Coore, Application for Reconsideration [2025] PBRA 178 (28 August 2025) [2025] PBRA 178

PBRA
Coore, Application for Reconsideration [2025] PBRA 178 (28 August 2025)
[2025] PBRA 178 · 2025-07-15
[1]This is an application by Coore (the Applicant) for reconsideration of a decision of an oral hearing panel (OHP) dated the 15 July 2025 not to direct release.[2]Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2024) (the Parole Board Rules) provides that applications for reconsideration may be made in eligible cases (as set out in rule 28(2)) either on the basis(a) that the decision contains an error of law,(b) that it is irrational and/or(c) that it is procedurally unfair. This is an eligible case, and the application was made in time.[3]I have considered the application on the papers. These are the dossier consisting of 864 pages, the decision of the OHP, the application for reconsideration drafted by the Applicant’s current legal adviser, and the representations from the Secretary of State (the Respondent). Request for Reconsideration[4]The application for reconsideration is dated 5 August 2025.[5]The grounds for seeking a reconsideration are set out below. Background[6]The Applicant is serving a sentence of imprisonment for public protection. He was sentenced in 2005. His tariff was set at 30 months less time on remand and expired in 2007. He was 26 years old at the date of sentence. He was 46 years old at the time of the oral hearing. The index offences were robbery and further offences of inducing a creditor to wait for payment by deception which resulted in a three month concurrent sentence. The Applicant was released by the Parole Board on licence in January 2015. He was recalled in May 2016.[7]The facts of the index offence were that the Applicant approached the victim in a street. He held the victim in a headlock and stole money from him. The offence followed an established pattern of offending by the Applicant. The Applicant had a number of recorded convictions preceding the index offences including for offences of robbery, unlawful wounding, blackmail, threatening behaviour and battery. At the time of the index offence the Applicant was using illicit substances. The offence was said to be to fund a drug habit. Current parole review[8]The Applicant’s case was referred to the Parole Board on 23 November 2024 with a request to consider whether the Applicant should be directed for release or in the alternative whether there should be a recommendation relating to transfer to an open prison. The original oral hearing had been listed for July 2024. The panel had been asked by the Applicant to adjourn the original hearing to allow the Applicant to instruct an independent psychological assessment. The matter was reconvened in July 2025.[9]The panel also noted that the Applicant had been refused permission (by the Upper Tribunal) to appeal to the Court of Appeal (COA) in relation to his deportation order. It was noted however that the Applicant had applied directly to the COA for permission to appeal and a response to that application was awaited. No timescales were able to be offered in relation to the hearing and any final decision.[10]The OHP consisted of an independent Parole Board chair, a psychologist member and a further independent member of the Parole Board. Evidence was given at the hearing by the Applicant’s prison offender manager (POM), a former POM, a prison commissioned psychologist and the Applicant’s community offender manager (COM). The Applicant was legally represented and gave evidence himself. The Relevant Law[11]The panel correctly sets out in its decision letter dated 15 July 2025 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)[12]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)).[13]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)).[14]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 . Irrationality 15.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. 16.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. ” 17.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). 18.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. 19.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. 20.Further while the views of the professional witnesses must be properly considered by a panel deciding on release, the panel is not bound to accept their assessment. The panel must however make clear in its reasons why it is disagreeing with the assessment of the witnesses. Procedural unfairness[21]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.[22]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.[23]The overriding objective is to ensure that the Applicant’s case was dealt with justly. Error of law 24.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. 25.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 26.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) , 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. 27.