McIntosh, Application for Reconsideration by, [2019] PBRA 35 (10 October 2019) [2019] PBRA 35

PBRA

McIntosh, Application for Reconsideration by, [2019] PBRA 35 (10 October 2019)

[2019] PBRA 35 · 1982-03-07

[1]This is an application by McIntosh (the Applicant) for reconsideration of a decision by a duty member not to refer his case for an oral hearing on the basis that the decision was irrational.

[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 that the decision is(a) irrational or that it is

(b) procedurally unfair. Background

[3]On the 7 March 1982, having been earlier released on bail in respect of possessing drugs and weapons including an axe, a hammer and two throwing knives, the Applicant drank heavily and then committed an act of random killing using a shot gun with a shortened barrel.

[4]On the 9 December 1982, the Applicant's plea to manslaughter on the grounds of diminished responsibility was accepted and he was sentenced to life imprisonment with a minimum tariff of 4 years 11 months 23 days. The tariff expiry date was the 1 March 1987.

[5]The Applicant proved to be a very difficult prisoner to manage. Essentially, he remained isolated from other prisoners and was frequently violent or threatening. He acquired 52 adjudications of a violent nature against prison staff and other inmates.

[6]He showed no remorse for his offending and very little interest in the fate of his victim or the plight of his victim's family.

[7]The Applicant's childhood is not well documented but it is known he displayed behavioural problems.

[8]A number of assessments had been carried out in 1982 prior to sentencing. All revealed the presence of significant personality dysfunction and some suggested the diagnosis of personality disorder.

[9]The Applicant was examined by a Chartered Forensic Consultant Clinical Neuropsychologist, who reported on 18 March 2015; he identified a complex history reflecting a range of likely difficulties which could be relevant to the Applicant's pattern of offending and his ability to engage with professionals in custody.

[10]During his time in custody he has [suffered bereavements]. The Applicant has previously stated that he has nothing to be released to or for and is content to remain in prison for the rest of his life.

[11]In 2015, his Offender Manager recorded that the Applicant had refused to engage with sentence planning boards and continued to choose not to engage with the parole process and did not want to attend any hearings.

[12]However, in recent years, the position has been slightly less bleak. At his last oral hearing in 2013, the Applicant was said to have shown a " consistent ability to deal with his frustrations and difficulties without resorting to the use of violence or threatening others with it ." At the paper hearing on the 30 June 2017, the panel gave him credit for maintaining good behaviour and enhanced status. In June 2019, the Applicant was transferred to another prison which was as far as he was concerned, a welcome progression; apparently, he had been unhappy and under pressure at his previous prison. Request for Reconsideration

[13]The request for reconsideration is dated the 10 September 2019. Unsurprisingly, the application relies heavily but generally on the case of Osborn . It runs to 2 pages and I have tried to distil its contents in this way: 1. fairness to the inmate is the overriding consideration. 2. No or insufficient weight was placed on the following factors(a) issues relating to autism

(b) the Applicant is 32 years over tariff;

(d) he is serving an indeterminate sentence. 3. Undue weight was placed on whether the Applicant was likely to be released or progressed. 4. Reliance was placed on paragraph 2(ix) of Osborn . Current parole review

[14]The Secretary of State referred the Applicant's case to the Board in October 2018 to decide(i) whether or not it would be appropriate to direct the prisoner's release;

(ii) whether the prisoner, if in closed conditions should be transferred to open conditions and, for the purposes of this case, significantly

(iii) on the continuing areas of risk that need to be addressed.

[15]On the 22 March 2019 a MCA Member reviewed the dossier. The Member acknowledged that the Applicant was in a significantly different position from his last parole application in that he was now a Category C prisoner. It was noted that the next step would be for further assessments and that it was desirable for the Applicant to be legally represented. Directions were given for a full chronology of all previous reviews and for the prison to assist the Applicant to obtain legal representation.

