Johnson, Application for Reconsideration by [2022] PBRA 127 (28 August 2022) [2022] PBRA 127
PBRA
Johnson, Application for Reconsideration by [2022] PBRA 127 (28 August 2022)
[2022] PBRA 127 · 2022-08-19
[20]The duty to give reasons was most recently considered in the context of parole decision in R(Wells) v Parole Board [2019] EWHC 2710 . Saini J acknowledged (at para. 38) that a panel of the Parole Board is not bound by the expert evidence before it, but that (at para. 40 ):
“The duty to give reasons is heightened when the decision-maker is faced with expert evidence which the Panel appears, implicitly at least, to be rejecting”
. The reply on behalf of the Secretary of State 21. The Secretary of State has submitted no representations in response to this application. Discussion 22. The panel’s decision was made under rule 25(1) and is therefore eligible for reconsideration under rule 28. 23. The application submits that the decision was irrational on three grounds. First, the panel gave too much weight to security intelligence. Second, the panel gave too much weight to its concerns about the Applicant’s account of his relationship with his co-defendant in the recall matter. Finally, the panel did not provide sufficient reasons as to why it did not follow the recommendations of the witnesses. 24. Dealing with the first ground, the decision notes, correctly, that a security report (17 January 2022) within the dossier contains 25 high reliability entries accumulated over a 15-month period at the Applicant’s current and former establishments. These indicate security concerns around involvement with drug supply, bullying and threatening other prisoners, possession of mobile phones. 25. The decision notes the evidence of the Applicant’s POM that no formal action had been taken in respect of any of the security reports, the Applicant remained on the enhanced regime of the Incentives and Earned Privileges ( IEP ) scheme, and the Applicant was working in a trusted position. 26. It also notes the evidence of the psychologist who said she had challenged the Applicant about the security report, as well as seeking additional information from the security department. She could not conclude that there was evidence of wrongdoing as no formal action had been taken. 27. It further notes the evidence of the Applicant who said he was unaware of the security information before receiving the report, that he denied the content and could not offer any further explanation. 28. The reasons given by the panel for not directing the Applicant’s release (decision, paras. 4.1 - 4.3) do not include any treatment of the security intelligence. It cannot therefore be said that the panel gave them too much weight as part of its decision not to direct release and this first ground must fail. 29. Turning to the second ground, the psychologist noted that the Applicant has maintained that his relationship with his co-defendant had been platonic, but there was evidence of a lack of openness and honestly with professionals (decision, para. 2.7). Probation records, however, note that the Applicant referred to his co-defendant as his ‘partner’ when arrested and his co-defendant had consistently indicated that she was in a sexual relationship with the Applicant. 30. The panel’s reasons note that one of its concerns was the Applicant’s account of his relationship with his co-defendant. The application submits that the co-defendant had been involved with the criminal justice system, so it cannot be assumed that she is a credible witness whose account should automatically be believed. Of course, the same could also be said of the Applicant. It is also submitted that the Applicant has provided a consistent account of the relationship to all professionals, although I note the documented reference to ‘his partner’ as highlighted above. 31. The reference to the Applicant’s relationship with his co-defendant forms part of its broader analysis of its concerns about his openness and honestly with professionals (decision, para 4.2). Probation records indicate that the Probation Service was not aware of the relationship between the Applicant and his co-defendant as he had “ always discussed how positive his relationship with his partner was” . Regardless of whether the relationship between the Applicant and his co-defendant was sexual or not, the evidence suggests that the Applicant had not, in fact, been fully open with probation in supervision and it not irrational for the panel to raise its concerns about that, particularly given the Applicant’s re-offending with a co-defendant unknown to the Probation Service while on licence. Therefore, the second ground also fails. 32. Finally, it is submitted that the panel did not provide sufficient reasons why it departed from the recommendations of the witnesses. The panel is not bound by the recommendations of the professional witnesses. To say otherwise would undermine the panel’s role as an independent assessor of risk. 33. It is submitted that there are insufficient reasons for the panel’s decision that the Applicant should spend a further period of time in open conditions when all witnesses agreed it was not necessary. The decision under reconsideration, however, is whether the panel gave sufficient reasons why the Applicant could not be released. Any recommendation for open conditions is outside the scope of the reconsideration mechanism. 34. The application goes on to submit that the Applicant’s risk was not imminent. 35. Regarding imminence of risk, R (Secretary of State for Justice) v Parole Board [2022] EWHC 1281 (Admin)(Johnson) states (at para. 31): If an offender poses no risk, the protection of the public will not require his confinement. That does not mean the Board is to ignore anything other than immediate or imminent risk… 36. In other words, the Board must consider risks over the long term as well as the risks that may arise immediately or imminently on a prisoner’s release. This requires the Board to consider whether risks might arise in the longer term as well as in the shorter term. For prisoners (like the Applicant) serving an indeterminate sentence, the Board must always consider risk over an indefinite period. 37. The application also sets out that it disagrees with the panel’s view that the proposed risk management plan did not cover certain elements of risk. Simply disagreeing with a panel’s view does not make that view irrational. I must look at the panel’s decision as a whole in the light of the evidence before it and ask whether it was so unreasonable that every other panel would have decided differently and released the Applicant. Following Wells , the panel has a clear legal duty to give reasons. The more a panel departs from expert evidence, the more heightened its duty to give reasons for doing so, particularly when the liberty of the prisoner is at stake. 38. The panel sets out clear reasons why it disagreed with the recommendations of professionals. These reasons relate to the evidence in a rational way and are sufficiently adequate, intelligible, and comprehensible for me to follow them. I find the panel has discharged its duty to give reasons and has reached an entirely sustainable conclusion based on the evidence before it. I have no reason to interfere with it. The legal test for irrationality is a very strict one. This case does not meet it. Decision 39. For the reasons I have given, I do not find the decision was irrational and accordingly the application for reconsideration is refused. Stefan Fafinski 28 August 2022