Lloyd, Application for Reconsideration [2022] PBRA 148 (21 October 2022) [2022] PBRA 148

PBRA
Lloyd, Application for Reconsideration [2022] PBRA 148 (21 October 2022)
[2022] PBRA 148 · 2022-09-19
[1]This is an application by Lloyd (the Applicant) for reconsideration of a decision made by an oral hearing panel dated 19 September 2022 (the Panel Decision) to refuse to release him and to refuse to make a recommendation for his transfer to open conditions[2]Rule 28(1) of the Parole Board Rules 2019 (as amended) provides that applications for reconsideration may be made in eligible cases either on the basis(a) that the decision is irrational and/or(b) that it is procedurally unfair.[3]I have considered the application on the papers. These are the Panel Decision, the Application for Reconsideration dated 30 October 2022 [NOTE - THIS CANNOT BE THE Correct DATE], an email from PPCS dated 19 October 2022 stating that no representations would be made in opposition to the Application for Reconsideration, and the Applicant’s dossier containing 426 pages . Background[4]On 28 November 2007, the Applicant, who was then 33 years old, was sentenced to Life Imprisonment with a minimum term of 15 years (less time spent on remand) for the index offence of murder.[5]The Applicant’s Tariff Expiry Date was 16 February 2022. Request for Reconsideration[6]The application for reconsideration is dated [the Applicant’s grounds are dated 30 October 2022, but this cannot be correct]. A decision to recommend or not to recommend a move to open conditions is not eligible for reconsideration under Rule 28. This has been confirmed by the decision in Barclay [2019] PBRA 6 and so it is unnecessary to consider the grounds for reconsidering the application for reconsideration of the decision to refuse to make a recommendation for a move to open conditions.[7]The grounds for seeking a reconsideration are as follows:(a) The decision of the Panel was procedurally unfair because an incorrect process was adopted on the day of the hearing as the Applicant contends that he was informed by the prison that the hearing room was booked until 7pm for the hearing, but just before 5pm on the day of the hearing the Prison Offender Manager (POM) informed the Panel that “ the hearing would need to end at 5pm”. In consequence, it is contended that “the rest of the evidence was rushed ” and that “[the Applicant,] who had been making notes throughout the evidence …was not able to comment on the evidence heard as time ran out” (Ground 1).(b) The decision of the panel was procedurally unfair as the Applicant did not realise that that he should have asked his solicitor (and not the OMU) about submitting the paperwork he wanted to provide and how to ensure that two witnesses (Governor and the Psychiatrist) he wanted to call could give evidence (Ground 2).(c) The panel was procedurally unfair as the Applicant only received his dossier from the Prison 6 days before his hearing and that “there was insufficient time for him to submit his comments on the inconsistencies and errors in the paperwork ” (Ground 3).(d) There was procedural unfairness as the Applicant “had a number of documents that his solicitor was unaware that he wanted to produce to the Board, one of which was submitted during the hearing (a Consultant letter regarding Pregablin)” (Ground 4)(e) The Panel Decision was irrational for a number of reasons including that it failed to appreciate that when the Applicant had previously taken Pregablin his behaviour had been stable and that all the witnesses. including the psychologist were supporting progression to open conditions and not enough focus was placed on the Applicant’s positive relationships with those managing him and the failure of Healthcare in terms of removing medication arbitrarily (Ground 5). Current parole review[8]The Panel, which comprised of 3 independent members of the Board one of whom was a psychologist. held a hearing on 7 September 2022.[9]On that occasion, the Panel comprised 3 independent members of the Board one of whom was a psychologist and it heard oral evidence from:(a) The POM(b) A Psychologist(c) The Community Offender Manager (COM), and from(d) The Applicant 10 The Applicant was represented by his solicitor. No victim impact statements were adduced. 11 The Applicant had more than 70 previous convictions prior to committing the index offence dating from the time he was aged 19. His offending included many convictions for violence towards police, intimate partners many of which were committed when he was under the influence of alcohol. He was convicted of inflicting grievous bodily harm when he broke the jaw of a lady with whom he was in a relationship. 12 The index offence occurred when a friend of the Applicant refused to tell him what he knew about a lady with whom the Applicant was having a relationship. The victim was found at the bottom of some stairs in cardiac arrest with serious head injuries which were reported to be apparently inflicted by punches and stamping on the victim’s head which rendered him unrecognisable.[13]The Applicant had a difficult and disrupted childhood in which he was the victim of chronic emotional and physical abuse by his father while also witnessing violence and emotional abuse towards his mother. The Psychologist identified these historic risk factors as being highly relevant. He also identified when carrying out a SARA assessment of the risk of intimate partner violence with evidence of historic intimidation, threats, physical violence and severe intimate personal violence. 