[2025] PBRA 97
Application for Reconsideration by Sturnham
Application
1. This is an application by Sturnham (the Applicant) for reconsideration of a decision of an oral hearing dated 22 April 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 decision letter (DL),
· the application for reconsideration dated 23 April 2025, and
· the dossier, which currently consists of 835 numbered pages, ending with the DL.
Request for Reconsideration
4. The Applicant’s representative’s grounds for seeking a reconsideration can be summarised as follows:
(1) The panel failed to apply the statutory test correctly, focusing on non-compliance, difficulties with professionals, and (mis)use of prescription drugs instead of assessing whether there was a current and unmanageable risk of serious harm.
(2) The panel wrongly linked the misuse of prescription medication with an increased risk of serious harm, a finding not supported by the evidence.
(3) The panel failed to consider a number of relevant and stabilising protective factors.
(4) The panel gave insufficient weight to the views of the psychologist instructed on behalf of the Applicant, and did not explain why it preferred other views.
5. The Applicant adds further submissions of his own. He says that alcohol does not make him dangerous: his consumption of alcohol prior to the index offence was not causative of that offence. He agrees alcohol makes him irresponsible and reckless. He repeats the assertion that his use of prescription drugs is not indicative of an increased risk of serious harm to the public; rather the contrary, it reduces his risk. He has not heavily consumed alcohol since 2015, or at all, despite the availability of hooch, since 2019. He stresses his determination not to be recalled again, and to comply with licence conditions, including an alcohol tag.
Background
6. The Applicant was 29 years old in 2007, when he received a sentence of imprisonment for public protection for an offence of manslaughter, causing death by an unlawful assault, but without the intent to kill or cause really serious injury. He was drunk and had been taking cocaine when he was involved in an argument in a pub. When the victim intervened in the argument, the Applicant punched him to the floor twice. The victim refused to go to hospital, went home, and died the following day from the effects of a skull fracture. The minimum term for the sentence expired in May 2009.
7. The Applicant’s offending history started in 1999, when he was about 22 years old. His previous offences included driving while disqualified. He has a history of poor compliance with court orders, but no previous convictions for violence to the person. The trial judge said in his sentencing remarks that the Applicant held strong views, was physically very strong, is possessed of a forceful personality, and regarded it as his right to respond with violence to anyone who uses it or threatens it to him.
8. The Applicant has been released on licence and recalled four times. The first release was in 2011. He was recalled in 2015 after being charged with sexual assault on a female paramedic, and racially aggravated behaviour towards a male paramedic and a consultant, which ultimately resulted in further sentences of imprisonment. He was released for the second time in June 2018, and recalled in April 2019 for staying away from his hostel accommodation without permission. There were concerns about alcohol consumption. He was again released in December 2021, and recalled in January 2022 when the hostel withdrew his bedspace. He had been buying illicit benzodiazepines and taking them in addition to his prescribed medication. There were concerns about his general compliance and willingness to listen to advice.
9. The Applicant’s most recent release was in March 2023, to a hostel which provided psychological support. He had told the panel that released him that he did not think he needed that element of support. He at first engaged well, but as time went on he became more challenging in his conversations and attitudes to the restrictions placed upon him by his licence conditions. He refused to take drug tests, obstructed room searches and pocket searches, and refused to move his room when told to do so. On 17 April 2023 the hostel withdrew his bed, and there were no other places where he would receive the specialist support he needed. A large amount of prescription drugs were found in his room, as well as a coffee tin with an overwhelming smell of cannabis, an empty bottle of brandy and a used crack pipe.
10.Since his recall the Applicant has received a further adjudication in October 2024, for having a large quantity of pregabalin tablets in his cell. Initially he said he had bought them to sell on for canteen, but he then said he had bought them and used a couple of them.
Current parole review
11.The Secretary of State’s (the Respondent’s) referral letter is dated 28 April 2023, and requests the Board to consider release or a recommendation for open conditions. The oral hearing panel on 7 April 2025 consisted of two independent members and one psychologist member of the Parole Board. The hearing took place by video link. The panel was informed that the Applicant was struggling with his health. After giving his evidence the Applicant chose to return to his wing, because of back pain, and was content for the hearing to continue and conclude in his absence. No complaint is made about the way in which the panel conducted the hearing.
12.The panel heard evidence from the Prison Offender Manager (POM), a psychologist commissioned by the prison and a psychologist instructed on the Applicant’s behalf, the Community Offender Manager (COM), and the Applicant. The Applicant was represented throughout. His representative was able to ask questions of all the witnesses, including the Applicant, and to make written submissions after the hearing.
The Relevant Law
13.The panel correctly sets out in its decision letter 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)
14.This is an eligible decision, and an eligible sentence, for reconsideration.
15.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
16.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.
17.In R(DSD and others) -v- the Parole Board [2018] EWHC 694 (Admin) (Worboys) 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.”
