Burns, Application for Reconsideration [2026] PBRA 128 (04 June 2026) [2026] PBRA 128

PBRA
Burns, Application for Reconsideration [2026] PBRA 128 (04 June 2026)
[2026] PBRA 128 · 2026-04-18
[1]This is an application by Burns (the Applicant) for reconsideration of a decision of an oral hearing panel dated 18 April 2026 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 oral hearing decision, the dossier consisting of 596 numbered pages and the application for reconsideration. Request for Reconsideration[4]The application for reconsideration is dated May 2026. It has been drafted by legal representatives on behalf of the Applicant. It submits that the decision was irrational.[5]This submission is supplemented by written arguments to which reference will be made in the Discussion section below. Background[6]The Applicant received a sentence of imprisonment for public protection on 26 September 2007 for an offence of wounding with intent. His tariff was set at three years six months. He has been released and recalled twice on this sentence. He was released in October 2017 following a Parole Board hearing, his licence was revoked and he was recalled in July 2018 following an allegation of a wounding. He was released in April 2019 following a further Parole Board hearing, his licence was revoked and he was recalled in June 2022 following an allegation of driving whilst disqualified.[7]He was 33 years old at the time of sentencing for the index offence and is now 52 years old. Current parole review[8]The Applicant's case was referred to the Parole Board by the Secretary of State (the Respondent) in May 2024 to consider whether or not it would be appropriate to direct his release. If the Board did not consider it appropriate to direct release, it was invited to advise the Secretary of State whether the Applicant should be transferred to open conditions.[9]The case proceeded to an oral hearing via videoconference on 18 November 2025. The panel consisted of two independent members and a psychologist member. It heard oral evidence from the Applicant together with his Prison Offender Manager (POM), Community Offender Manager (COM) and a forensic psychologist from the prison. The Applicant was legally represented throughout the hearing. The Respondent was not represented by an advocate. 10.The panel did not direct the Applicant's release nor make a recommendation for open conditions. It is only the release decision that is open for reconsideration. The Relevant Law[11]The panel correctly sets out in its decision dated 18 April 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)[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. 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. The reply on behalf of the Secretary of State 20.The Respondent has submitted no representations in response to this application. Discussion 21.The submission of irrationality is based on the panel's decision not to direct release contrary to the position of the professionals recommending release. The grounds submit that the risk management plan addressed the question of substance misuse which concerned the panel, that anxious scrutiny was required in making the decision, that the Applicant had made "substantial and sustained" progress whilst in custody and had a very supportive team who had worked with him and were satisfied that he met the test for release. 22.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 risk management plan 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 if they failed to do just that and it would render parole hearings unnecessary if their responsibility was simple to endorse recommendations of the professionals. 23.The panel explained clearly its reasons for not following the recommendations of the professionals and its stated reasons were sufficient to justify its conclusions. 24.The grounds seek to reargue the Applicant's case setting out matters considered at the hearing and considered by the panel. The grounds appear to suggest that the panel did not correctly apply the test or consider the evidence adequately. I am entirely satisfied that the panel applied the correct test and considered the evidence properly. The fact that, having done so, it reached a different conclusion to the professionals and to the Applicant and his legal representative, is not a reason for me to interfere with it. 25.The panel noted all the positive aspects and improvements in the Applicant's openness and in his relation to drug misuse, and also had careful regard to the views of the professionals all recommending release. However, the panel gave many reasons for not directing release - the Applicant's continued use of illegal substances, the Applicant's minimisation of the reasons for his recall, the Applicant's conviction for other offences whilst on release, the instances of intimate partner violence (IPV) against his partners, the requirement for risk reduction work relating to IPV, his lack of insight into that risk, and his lack of honesty and openness regarding that area of risk. All those reasons were soundly based on evidence as well as being rational and reasonable and certainly none, individually or collectively, meets the test for irrationality. Decision 26.For the reasons I have given, I do not consider that the decision was irrational and accordingly the application for reconsideration is refused. Barbara Mensah 04 June 2026