14 The Applicant has completed much offending behaviour work in custody earning positive reports. There are reports of him being assaulted on a number of occasions by other prisoners including being stabbed on more than one occasion. In the early parts of his sentence, the Applicant’s behaviour had been poor, but it improved between 2017 and 2019 which was considered to be “ at least partly attributable to [the Applicant] being in receipt of Pregablin medication ”. His COM told the Panel that this was “ the best we have seen him,” but between 2017 and 20i9 there were 4 adjudications. There has been no indication that Pregablin had been prescribed after his move to in February 2019.[15]In February 2019, the Applicant’s behaviour “ destabilised ” and he received adjudications for destroying/damaging property and for assaulting a police officer. During the following 8 months, he received adjudications for being threatening and abusive to staff. Later, he received adjudications for disobeying orders as well as negative entries for his threatening and aggressive conduct and for suspected Spice use. He has continued to receive adjudications including for possession of numerous unauthorised items. In July 2021, he was adjudicated for assaulting another prisoner and in March 2022 for threatening behaviour. 16 The Panel noted some positive entries shortly before the oral hearing, but the Applicant also self-harmed in early July 2022 necessitating a hospital visit while improvised weapons were found in his cell in August 2022. He was adjudicated for 4 incidents which took place in August 2002 when he acted aggressively to staff. He explained to the Panel that this behaviour was caused by his struggles with mental health and his wish to be left alone. The Applicant admitted to the Panel that he had used Spice from time to time to cope with his mental health difficulties. 17 The Panel recorded that the Applicant made frequent reference to the unfairness of his prescription for Pregablin being refused causing a negative impact on him and his well-being. He repeatedly stated that the prison system was conspiring to prevent him getting the medication. The Applicant repeatedly refused to engage with Healthcare or MHIT in exploring alternatives. His evidence was that he had taken some Pregablin in custody prior to the hearing in order to present at his best. The Panel was concerned by his thinking and decision-making as he was preoccupied with the availability of Pregablin and he attributed any change or fluctuation in his own emotional and behavioural stability to Pregablin rather than to aspects of his own thinking or functioning. 18 Having told the Panel that he had bought Pregablin illegally in custody and that he had taken some prior to the hearing so that he could present at his best, the Applicant explained to the Panel that he “was prepared to do something illegitimate or illegal (obtain and take Pregablin) to enable him to show stability”. Having heard the Applicant give evidence, the Panel concluded that he lacked insight and skills in managing his presentation within the setting of a Parole Hearing.[19]The Panel was concerned that his rigid thinking would present difficulties in supervision and day-to-day life in the community. It also concluded that he continued to adopt a violent persona as he had at the time of the index offence.[20]The Panel agreed with the OASys assessment that the Applicant presented a high risk of serious harm and violent reoffending and the COM noted that the risk might be imminent if he were released into the community. The Panel had concerns about the Applicant’s behaviour towards female staff and his sexualised behaviour which may indicate problematic attitudes towards females which may in turn be relevant to his risk.[21]Both the COM and the Psychologist recommended a move by the Applicant to open conditions. The Psychologist noted that there was no core risk reduction work outstanding, but the Panel concluded that the Applicant’s custodial conduct and presentation were too unstable for him to be suitable for a move to the community or to open conditions. The legal representative of the Applicant submitted that he met the test for release or in the alternative the test for a recommendation for a move to open conditions.[22]The Panel was concerned about the Applicant’s custodial behaviour, the fact that he regularly held unauthorised items and was guilty of substance misuse, his willingness to use anti-social behaviour to obtain Pregablin, his rigid thinking as well as his thinking style and his approach to problems and decisions.[23]The Panel concluded that the Applicant needed assistance and support in addressing those issues and that was core risk reduction work which had to be completed before consideration could be given to release. The panel did not believe that the high risk of serious harm which the Applicant presents could be managed in the community at the present time.[24]Accordingly, the Panel noted “[the Applicant’s] positive engagement with all the witnesses [but] did not see evidence of other protective factors being in place ” and it concluded having taken account of all the evidence (including the views of professionals) that it remained necessary for the protection of the public that he should remain confined because of:(a) the high risk he posed of serious harm and violent offending and that this risk may be imminent if he were released at the time of the Panel Decision.;(b) the extent to which historic risk factors were still active and these included “ problems with treatment / supervision response; problems with violence; problems with anti-social behaviour and substance misuse and the impact of trauma ”;(c) his “ emotional and behavioural instability remain of particular relevance to [the Applicant’s] presentation and risk ”(d) its “concerns about [the Applicant’s] behaviour towards female staff and his sexualised behaviour, which may indicate problematic attitudes towards females, which may in turn be relevant to his risk ”(e) the fact that the Applicant “ continued