Coulburn, Application for Reconsideration by, [2025] PBRA 217 (08 October 2025) [2025] PBRA 217

PBRA
Coulburn, Application for Reconsideration by, [2025] PBRA 217 (08 October 2025)
[2025] PBRA 217 · 2025-07-08
[1]This is an application by Coulburn (the Applicant) for reconsideration of a decision of a paper review by the Parole Board (the panel) dated 8 July 2025 which determined not to direct his release or recommend his progression to an open prison.[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 in the case consisting of 228 pages including the panel's decision of 8 July 2025, and the Applicant's application dated 26 August 2025.[4]On 12 September 2025, I issued directions for further information to be provided by the Secretary of State (the Respondent), and I invited representations from the parties. The Respondent provided the directed information on 16 September 2025. No further representations were submitted by the Applicant or the Respondent after this. Request for Reconsideration[5]The application for reconsideration is on the grounds of procedural unfairness and irrationality. I have set out the detail in my response in the discussion (below). Background[6]The Applicant received a life sentence in 2019 following his conviction for s18 wounding with intent. The tariff of six years set by the sentencing court before his release could be considered expires on 14 November 2025. The Respondent subsequently referred the case to the Parole Board for it to consider whether the Applicant's release could be directed or, in the alternative, whether a recommendation for transfer to open conditions could be made.[7]This was the matter that was addressed by the panel in its paper review of July 2025. It declined to direct release or recommend transfer to an open prison. It was the first review of his life sentence by the Parole Board and he did not submit any representations (either personally or via any appointed legal representative).[8]The panel's decision was provisional at that stage because the Applicant was then able, pursuant to the Parole Board Rules, to apply for a panel at an oral hearing to determine his case.[9]The Applicant duly made such a request via his legal representative in an application dated 28 July 2025 and set out his reasons for this. That application was considered by a Duty Member of the Parole Board on 5 August 2025 and was refused. Subsequently, the Applicant made his application for reconsideration which is now before me.[10]An important fact in this case is that the Applicant received a life sentence for an offence he had committed in custody. At the time of this offence, he was already serving a sentence of Imprisonment for Public Protection (IPP) which was imposed in 2010 following his conviction for s18 wounding with intent. The minimum term on that sentence before his release could be considered was set by the court at 75 months.[11]The Applicant has never been released on his IPP sentence despite his minimum term expiring many years ago. There had been a parole review in December 2019 which was around the time that he received the further life sentence. His release on the IPP sentence could not be considered beyond 2019 because he was then subject to the life sentence and the tariff expiry on that sentence was outstanding.[12]When I first reviewed the application for reconsideration, I questioned what had happened to the referral from the Respondent in respect of the IPP sentence. The key documentation before the panel had been in relation to the life sentence. The panel was clearly aware of the IPP sentence as it referenced it in its written decision. However, it appeared to me that the Respondent's referral of the case to the Parole Board was restricted solely to whether the Applicant's release could be directed under the life sentence.[13]I therefore made the following direction to the Respondent:
'The Secretary of State is to clarify: 1. The referral history to the Parole Board of the IPP sentence and whether there is/has been a separate referral to the Parole Board at or around the same time as the present case referral (dated 17 January 2025). 2. That the referral dated 17 January 2025 in the present dossier relates to the life sentence. 3. If there has been no separate referral to the Parole Board in respect of the IPP sentence, the reasons for this should be provided, together with the reasons as to why two referrals (IPP and Life 'indeterminate' referrals) were not submitted in respect of the review considered by the July 2025 panel. 4. If the Secretary of State submits that the referral of 17 January 2025 relates to both the IPP sentence and life sentence, where that is established in the referral and in the dossier, why mandatory documents were not produced in respect of the IPP sentence (including sentencing remarks and the last Parole Board written decision) and why reports appear to focus on the life sentence as being the sentence for the purpose of the present Parole review.'
[14]I asked for clarification because there was a need to ensure fairness to the Applicant, to understand whether it was expected that both the life sentence and the IPP sentence were to be considered by the panel in its decision on whether to direct release, or whether there had been an additional referral to the Parole Board in respect of the IPP sentence.[15]The difficulty, if the IPP sentence had not been referred, was that the Applicant is serving two indeterminate sentences and only 50% of those (the life sentence) had been referred to and therefore reviewed by the Parole Board at a time when he was eligible to be considered for release.[16]If the panel had been minded to direct his release, the Applicant would have received a direction for release from the Parole Board in respect of the life sentence but would have remained detained in custody under his IPP sentence. In other words, he would require a release decision in respect of both sentences for his actual release to take place.[17]The Respondent subsequently stated:
'1. We have referred correctly under the dominant, life sentence. No further referral is necessary and has therefore not been made regarding the IPP. The IPP was referred to the board between 2014 and 2018 until the further sentence was imposed. 2. It does relate to the life sentence. 3. The life sentence, is the dominant sentence or superseding sentence. In this case he received an automatic life sentence. The IPP sentence holds no further bearing on his lawful detention or future supervision . The licence he would be released under would be a life one relating to his 2019 sentence, and this would not be eligible for termination. 4. It does not relate to the IPP sentence.'