18.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).
19.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.
20.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.
21.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
22.The Respondent has chosen not to make any reply to this application.
Discussion
23.The essence of the argument on behalf of the Applicant is that the panel was irrational in concluding on the evidence that the Applicant’s use of illicit medication affects his risk of causing harm to the public. He denies the use of alcohol, but accepted to the panel that he had used crack cocaine on one occasion while on his most recent licence.
24.The Applicant, by his behaviour both in the community and in custody, by his evidence to the panel and by his submissions in support of this application, makes it plain that he does not accept that he ought to stop using medication over and above that which is prescribed for him. There is a solid evidential basis for the panel’s conclusion that it is likely he will continue to use such medication as he thinks fit, though he told the panel he would not have it in his room and would co-operate with his COM.
25.The Applicant’s use of unprescribed medication certainly means that his manageability in the community is greatly reduced. No hostel will tolerate residents using or bringing unauthorised drugs onto the premises, whether they are categorised as medicinal when prescribed or not. The panel very properly commented that the proposed risk management plan (RMP) is less robust than the one the Applicant was subject to when he was recalled. It does not include provision for a psychologically-informed hostel, previously considered a necessary part of his release plan, and his hostel stay would be only three months rather than the longer period earlier foreseen.
26.The Applicant is assessed as posing a high risk of serious harm to the public, with a medium risk of likelihood of re-offending within two years. He is assessed as having a high likelihood of further general offending, and a medium likelihood of violent offending. He is placed with a high risk of a further contact sexual offence. None of the witnesses, apart from the psychologist instructed on his behalf, supported release. That psychologist accepted that the Applicant was not being realistic about his ability to abstain from alcohol, and she further accepted that substances are a risk factor for him, although there is not a straight correlation between substance abuse and violence. An alcohol tag, of course, is not a permanent solution to a risk of offending in the long term. The psychologist told the panel that in her opinion the Applicant can be provocative, challenging and confrontational, but has not been violent or made any threats. In fact, on 28 November 2024, while at a hospital appointment, the Applicant, in objecting to the use of double cuffs rather than an escort chain, said he was a “dangerous man on a short fuse”. The panel considered, and rejected, the Applicant’s explanation for this, as sarcasm rather than a threat.
27.The COM told the panel that she was concerned about compliance issues, which, together with issues with medication, were linked to previous recalls and to the Applicant’s risk of serious harm, affecting his judgement and consequential thinking.
28.Overall, the panel’s conclusion that the Applicant does not have sufficient internal controls to manage his risks, if he is using illicit medication, alcohol, or Class A drugs, was one that was open to it on the evidence, and for which it gave a clear explanation.
29.The Applicant’s argument that the illicit medicines he uses do not increase his risk of serious harm is not supported by expert evidence. That does not mean that he may not have a valid point: it simply means that the contention on behalf of the Applicant that linking the misuse of unprescribed medication with an increased risk of serious harm is “medically and legally irrational” is not supported by appropriate evidence. It was for the Applicant to make the case that he satisfies the test for release. Self-report of the effects of substances on him is insufficient. Furthermore, the Applicant has in the past admitted to having developed a dependency on pregabalin (see dossier p648), and his behaviour and attitudes strongly suggest that that dependency, whether physical or psychological, remains. Dependency on substances, of itself, must be a risk factor. The witnesses spoke of the Applicant’s impulsiveness, and he admitted using crack cocaine as a result of an impulsive decision. Cocaine, as well as alcohol, was a factor in the index offence. As recently as December 2024 he said he had taken 50 pregabalin tablets, and the empty casings were found in his cell. He told his COM he was “self-medicating” in January 2025.
30.The panel was fully aware of the protective factors cited in the application, and took them into account. The witnesses (apart from the psychologist instructed on the Applicant’s behalf) expressed doubt as to whether he would co-operate with control measures in future. He recently refused to speak to the prison-based psychologist for the purposes of a report.
31.The panel expressed, and applied, the correct test for release. In a nutshell, the panel was entitled to find on the evidence that the Applicant posed a significant risk of serious harm to the public, and that his behaviour to date demonstrated that that risk was not manageable in the community.
32.The panel adequately explained its reasons for its decision not to direct release, and the decision was one to which it was entitled to come on the evidence.
Decision
33.For the reasons I have given, I do not consider that the decision was irrational and accordingly I must refuse the application for reconsideration.
34.This will be a disappointment to the Applicant, as was the panel’s original decision. He is well over tariff, serving an indeterminate sentence for a very significant, and very harmful, offence of violence, but one which did not involve an intent to cause serious injury. He has been released and recalled four times. The witnesses recommended a clear pathway to enable him to reduce his risk to the public, and to demonstrate that reduction to a future Parole Board panel.
HH Patrick Thomas KC
13 May 2025