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. " Reconsideration as a discretionary remedy 28.Reconsideration is a discretionary remedy. That means that, even if an error of law, irrationality, or procedural unfairness is established, the Reconsideration Member considering the case is not obliged to direct reconsideration of the panel’s decision. The Reconsideration Member can decline to make such a direction having taken into account the particular circumstances of the case, the potential for a different decision to be reached by a new panel, and any delay caused by a grant of reconsideration. That discretion must of course be exercised in a way which is fair to both parties. The reply on behalf of the Secretary of State 29.The Respondent offered no representations. Discussion Ground 1 30.It is submitted by the Applicant’s legal adviser that the panel failed to make further enquiries relating to various outstanding issues relating to the Applicant’s behaviour in prison. The particular issues were the fact that there were 12 pending adjudications in relation to the Applicant’s behaviour. Those adjudications had not proceeded to hearings in the prison. The POM (in evidence) indicated that it was thought that some form of administrative issue had prevented these hearings from proceeding, however the POM was not able to provide further information. Discussion 31.It was noted by the panel that the reports, relating to the Applicant’s prison behaviour in recent times, were that he had smashed an observation panel, made threats to kill staff, made abusive comments to officers and sprayed water at officers. As a result of the Applicant’s behaviour, he was subject to an order that he could not be moved unless three officers were with him called a “ three-man unlock ”
. The Applicant had been in the segregation unit of the prison because of concerns about his behaviour. 32.At paragraph 4.14 of the decision the panel noted that the Applicant had demonstrated a very poor custodial record for the two years prior to the oral hearing. The panel also noted that his behaviour had considerably worsened in the past year and in the past month. He had received a high number of negative entries and adjudications most of which were adjourned and were awaiting a hearing. 33.The panel also noted, at paragraph 4.22, that the Applicant was struggling to engage with professionals. He did not fully engage with a psychological risk assessment and showed a continuing pattern of not trusting professionals. The panel noted that without engaging with professionals, the Applicant’s risk could not be effectively understood or safely managed in the community. 34.The panel were conscious of the fact that the Applicant had suffered adverse childhood experiences and that he had a diagnosis of autism spectrum disorder. 35.The panel noted that the Applicant had not been capable of demonstrating any significant period of stability, he had exhibited aggressive, hostile and abusive behaviour to staff and made threats to harm them. The panel concluded that this behaviour (if he were in the community) would place the public at imminent risk of serious harm should he be released. The panel concluded that the Applicant was not safe to be released at the current time because of his imminent risk of serious harm. 36.The evidential basis for the panel’s conclusions, in relation to the Applicant’s behaviour, were security reports, which were available in the dossier. In addition, there was evidence of negative behaviour from professionals, including the Applicant’s POM, COM and a psychologist. The panel also had a dossier in excess of 800 pages setting out the Applicant’s background and historical records. 37.The role of the Parole Board panel is to conduct a hearing on the basis of the referral from the Respondent. It is not unusual for panels to be in a position where some evidence remains inconclusive or unresolved. This creates challenges, however the panel is entitled to draw inferences and (in relation to allegations) rely upon allegations in accordance with the guidance in the case of Pearce in order to reach their conclusion. The Parole Board has no jurisdiction or powers in relation to prison administration. 38.In this case the Parole Board panel would not have power to advance the issue relating to outstanding adjudications. However, the panel were entitled to draw inferences from the fact that there were a substantial number of pending adjudications, as well as taking account of oral and written evidence from members of staff relating to the Applicant’s behaviour. The panel were also obliged to take account of the Applicants comments in relation to the negative behaviour and pending adjudications (which they noted they had) and to make a fair assessment of the evidence in the round. The panel would be entitled to take account of a pattern of behaviour which might be relevant to risk. Such a pattern was clearly demonstrated in this case. 39.I am not therefore persuaded that the panel were under a duty to attempt to continue to pursue the outstanding and unresolved issues in relation to the Applicant - in particular the outstanding adjudications. The panel, in my determination, had sufficient evidence upon which fair and appropriate inferences could be drawn relating to the issue before the panel - which was the Applicant’s risk of serious harm in the community. For these reasons I am not persuaded that the panel acted unreasonably or irrationally in concluding the hearing on the basis of the evidence presented at the oral hearing. Ground 2 40.It is submitted by the Applicant’s legal adviser that the Applicant had told his legal adviser that he felt that he was not able to fully articulate his case at the panel hearing and that his neurodiverse challenges meant that he was unable to explain