[18]I will return to the Respondent's response in the discussion (below). The Relevant Law[19]The panel correctly sets out in its decision letter dated 8 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)[20]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)).[21]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)).[22]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[23]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.[24]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. "[25]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).[26]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.[27]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.[28]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[29]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.[30]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.[31]The overriding objective is to ensure that the Applicant's case was dealt with justly. Error of law[32]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.[33]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[34]In the cases of Osborn v Parole Board [2013] UKSC 61 , the Supreme Court comprehensively reviewed the basis on which the Parole Board should consider applications for an oral hearing. Their conclusions are set out at paragraph 2 of the judgment. The Supreme Court did not decide that there should always be an oral hearing but said there should be if fairness to the prisoner requires one. The Supreme Court indicated that an oral hearing is likely to be necessary where the Board is in any doubt whether to direct one; they should be ordered where there is a dispute on the facts; where the panel needs to see and hear from the prisoner in order to properly assess risk and where it is necessary in order to allow the prisoner to properly put his case. When deciding whether to direct an oral hearing the Board should take into account the prisoner's legitimate interest in being able to participate in a decision with important implications for him. It is not necessary that there should be a realistic prospect of progression for an oral hearing to be directed.[35]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. "
[36]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[37]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 Respondent[38]On 8 September 2025, the Respondent provided a response which included the comment:
'... We can confirm that we have liaised with [the Applicant's] Prison Offender Manager (POM) on this matter. [The Applicant] attended three meetings regarding his parole review and parole reports between 20 February and 20 March 2025. His POM reports [the Applicant] refused to engage with further meetings at this stage and is yet to re-engage.'
Discussion[39]The Applicant noted that the panel's decision was made in the absence of representations and his representative stated in the application for reconsideration In light of the evidence within the dossier, we cannot criticise the stance taken by the Parole Board at this juncture as it was not evident that the Applicant wished to engage or disputed any of the information provided.[40]Much of the Applicant's criticism in his application for reconsideration is focused on the subsequent Duty Member decision not to direct an oral hearing. My assessment of his application for reconsideration is restricted to the panel's review of this case in July 2025 and not the later refusal by a Duty Member to refuse to direct an oral hearing.[41]Failing to put matters before the panel is not a ground for procedural unfairness and the Applicant has accepted that he had no criticism of the panel's view of his case at the time of its decision in July 2025. Therefore, I am not persuaded that there are grounds to demonstrate that the panel's decision was irrational or procedurally unfair.[42]For completeness, although the Applicant accepts that he made no representations at the time of his review by the panel, it is clear from the Respondent's comments that he was aware that his case had been referred to the Parole Board and he had an opportunity to attend meetings and find out more. He chose not to.[43]Although not put forward by the Applicant, to ensure fairness to him, I then considered whether there had been an error of law or any procedural unfairness because the Respondent had only referred the life sentence to the Parole Board and therefore the panel had not been asked to consider whether to direct release on the IPP sentence.[44]The Respondent's position confirms that only the life sentence was referred to the Parole Board because it was said that this became the ' dominant' sentence and ' the IPP sentence holds no further bearing on his lawful detention or future supervision...'.[45]I am afraid the Respondent is wrong. The Applicant is serving a life sentence and an IPP sentence. One does not extinguish the other. The Respondent should have either made two referrals to the Parole Board (one for the life sentence and one for the IPP sentence) or set out that the referral made was a requirement on the Parole Board to consider both indeterminate sentences.[46]Once the Applicant reached tariff expiry on his life sentence, which, as he approached this, was the trigger for the referral before the panel in this case, section 28(1A) Crime (Sentences) Act 1997 would no longer act as a bar to referral of the IPP sentence.[47]There was an obligation under section 28(7) on the Respondent to refer the IPP sentence to the Parole Board and section 28(1A) did not disapply that obligation once the tariff of the life sentence had been served.[48]However, in terms of my assessment of the reconsideration application in this case, as I have already noted, I am confined to the decision made by the panel in July 2025 and whether I am satisfied that that panel's approach or decision in the case evidenced irrationality, an error of law or procedural unfairness.[49]The panel was restricted to tackling the referral set by the Respondent and the Respondent has confirmed that the referral related solely to the life sentence. The panel dealt with that referral and refused to direct release or recommend that the Applicant progress to an open prison. There can be no error in terms of the panel's approach by it failing to make a decision about something, in this case the IPP sentence, when that was not a part of a referral from the Respondent. Nor could the panel have compelled the Respondent to refer the IPP sentence to the Parole Board.[50]The error therefore lies with the Respondent and it is not a matter that I can address within the remit of my determination on an application for reconsideration. It would be useful for the Parole Board and the Respondent's officials to establish a process of how similar cases might be managed in the future to avoid a repetition of the error.[51]The Respondent will need to refer the Applicant's IPP sentence to the Parole Board but that is a matter for the Applicant and Respondent to address directly. Decision[52]For the reasons I have given, although I have identified issues in this case, they are matters to address elsewhere. The panel's decision of July 2025 was not irrational or procedurally unfair and there was no error of law. Accordingly, the application for reconsideration is refused. Robert McKeon 08 October 2025