Copley, Application for Reconsideration [2025] PBRA 241 (10 November 2025) [2025] PBRA 241

PBRA

Copley, Application for Reconsideration [2025] PBRA 241 (10 November 2025)

[2025] PBRA 241 · 2025-10-06

[1]This is an application by Copley (the Applicant) for reconsideration of a decision of an oral hearing panel dated the 6 October 2025. 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 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

[3]I have considered the application on the papers. These are the dossier, the application for reconsideration drafted by the Applicant’s legal adviser, and the representations by the Secretary of State (the Respondent). Request for Reconsideration

[4]The application for reconsideration is dated 15 October 2025.

[5]The grounds for seeking a reconsideration are set out below. Background

[6]The Applicant is serving a sentence of life imprisonment. The index offences were wounding with intent to do grievous bodily harm and arson with intent to endanger life. The Applicant was aged 21 at the time of sentence. He was 43 at the time of the oral hearing. The Applicant was released by a Parole Board panel in 2017 and recalled in 2022. He was released for a second time in April of 2023 and recalled in July 2023. This was the second review since the Applicants most recent recall.

[7]The index offence occurred while the Applicant was serving a sentence of imprisonment. The sentence of imprisonment was for the offence of attempted murder. The attempted murder occurred in circumstances where there was a dispute with the victim relating to a family matter alleging sexual assault. The Applicant began damaging the victims motor vehicle. The victim challenged the Applicant and was then stabbed several times by the Applicant.

[8]The index offence occurred while the Applicant was serving the sentence for the offence of attempted murder. The Applicant, while residing in a prison for young offenders, attacked a fellow prisoner with a piece of glass which had been prepared for the purpose. When subsequently placed in the punishment block, the Applicant started a fire leading to an evacuation. Current parole review

[9]The panel of the Parole Board consisted of an independent chair a further psychologist member of the Parole Board and a further independent member of the Parole Board. The panel considered the dossier in this case. Evidence was given at the oral hearing by a Community Offender Manager (COM), a prison instructed psychologist and a Prison Offender Manager (POM). The Applicant was legally represented. The referral from the Respondent requested that the Parole Board consider whether the Applicant should be released, if not released whether the Applicant should be recommended for a transfer to an open prison. The Relevant Law

[10]The panel correctly sets out in its decision letter dated 6 October 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)

[11]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)).

[12]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)).

[13]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

[14]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.

[15]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. ”

[16]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).

[17]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.

[18]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.

[19]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

[20]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.

[21]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;

(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.

[22]The overriding objective is to ensure that the Applicant’s case was dealt with justly. Error of law

[23]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.

[24]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

[25]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

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

[26]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.

[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]The Applicant’s legal adviser submits, on behalf of the Applicant, that the panel made a mistake of fact in their decision. It is submitted that the mistake was their assertion that the Applicant needed to undertake “ core risk reduction work ” (CRRW) to minimise his risk sufficiently before being considered for release. It is further submitted that the Applicant’s risk of serious harm was not imminent and therefore the work that he was required to undertake could not be said to be CRRW. Discussion

[31]As noted above, mistakes in the finding of facts have been addressed in decisions in the past. Of importance is the distinction between a fact (and therefore a mistake of fact) and an opinion. In legal terms a fact is a matter which is an uncontentious and objectively verifiable event and is something that is known to have happened or to exist, it is invariably something for which proof exists, or about which there is verifiable information.

[32]The term CRRW is commonly used in parole matters. The term does not refer to an objectively verifiable event or happening but is a term which tends to be used to define behavioural work which it is thought should be completed before a prisoner is released. It is commonly thought to be work which is necessary to be completed in order to demonstrate a reduction in risk of serious harm. Completion of such work often contributes to a decision to direct release. The term CRRW is not a fact or a psychological definition but amounts to a turn of phrase used to define behavioural or other work which it is believed should be completed prior to release from prison and which if completed would, as indicated above, contribute to an argument that a prisoner’s risk can be safely managed in the community.

[33]I therefore reject the submission that the term “ core risk reduction work ” refers to a fact. It is clearly a descriptive term. Consequently, I also reject the submission made on behalf of the Applicant that the panel made an error of fact when concluding that in their view CCRW remained outstanding.

[34]However, it is reasonable, in terms of a challenge to the decision of the panel, to argue that the panel erred in taking account of outstanding work when making their decision to reject a direction for release.