[16]On the 24 April 2019, the MCA directions noted that the Applicant had neither instructed a legal representative nor made known his own views; the directions also noted that there was no support for progression to open conditions at that stage. That notwithstanding, the directions continued:

" Taking all this into account, the MCA member considers that there ought to be an oral hearing and that the panel should have the benefit of a psychological risk assessment ... Mr McIntosh will have an opportunity to express his views and is encouraged to engage with the process and attend the hearing; he is also encouraged to have legal representation. The opinions of the professional witnesses, including the psychologist can be questioned as to their recommendations for progress. Taking everything into account in applying the principles set out by the Supreme Court in the case of Osborn, Booth & Reilly [2013] the MCA member concluded that the case should be directed to an oral hearing ."

The actual directions provided for a psychological assessment and reports from the Offender Manager and the Offender Supervisor, the latter to include recommendations for progression. The directions also described the Applicant as having potentially complex mental health problems and would be likely to benefit from having all participants in the room.

[17]On the 20 June 2019, the Applicant sent this note to the Parole Board:

" This is to confirm that I [the Applicant] ... do not wish to attend my Parole Hearing on 26 September 2019 at 14:00. Please take my instruction as I do not have a Solicitor, to defer my hearing, as I am transferring to [another prison] on a progressive move with a view of a Parole Hearing at a later date ."

[18]This application was treated (correctly in my view) not as an abandonment of the hearing but as an application to defer. On the 21 June 2019, a stakeholder response form was issued which referred to the current guidance indicating that deferrals should not exceed four months and that in those circumstances the case should be returned to the MCA member for a decision on the papers.

[19]On the 23 July 2019, the paper decision was issued. It stated that an oral hearing was not necessary because of " the information contained in the dossier " and the Applicant's expressed wish that he did not presently want an oral hearing. Given the rather non-specific nature of the first reason, it is fair to assume that the real reason for continuing with the paper hearing was the Applicant's expressed wish. The decision took this into account together with the Applicant's failures to engage with assessments. The panel did not direct release nor recommend transfer to open conditions.

[20]At some stage, the Applicant instructed a solicitor and on the 8 August 2019 the solicitor applied (within the time limits) for an oral hearing. The explanation was put forward that, particularly given his disability, the Applicant had not wanted the hearing to take place at the prison where he found circumstances problematic but did want the hearing to take place at another prison where he felt safe and at ease.

[21]A degree of confusion then creeps into the narrative. In the dossier, there is a note from the OS saying she had " tried on several occasions for the parole board to change his hearing as he will not attend " ... and " at present [the Applicant] does not want to attend ." The note is undated so is difficult to say whether it precedes or is subsequent to the solicitor's request for an oral hearing.

[22]On the 21 August 2019, the MCA Duty Member gave his directions which are the subject of this application. The relevant parts of the decision are as follows:

"We confirm that you have requested an oral hearing. The basis for this request is that your attitude has changed since you were transferred to [another prison] in June 2019 and that there should be an updated risk assessment. An oral hearing was granted in April 2019 and you said you were not attending and wanted the hearing to be deferred. The basis of this request was that you were to transfer to [another prison] which was a progressive move. The request for a deferral was refused and your review was concluded on the papers. This transfer has now albeit recently, taken place. The duty member believes that you would be much better placed to argue for further progression if you made progress at [the prison] for a longer period of time before an oral hearing is held. The request for an oral hearing is therefore refused. The representations submitted have been considered and the request has been refused for the reasons stated above."

[23]The Duty Member did not explain how the representations were considered and made no reference to the Applicant's autistic background nor to the solicitor's specific references to the decision in Osborn , nor did he explain why the grounds for an oral hearing which apparently existed in April 2019 no longer obtained in August 2019. It is not entirely clear whether the Duty Member was saying that the Applicant was asking for an oral hearing because of the improvements he had made since transferring to another prison or whether, as I believe the case to be, the Applicant through his legal representative was explaining why he had not wanted an oral hearing at his previous prison as opposed to the current prison. The Relevant Law

