The Parole Board for England and Wales

 

 

[2022] PBRA 173

 

 

Application for Reconsideration by Bannister

 

Application

 

1.   This is an application by Bannister (the Applicant) for reconsideration of a decision made by a duty member dated 28 October 2022 not to terminate the licence imposed upon her in connection with a sentence of imprisonment for public protection (the IPP licence).

 

2.   Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2022) (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 and the IPP licence termination dossier.

 

Background

 

4.   The Applicant received a sentence of imprisonment for public protection (IPP) on 11 July 2007 following conviction for wounding with intent to cause grievous bodily harm.

 

5.   She was most recently released on licence on 6 January 2020 following an oral hearing, having already been subject to recall twice on this sentence. She was recalled to custody on 23 February 2022 following her being charged with an offence under the Modern Day Slavery Act 2015. She was convicted and sentenced to a further 18 months in custody. This is her first request for suspension of supervision.

 

6.   The Applicant was 19 years old at the time of sentencing and is now 34 years old.

 

Request for Reconsideration

 

7.   The application for reconsideration is undated. It has been drafted by solicitors acting for the Applicant. It submits that the decision was procedurally unfair.

 

8.   This submission is supplemented by written arguments to which reference will be made in the Discussion section below. No submissions were made regarding irrationality or error of law.

 

Current Reference

 

9.   The Applicant's case was referred to the Parole Board by the Secretary of State (the Respondent) on 13 October 2022 under section 31A of the Crime (Sentences) Act 1997 to consider whether or not it would be appropriate to terminate his licence.

 

10. On 28 October 2022, a Duty Member dismissed the reference.

 

The Relevant Law

 

Crime (Sentences) Act 1997

 

11.Section 31A of the Crime (Sentences) Act 1997 provides the process for consideration of licences by the Parole Board which relate to 'preventative sentences' after the 'qualifying period' has passed.

 

12.The 'qualifying period' is ten years beginning with the date of release on licence, regardless of whether the prisoner has subsequently been recalled to prison (section 31A(5)).

 

13.A 'preventative sentence' is a sentence of imprisonment for public protection or a sentence of detention for public protection (including such a sentence of imprisonment or detention in a young offender institution or detention passed as a result of section 219 or 221 of the Armed Forces Act 2006) (section 31A(5)).

 

14.If a prisoner has been released on licence (regardless of whether they have been subsequently recalled) and the qualifying period has expired and if Secretary of State has previously referred the case to the Parole Board, the case must be re-referred 12 months from the date of the previous determination (section 31A(3)).

 

15.The Parole Board shall direct the Secretary of State to make an order that the licence is to cease to have effect if it is satisfied that it is no longer necessary for the protection of the public that the licence should remain in force (section 31A(4)(a)).

 

16.If the prisoner is in prison having been recalled, the test is different. The Parole Board must decide whether it is not necessary for the protection of the public for the prisoner, when released, to be released on licence in respect of the preventative sentence or sentences (section 31A(4B)(b)(ii)).

 

17.If the Parole Board directs release under section 31A(4B)(ii), that release is unconditional (section 31A(4C)).

 

Parole Board Rules 2019 (as amended)

 

18.Rule 28(1) of the Parole Board Rules provides the types of decision which may be considered for reconsideration, including decisions made in response to a referral by the Secretary of State under section 31A of the 1997 Act (rule 31(6) or rule 31(6A)): specifically, a decision to terminate a licence or a decision to dismiss the Secretary of State's reference.

 

19.Decisions concerning preventative sentences (as defined in section 31A(5) of the 1997 Act) are eligible for reconsideration under rule 28(2).

 

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;

(c)         they were not properly informed of the case against them;

(d)         they were prevented from putting their case properly; and/or

(e)         the panel was not impartial.

 

22.The overriding objective is to ensure that the Applicant's case was dealt with justly.

 

The reply on behalf of the Secretary of State

 

23.The Respondent has submitted representations in response to this application dated 24 November 2022, to which reference will be made in the Discussion section below.

 

Discussion

 

24.The Applicant submits that the decision was procedurally unfair as she was not given the opportunity to submit representations in respect of the matter.

 

25.The Respondent submits that representations were not received in time and the case was referred in line with the Public Protection Casework Section (PPCS) policy.

 

26.The policy in question is the 'Managing Parole Eligible Offenders on Licence Policy Framework' (implementation date 11 November 2020, re-issue date 1 September 2022) (the 'policy') This policy is publicly available on the gov.uk website at https://www.gov.uk/government/publications/managing-parole-eligible-offenders-on-licence-policy-framework.

 

27.The relevant part of the policy is found in section 3.5 (IPP licence termination) which "applies to IPP individuals where a period of 10 years has elapsed since their original release on IPP licence".

 

28. Section 3.5.7 provides:

 

Where the individual is in contact with the Probation Service, the COM (Community Offender Manager) or Probation Practitioner must inform the individual that they have seven calendar days to submit representations in respect of the referral and ask them to complete the representations form, attached to the Termination of IPP Licence Report. Should the individual provide their own representations, then the COM/Probation Practitioner must submit these to PPCS together with the report.

 

29.Section 3.5.8 provides:

 

Upon receipt of the Termination report, PPCS is responsible for compiling and formally referring the dossier to the Parole Board. Unless there are exceptional circumstances, PPCS must not submit the dossier to the Parole Board until the individual's representations have been received, or, if none have been received, until the 7 calendar day deadline for representations has expired. PPCS must submit the individual's representations to the Parole Board whenever they are received, unless the Parole Board have already issued their decision.

 

30.The Applicant's legal representative sets out the following timeline:

 

a)    6 October 2022: notified by PPCS that the Applicant had signed the form of authority for the IPP termination report to be referred to the Parole Board.

 

b)   31 October 2022: decision received.

 

31.The form of authority is contained within the dossier. It is signed by the Applicant and gives the details of her legal representative. It contains the following statement:

 

I wish to make written representations through my legal representative and understand that it is my responsibility to ensure that they are aware of the deadline to submit any such representations to the Public Protection Casework Section, Public Protection Group.

 

32.It is argued that PPCS failed to inform the legal representative of the dossier or any deadline for representations.

 

33.The policy is very clear. PPCS are not responsible for contacting a prisoner's legal representative when an IPP licence termination review is under way. The trigger event is set out in section 3.5.7 of the policy and begins, as it did in this case, with a prisoner being told they have five working days in which to submit representations.

 

34.The Applicant's legal representative was aware that the review had commenced, and the deadline is clearly set out in publicly available information. The Applicant confirmed in writing that she had discussed the report with her Community Offender Manager. She also confirmed in writing that she understood the case would be referred to the Parole Board if representations were not submitted in time.

 

35.I cannot find any breach of rule or procedure on which to make a finding of procedural unfairness. The documented procedure was followed, the Applicant was informed of the content of the dossier, and she was not prevented from putting her case properly; she simply failed to do so in time.

 

36.Moreover, while the Applicant may feel disadvantaged by the timetable set out by the PPCS, it was not open to the duty member to extend the window for representations: the discretion under rule 9 to alter prescribed time limits only applied within the Parole Board Rules and cannot be imposed on third party policies.

 

37.The application goes on to put forward further evidence in support of the Applicant, but even if I had granted the application, it would not be open to me to remake the decision of the duty member.

 

Decision

 

38. For the reasons I have given, I do not find the decision was procedurally unfair and accordingly the application for reconsideration is refused.

 

 

Stefan Fafinski

09 December 2022