things succinctly. The current legal adviser candidly accepts that the Applicant was represented by a different legal adviser at the hearing, and therefore the current adviser was not present at the hearing and was relying upon the Applicant’s recollection and instructions. Discussion 41.The OHP drafted a substantial decision in this case. The decision noted between paragraph 2.30 and 2.39, detailed notes of evidence given by the Applicant to the panel at the hearing. It is clear from the written decision that the Applicant’s evidence was understood and fully recorded by the panel. The Applicant had clearly dealt with the issues which were relevant to the hearing, and the panel had noted the Applicant’s views in the written decision. Additionally, the Applicant was independently legally represented at the hearing. The role of the legal representative would clearly be to ensure that the Applicant had a full opportunity to explain his position and present his case. The legal adviser, at the hearing, also had the opportunity to intervene and to assist the Applicant, if at any time it was felt that the client was not able to fully explain himself. The legal adviser also had the right to ask for a short adjournment to give further time for the Applicant to consider his replies and possibly review them. No application was made by the legal adviser. No complaint was made at the time of the hearing, which was the appropriate forum for an intervention of this sort. The Applicant’s case was also summarised by the legal adviser at the conclusion of the hearing, and again no complaint was made about the conduct of the hearing. 42.I am not persuaded that there is cogent evidence that the Applicant did not have a full opportunity to respond to questions and to explain his position to the OHP. 43.I am not therefore persuaded that this ground amounts to a procedural irregularity. Ground 3 44.It is submitted on behalf of the legal adviser that the panel failed to conduct a fair hearing because of the absence of enquiries which should have been made by the COM. Discussion 45.The background to this complaint relates to the Applicant’s status as a foreign national prisoner who was subject to a deportation order. The panel were told that there had been various appeals by the Applicant. The current position was that the Applicant’s appeals at tribunal level had been refused. It was understood that the Applicant had appealed directly to the COA and that the application for permission to appeal was outstanding. 46.The reality of the situation, therefore, was that the Applicant was, at the time of the oral hearing subject to a deportation order. It would therefore be the case that any risk management plan would need to involve considerations as to the Applicant’s release location. That location could be within the jurisdiction of the probation service or more likely within the jurisdiction of a foreign country. Parole Board guidance in relation to foreign national prisoners is published. In summary panels are obliged to consider a risk management plan in the light of the likely final residential location of the prisoner. In this case it was clear that that information was not ascertainable. The information would depend upon firstly a final decision from the COA and secondly a decision from the Immigration Department of the Home Office relating to executing a deportation order. A further consideration would be that a prisoner subject to a deportation order would not be eligible for statutory services in the UK, for example housing, health and benefits. Clearly all these matters would be of relevance in relation to managing risk. 47.The panel expressed some concern that information about the availability of approved premises, contact with the Applicant’s family and contact with the immigration department had not been undertaken by the probation officer in this case. Whilst the panel were entitled to express their views, general knowledge of the difficulties in relation to deportation and foreign prisoners would indicate that securing firm decisions about accommodation and services is exceptionally challenging where no decision has been finally made by a court as to the merits or otherwise of an appeal against deportation. The reality in this case was that without a final decision from the COA, the panel were clearly not in a position to consider risk for the simple reason that the panel would not have sufficient information about the Applicant’s final residential location. 48.As noted by the Applicant’s legal adviser, the Parole Board are not empowered to direct the probation service as to their working arrangements. Again, the panel’s fundamental duty was to consider whether, at the time of the oral hearing, the Applicant’s risk could be safely managed in the community. It is clear from the written decision, that the panel took the view that the Applicant’s risk could not be safely managed, whatever the location of his residence might be in the future, on the basis of the issues noted above. I do not therefore find that there is evidence of procedural irregularity or irrationality on the part of the panel in relation to this ground. Decision 49.For the reasons I have given, I do not consider that the decision was irrational or procedurally unfair and accordingly the application for reconsideration is refused. HH Stephen Dawson 28 August 2025