Qasim, Application for Reconsideration by the Secretary of State for Justice (Rev1) [2022] PBRA 133 (22 September 2022) [2022] PBRA 133

PBRA
Qasim, Application for Reconsideration by the Secretary of State for Justice (Rev1) [2022] PBRA 133 (22 September 2022)
[2022] PBRA 133 · 2022-04-28
[1]This is an application by the Secretary of State for Justice (the Applicant) for reconsideration of an oral hearing which concluded on 28 April 2022, to direct release.[2]Rule 28 of the Parole Biard Rules 2019 (as amended by the Parole Board (Amendment Rules) 2022 (the Rules)) provides that applications for reconsideration may be made in eligible cases (as set our in Rule 28 (2)) on the basis(a) that the decision contains an error of law,(b) that it is irrational and/or(c) that it is procedurally unfair.[3]I have considered the application on the papers. I have seen · The Decision Letter, issued 9 May 2022 · The Application for Reconsideration, which is unsigned and undated but was served in accordance with directions from, first, the panel chair, and second, me, and is therefore in time · The response on behalf of Mr Qasim (the Respondent), also unsigned and undated but received by me on 22 July 2022 · The dossier, which contains 645 pages, ending with the Decision Letter · Closed material, as discussed below[4]The panel saw some Closed material, which neither the Respondent, nor his legal representative, no any of the witnesses at the Oral Hearing, has seen. The Gist in respect of that material appears at p72 of the dossier (all references to page numbers in the dossier are to the printed number, which may not accord with the electronic numbering).[5]The Open Reconsideration Decision will not refer to the contents of the Closed material. There will be a Closed Addendum to this decision which will deal, so far as is necessary, with the Closed material. The Application referred to above is an Open Application. I have also seen a Closed Application, which includes submissions as to the Closed material, but is otherwise identical to the Open Application.[6]There was also some material which the Respondent did not see but which his legal representative did, upon giving the undertaking set out in Rule 17 (7)(b) of the rules as amended. Nothing turns on this material for the purposes of this application. Background[7]The Respondent is now 37 years old. In January 2015, when he was 29, he was sentenced to an extended sentence of 10 years, expressed as a custodial period of 8 years and an extension period of 2 years, for offences of robbery, possession of a bladed article and possession of heroin. The sentencing judge found that the offences arose out of a dispute over drugs. The Respondent has a significant history of convictions, including possession of a bladed article, possession of cannabis and robbery.[8]He was released on licence in April 2020, and recalled on 3 February 2021 for an accumulation of breaches of his licence. His Sentence Expiry Date is 26 November 2024.[9]The Oral Hearing was due to take place in December 2021, but was adjourned for reasons including an allegation of violence in custody, of which the Respondent was exonerated. The final hearing took place by video link. Request for Reconsideration[10]The application for reconsideration is undated, but received in time under the Rules, following the granting of extensions. Initially there was no written application for me to look at before I viewed the Closed material. I directed that an Open application should be drafted, if necessary omitting reference to Closed material, and served on the Respondent to comply with Rule 28(2).[11]The grounds for seeking a reconsideration are as follows:(1) Failure to make any, or proper, account of a material consideration, namely, the Closed material.(2) Failure to provide sufficient reasons for the decision to release, in particular in the light of the assessments contained in the Closed material.(3) In any event, submits the Applicant, the decision to release was irrational, being outside the range of reasonable decisions open to the panel. Current parole review[12]This was the first review of the Respondent's case since recall.[13]The panel consisted of two judicial members and one psychologist member of the Parole Board. It heard evidence from the Community Offender Manager, the Prison Offender Manager and the Prison-based Psychologist, as well as the Respondent. Both the Applicant and the Respondent were represented throughout. Both representatives made written submissions, which the panel considered. All the witnesses recommended re-release, subject in some cases to the caveat that the witness had not seen the Closed material and could not assess its significance. The Applicant's representative did not make the sweeping assertion set out at Paragraph 11(3) above, or indeed any submissions as to the merits or otherwise of releasing the Respondent. He confined himself to urging caution when arriving at a decision to release.[14]It is noteworthy that in his Addendum Submissions dated 27 April 2022 the Secretary of State's representative made no reference to the Closed material, and offered no assistance to the panel as to how to approach that aspect of the case. Earlier submissions on the Applicant's behalf, dated 1 December 2021, mentioned the gist. It is not clear whether the Applicant's representative had ever seen the Closed material. They certainly made no submissions in respect of it. The relevant law[15]The panel correctly set out in its decision letter the test for release.[16]The Parole Board will direct release if it is no longer necessary for the protection of the public that the prisoner should be confined. The test is automatically set out within the Parole Board's template for oral hearing decisions. Parole Board Rules 2019 (as amended)[17]Under Rule 28 (1) of the Parole Board Rules 2019 the only types of decisions which are eligible for reconsideration are those concerning whether the prisoner is or is not suitable for release on licence. Such a decision is eligible for reconsideration whether it is made by a paper panel (Rule 25(1)) or by an oral hearing panel which makes the decision on the papers (Rule 21(7)).[18]Rule 28(2) of the Parole Board Rules provides the sentence types which are eligible for reconsideration. These are indeterminate sentences (Rule 28(2)(a)), extended sentences (Rule 28(2)(b)), certain types of determinate sentences subject to initial release by the Parole Board (Rule 28(2)(c)), and serious terrorism sentences (Rule 28(2)(d)). Illegality[19]There is no suggestion that the panel's decision is tainted by illegality. Irrationality[20]In R (DSD and others) v the Parole Board [2018] EWH 694 (Admin), the Divisional Court set out the rest for irrationality to be applied in judicial reviews of Parole Board decisions. It said at para. 116, "the issues is whether the release decision was so outrageous in its defiance or logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."[21]This test was set out by Lord Diplock in CCSU V Minister for the Civil Service [1985] AC 374 . The Divisional Court in DSD went on to indicated that in decising whether a decision of the Parole Board was irrational, due deference had to be given to the expertise of the Parole Board in making decision relating to Parole. The Board, when considering whether or not to direct a reconsideration, will adopt the same high standard for establishing 'irrationality'. The fact that Rule 28 contains the same adjective as is used in judicial review shows that the same test is to be applied.[22]The application of this test has been confirmed in previous decisions on applications for reconsideration under Rule 28: Preston [2019] PBRA 1 and others. Procedural unfairness[23]There is no suggestion of procedural unfairness raised in the Application. Other matters[24]The grounds put forward amount to averments of irrationality, but Grounds(1) and(2) also raise other relevant issues as follows.[25]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 is does. Needless to say, the letter should summarise the considerations that 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."
