[2023] PBRA 18
Application for Reconsideration by Eagles
Application
1. This is an application by Eagles (the Applicant) for reconsideration of a decision by a Panel of the Parole Board dated 23 November 2022 not to direct his release. The decision was made following an oral hearing conducted by video-link on 16 November 2022. 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.
2. I have considered the application on the papers. These are: the application for reconsideration with representations dated 28 December 2022; the Decision dated 23 November 2022 (the Decision); an email from the Public Protection Casework Section on behalf of the Secretary of State (the Respondent) dated 11 January 2023; and the case dossier of 489 pages, ending with the Adjournment Directions dated 19 October 2022.
3. On 26 March 2007, having been convicted of robbery, the Applicant was sentenced to imprisonment for public protection. The minimum custodial term was fixed at 1 year 10 days, after taking into account time spent in prison on remand, and the Applicant's tariff expired accordingly on 4 April 2008.
4. The Applicant was 19 when the robbery was committed. He had a history of offending, with convictions for burglary, criminal damage and aggravated vehicle taking. He also had convictions for battery and common assault which included assaults on his carers. The most recent convictions involved racial abuse towards a person on a train followed by an assault on another passenger who tried to intervene.
5. The victim of the index offence was a 15-year-old boy on a train who the Applicant threatened with a knife before stealing his phone. The Applicant is reported to have told the psychologist undertaking a risk assessment for the purpose of the current review that he wanted money for drugs and alcohol. He claimed the victim had made comments about his sister in a sexual manner and was "mouthing off" which was the main motivation for the robbery.
6. The sentencing judge referred to the Applicant's significant learning difficulties with a very low IQ and to the Attention Deficit Hyperactive Disorder (ADHD) from which he was thought to suffer. Alcohol was also a feature of his continued offending behaviour. The author of the pre-sentence report referred to the Applicant's failure to respond to community-based disposals to which he had been sentenced in respect of his earlier offending and concluded that the Applicant did not have the ability to learn in the ordinary course of events.
7. The Applicant had a difficult childhood. He has a history of mental health problems and in January 2011 during the currency of the IPP sentence he was transferred to a Mental Health Unit where he remained until July 2014. In 2012 he was convicted of 4 counts of battery against members of staff.
8. In July 2018, he transferred to the Psychologically Informed Planned Environment (PIPE) Unit in another prison where he is reported to have engaged well with the programme and keywork sessions and with a psychologist. However, he refused during this period to engage with his Community Offender Manager (COM) or his Prison Offender Manager (POM).
9. The panel conducting the Applicant's 4th review on 11 December 2019 recommended his transfer to open conditions. The Secretary of State agreed and he was moved to an open prison on 14 May 2020. On 22 April 2021 the Applicant was returned to closed conditions as a result of verbal abuse towards a healthcare worker and threats and aggressive acts towards prison officers. He had thrown a cup at one officer which smashed on the floor and was aggressive and threatening towards another, before collecting personal items from the lockers and going out of the prison gates where he was apprehended.
10. The grounds for seeking a reconsideration are as follows:
(a) Procedural unfairness. – The Panel had determined that a video-link was unsuitable for the Applicant but the hearing on 16 November proceeded by way of video-link.
(b) Irrationality – The decision not to direct release was irrational in the light of the progress he had made, the positive evidence of the professionals involved with him, the latest assessment of his risks and the robust risk management plan.
11. The Applicant's case was referred to the Parole Board by the Secretary of State in order to decide whether or not it would be appropriate to direct his release. The current referral to the Parole Board by the Secretary of State was updated on 23 September 2021 to exclude an invitation in the original referral to advise about the Applicant's suitability for open conditions. In any event any such recommendation is outside the scope of the reconsideration process.
12. The first hearing under the current review took place on 26 October 2021 and was conducted via video-link to the prison. The start was delayed to enable sufficient time for the Applicant to give full instructions to his legal representative. The review was then adjourned to enable the Applicant to fully engage with his COM and for the Risk Management Plan to be fully developed.
13. There followed a series of delays over the ensuing year, linked to difficulties in providing the directed update to the Psychological Risk Assessment (PRA) and practical problems concerning the hearing arrangements. The Applicant is reported to have made progress in his engagement with professionals, notwithstanding frustrating circumstances, such as delayed video-calls.
14. The hearing scheduled for 5 April 2022 was adjourned in advance because of the continued delay in the provision of the addendum PRA due to the original psychologist's absence from work by reason of ill-health. The hearing was relisted for 19 October 2022 to be conducted by video-link but that hearing was aborted as a result of power failures at the prison which interrupted the oral evidence for long periods.
15. The 19 October 2022 Adjournment Directions provided for the hearing to resume on 16 November 2022. They specifically directed that it was to be conducted by a face to face/hybrid procedure. The Applicant, his legal representative, the POM, the Psychologist and two of the Panel members were to attend in person. The other Panel member and the COM were to attend by video-link.
16. The Adjournment Directions expressly stated that the case was unsuitable for a video-link between the Applicant and the Panel. The reasons were expressed as previous difficulties with technology and the Applicant's ASD traits.
