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The Parole Board for England and Wales


You are here: BAILII >> Databases >> The Parole Board for England and Wales >> Murdoch, Application for Reconsideration [2024] PBRA 123 (03 July 2024)
URL: http://www.bailii.org/ew/cases/PBRA/2024/123.html
Cite as: [2024] PBRA 123

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[2024] PBRA 123

 

 

 

Application for Reconsideration by Murdoch

 

Application

 

1.   This is an application by Murdoch, now going by the name of Carl McCulloch, (the Applicant) for reconsideration of a paper decision of a single-member panel dated 17 May 2024 (the Decision) not to direct the release of the Applicant.

 

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. 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 of 17 May 2024, the  Application for Reconsideration dated 7 June 2024, the email of 18 June 2024 in which Public Protection Casework Section (PPCS) on behalf of the Secretary of State (the Respondent) notified the Parole Board that the Secretary of State was not making any representations in response to the Applicant’s reconsideration application, the email from the panel, dated 24 June 2024, responding to the reconsideration member’s questions to which was attached correspondence between the panel and the legal representative, the addendum representations, dated 25 June 2024 from the Applicant’s legal representative  and the Dossier totalling 361 pages.

 

Request for Reconsideration

 

4.   The Application for Reconsideration was received 8 June 2024

 

5.   The grounds for seeking a reconsideration are as follows:

 

(a)The decision made on or about 17 May 2024 to conclude the Applicant’s case on the papers was a breach of the principles of procedural fairness as the Applicant had been previously informed that he had until 30 May 2024 to make representations on whether his application should be concluded on the papers (Ground 1); and/or that

 

(b)The decision not to hold an oral hearing to determine the Applicant’s application for parole was a breach of the principles of procedural fairness set out in the decision in the case of The Queen (on the Application of Osborn and Booth) v the Parole Board [2013] UKSC 61 (the Osborn Decision) and Article 5.4 of the European Convention for the Protection of Human Rights (the ECHR) (Ground 2).

 

Background

 

6.   On 17 December 2015, the Applicant, who was then 36 years old, was sentenced to an extended determinate sentence of 15 years’ imprisonment made up of a custodial element of 9 years’ imprisonment with an extension period of 6 years for an offence of rape. He was released on licence on 10 August 2021, but he was recalled on 2 August 2023 for breaching his licence conditions.

 

7.   The Applicant’s case was referred to the Parole Board to determine whether he should be released and on 16 November 2023, a MCA member directed an oral hearing which was then listed for 26 April 2024. On 7 February 2024, the Applicant’s solicitors received an application from PPCS for the victim of the Applicant’s index offence to observe the Applicant’s oral hearing remotely. After the Applicant had been consulted, he confirmed that he had no objection to the victim observing the hearing subject to the usual protocols and procedures. The Board confirmed that once the Panel Chair had been appointed, this matter would be brought to his or her attention.

 

8.   On 15 April 2024, the parties received an adjournment notice explaining that the oral hearing of the Applicant’s parole application had been adjourned and had been relisted for 6 June 2024. On 16 May 2024, PPCS submitted a Stakeholder Response Form (SHRF) with full information regarding the Applicant’s assessment for the Kaizen programme and a Programme Needs Assessment (PNA). The response of the panel was that the Applicant required core risk reduction work in the form of Kaizen, a program which supports high or very high-risk adult men to develop the optimism and skills to strengthen their pro-social identity and plan for a life free of offending. Representations were invited by 30 May 2024 from the Applicant on whether his claim for parole should be concluded on the papers.

 

9.   Various discussions took place between the Psychology Services and the Community Offender Manager (COM) on the nature and format of outstanding work required for the Applicant. This work changed from what would have been a 6-month Kaizen programme relevant to the treatment needs in the form of 10-12 sessions. The legal representatives confirmed that they had taken instructions from the Applicant and that the 1-2-1 work would start at the beginning of June and would not last more than 3 months.

 

10.On 20 May 2024, the parties received a response to the SHRF as well as a Parole Board decision dated 17 May 2024 making no direction for release. The SHRF explained that the guidance for an adjournment should not be for more than 4 months, and it was explained that even if Kaizen can be completed in 3 months and not in a period of 6 months but with the PRA completed straight afterwards, this would still take a total of 6 months. There would then have to be an update from the COM with the consequence that the hearing would be at least 7 months away.

 

11.The original decision did not incorporate a section dealing with reconsideration. The panel subsequently served an amended decision on 21 May 2024 incorporating the explanation of the reconsideration mechanism.

 

The Relevant Law

 

12.The panel correctly sets out in its decision letter dated 17 May 2024 the test for release.

 

13.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)).

14.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)).

 

Procedural Unfairness

 

  1. 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.

 

  1. In summary an Applicant seeking to complain of procedural unfairness under rule 28 must satisfy the panel 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.

 

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

 

Reconsideration as a discretionary remedy

 

18.Reconsideration is a discretionary remedy. That means that, even if an error of law, irrationality, or procedural unfairness is established, the Reconsideration Members considering the case are not obliged to direct reconsideration of the panel’s decision. The Reconsideration Member can decline to make such a direction having considered the particular circumstances of the case, the potential for a different decision to be reached by a new panel, and any delay caused by a grant of reconsideration. That discretion must of course be exercised in a way which is fair to both parties.

 

The reply on behalf of the Secretary of State

 

19.By an email dated 18 June 2024, PPCS on behalf of the Respondent notified the Parole Board that the Respondent was not making any representations in response to the Applicant’s reconsideration application.

 

Discussion

 

Ground 1

 

20.This Ground is that the decision made on or about 17 May 2024 to conclude the case on the papers was a breach of the principles of procedural fairness as the Applicant had been previously informed that the panel was minded to conclude the case on the papers and inviting representations to be submitted by 30 May 2024 on whether the application should be concluded on the papers.