to adopt a violent persona, as he had at the time of the index offence”(f) the Applicant’s custodial behaviour although it noted the psychologist‘s view that “much of his behaviour towards staff was attributable to hyper vigilance ”(g) the Applicant’s “ regular holding of unauthorised items and substance misuse ”;(h) the Applicant’s “ willingness to use anti-social behaviour to obtain Pregablin”(i) the Applicant’s need for “assistance and support in addressing these issues and this was core risk reduction work which was necessary before consideration could be given to release”(j) the Applicant’s “c ustodial conduct and presentation were too unstable for him to be suitable for a move to the community ” and in consequence(k) “ regardless of the support and controls which might be provided, the risk of harm which [the Applicant] presented could not be managed in the community at this time”. 25 The Panel then went on to consider whether it could recommend that the Applicant should be moved to open conditions. It concluded that that he could not satisfy the third limb of the test required to be satisfied before a move to open could be recommended for the Applicant. That limb states that “a period in open conditions is considered essential to inform future decisions about release and to prepare for possible release on licence into the community .” The Relevant Law Parole Board Rules 2019 (as amended) Irrationality 26.In R (DSD and others) v the Parole Board [2018] EWHC 694 (Admin) , the Divisional Court set out the test for irrationality to be applied in judicial reviews of Parole Board decisions. It said at para. 116, “The issue is whether the release decision was so outrageous in its defiance of 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. ” 27.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 indicate that in deciding whether a decision of the Parole Board was irrational, due deference had to be given to the expertise of the Parole Board in making decisions 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. 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[28]Procedural unfairness means that there was some procedural impropriety or unfairness resulting in the proceedings being fundamentally flawed and therefore, producing a manifestly unfair, flawed or unjust result. These issues (which focus on how the decision was made) are entirely separate to the issue of irrationality which focusses on the actual decision. 29.In summary an Applicant seeking to complain of procedural unfairness under Rule 28 must satisfy me that either:(a) express procedures laid down by law were not followed in the making of the relevant decision.(b) they were not given a fair hearing.(c) they were not properly informed of the case against them.(d) they were prevented from putting their case properly; and/or(e) the panel was not impartial. 30.The overriding objective is to ensure that the Applicant’s case was dealt with justly. Other 31.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. 32.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 craftsmanship." The reply on behalf of the Secretary of State 33.PPCS have indicated in an email dated 19 October 2022 that the Secretary of State “ offer[s] no representations in response to [the Applicant’s] reconsideration application”
. Discussion 34.In dealing with the irrationality ground for reconsideration, it is necessary to stress five matters of basic importance. The first is that the Reconsideration Mechanism is not a process by which the judgment of the Panel when assessing risk can be lightly interfered with. Nor is it a mechanism in which the member carrying out the reconsideration was entitled to substitute his view of the facts in place of those found by the panel, unless, of course, it is manifestly obvious that there was an error of fact of an egregious nature which can be shown to have directly contributed to the conclusion arrived at by the panel.[35]The second matter of material importance is that when deciding whether a decision of the Parole Board was irrational, due deference has to be given to the expertise of the Parole Board in making decisions relating to parole. 36.Third, where a panel arrives at a conclusion, exercising its judgment based on the evidence before it and having regard to the fact they saw and 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. 37.Fourth, when considering whether to order reconsideration, appropriate weight must be given to the views of the professional witnesses, but reconsideration cannot be ordered if the panel has put forward adequate reasons for not following the views of the professional witnesses. 38.Fifth, in many cases, there can be more than one decision that a panel can be entitled to arrive at depending on its view of the facts. As stated in paragraph 6 above, a decision concerning a recommendation to move to open cannot be the subject of a reconsideration application and accordingly the focus of the Applicant's ground will be limited to the decision to refuse release Ground 1[39]It is contended that the Panel hearing was procedurally unfair because an incorrect process was followed as on the day of the hearing. The Applicant contends that he was informed by the prison that the hearing room was booked until 7pm for the hearing, but that just before 5pm on the day of the hearing, the POM informed the Panel that “the hearing would need to end at 5pm”. In consequence, it is contended that “t he rest of the evidence was rushed” and that “[the Applicant,] who had been making notes throughout the evidence …was not able to comment on the evidence heard as time ran out”.