[2022] PBRA 2
Application for Reconsideration by Spence
Application
1. This is an application by Spence (the Applicant) for reconsideration of a decision of an Oral hearing Panel dated the 5 December 2021 not to direct release.
2. Rule 28(1) of the Parole Board Rules 2019 provides that applications for reconsideration may be made in eligible cases either on the basis (a) that the decision is irrational and/or (b) that it is procedurally unfair.
3. I have considered the application on the papers. These are the dossier consisting of 678 pages, the Oral hearing panel decision dated 5 December 2021, and the Application for Reconsideration dated 22 December 2021.
Background
4. The Applicant was sentenced on 2 February 2007 to a sentence of life imprisonment for the offence of murder. He was aged 37 at the time of sentence. His tariff expired on 22 June 2017. He is now aged 51. He was released on licence on 7 January 2019 and was recalled and returned to custody on 17 April 2019.
5. The circumstances of the index offence was a brutal attack on a person. The Applicant was not the main perpetrator of the attack, however he was convicted on the basis that he was jointly involved with others in the attack upon the victim. The violence led to the death of the victim.
6. The Applicant had a history of offending from a young age and suffered from Alcohol Dependency Syndrome.
7. The circumstances of the Applicant being recalled were that the probation service were provided with information that the Applicant had been speaking online to a 12-year-old girl. The girl was in fact a woman who was engaged in entrapping the Applicant as part of a vigilante group whose aim was to expose paedophile behaviour.
Request for Reconsideration
8. The application for reconsideration is dated 22 December 2021.
9. The grounds for seeking a reconsideration are as follows:
a) That the panel acted with procedural unfairness in that they determined that the Applicant’s explanation in relation to the receipt of a sum of money while in prison lacked credibility. The submission is that insufficient evidence was secured to consider this allegation appropriately in the light of the fact that the Applicant was denying that he had received the money inappropriately;
b) That it was irrational to conclude that the Applicant had an attraction to children or an interest in humiliation and domination. Accordingly, it was irrational for the panel to conclude that the Applicant required higher intensity intervention and treatment in order to meet these risk areas;
c) That no addendum psychological risk assessment was commissioned prior to the oral hearing to assess the effectiveness of the behavioural programme which the Applicant had undertaken;
d) That the panel relied upon a factual error in concluding that the Applicant was lacking in credibility as explained below; and
e) That the recommendation by the Community Offender Manager was supporting release and that the panel departed considerably from that assessment and recommendation.
Current Parole Review
10.The oral hearing panel were considering a reference from the Secretary of State as to whether the Applicant should be released on licence following his recall. In the event of not being released on licence the panel were asked to consider whether to recommend a transfer of the Applicant to open conditions.
11.The panel hearing took place on 20 October 2021. Evidence was given by the Prison Offender Manager, the Community Offender Manager and by the Applicant. The panel consisted of three independent members of the Parole Board.
The Relevant Law
12.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
13.Pursuant to Rule 28(1) of the Parole Board Rules 2019 the only kind of decision which is eligible for reconsideration is a decision that the prisoner is or is not suitable for release on licence. Such a decision is eligible for reconsideration whether it is 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)).
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 a decision on a previous reconsideration application in Barclay [2019] PBRA 6.
Irrationality
15.In R (DSD and others) v the Parole Board [2018] EWHC 694 (Admin), the Divisional Court set out the test for irrationality to be applied in judicial reviews of Parole Board decisions. It said 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.This test was set out by Lord Diplock in CCSU v Minister for the Civil Service [1985] AC 374. The Divisional Court in DSD went on to indicate that in deciding whether a decision of the Parole Board was irrational, due deference had to be given to the expertise of the Parole Board in making decisions relating to parole. The Board, when considering whether or not to direct a reconsideration, will adopt the same high standard for establishing ‘irrationality’. The fact that Rule 28 contains the same adjective as is used in judicial review shows that the same test is to be applied.
17.The application of this test has been confirmed in previous decisions on applications for reconsideration under rule 28: Preston [2019] PBRA 1 and others.
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; and/or
(e) the panel was not impartial.
20.The overriding objective is to ensure that the Applicant’s case was dealt with justly.
Open conditions
21.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;
(c) the likeliness of the prisoner absconding; and
(d) the benefit the prisoner is likely to derive from open conditions.
Mistakes of fact
22.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.
Format
23.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."