 

21.The statement made to the Applicant that he had until 30 May 2024 to make representations on whether his application could be concluded on the papers meant that the Applicant was thereby assured that no decision on whether the application would be concluded on papers would be made by the panel until 30 May 2024. Nothing has been put forward to show that this is incorrect. It follows that by making the decision to conclude the case on the papers on about 17 May 2024 and not waiting until 30 May 2024, the panel acted in a procedurally unfair manner. Accordingly, I order reconsideration of the decision of 17 May 2024.

 

22.For the sake of completeness, I should add that there is no reference in the Decision to the fact that the Applicant had been previously informed that the panel was minded to conclude the case on the papers and inviting representations to be submitted by 30 May 2024 on whether the application should be concluded on the papers.

 

Ground 2

 

23.This Ground is that the panel’s decision not to hold an oral hearing to determine the Applicant’s application for parole was a breach of the principles of procedural fairness set out in the Osborn Decision and Article 5.4 of the ECHR.

 

24.The Osborn decision sets out a number of important principles which indicate the circumstances in which an oral hearing should be held to determine applications for parole, and they include statements that

(a)“in order to comply with the common law standards of procedural fairness, the Board should hold an oral hearing before determining an application for release…whenever fairness to the prisoner requires such a hearing in the light of the case and the importance of what is at stake” (para 2 (1));

 

(b)“in order to act fairly, the board should consider whether its independent assessment of risk, and of the means by which it should be managed and addressed, may benefit from the closer examination which an oral hearing can provide” (para (iii));

 

(c)“the board should bear in mind the purpose of holding is not only to assist in its decision making, but also to reflect the prisoner’s legitimate interest in being able to participate in a decision with important implications for him, where he has something to contribute” (para (iv));

 

(d)“the question whether fairness requires a prisoner to be given an oral hearing is different from the question whether he has a particular likelihood of being released, or transferred to open conditions, and cannot be answered by assessing that likelihood” (para (v));

 

(e)“ the board should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense” (para (viii)); and that

 

(f)”in applying this guidance, it will be prudent for the board to allow an oral hearing if it is in doubt to do so or not” (para (xi)).

25.In order to ascertain if the decision not to direct the release of the Applicant was made in breach of the Osborn principles, it is necessary to consider the Applicant’s offending history and his present risk factors so as to determine whether its independent assessment of risk posed by the Applicant, and the means by which it should be managed and addressed, might have benefitted from the closer examination which an oral hearing could provide.

26.The Applicant’s offending history shows that before being sentenced for the index rape offence in 2015 for which he received an extended determinate sentence of 15 years’ imprisonment, he had been sentenced in 2004 to 7 years’ imprisonment for offences of indecent assault of a female, of buggery and rape all of a female under the age of 16.

27.There are relevant recent comments by experts on the Applicant’s risk factors in:

(a)  The OASys report on the Applicant of 28 February 2024 which assessed that the Applicant posed a high risk of causing serious harm to children, “the public” and “known adults” in the community;

 

(b) A Programme Needs Assessment of the Applicant of 19 April 2024/14 May 2024 which concluded that the Applicant had treatment needs for his problems of “thinking violence is OK”, ”not dealing with life’s problems” and “not having a relationship with an adult”; and in

 

(c)  the Applicant’s COM’s report of 29 February 2024 which explains of the Applicant that “it is clear he presents with unresolved anger issues and a sense of entitlement” so that he “cannot be safely managed in the community”.

 

28.These statements and the Applicant’s sex offending history disclose a combination of his very complex problems which are highly relevant to the issue of the difficulties and the risk which the Applicant would pose if released. Assessing how these many risk factors could be managed and addressed is a very difficult and demanding exercise; this necessary exercise would have required a close examination of the facts and would have necessitated an oral hearing in which the Applicant and the relevant professionals could participate and could be questioned. For the purpose of the record, I state that the Decision did state the provisions of the Osborn decision had been taken into account, but I have been unable to ascertain how (if at all) they were taken into account.

29.If, which is not the case, I had any doubt as to whether an oral hearing should have been ordered, the Osborn principles would have meant, that “it will be prudent for the board to allow an oral hearing if it is in doubt to do so or not”.

30.I have concluded that the panel’s decision not to hold an oral hearing was a breach of the principles of procedural fairness for the reasons set out this Ground and/or in Ground 1 with the consequence that the application for reconsideration succeeds.

 

Decision

 

31.The application for reconsideration is granted.

 

Directions

 

32.   I have considered whether this case should be reconsidered by the original panel member or whether it should be considered afresh by another panel.

 

33.   I have no doubt that the original panel member would be fully capable of approaching the matter conscientiously and fairly. However, the question of justice being seen to be done arises again. If the original panel were to adhere to its previous decision, there would inevitably be room for suspicion that it had simply been reluctant to admit that its original decision was wrong. However inaccurate or unfair that suspicion might be, it would be preferable to avoid it by directing (as I now do) that the case should be reheard by a fresh panel.

 

34.The following further directions are now made:

 

(a)  There should be an expedited oral re-hearing by a fresh panel.

 

(b) The original decision must be removed from the dossier and must not be seen by the new panel.

 

(c)  The new panel should be told that this is a reconsideration but not made aware of the reasons why it was ordered.

 

(d) The new panel should also be advised that the fact that this is a reconsideration should not in any way affect their decision. It is a complete re-hearing.

 

(e)  The Prison Offender Manager and the Community Offender Manager should produce updated reports on the Applicant’s conduct and each of them should also give updated recommendations - all these documents are to be served 14 days before the date fixed for the oral hearing.

 

 

 

 

 

Sir Stephen Silber

3 July 2024

 

 

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