Jan, Application for Reconsideration by, [2021] PBRA 171 (5 December 2021) [2021] PBRA 171

PBRA
Jan, Application for Reconsideration by, [2021] PBRA 171 (5 December 2021)
[2021] PBRA 171 · 2021-10-04
[40]In the case of Sturnham [2013] UKSC 47 the Supreme Court upheld, with some comments, the decision in the earlier case of Bradley [ 1991] 1 WLR 134 .41. The Parole Board, when considering the appropriate test of dangerousness in relation to immediate release, must decide that the risk must indeed be substantial, which can mean no more than that it is not merely perceptible or minimal, and that it must be unacceptable in the subjective judgement of the Parole Board. The Parole Board must have in mind all material considerations, scrutinising ever more anxiously whether the level of risk is unacceptable the longer the offender has spent in prison post-tariff. See Paragraphs 24 and 28 of Sturnham.42. See also R (Brooke) v Parole Board [2008] EWCA Civ 29 ; [2008] 1 WLR 1950 , per Lord Phillips of Worth Matravers CJ (as he then was) at [53]:
“Judging whether it is necessary for the protectio n of the public that a prisoner be confined is often no easy matter. The test is not black and white. It does not require that a prisoner be detained until the Board is satisfied that there is no risk he will re-offend. What is necessary for the protection of the public is that the risk of re-offending is at a level that does not outweigh the hardship of keeping a prisoner detained until after he has served the term commensurate with his fault. Deciding whether that is the case is the Board’s judicial function.” 43. Applying the test in Sturnham and Brooke to the way the panel expressed itself, I cannot hold that the way in which it approached the issue of assessing the risk to the UK public that the Applicant would present if released was irrational. It was a matter which received careful consideration by the panel, and which the panel explained carefully (which brings into play Ground (4), failure to give adequate reasons for not accepting the receiving country’s risk management plan). 44. The panel focused on the threats referred to above, saying: “It is impossible, in the absence of any corroborative evidence, to determine whether this is a real or imagined threat, but it has to be taken seriously unless and until it can be discounted. It causes anxiety because some of your harassment offences were committed by proxy and also because by mentioning these threats you have introduced thoughts or ideas of violence, admittedly distancing yourself from any direct involvement in them. The panel agreed that on the available evidence, these threats increased your risk of causing serious harm, and had they emerged in the community, if released, would have triggered immediate high levels of concern with consequent consideration of recall. This reinforces the need for the control element of the life licence.” 45. It is therefore apparent that the panel carefully considered the evidence before it and concluded that the risk of re-offending was at a level that outweighed the hardship of keeping the Applicant detained at this stage. This was a conclusion to which the panel was entitled to come on the evidence, and which it explained appropriately. 46. The second basis for impugning the panel’s approach is that the panel, when considering the risk to the UK public, failed to appreciate the centrality of the Applicant’s mental health to his risk, and that the receiving country’s risk management plan would treat that risk. 47. The problem with that argument is that the panel manifestly and expressly understood the centrality of the Applicant’s mental health to his risk. See page 14 of the Decision Letter: “The panel is satisfied that the condition of your mental health and the outstanding psychological treatment makes your detention necessary, whether in prison or mental hospital. You accepted that you were not ready for life in the community.”
