Hussain, Application for Reconsideration by, [2021] PBRA 119 (7 August 2021) [2021] PBRA 119

PBRA
Hussain, Application for Reconsideration by, [2021] PBRA 119 (7 August 2021)
[2021] PBRA 119 · 2021-06-25
[32]‘A more nuanced approach in modern public law is to test the decision-maker's ultimate conclusion against the evidence before it and to ask whether the conclusion can (with due deference and with regard to the Panel's expertise) be safely justified on the basis of that evidence, particularly in a context where anxious scrutiny needs to be applied .[33]I emphasise that this approach is simply another way of applying Lord Greene MR's famous dictum in Wednesbury (at 230:
"no reasonable body could have come to [the decision]) but it is preferable in my view to approach the test in more practical and structured terms on the following lines: does the conclusion follow from the evidence or is there an unexplained evidential gap or leap in reasoning which fails to justify the conclusion? ” 14. 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 necessarily decisive) part in the tribunal's reasoning.” See also R (Alconbury Developments 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 Applicant will have to provide “ objectively verifiable evidence ” of what is asserted to be the true picture. 15. 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. "
Procedural unfairness 16. There is no suggestion in the grounds of procedural unfairness. The reply on behalf of the Secretary of State 17. No reply has been received from the Secretary of State. Discussion 18. Grounds 6 a), b) and d). It was plain that the Applicant’s relationship with the Offender Supervisor had been strained. This is an occurrence with which Parole Board panels are very familiar. The DL sets out the evidence in considerable detail and explains clearly how and why the panel came to its conclusion that the work suggested by both the Offender Supervisor and the psychologist was necessary before the Applicant’s risk of serious harm to the public could be said to have reduced sufficiently for his release to be directed. Unfortunately, it is clear from the DL that the Applicant himself when giving evidence displayed some of the attitudes reported by the Offender Supervisor. 19. The current pandemic has of course placed obstacles in the way of the provision of courses designed to assist in the rehabilitation of prisoners. It is unfortunate that the Applicant has himself suffered from the coronavirus and that work which might otherwise have been completed has not been. Equally it is unfortunate, if this was the case, that the religious observance of Ramadan made it more difficult for the Applicant to take part in the work which had been recommended. However, the Parole Board’s duty remains the same. It must not direct release unless it considers that the statutory test has been met. It is clear from the DL that the panel was persuaded after careful consideration that without it the Applicant’s risk was still too great to allow it to direct his release. 20. Ground 6 c). The Offender Manager’s evidence is clearly set out within the DL. His report did not support release. However, when giving evidence he said that he would now be inclined to support release but would stand by his colleagues’ recommendations. It is common for the professional witnesses to come to different conclusions as to whether the risk posed by an offender can or cannot be managed by the imposition of licence conditions. It is less common for such a witness to “sit on the fence” as this witness appears to have done. In this case, at Paragraphs 5-7, the panel set out in considerable detail the evidence it had heard and the reasons why, in the end it decided not to direct the Applicant’s release. The panel also had the benefit of a detailed DL from the previous hearing in 2019 in which many of the same obstacles to release were described. 21. Ground 6 e). While the medical problems described in the dossier were clearly significant and require suitable medication, there is no suggestion in the papers or in the helpful and lengthy submissions made to the panel in advance of the hearing that those problems had any significant role in reducing his risk of causing serious physical or mental harm to females. 22. Ground 6 f). The statutory test applied by the Parole Board has not been held by any court to offend the provision of the European Convention on Human Rights. The panel had clear regard to that test and applied it to the findings they had made. Decision 23. For the reasons I have given, I do not consider that the decision was irrational and accordingly the application for reconsideration is refused. Sir David Calvert-Smith 7 August 2021