Burke, Application for Reconsideration [2026] PBRA 31 (02 February 2026) [2026] PBRA 31
PBRA
Burke, Application for Reconsideration [2026] PBRA 31 (02 February 2026)
[2026] PBRA 31 · 2025-12-19
[1]This is an application by Burke (the Applicant) for reconsideration of a decision dated 19 December 2025 not to direct his release. The decision was made by a panel following an oral hearing.[2]Rule 28(1) of the Parole Board Rules 2019 (as amended) (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.[3]I have considered the application on the papers. These are the decision, the dossier (consisting of 798 numbered pages), and the application for reconsideration. Background[4]On 31 January 2003, the Applicant was convicted after trial of possession of a firearm with intent to endanger life. He received a sentence of life imprisonment. He was also convicted of possession of cocaine but received no separate penalty. The tariff was set at 66 months less time spent on remand and expired in July 2008.[5]In September 2011, he was further convicted on two counts of conspiracy to commit burglary with intent to steal, committed while he was in open conditions. He received concurrent determinate sentences of 12 years (dwelling) and nine years (non-dwelling) respectively.[6]He was released in May 2018 but recalled in December 2018 following his arrest for sexual assault of a female (intentional touching, no penetration). He was convicted in June 2019 and received a further 21 month determinate sentence.[7]The Applicant was 31 years old at the time of sentencing and is now 54 years old. Request for Reconsideration[8]The application for reconsideration has been submitted by the Applicant. It argues that the decision was procedurally unfair.[9]The submissions are supplemented by written arguments to which reference will be made in the Discussion section below. Current Parole Review[10]The Applicant's case was referred to the Parole Board by the Secretary of State (the Respondent) in March 2023 to consider whether or not it would be appropriate to direct his release.[11]The review was deferred in June 2024 following an allegation that the Applicant had assaulted a female visitor on a social visit. No further action was taken. It is reported that no CCTV from the prison visits hall had been saved, but the dossier contained two witness statements from prison staff, a transcript of the police interview, and correspondence from the visitor (a former partner), stating that the Applicant did not hit her on the visit.[12]The matter proceeded to an oral hearing on 2 December 2025 before a three-member panel, including a psychologist specialist member. The Applicant was legally represented throughout the hearing. The Respondent was not legally represented. The panel heard oral evidence from the Applicant, his Prison Offender Manager, his Community Offender Manager, an interventions facilitator, a clinical lead, and a forensic psychologist instructed by HMPPS.[13]There was no professional support for release. The panel did not direct the Applicant's release. The Relevant Law[14]The Parole Board will direct release if it is no longer necessary for the protection of the public that the prisoner should be confined. Parole Board Rules 2019 (as amended)[15]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)).[16]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)).[17]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 . Procedural unfairness[18]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.[19]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.[20]The overriding objective is to ensure that the applicant's case was dealt with justly. The reply on behalf of the Respondent[21]The Respondent has not submitted representations in response to this application. Discussion[22]The Applicant's principal complaint is that he was prevented from obtaining an independent psychological assessment because his solicitor refused to request one. The Applicant submits that this meant the panel relied on the prison psychology evidence, including the HCR-20, without him being able to challenge it, and that this was procedurally unfair. I do not accept that submission. The panel conducted an oral hearing at which the Applicant was legally represented. It heard evidence from relevant professional witnesses, including a psychologist witness, and was entitled to assess that evidence. The Applicant was able to challenge the psychological evidence through his legal representative at the oral hearing. The Applicant does not identify any application made to the panel for an independent report, any refusal by the panel to consider such a request, or any decision by the panel which prevented him from presenting his case. The fact that the Applicant's solicitor did not pursue an independent report does not, without more, establish procedural unfairness by the panel.[23]The Applicant further submits that the panel acted unfairly by relying on missing CCTV and uncorroborated staff accounts in relation to the incident in visits, and by rejecting his partner's account without justification. I do not accept that submission. The absence of CCTV does not mean that the panel was unable to assess risk on the basis of other evidence. The panel was entitled to assess the evidence before it and make findings on that basis. The panel had before it two independent eyewitness accounts from prison officers who described what they observed, including the nature of the assault and the injuries said to have been visible afterwards. The panel was entitled to place weight on that evidence. The Applicant's submissions amount to a disagreement with the panel's assessment of credibility and weight, rather than the identification of any procedural unfairness.[24]The Applicant also submits that the panel wrongly concluded he was minimising the incident, and that the allegation was unproven and disputed. The panel was entitled to assess risk on the basis of the evidence before it, including evidence of behaviour in custody, and it was not required to disregard relevant information simply because there had been no criminal prosecution. The panel gave detailed reasons for its conclusions, including in relation to the Applicant's account of the incident.[25]Finally, the Applicant submits that he has completed work since the incident and has demonstrated stability and positive behaviour for a sustained period. However, the panel's task was to apply the statutory test for release on the evidence before it at the time. It was entitled to conclude, on that evidence, that the Applicant had not yet demonstrated sufficient risk reduction, including in relation to his ability to apply his learning in emotionally charged situations.[26]Taking the Applicant's submissions as a whole, I am satisfied that they do not disclose an arguable case that the decision was procedurally unfair. They amount to a request for the decision to be revisited because the Applicant disagrees with the panel's evaluation of the evidence and the conclusions it reached. That is not a basis for reconsideration. Decision[27]For the reasons set out above, the application for reconsideration is refused. Stefan Fafinski 02 February 2026