applied in each case. The panel must identify the factors which have led it to make its decision. The four factors the panel must take into account when applying the test are:

(a) the progress of the prisoner in addressing and reducing their risk;

(b) the likeliness of the prisoner to comply with conditions of temporary release

(c) the likeliness of the prisoner absconding; and

(d) the benefit the prisoner is likely to derive from open conditions.

1. It is possible to argue that mistakes in findings of fact made by a decision maker result in the final decision being irrational, but the mistake of fact must be fundamental. The case of E v Secretary of State for the Home Department [2004] QB 1044 sets out the preconditions for such a conclusion: " there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter; the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable; the appellant (or his advisors) must not have been responsible for the mistake; and the mistake must have played a material (though not necessarily decisive) part in the tribunal's reasoning." See also R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] AC 295, which said that in order to establish that there was a demonstrable mistake of fact in the decision of the panel, an Applicant will have to provide " objectively verifiable evidence " of what is asserted to be the true picture.

2. 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. "

3. 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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Grounds and Discussion

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1. The Applicant's legal adviser submits that this matter should be reconsidered on the basis that the oral hearing panel concluded that there were outstanding behavioural programmes which need to be undertaken by the Applicant. It is submitted that the panel were wrong to reach this conclusion without the benefit of a fresh programme needs assessment (PNA).

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Discussion

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1. This submission arises in circumstances where the Applicant had been twice assessed for a suitable behavioural programme to address his risk. The programme was not undertaken because he was deemed to be "suitable but not ready". The Applicant had been deemed not ready because he had denied any sexual interest in or about pubescent children as being active or becoming active in the future. The Applicant had also said he could not see how the behavioural work could add value to his existing knowledge and skills. The dossier reveals that this topic had been comprehensively discussed.

2. Also noted is the fact that a psychological risk assessment was commissioned by the panel and an update was also commissioned. By the time of the update by the psychologist, the Applicant had undertaken a series of eight sessions of one-to-one work with a psychologist. This had been suggested as a potential alternative to undertaking the accredited programme. By the time of this review in August 2025 the psychologist appeared to have moved away from support for the individual accredited programme. The psychologist noted that the Applicant had in the past undertaken a number of interventions and in more recent times had undertaken the one-to-one work with a psychologist and work with his COM. The psychologist came to the conclusion that there were "no barriers to his understanding of the skills introduced and his retention of this information". The psychologist indicated that the difficulty in relation to the Applicant's case was his ability to use skills (learnt in programmes) in situations where risk to children or non-compliance arises. The psychologist indicated that the Applicant's personality traits and his tendency to impression manage presented barriers to his practical application of any skills retained or learnt in programs or otherwise. The psychologist took the view that the Applicant had the ability to recall and retain skills learnt in theoretical scenarios, but there were barriers to his application and internalisation of those skills and his ability to use the skills in a real world situation. The psychologist's update report contained a suggestion that the Applicant should be introduced to personality services which might be available in an open prison and which may be able to reinforce the work undertaken by the Applicant to date.

3. The Applicant's legal adviser submits under this ground that a further adjournment should have taken place and further assessments undertaken. A panel of the Parole Board is required under the terms of reference to undertake the referral from the Respondent on the basis of the contents of the dossier. In this case there had been adjournments to secure up-to-date reports. They were up-to-date reports in the dossier. I am not persuaded that there was a procedural irregularity in not securing further reports.

4. The panel's decision was based on a number of factors. Firstly, the panel were not persuaded that a sexual interest in children reduces or becomes no longer relevant because of increasing age, ill-health or attitudes. Secondly, the panel were not convinced that one-to-one work, which was completed in 2024 by the Applicant, would have been a direct replacement for the intensive nature of the accredited programme which had been assessed.

5. The panel noted that the reporting psychologist had moved from a position of indicating that the Applicant's risk could not be managed in the community in her first report, to a suggestion that the Applicant could be managed in an open prison. The panel took the view that there was insufficient evidence or rationale to support this change in recommendation.

6. It is clear however that the consensus of professional opinion was that the Applicant's risk could not be safely managed in the community. The panel also took this view. Recommendations in relation to transfers to an open prison are not within the ambit of the reconsideration process.

7. I am not therefore persuaded that the panel were procedurally unfair in not commissioning a further report in relation to the need to undertake a behavioural programme. The reality was that an intensive programme had been assessed as suitable but as noted above the Applicant was not ready to embark upon that undertaking because he denied any continuing sexual interest in children. To undertake this programme the Applicant would have been expected to accept the need to investigate the background to his sexual interest in children. This could not be undertaken in circumstances of denial. As noted above the prison service did suggest one-to-one work which was undertaken by a psychologist. The Applicant also undertook a short series of one-to-one sessions with his COM. At the conclusion of these interventions the consensus of opinion was that the Applicant remained a person who could not be safely managed in the community.

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Decision

1. For the reasons I have given, I do not consider that the decision was procedurally unfair and accordingly the application for reconsideration is refused.

HH S Dawson

19 March 2026

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