[35]It is clear within the oral hearing decision that there was a consensus of opinion that the Applicant had continuing and identifiable risk factors which included poor emotional regulation, impulsivity and poor problem solving. He also had a tendency to use violence (often including the use of a weapon) to resolve problems. The panel took the view that these risk factors had not been adequately addressed by the Applicant and therefore concluded that he posed a continuing risk of serious harm in the community.

[36]The panel analysed the Risk Management Plan (RMP) in this case and took account of the external factors which would be present if the Applicant were to be directed for release. The plan included initial residence in approved premises and a substantial number of licence conditions.

[37]As noted above, both the prison instructed psychologist and the COM were of the opinion that the Applicant met the test for release, and that any work in connection with managing his risk factors could be completed in the community.

[38]The panel took particular account, in reaching their determination, of the incident which led to the recall. The circumstances involved using a hammer to damage a caravan and a car belonging to a person with whom he was in dispute. The Applicant was not convicted of any physical violence towards the other person involved in the dispute, however he admitted asking the person to come out from where he was, and to fight. The Applicant himself described to the panel a potentially serious incident. The Applicant said in the hearing that he believed he was not violent, however it was clear that he was voluntarily involved in the midst of a potentially violent and serious exchange. The panel also took account of an earlier recall which involved the Applicant also causing damage to a vehicle and receiving a sentence of imprisonment for taking a vehicle and damaging it.

[39]This was clearly a case where there was evidence upon which the professionals and the panel could take a competing view. As is noted above, the panel were not bound by the views of professionals. The panel also noted that the Applicant had been released on the last occasion on the understanding that he would complete a thinking skills intervention and further work around alcohol misuse, however within three months of his release he was involved in a concerning incident which clearly indicated an absence (by the Applicant) of the application of thinking skills or of managing his emotions appropriately.

[40]The panel had the advantage of an extensive dossier of reports and other material and the advantage to, of seeing and hearing the Applicant, as well as the witnesses. Panels of the Parole Board are not obliged to adopt the opinions and recommendations of professional witnesses. It is their responsibility to make their own risk assessments and to evaluate the likely effectiveness of any RMP proposed. They must make up their own minds on the totality of the evidence that they hear, including any evidence from the Applicant. They would be failing in their duty to protect the public from serious harm (while also protecting the prisoner from unnecessary incarceration) if they failed to do just that. As was observed by the divisional Court in DSD they have the expertise to make such assessments.

[41]However, if the panel makes a decision contrary to the opinions and recommendations of professional witnesses it is important that the panel should explain clearly its reasons for doing so and it’s stated reasons should be sufficient to justify its conclusions as per Wells above.

[42]In this case the panel clearly explained their reasons for declining to release. They took the view that the Applicant was not able to demonstrate an ability to manage his emotions, impulsivity and poor problem solving and that he had a tendency to use violence including weapons to resolve problems. This conclusion was reasonably based upon the evidence presented to the panel albeit that the professionals took the view that the issues concerning the panel could be addressed by way of immediate release and undertaking work in the community in the future.

[43]Where a panel arrives at a conclusion, exercising its judgement based upon the evidence before it, and having regard to the fact they saw and heard the witnesses it will be inappropriate to direct that the decision be reconsidered unless it is manifestly obvious that there are compelling reasons for interfering with the decision. In this case I find no such compelling reasons. The panel were entitled to disagree with the views of the professionals, and the panel explained its reasons for such a disagreement. Ground 2

[44]It is submitted on behalf of the Applicant, by his legal adviser, that the decision of the panel in not directing release implied that there was evidence of an immediacy of risk. It is further argued, by the Applicant’s legal adviser, that there was insufficient evidence of an immediate risk of serious harm on release. Discussion

[45]It is well established that if an oral hearing panel were satisfied on balance that a prisoner posed an immediate risk of serious harm he would clearly not meet the test for release and would not be directed for release. The probation service, when proposing assessments of the risk of serious harm posed by a prisoner, adopt a scale. Prisoners who are thought to pose an imminent risk of serious harm tend to be attributed with the ‘very high’ attribution, rather than the ‘high’ risk of harm attribution. The Applicant was not attributed with a ‘very high’ risk of harm attribution. However, the panel were obliged to apply the test for release. The test is well known and set out in detail in the panel’s decision. The test does not include a reference to imminence or immediacy of serious harm.

