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The Parole Board for England and Wales


You are here: BAILII >> Databases >> The Parole Board for England and Wales >> Green, Application for Reconsideration [2024] PBRA 223 (19 November 2024)
URL: http://www.bailii.org/ew/cases/PBRA/2024/223.html
Cite as: [2024] PBRA 223

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[2024] PBRA 223

 

 

Application for Reconsideration by Green

 

Application

 

1.   This is an application by Green (the Applicant) for reconsideration of a decision made by an oral hearing panel dated 16 October 2024 not to direct his release.

 

2.   Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2022, 2023 and 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.

 

3.   I have considered the application on the papers. These are the decision, the dossier (consisting of 331 numbered pages), and the application for reconsideration, dated 28 October 2024. I have also seen email correspondence between the Applicant’s legal representative and his Community Offender Manager (COM) (from 2023) and the Applicant’s legal representative and the police (from 2020).

 

Background

 

4.   On 14 March 2007, the Applicant received a sentence of imprisonment for public protection (IPP) following conviction for causing death by careless or inconsiderate driving when unfit through drink. He was also convicted of failing to report an accident, failing to stop after an accident, and taking a vehicle without consent which subsequently causes the death of a person. He was further convicted of wounding or inflicting grievous bodily harm (committed while on bail for the road traffic offences). His tariff expired in July 2009.

 

5.   The Applicant was 22 years old at the time of sentencing and is now 40 years old.

 

6.   The Applicant has been released and recalled four times on this sentence, each time after an oral hearing before the Parole Board. He was most recently released on 6 September 2022. His licence was revoked on 3 August 2023, and he was returned to custody the following day.  

 

Request for Reconsideration

 

7.   The application for reconsideration has been submitted by solicitors on behalf of the Applicant and pleads grounds of both procedural unfairness and error of law.

 

8.   These grounds are supplemented by written arguments to which reference will be made in the Discussion section below.

 

Current Parole Review

 

9.   The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) on 1 September 2023 to consider whether to direct his release. If release was not directed, the Parole Board was invited to advise the Respondent whether the Applicant should be transferred to open conditions. This is the Applicant’s first parole review since his fourth recall.

 

10.The current review proceeded to an oral hearing on 14 October 2024, before a two-member panel. The panel heard evidence from the Applicant, his Prison Offender Manager (POM), his COM and an expert witness on addiction and related issues (instructed on behalf of the Applicant). The Applicant was legally represented throughout proceedings.

 

11.In the professional opinion of both the POM and the COM, the Applicant was suitable for release. The panel made no direction for release (and no recommendation for open conditions).

 

The Relevant Law

 

12.The Parole Board will direct release if it is no longer necessary for the protection of the public that the prisoner 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)

 

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)).

 

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.

 

Procedural unfairness

 

16.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.

 

17.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.

 

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

 

Error of law

 

19.An administrative decision is unlawful under the broad heading of illegality if the panel:

a)   misinterprets a legal instrument relevant to the function being performed;

b)   has no legal authority to make the decision;

c)   fails to fulfil a legal duty;

d)   exercises discretionary power for an extraneous purpose;

e)   takes into account irrelevant considerations or fails to take account of relevant considerations; and/or

f)    improperly delegates decision-making power.

 

20.The task in evaluating whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring the duty or power upon the panel. The instrument will normally be the Parole Board Rules, but it may also be an enunciated policy, or some other common law power.

 

The reply on behalf of the Respondent

 

21.The Respondent has submitted representations in response to this application which will be referenced in the Discussion section below.

 

Discussion

 

22.The primary submission on behalf of the Applicant is that the panel relied upon incorrect information in making a finding of fact against the Applicant and that the finding was relevant to its decision.

 

23.The finding of fact related to the Applicant’s second recall to custody in 2019 (the 2019 recall).

 

24.Paragraph 2.6 of the decision states as follows:

 

“The victim of the alleged assault had been visiting a relative at the hospital. [The Applicant] was seen by a CCTV operator to confront the victim, and hit him over the head with a bottle. The CCTV operator followed [the Applicant] on camera until he was arrested. No recording was made of the CCTV and the victim did not support a prosecution. The matter was not pursued and [the Applicant] has said that he had no involvement in the alleged offence. Noting the facts before it, the panel was satisfied, on the balance of probability, that [the Applicant] had been intoxicated and assaulted a man outside the hospital.”