[40]PPCS have offered no representations challenging these above6assertions and so it must be assumed for the purpose of appraising this Ground that the contentions of the Applicant are correct. The effect of the statement made at just before 5 pm that the parole hearing would need to finish at 5pm meant that the Applicant was prevented from putting his case properly as he not only was he prevented from using his notes he had made to comment on the evidence he had heard but also that other parts of the evidence were “ rushed ” which meant that the evidence was not scrutinised properly.[41]In other words, in the absence of any contrary submissions on this Ground, the Applicant’s parole claim did not meet the requirement of being “ dealt with justly”. In consequence, reconsideration has to be ordered in respect of the decision to refuse to release the Applicant and the Applicant’s remaining grounds for consideration can be dealt with more briefly than they would have been dealt with if it was not clear that reconsideration would be ordered. Ground 2 42 The contention is that the panel acted in a procedurally unfair manner as the Applicant did not realise that that he should have asked his solicitor (and not the OMU) about submitting the paperwork he wanted to provide and how to ensure that two witnesses (Governor and the Psychiatrist) he wanted to call could give evidence.[43]This allegation does not constitute an allegation of procedural unfairness as this problem for the Applicant arose as a result of his ignorance and his failure to obtain the requisite advice from his solicitor. This is different from procedural unfairness. So, reconsideration cannot be ordered on this ground. Ground 3[44]It is contended that the hearing before the Panel was procedurally unfair as the Applicant only received his dossier from the prison 6 days before the hearing and there was therefore insufficient time for him to submit his inconsistencies and errors in the paperwork. If a prisoner is given insufficient time to consider the case against him or her, this is capable of showing that the hearing was procedurally unfair. In the present case, it is contended that there was insufficient time for the prisoner to “ s ubmit his comments on the inconsistencies and errors in the paperwork.”[45]I have seen the dossier and in the absence of evidence, I considered how long it would have taken a prisoner to identify the errors and inconsistencies in the paperwork. I am quite satisfied that a period of 6 days was adequate time for the Applicant to do this. 46.It is noteworthy that it is not suggested that a complaint was made at the hearing that the prisoner had had insufficient time to prepare the case in the 6-day period in which he had the dossier and/or that he required additional time to identify the errors and inconsistencies. 47 I reject the contention that reconsideration should be ordered on this ground. Ground 4 48.This Ground is that the hearing was procedurally unfair as the Applicant “ had a number of documents that his solicitor was unaware that he wanted to produce to the Board, one of which was submitted during the hearing (a Consultant letter regarding Pregablin)”.[49]This allegation fails to appreciate that the Applicant had an obligation to produce all relevant documents to his solicitor and any failure on his part to do so is his fault and not the fault of the Parole Board. Reconsideration cannot be ordered on this ground. Ground 5[50]It is contended that the Panel Decision to refuse to release the Applicant or to recommend him for Open Conditions was irrational for a number of reasons including that the Panel’s failure to appreciate that when the Applicant had previously taken Pregablin, his behaviour was stable and that all witnesses including the psychologist, were supporting progression to open conditions and not enough focus was placed on the Applicant’s positive relationships with those managing him. 51 The Panel having heard and seen witnesses was entitled to conclude that it was necessary for the protection of the public that he remains confined and to make no direction for his release for the reasons set out in paragraph 24 above.[52]Further or alternative reasons why this Ground must be rejected are that:(a) due deference has to be given to the expertise of the Parole Board in making decisions relating to parole; and/or(b) where a panel arrives at a conclusion, exercising its judgment based on the evidence before it and having regard to the fact they saw and 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. No such compelling reasons have been put forward to justify ordering reconsideration; and/or(c) when considering whether to order reconsideration, appropriate weight must be given to the views of the professional witnesses, but reconsideration cannot be ordered if the panel has put forward adequate reasons for not following the views of the professional witnesses. In this case, adequate reasons are set out in paragraph 24 above. Decision[53]Accordingly, I do consider, applying the test as defined in case law, that the decision of the panel to be procedurally unfair. I do so solely for the reasons set out above in relation to Ground 1. The application for reconsideration is therefore granted. 54.I have given careful consideration to whether this case should be reconsidered by the original panel or whether it should be considered afresh by another panel. 55.I have no doubt that the original panel would be fully capable of approaching the matter conscientiously and fairly. However, the question of justice being seen to be done arises again. If the original panel were to adhere to its previous decision, there would inevitably be room for suspicion that it had simply been reluctant to admit that its original decision was wrong. However inaccurate or unfair that suspicion might be, it would be preferable to avoid it by directing (as I now do) that the case should be reheard by a fresh panel. Sir Stephen Silber 21 October 2022