The panel considered with great care whether the receiving country’s risk management plan, post-treatment, post-release from hospital, would sufficiently protect the UK public from the risk of serious harm. The argument on behalf of the Applicant overlooks the panel’s view that even after treatment the Applicant would present a relevant risk. It was for the panel to decide whether the evidence established the contrary, and to assess the risk. The panel, on the evidence, and for the reasons it gave, decided that the risk of serious harm, even after treatment, remained so high that it could not be managed without the security offered by the recall provisions for a life prisoner that would be lost by his departure from the jurisdiction. 48. The third ground on which the decision is said to be irrational is “inappropriate reliance on the entirely academic lack of recommendations for release into the community in the UK”. 49. The panel focused entirely, and entirely properly, on the receiving country’s risk management plan. There is nothing in this complaint. 50. The fourth ground of alleged irrationality alleges a failure to provide “adequate, lawful reasons for rejecting the [receiving country’s] risk management plan.” I have discussed this above, and do not find anything in this complaint. 51. The fifth ground of alleged irrationality advanced relates to alleged errors of fact within the decision letter. For the approach to this, see the reference to E and Alconbury Developments above. 52. The specific alleged factual errors cited are: i. Wrongly recording that the hallucinations (with regard to the threats as discussed above) started 18 months before the hearing, rather than 6 months; ii. Failing to acknowledge that the Applicant’s medication had changed on several occasions, not because of a change in his mental health, but because of concerns about the effects of his medication on his heart condition; iii. Stating that the Applicant’s offending included abusing all forms of communication, when there was no evidence of internet-related offending; iv. Failing to record a named doctor in the receiving country as being responsible for the Applicant’s risk, as well as overseeing his condition; v. Recording the evidence of a witness incorrectly, as saying that the Applicant was complicit in the threats; and vi. Failing accurately to record the Applicant’s evidence. He did not say the arson was a moral mission: on the contrary, he said the arson wasn’t a moral mission. 53. Neither separately nor together do these matters (assuming them to be correctly described as inaccuracies or relevant omissions) amount to material errors as discussed above. The decision letter was tightly focused, and the matters here complained of had little or no relevance to that focus. For example, the panel was concerned about what the Applicant’s report of the threats had to say about his pattern of thinking (grievance, rumination, thoughts of violence) rather than their source. 54. The sixth ground of complaint is failing to make a proper assessment of the threats, failing to make sufficient enquiry as to their veracity or otherwise, and declining to order a further psychiatric assessment or further enquiries, as requested in the closing submissions. 55. The suggestion in the closing submissions as to a further assessment was put thus (in Paragraph 37):
“It is respectfully requested that if the decision on whether or not [the Applicant’s] release can be directed in accordance with the Plan hangs on the question of whether the changes in medication, [the Applicant’s] mental illnesses, and/or stress levels could have resulted in the deterioration in his mental health we would respectfully ask that the Parole Board refrains from making a final determination but rather to adjourn pending a further assessment.” 56. The panel’s decision did not hang on the issues set out in the submissions. Therefore this ground of complaint is not made out. 57. The seventh ground of complaint is that the panel failed to deal with the threats in accordance with the Parole Board’s Guidance on Allegations. The argument is that the panel was obliged to make a finding of fact (presumably as to whether these threats arose from the Applicant’s mental illness or whether there was some objective reality to them). Making such a finding of fact, it is suggested, required an adjournment for a further mental health assessment. 58. The panel decided that, in the absence of any corroborative evidence, it was impossible to determine whether this was a real or imagined threat, but it had to be taken seriously unless and until it was discounted. It caused anxiety because some of the harassment offences were committed by proxy (see Paragraph 14 above) and also because by mentioning the threats the Applicant had introduced thoughts or ideas of violence, admittedly distancing himself from direct involvement in them. The panel considered that on the available evidence the threats increased the Applicant’s risk of causing serious harm, and that had they emerged in the community after release would have triggered immediate high levels of concern with consequent consideration of recall. This, the panel thought, reinforced the need for the control element of life licence. 59. In the Parole Board’s Guidance on Allegations “the term ‘Allegations’ refers to conduct alleged to have occurred which has not been adjudicated upon.”
The only conduct relevant here was that the Applicant had reported that threats had been made. There was no issue here that he had reported threats. There was no need in this case for the Panel to decide whether the source of the threats was the Applicant himself, either through delusion or for some other cause, or whether he was indeed passing on what he had been told. In either event, the panel’s approach set out above was appropriate. It is certainly arguable that what is under discussion here does not fit the Parole Board’s definition of allegations : “Allegations may be of harmful behaviour and/or risky behaviour.” 60. If this was an allegation as defined the panel dealt with it appropriately in terms of the Guidance . In the words of Paragraph 6(c) of the Guidance , the panel made an assessment of it to decide whether and how to take it into account as part of the parole review. The panel was not obliged to make a finding of fact. There is nothing in this complaint. 61. In Annex A to the Application the Applicant himself challenges any definition of his activities as stalking by proxy; he says that he suffers from auditory hallucinations every day, and cannot tell them from reality; and he denies any form of proxy stalking, which he says would in any event be counter-productive for him. He goes on to say that if he committed suicide his family might be unable to contain their distress and antipathy towards the Ministry of Justice: in other words, he renews the threat. He says he does not agree with it, though he half-heartedly agreed with the moral tone of his family’s stance on his, and their antipathy to the Ministry of Justice. Decision 62. For the reasons I have given, I do not consider that the decision was irrational or procedurally unfair and accordingly the application for reconsideration is refused. Patrick Thomas QC 5 th December 2021