 

25.It is submitted that the reports that (a) the incident had been seen by a CCTV operator and (b) the Applicant had been followed on CCTV until he was arrested (the ‘CCTV matters’) are incorrect. Consequently, it is argued that the finding of fact could not be lawfully made based on the correct information.

 

26.Legal representations (dated 12 September 2023) within the dossier (at page 152) submit that both Offender Assessment System (OASys) reports within the dossier (presumably as it was at the time of those representations) are “entirely untrue” regarding the CCTV coverage of the alleged incident. The representations go on to state that evidence has been provided “directly from the police to the Parole Board and to [the Applicant’s] current and previous COMs…and we were assured that this entry would be removed from the record. We have raised this with the COM who is in the process of updating the risk assessment”.

 

27.Submissions on behalf of the Respondent advise that the COM confirmed that an amended OASys was produced and included in the dossier. This is consistent with correspondence provided on the Applicant’s behalf from 2023 in which his legal representative is seeking correction of the OASys.

 

28.Having reviewed the dossier, the CCTV matters was mentioned in the OASys of 3 August 2023 (at pages 78, 82, 114, 116). The matters were not mentioned in the Parole Board decision of 15 August 2022 which directed the Applicant’s re-release (other than to say there was no CCTV footage recorded; page 164). The OASys of 28 August 2024 had removed references to the CCTV matters.

 

29.Copies of correspondence from the police in 2020 confirm that the CCTV was not working at the time (and therefore the suggestion that the incident was observed, and the Applicant had been followed until his arrest were incorrect). The police also confirmed that there was no footage of the Applicant being arrested.

 

30.In its preamble to the decision, the panel correctly summarises the position regarding the treatment of allegations from R(Pearce) v Parole Board for England and Wales [2023] UKSC 13 as follows:

 

“If weight is to be given to an allegation of criminal or other misbehaviour in the risk assessment, the Board should first attempt to investigate the facts to enable it to make findings on the truthfulness of the allegation. If, as may often be the case despite its efforts to obtain the needed information, the Board is not able to make such a finding, it should investigate the facts to make findings as to the surrounding circumstances of the allegation which may or may not point to behaviour by the prisoner which is relevant to the assessment of risk. In such circumstances the Board, having regard to public safety, may take into account the allegation or allegations and give it or them such weight as it considers appropriate in a holistic assessment of all the information before it, where it is concerned that there is a serious possibility that those allegations may be true.”

 

31.The first point to consider is whether the panel gave weight to the circumstances leading to the 2019 recall as part of its risk assessment. I find that it did. Para. 3.2 of its decision notes that “on [the Applicant’s] second release, it is likely that he assaulted a man”. Perhaps more significantly, in para. 4.2, the panel explains that it considered professional assessments of risk to be underestimated because inter alia, the Applicant has “presented a risk of harm to others” (and the 2019 recall matters are implicit from the context).

 

32.Having decided to give weight to the allegations leading to the 2019 recall, the panel was obliged to investigate the facts to enable it to make findings on the truthfulness of the allegation. While it made a finding of fact, I am not satisfied that it investigated the evidence which supported that finding. Had it done so, it would have acknowledged the differing accounts in the OASys reports in the dossier, together with the written legal submissions alerting the Parole Board to the discrepancy. Although not bound by a previous panel, it should also have considered the view of the previous panel which considered the 2019 recall and made no such finding (and no reference to CCTV evidence, save for noting its absence). It is also submitted that the panel did not question any of the witnesses about the 2019 recall at the oral hearing. There is no evidence within its written decision which suggests otherwise. It therefore appears that the panel made a finding of fact without careful enquiry or appropriate scrutiny of the dossier. This cannot be fair.

 

33.I therefore find that the decision not to direct the Applicant’s release to have been tainted by procedural unfairness.

 

34.For completeness, I also find an error of law, in the sense that the panel’s application of Pearce failed to take account the relevant consideration of the updated (and corrected) written evidence in the dossier.

 

Decision

 

35.For the reasons set out above, the application for reconsideration is granted.

 

Directions

 

36.I have carefully considered whether this case should be reconsidered by the original panel or whether it should be reviewed afresh by another panel.

 

37.I have no doubt that the original panel would be fully capable of approaching the matter conscientiously and fairly. However, 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 procedurally unfair and legally erroneous. 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.

 

38.The following further directions are now made:

 

(a)        The re-hearing should be expedited.

(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)        Panel logistics: Tier 4 oral hearing, three-member panel (to avoid the possibility of a split decision), suitable for video.

 

 

 

 

Stefan Fafinski

19 November 2024

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