Dennis-Dormer, Application for Reconsideration by [2020] PBRA 80 (21 June 2020) [2020] PBRA 80
PBRA
Dennis-Dormer, Application for Reconsideration by [2020] PBRA 80 (21 June 2020)
[2020] PBRA 80 · 2020-05-12
[19]The oral hearing panel had an extensive dossier of reports and other material. They had the advantage of hearing from the Applicant as well as the OS and OM. The Applicant was also legally represented, and submissions were made on his behalf. A panel must make up their own minds on the totality of the evidence that they have before them, including any evidence from the Applicant. They would be failing in their duty to protect the public from serious harm (while also protecting the Applicant from unnecessary incarceration) if they failed to do just that. As the Divisional Court noted in DSD [at 117] “ The individual members of a panel, through their training and experience, possess or have acquired particular skills and expertise in the complex realm of risk assessment. ” 20. Where a panel arrives at a conclusion, exercising its judgement based on the evidence before it and having regard to the fact that they heard the witnesses, it would be inappropriate to direct that the decision be reconsidered unless it is manifestly obvious that there are compelling reasons for interfering with the decision of the panel.[21]As Stanley Burnton J set out in (Alvey) v Parole Board [2008] EWHC 311 (Admin) , at [26] " It is for the Parole Board, not for the court, to weigh the various considerations it must take into account in deciding whether or not early release is appropriate. The weight it gives to relevant considerations is a matter for the Board, as is, in particular, its assessment of risk, that is to say the risk of re-offending and the risk of harm to the public if an offender is released early, and the extent to which that risk outweighs benefits which otherwise may result from early release, such as a long period of support in the community, and in some cases damages and pressures caused by a custodial environment. " 22. It is my task to determine whether the panel have provided clear and justifiable reasons based on their analysis of all of the evidence before them. I should not substitute my view of any facts as found by the panel and should not direct that a decision be reconsidered in such circumstances unless it is manifestly obvious there was an error of fact which was taken into account in making their decision. 23. With those matters in mind I turn to address the seven grounds: Ground(i) (a) The Applicant had been transferred to open prison conditions in January 2018. In January 2019 he was returned to closed conditions. A notification of 11 January 2019 that he had been recategorized to a lower security prison stated that “you have on multiple occasions refused to comply with staff instructions and demonstrated an unacceptable attitude for a [lower category] prisoner with threats to assault night staff being the most recent issue”. (b) On 24 January 2019 the Applicant transferred to a closed prison location. His OS there prepared the sentence planning report dated 20 September 2019. Within his report he noted that the Applicant’s behaviour had raised slight concerns at the prison with reports of manipulative, rude and abusive behaviour towards staff. The report also acknowledged that the Applicant’s behaviour had not resulted in any proven adjudication or downgrade under the Incentive and Earned Privileges scheme. Following the Applicant’s transfer on 8 November 2019 to another closed prison location his new OS, from whom the panel heard at the oral hearing, catalogued positive and negative behaviour entries on the National Offender Management Information System (NOMIS). The Applicant’s OM in their probation officer’s report of 20 September 2019 also catalogued positive and negative NOMIS entries. The probation officer’s report of 3 April 2020 repeated the concerns raised by the negative entries. (c) It is submitted that the Panel treated the allegations raised in the negative entries set out above and in the oral evidence as true on the basis that entries were recorded. Furthermore, it is said that the panel were predisposed towards the official version of events, not being prepared to consider the Applicant’s application for parole impartially or independently. (d) The Applicant had the opportunity at the oral hearing of dealing with the content of the negative reports and the re-categorisation notification. He did so in his evidence to the panel, offering explanations for the entries. As recorded in the decision letter the Applicant explained to the panel “I have no problem with authority only if a decision is incorrect or has no merit”. The panel considered that the explanation demonstrated some insight by the Applicant into his current risks. They also noted his evidence that the incorrect procedure had been followed in his re-categorisation and that he had successfully challenged the re-categorisation decision. Having considered all of the evidence, they concluded that there was ample evidence to indicate the Applicant could be threatening and abusive when he perceived his goals had been thwarted or that those in authority were making decisions which were disadvantageous to him. (e) The panel noted in the Applicant’s favour that it had not been alleged that during his sentence he had engaged in violence. They also recorded that his OS had stated there was no evidence during the Applicant’s time at his current closed prison location that he could be manipulative. Additionally, having considered the evidence of the Applicant, the panel did not make a finding that an incident which led to a negative entry from September 2019, where the Applicant interfered in a situation between a member of staff and another prisoner, had necessarily occurred as had been described in the entry but they did conclude that they were satisfied that the way in which he spoke to the officer carried an implied threat. (f) The application states that the panel had in error apparently assumed that the Applicant had been found guilty on an adjudication arising from an incident of 31 October 2019. This submission is not well founded, the decision letter does not demonstrate any such erroneous assumption, setting out in fact that the Applicant had been subject to an adjudication for this incident and