[24]In the case of Osborn, Booth and Reilly v the Parole Board [2013] EWSC 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 in paragraph 2 of the judgement. The court acknowledged that it was impossible to define exhaustively the circumstances in which an oral hearing would be necessary. Some of the matters set out in paragraph 2 (ii) - (xiii) which are particularly pertinent to the facts of the present case are as follows:

"The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it 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 useful to contribute (iv). 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 (v). When dealing with cases concerning post tariff indeterminate sentence prisoners, it should scrutinise ever more anxiously whether the level of risk is unacceptable, the longer the time the prison has spent in prison following the expiry of his tariff (vi). The board's decision for the purposes of this guidance, is not confined to its determination of whether or not to recommend the prisoner's release or transfer to open conditions, but includes any other aspects of its decision (such as comments or advice in relation to the prisoner's treatment needs Discussion or the offending behaviour work which is required) which will in practice have a significant impact on his management in prison or on future reviews (ix). In applying this guidance, it will be prudent for the board to allow an oral hearing if it is in doubt whether to do so will not (xi)."

[25]The narrative in this case reveals an unusual situation. On the 24 April 2019, the panel decided that the Applicant should have had an oral hearing of his case, notwithstanding there was no support for progression at that stage. Reference was made to Osborn and it seems likely that the panel had in mind all or some of the principles I have set out from Osborn in paragraph 20 of this decision.

[26]The only procedural step taken after the 24 April 2019, was the Applicant's request for a deferral. That was refused on the 21 June 2019 and the case was listed for a paper hearing. No reason was given in that decision for reversing the decision of the 24 April 2019 that the Applicant should have an oral hearing of his case. Perhaps because the case has been listed " piecemeal " before different members at different times, the view has been formed without close inspection of the papers, that the request for a deferral was in fact evidence that the Applicant had regressed to his old habit of non-engagement.

[27]The paper hearing took place on the 23 July 2019. As I have already noted, the substantial reason given for the proceedings on paper rather than an oral hearing was " [the Applicant] expressed wish that [he did] not want an oral hearing at this time ."

[28]The hearing then considered the evidence of the OS and the OM in relation to the very limited engagement by the Applicant. These were the professionals who had been identified in April 2019 as witnesses who should give oral evidence and who should be present in the room during the hearing. As I read the dossier, the only documents from these witnesses are dated the 3 January 2019 and the 18 January 2019 and were thus seriously out of date. The panel could receive no assistance as to whether the Applicant's lack of cooperation had improved since January or might improve once he had left the previous prison nor any assistance about his current attitude.

[29]The request for an oral hearing dated the 8 August 2019 ought to have alerted the panel that the basis for the paper hearing in July 2019 might have been erroneous, particularly when the report of the psychologist referred to in paragraph 10 is taken into consideration. The request makes it clear that the Applicant had not abandoned his desire for an oral hearing but had merely wanted it to take place at the prison he was transferred to. Of course, the panel was not obliged to accept the Applicant's account but it is difficult to see how, consistent with his ECHR rights, it could have rejected the account without hearing oral evidence.

[30]The decision to refuse an oral hearing was perfunctory. It did not consider the panel's decision of the 24 April 2019. It did not consider whether the panel had misunderstood the nature of the Applicant's application for a deferral. It did not consider whether the panel in July 2019 had considered misleadingly stale evidence and it did not set out specifically any part of the guidance in Osborn which it regarded as determinative of its decision to refuse the application. What the panel did say was the Applicant would be better placed to argue for further progression if he may progress at the transfer prison. This seems to be inconsistent with the guidance in Osborn set out at paragraph 2(ix).

[31]To overturn the April 2019 decision without considering any of those matters offends the Applicant's basic rights. In my judgement, the decision to hold a paper hearing in the circumstances was flawed and the decision to refuse the application for an oral hearing was fatally flawed. Decision

[32]For the reasons I have given, I do consider that the decision was irrational and accordingly the application for reconsideration is allowed. The application for an oral hearing should be reconsidered on the papers by a new panel appointed under rule 5 (1).

[33]I think the new panel could be assisted in understanding my decision by seeing the original refusal; the Panel Member's name should of course be removed. James Orrell 10 October 2019