[46]In Johnson

[2022] EWHC 1282 (Admin)

and Dich and Murphy

[2023] EWHC 945

(Admin ) the Divisional Court made it clear that the test for release does not have a temporal element. The court indicated… “ What Parliament did intend was that an offender was to be confined unless and until it was no longer necessary for the protection of the public. If an offender poses no risk, the protection of the public will not require his confinement. That does not mean that the Board is to ignore anything other than immediate or imminent risk which is what occurred in this case .”

[47]The panel, therefore, in this case, were entitled and obliged to assess risk beyond immediacy and in the longer term. I am not persuaded that, as is submitted in this ground, that the panel implied some form of imminence of risk by declining to release. The panel made it clear that they declined to direct release because they determined that it remained necessary, in order to protect the public from serious harm, that the Applicant remain confined.

[48]However as is clearly indicated in the case of Johnson the Board are obliged to take account of risk in the longer term and are not bound by any temporal barrier. In my determination this ground does not amount to an argument for reconsideration. Ground 3

[49]It is submitted on behalf of the Applicant that the oral hearing panel attached too much weight to a “ hypothetical risk ” based upon the circumstances of the Applicant’s recall and failed to take account of the Applicant’s positive attributes. Discussion

[50]Having considered the panel decision in this case it is noted that the panel listed in some detail the risk reduction work which had been completed by the Applicant during the time that he was originally serving a sentence of imprisonment and before his initial release on licence. The panel also noted that, on return to prison, (following his first recall) the Applicant had complied with the prison regime and that his conduct was considered to be positive.

[51]The panel noted that following his return on the subsequent occasion to prison there had been some difficulties in the early part of his recall including adjudications, however the panel took note of the fact that his POM considered that his conduct had significantly improved in recent months and that there had been no further adjudications.

[52]The panel decision therefore indicates that the panel made a fair assessment of the positive aspects of the Applicant’s behaviour and prison record. The panel were also bound to take account of negative considerations in making a holistic assessment of risk.

[53]I am not persuaded that the panel based their decision upon what the Applicant’s legal adviser terms “ hypothetical risk ”. The panel based their decision upon the Applicant’s history of violence and the description within the dossier of the incident which led to the most recent recall. The panel however noted a concern about the severity of the criminal damage caused at the time of the incident. A caravan, which was occupied by two people, was the subject of the damage by hammer blows. The panel suggested that the two people would have felt under physical threat as a result of the behaviour by the Applicant when damaging the caravan. The panel determined that the behaviour of the Applicant amounted to acts of violence and hostile behaviour. The incident also amounted to a failure to control emotions and a choice of resolving a matter by way of threats and violence, including the use of a hammer to cause damage. The panel noted that the Applicant did not appear to consider either leaving the scene or possibly calling the police as alternatives.

[54]I am therefore not persuaded that there is evidence of a failure by the panel to fairly balance the material within the dossier and the oral evidence in reaching their determination. Legal references

[55]I have taken account of the legal references included within the Applicant’s application for reconsideration. As indicated above I am not persuaded by the argument relating to a mistake of fact being identified in this decision.

[56]I take full account, however, of the fact that the Applicant’s legal adviser is correct to highlight the fact that the panel were under an obligation to explain the basis upon which they had reached their decision. This is particularly of relevance in a situation where the professionals are taking a contrary view.

[57]In essence this case was one which relied upon a holistic view of the Applicant’s risks and his behaviour in more recent times. As indicated above, there appeared to be a consensus that the Applicant found difficulty in managing emotions and controlling violence. The professionals had suggested that further work ought to be undertaken to assist the Applicant in managing risk and violence. The panel agreed. The conflicting opinion in this case was that the panel took the view that until the Applicant could demonstrate an ability to manage his risk (which was likely to be demonstrated by undertaking appropriate behavioural work), his risk remained at a level where it was necessary to protect the public by remaining confined.

[58]The professionals appeared to take the view that the Applicant should be directed for release on the basis that he undertake work to manage his risk at some future date. The panel were not persuaded that this was an appropriate path.

[59]Having considered all the representations in this matter I am not persuaded that this is a case for reconsideration, and I therefore decline to order reconsideration. Decision

[60]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 10 November 2025