Absence of information
24.Omitting to put information before a panel is not a ground for procedural unfairness, as has been confirmed in the decision on the previous reconsideration application in Williams [2019] PBRA 7. This is the case even where the information, had it been before the panel, would have been capable of altering its decision, or prompting the panel to take other steps such as putting the case off for an oral hearing where the new information and its effect on any risk assessment could be examined. This is because procedural unfairness under the Rules relates to the making of the decision by the Parole Board, and when making the decision the panel considered all the evidence that was before them. There was nothing to indicate that further evidence was available or necessary, and so there was nothing to indicate that there was any procedural unfairness.
The reply on behalf of the Secretary of State
25.The Secretary of State made no representations
Discussion
26. I address below the issues raised on behalf of the Applicant as set out in paragraph 9 above.
27.The Applicant indicates, as set out in paragraph 9(a) above, that the panel had insufficient evidence upon which to reach a conclusion relating to the background circumstances of the receipt of money by the Applicant while he was in prison.
28.Briefly the circumstances were that the Applicant received a sum of money from a person who was a friend of a second prisoner. The Applicant was asked to explain the receipt of this sum of money. The Applicant told the oral hearing panel that he had been asked by a prisoner (prisoner X) to order a stereo system for him. Prisoner X had told the Applicant that he did not have sufficient funds to make the purchase himself. The funds were sent in to the Applicant by a friend of prisoner X. The Applicant told the oral hearing panel that upon receipt of the money he, (the Applicant), had changed his mind about assisting prisoner X with the purchase. The Applicant then indicated to the oral hearing panel that prisoner X then told the Applicant that he could retain, for himself, the money which had been sent in.
29.The oral hearing panel considered this scenario and concluded that the explanation lacked credibility.
30.The representations on behalf of the Applicant are that the Applicant had been consistent with this explanation, that prisoner X had not been spoken to, and that members of the wing staff with whom the Applicant had indicated he had spoken had not been approached.
31.By inference the submissions are that there was insufficient evidence upon which the oral hearing panel could reach a conclusion about the credibility of the Applicant’s account.
32.Parole Board panels are required to consider matters which are contested and amount to allegations by reference to the Parole Board guidance relating to allegations. The test to be applied is the balance of probabilities. It is for the oral hearing panel to reasonably and fairly weigh the evidence presented to them. In the nature of parole hearings the evidence is likely to be, in the main, hearsay evidence.
33.In this case the oral hearing panel were presented with a scenario where a stranger sent a reasonably substantial amount of money into the prison in order to assist prisoner X to purchase a stereo. Arrangements such as these are, although strictly a breach of rules, commonly observed by Parole Board panels.
34.The matter which is clearly unusual and unlikely is that, in the light of the limited funds available to prisoners, prisoner X would have no interest in his money,and, in essence, would gift the money to the Applicant.
35.It is clear that the oral hearing panel concluded that this explanation of the scenario on the balance of probabilities lacked credibility. I am satisfied that it was within the realms of fair and reasonable assessment for an oral hearing panel having reflected upon the evidence of the Applicant to conclude that it lacked credibility. I therefore do not determine that this particular issue meets the test for procedural unfairness.
36.So far as the second point raised on behalf of the Applicant is concerned (9b). The submission is that it was irrational for the oral hearing panel to conclude that the Applicant may have an interest in young girls on the basis of the evidence relating to online contact.
37.The Applicant’s recall to prison arose in circumstances where the probation service had been alerted to the fact that the Applicant had been entrapped. He had engaged in conversations with a person who he thought was a 12-year-old girl, but who was in fact an adult woman. The conversations were of a sexual nature. The content of the conversations was accepted by the Applicant as being highly inappropriate. There was also evidence of the Applicant having conversations with others who he thought to be children of a young age.
38.The panel concluded that the fact that the Applicant had used online sites, had sought to make contact with young female children and had engaged in sexually orientated conversations, was sufficient to determine that it is highly likely that the Applicant has an attraction to children and that therefore a risk arises in this regard. The fact that the Applicant had not been charged with offences does not reduce the necessary duty upon the oral hearing panel to consider risk to the public.
39.I have no doubt therefore that the panel acted entirely rationally in concluding that there were concerns about the risk relating to children and sexual activity as set out in their decision letter. The oral hearing panel and the Parole Board are not directly concerned with the provision of treatment or interventions for those in prison. An oral hearing panel will often make suggestions as to the possible interventions that might be considered. However, the Parole Board panel’s duty lies in assessing risk.