17. In due course, the prison informed the Parole Board that it could not accommodate a face-to-face hearing and, although the Applicant was not informed of this in advance, the hearing proceeded on the day fully by video-link. However, it came to light that one of the Panel members had taken part in a hybrid hearing there only the day before which is concerning in the light of the prison's assertion about the Applicant's case. The Panel Chair is reported to have said at the hearing of his case that she would look into the issue of why the Panel had been misled.
18. The Applicant accepts that no request for an adjournment was made by the legal representative from the firm then acting for him.
19. The Panel considered a case dossier running to 421 pages. It heard oral evidence from the Applicant's current COM and POM, from the psychologist author of the addendum PRA, and from the Applicant himself. The psychologist expressed the view that the Applicant presented a moderate risk of future violence in the community. She confirmed that he had engaged very well with her and stressed the importance of a well-rounded support package in the community. In her view, he would need to reside in Approved Premises which would not necessarily have to be PIPE Approved.
20. The COM referred to a considerable improvement in the Applicant's engagement with Probation and expressed the view that the latest risk management plan was robust. A place had been secured at a PIPE Approved Premises for a period of 12 weeks she had received a formulation from the Offender Personality Disorder (OPD) Pathway and the Applicant had been transferred to the Intensive Intervention and Risk Management Service (IIRMS). The relevant Adult Social Care Team had confirmed they would undertake an assessment once a release date was known. These services could begin to engage with the Applicant in prison in advance of his release.
21. Whilst not making a specific recommendation, all three professional witnesses gave evidence that the Applicant's risk could be managed in the community. The Panel concluded that, in the absence of testing in open conditions, it was currently not known how he would be likely to cope in the community in the long term. It stated that his internal controls needed to be further tested before the public could be appropriately protected from serious harm from him.
22. The Panel correctly set out in its Decision the test for release, namely that the Parole Board will direct release if it is no longer necessary for the protection of the public that the Applicant should be confined. The test is automatically set out within the Parole Board's template for oral hearing decisions.
Parole Board Rules 2019 (as amended)
23. Under Rule 28(1) of the Parole Board Rules 2019 the only types of decisions which are eligible for reconsideration are those concerning whether the pris- oner 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)).
24. 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)).
25. 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. However, in this case the Panel was not invited to make any such recommendation.
Irrationality
26. 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."
27. 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.
28. 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
29. 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.
30. 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.
31. The overriding objective is to ensure that the Applicant's case was dealt with
justly.
Other
32. In the cases of Osborn v Parole Board [2013] UKSC 61, the Supreme Court comprehensively reviewed the basis on which the Parole Board should consider applications for an oral hearing. Their conclusions are set out at par- agraph 2 of the judgment. The Supreme Court did not decide that there should always be an oral hearing but said there should be if fairness to the prisoner requires one. The Supreme Court indicated that an oral hearing is likely to be necessary where the Board is in any doubt whether to direct one; they should be ordered where there is a dispute on the facts; where the panel needs to see and hear from the prisoner in order to properly assess risk and where it is necessary in order to allow the prisoner to properly put his case. When deciding whether to direct an oral hearing the Board should take into account the prisoner's legitimate interest in being able to participate in a decision with important implications for him. It is not necessary that there should be a realistic prospect of progression for an oral hearing to be directed.
33. 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 neces- sarily decisive) part in the tribunal's reasoning." See also R (Alconbury De- velopments 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 Ap- plicant will have to provide "objectively verifiable evidence" of what is asserted to be the true picture.
34. 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."
35. It has been confirmed on behalf of the Respondent that he has no representations to make in respect of the reconsideration application.
36. Dealing first with the issue of irrationality, the Panel expressly took into account all the evidence, both written and oral and the submissions made on the Applicant's behalf at the hearing. A detailed analysis of the Applicant's risk was set out in the light of that evidence and the Panel applied the correct test for release.
37. The Panel expressly considered the opinions of all three professional witnesses about the risk management plan before deciding that it was not strong enough in the current circumstances to manage the Applicant's risks in the community. It is a matter for any tribunal to make its own decisions based objectively on the evidence before it and that is precisely what the Panel in this case did. It is not bound by the opinions and recommendations of witnesses, important though their knowledge and expertise may be.
38. In these circumstances, taking into account the evidence considered by the Panel and the reasons given for its decision, and applying the test under established case law, I do not consider the Decision to have been irrational.
39. However, a vital element in the consideration by a Panel of evidence given by a prisoner and aligning it with other evidence in the case, is the ability of the prisoner to follow the oral evidence of others, to give instructions to his legal representative, and to give oral evidence providing explanation, insight and reassurance. This was recognised in the procedural requirement for a face-to -face hearing in the Applicant's case. The Panel Chair Directions expressly stated that the case was unsuitable for a video-link between the Panel and the Applicant.
40. It was no fault of the Panel that the prison failed at the last minute to provide the facility for a hybrid hearing where the Applicant and most of the other participants would be face to face and there was a clear need for the proceedings not to be further delayed. However, the Applicant was put at a serious disadvantage as a result of his inability to hear and be heard face to face, particularly in the light of the disabilities which adversely affect him.
41. Accordingly, whilst I do not find there to have been an irrational conclusion by the Panel, I do consider, applying the test as defined in case law, that the decision not to direct the Applicant's release was procedurally unfair. I do so solely for the reasons set out above. The application for reconsideration is therefore granted.
HH Judge Graham White
1 February 2023