had gone on to receive a negative entry which led to his downgrading on the IEP scheme. (g) The panel observed in its judgement that if there had only been the occasional reference to the Applicant behaving in an intimidating or aggressive manner towards staff, the panel would not have attached a great deal of significance to such concerns. However, they concluded that the evidence was that consistently within different environments, there had been staff concerns that when the Applicant did not get what he wanted he could be aggressive and manipulative. In my view this shows a clear and fair weighing of the evidence presented to it. (h) In my judgement there is nothing in this ground. The decision letter sets out clearly how the panel balanced the evidence that it had, which included that of the Applicant, and came to a justifiable and entirely reasonable conclusion which was open to them to reach. The decision reached was carefully and well set out in their decision. 24. Ground(ii) (a) The panel noted that the behaviour of the Applicant in custody had generally been acceptable save for when he came into conflict with staff when he formed the view that they were in the wrong. (b) It was acknowledged that he had successfully completed a training course addressing the tendency to use violence, thereby showing a willingness to address his offending behaviour. (c) Whilst the panel noted that the Applicant had a poor record of compliance in the community, they did accept that he was likely to comply with supervision, but this was subject to the caveat of him agreeing with the constraints placed upon him. (d) In my judgment there is nothing in this ground. The panel did conclude that there were factors militating in the Applicant’s favour of his manageability on parole licence but having balanced the evidence they heard, they ultimately reached a decision which was open to them that he could not safely be so managed at present. 25. Ground(iii) (a) The panel did not specifically identify in its decision letter the other evidence said to have been given by the Applicant as to positions of trust he had held in the prison. (b) The Applicant made representations to the panel at his oral hearing both personally and through his legal representative. (c) The decision letter is not and should not be a recital of the entire evidence given at oral hearing over several hours and set out in the dossier which contained well over 200 pages. The letter correctly focuses on risk, with an overriding concern being the protection of the public. In the decision letter the panel acknowledged that the Applicant had on occasion gone above his work requirement and had helped staff, but balanced the positive reports as it must do with the negative ones, giving them such weight as they considered appropriate having heard from the witnesses. 26. Grounds(iv) and(v) (a) There is nothing in these grounds. The Applicant’s own evidence was that he had “no problem with authority only if a decision is incorrect or has no merit”. The large number of references to poor compliance with supervision in custody and previously in the community that were presented to the panel gave substantial evidence to support their conclusion that the Applicant was highly unlikely to comply with supervision if he considered the constraints placed upon him were onerous or unreasonable. (b) In particular, the panel identified clearly that a lack of early warning signs if there was an escalation of risk would affect his manageability, making it very difficult for the OM to take appropriate early action. (c) Having considered this, the panel’s conclusion that the Applicant’s risks could not be managed in the community and that he would be unable to comply with conditions with which he did not agree is not therefore surprising. Such a reasoned and clear view cannot be characterised as irrational. 27. Ground(vi) (a) The decision noted that as a consequence of the COVID-19 pandemic, the OS allocated to the Applicant’s case on 28 February 2020 had not had the opportunity to have contact with him. This was apparent from the written report of the OS. (b) The OM is also acknowledged in the decision as having only recently taken over the Applicant’s case, with her preparation of a risk management plan being affected by this and by the impacts of COVID-19. The probation officer’s report spelt out that the OM had not met the Applicant and that she did not know him. (c) There is absolutely nothing in this ground, it being apparent that the panel were well aware of the limits of the communication between the Applicant and his OS and OM. 28. Ground(vii) (a) The decision of a panel must be read as a whole. The decision plainly identifies the matters adjudged by the panel to militate towards and against a continuing risk of reoffending, setting out the positives and negatives of the Applicant’s case that it considered relevant to the assessment of risk and, its reasons for striking the balance in the way that it did. The evidence before the panel included that of the current professional witnesses responsible for the Applicant, who did not support release and held the opinion that further risk reduction work would be appropriate before he was released. (b) I note in particular, that the ‘Evidence of change and progress in custody’ and the ‘Assessment of current risk’ sections of the decision letter summarised the considerations of the panel which led to the conclusions and, neatly assessed in the ‘Conclusion and decision of the panel’. I find no basis upon which I can be satisfied that there has been some procedural impropriety or unfairness in these proceedings. (c) If, it not being entirely clear from the application, that grounds (i) - (vi) are also said by the Applicant to demonstrate procedural unfairness as well as irrationality I make it clear that I am also unsatisfied that any of these grounds, taken individually or as a whole, meet the test of procedural unfairness, for the reasons set out above in this paragraph. Decision 29. For the reasons I have given, whether the grounds are taken in their entirety, the application not distinguishing between the grounds as I have done, or individually, I do not consider that the decision was irrational or procedurally unfair and accordingly the application for reconsideration is refused. Angharad Davies 21 June 2020