40.In 9 (c) above it is noted that the Applicant submits that no post programme psychological report was commissioned consequent upon the Applicant’s completion of an intervention programme. As noted above a Parole Board panel is required to reach a decision on the basis of the evidence presented at the hearing. Although no psychological risk assessment was before the panel to report upon the progress of the Applicant on the intervention programme he had recently completed, the panel noted that the nature of the intervention was unlikely to have addressed the concerns relating to a sexual interest in children. It is also noted that the topic of sexual interest and children was not chosen by the Applicant as an example when completing the program intervention.
41.I am therefore satisfied that the absence of a post programme report or other psychological report does not in this case amount to either irrationality or procedural unfairness.
42.In 9 (d) above the Applicant refers to a factual error. The law relating to factual errors in connection with proceedings of this sort has been addressed and is noted at paragraph 22.
43.The Applicant sets out in the submissions the basis upon which the complaint is made. The Applicant’s solicitors indicate that the oral hearing panel inadvertently concluded that the Applicant was denying contact with one of the children involved in the online contact during the time when he was in the approved premises. Solicitors on behalf of the Applicant argue that this issue was raised during the hearing itself. That it was accepted that the Applicant had not been misleading about when he made contact with the child online, and that an error in recording his evidence had been made. It is then indicated that despite this misunderstanding being resolved within the hearing, the decision letter refers to the misunderstanding and incorrectly indicates that the Applicant lacked credibility because he had said that he was outside the approved premises when the contact was made.
44.I have considered this issue. Clearly any mistake of fact is an important issue. I was not provided with sufficient material within the oral hearing panel decision, the dossier and the solicitor’s submissions to reach a conclusion as to whether a mistake in fact occurred in this case. Accordingly, I give the full benefit of any doubt to the Applicant. I therefore accept for the purposes of this reconsideration application that there was a mistake of fact.
45.The crucial issue in relation to that mistake of fact is that it reflects upon the credibility of the Applicant. The oral hearing panel indicated that it was a factor in considering the Applicant’s credibility. Had this been the only issue relating to credibility the position would have been different. However, the panel noted other areas where they concluded that the Applicant’s position lacked credibility.
46.By way of example, the oral hearing panel found that it was not credible that the Applicant had insufficient time to tell his probation officer about a relationship which he was embarking upon (paragraph 2.31).
47.A second example being the oral hearing panel concluding that the Applicant’s explanation for the reason for his contact with the child (namely a parental type thing about sex education) also lacked credibility (paragraph 4.3).
48.In the circumstances therefore I conclude that the mistake of fact erroneously relied upon by the oral hearing panel was not material because it was clear that there were other clear indicators that the panel had concluded that the Applicant’s responses lacked credibility. For that reason, I determine that although a mistake of fact is likely to have occurred in this case, the mistake was not material and the panel had clearly concluded that the evidence of the Applicant lacked credibility in other areas of testimony.
49.In (9e) above it is noted that the submissions on behalf of the Applicant are that insufficient weight was placed upon the professional views of the prison offender manager and the community offender manager, namely that the Applicant’s risk could be safely managed in the community. It is clearly incumbent upon a Parole Board panel, where it concludes that the view of professionals is not to be followed, to provide an explanation for that view. In this case the oral hearing panel made it clear at paragraph 3.5 that, contrary to the view of the professionals, there remained outstanding work to be completed regarding attitudes and beliefs and inappropriate and risky contact with children. Additionally, the issue of sexual grooming and sexual interest required to be addressed. There was also concern about openness and honesty in compliance with licence conditions. It is clear therefore that the oral hearing panel considered the position of the professionals but took a differing view as to the level of risk and the imminence of risk.
50.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 (whilst 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 do it.
51.As indicated above, a panel making a decision contrary to the opinions and recommendations of professional witnesses should explain clearly the reasons for doing so and its stated reason should be sufficient to justify its conclusion as per R (Wells) v Parole Board 2019 EWHC 2710.
52.Where a panel arrives at a conclusion, exercising its judgement based upon the evidence before it, having seen and heard the witnesses, it would not be appropriate to direct that the decision be reconsidered unless it is manifestly obvious that there are compelling reasons for interfering with that decision. I am satisfied that the panel, in this case, having considered the evidence and seen the witnesses, had met its obligations to apply the appropriate test relating to risk and to explain the reasons for reaching its conclusions.
Decision
53.For the reasons I have given, I do not consider that the decision was irrational and /or procedurally unfair and accordingly the application for reconsideration is refused.
HH S Dawson
6th January 2022