[26]What is required is that the panel should give reasons which justify the conclusion that it reaches: see R (on the application of Wells) v Parole Board [2019] EWHC 2710 (Admin) per Saini J., at Paragraph 34. The reply on behalf of the prisoner[27]In the Response the Respondent's representative points to(1) The experience and expertise of the panel;(2) The panel's statement, which can be relied upon as true and accurate, that it gave careful consideration to the Closed material;(3) The way in which the panel fully explained and justified its decision, taking into account the evidence of the professional witnesses and explaining why the Respondent passed the test for release;(4) The fact that the decision is within the range of reasonable decisions open to the decision-maker.[28]Of course, neither the Respondent not his representative has seen the Closed material. Discussion[29]I will deal with Grounds(1) and(2) together.[30]It is understandable that the Decision Letter contains very little mention or discussion of the Closed material. The Applicant's representative, as noted above, did not raise the issues at the end of the evidence. Particularly given the Applicant's assertion now that, in the light of the Closed material, a decision to release was inevitably irrational, the panel was entitled to have its attention focused on that material.[31]A proper and detailed discussion and assessment of the Closed material was, in my judgement, essential to the decision-making process in this case. What the Decision Letter says is insufficient to explain how the panel approached that material for the purposes of the decision. The panel said this: 2.2 The Gist:
"Extremism and Terrorism": The panel has examined this issue in some detail and considered the assertions with great care. The Panel has had the benefit of considering the evidence of witnesses to the hearing. It is known that there is closed material which, as mentioned at the hearing, the panel has considered. The Gist, at page 72, states that "it is assessed that [the Respondent] holds an extremist mindset"
. The Panel examined this particular issues to see if the assertion can be supported. ... 2.10 The Panel gave careful consideration to the closed material (referred to at page 72 of the dossier within the contents of the Gist) and questioned [the Respondent] to establish his thoughts on extremism. 2.11. [He] said that he was "disgusted" by it. He could not explain why people would have the impression that he had an extremist mindset. He said, somewhat unconvincingly, that his "large beard" might attract a stigma. When asked about Jihad he said "I don't think I'm qualified ... I don't believe in harming people...people are sabotaging religion..." 2.12 Apart from the manifestly untrue assertion about not believing in "harming people" (having regard to his past conduct and previous convictions) the Panel has concluded that the evidence, as a whole, before the Panel, does not suggest that at present he seeks to embrace terrorism or that he currently holds and extremist mindset." ... 4.5 The Panel carefully considered the whole of the evidence and the submissions by the Secretary of State and [the Respondent's representative]. It is important to point out that there is no credible disclosed evidence before the Panel that, with the exception of the USB stick, [the Respondent] was engaging in terrorism. Moreover, the Panel reminds itself that he has not been convicted of a TACT offence. In addition, his conduct, since his return to custody, when analysed, as the Panel has done, does not bear the hallmarks of someone who is secretly dedicated to an extremist cause and undergoing a process of radicalisation or seeking to radicalise others. It is correct that his conduct on release became gradually more concerning and demonstrated worrying evidence of criminality, but the evidence within the dossier, with the exception of the assertion in the gist, and his conduct since recall does not, overall, in the judgement of the panel, support the contention that he has an "extremist mindset". If there was such a clear indication it would cause the Panel to decide otherwise in considering whether he should be rereleased. 4.6 In the circumstances, the Panel has decided that it is safe to conclude that whatever was being said and done by [the Respondent] in the period leading up to his recall, this conduct, if it was conduct to support the contention that he was making extremist plans, has not been reflected in his conduct since his return to custody.[32]This may be an adequate discussion of the gist. It is not, however, and adequate discussion of the Closed material, which, by definition, contains details beyond what is on the gist. In my judgement the panel should have looked specifically and separately at the Closed material, and summarised their analysis in a Closed decision or addendum. This would, I am afraid, have been a cumbersome process, but without it there is no adequate explanation provided for not taking the Closed material more into account, not only in considering whether the Respondent had an extremist mindset, but also generally in an assessment of the risk to the public he presents and how it could be managed.[33]It may be that this problem would have been overcome had a Special Advocate been appointed pursuant to Rule 17(8). However, that is something beyond my remit. All I can do is decide whether the decision reached by the panel is flawed to the point of irrationality by what I consider to be a material consideration, namely the existence and content of the Closed material, and a failure to provide sufficient reasons for the decision by way of a Closed addendum to the Decision Letter.[34]I do so decide, and direct that the decision be reconsidered accordingly.[35]It is not necessary for me to go on to consider Ground (3), and it is undoubtedly better that I do not. Decision[36]I find that the decision to release was flawed. I do so solely for the reasons set out above. The application for reconsideration is therefore granted and the case should be reviewed by a fresh panel by way of an oral hearing. Patrick Thomas KC 22 September 2022