Cekic, Application for Reconsideration by, [2022] PBRA 55 (4 May 2022) [2022] PBRA 55
PBRA
Cekic, Application for Reconsideration by, [2022] PBRA 55 (4 May 2022)
[2022] PBRA 55 · 2022-03-17
[32]15.The Applicant submits that the Decision is procedurally unfair and irrational in its treatment of the incident that led to his return to closed conditions from open conditions in October 2021 and he notes that an allegation that he assaulted another prisoner at that time was not proven. However, it is acknowledged in the decision, reasons that the allegation was unproven and the concern that is expressed in the reasons that the incident evidenced poor emotional control, and deficits in the Applicant's problem-solving skills is fair and rational on the Applicant's own account of events shortly before his return to closed conditions. 16.The Applicant submits, essentially, that the concerns expressed in the decision reasons regarding his ongoing animosity towards the victim were irrational and that it was procedurally unfair to give weight to an allegation that he was involved in a recent attack on the victim. He submits that there was no basis for the concerns on the part of his Community Offender Manager that are referred to in the Decision that he continues to hold negative feelings towards the victim, and he refers to reports in the dossier that he has displayed genuine remorse towards the victim, which post-date the previous review by the Board and which are not referred to in the decision reasons (see pages 95, 106, 327). It is stated in the decision reasons that the panel was 'particularly concerned about the intelligence report suggesting that [the victim of the index offence] had been the victim of an assault, possibly linked to [the Applicant]' , and also that the Applicant has questioned the necessity of the exclusion zone, evidencing little empathy towards the victim's request. However, the decision reasons plainly attach material weight to the allegation, which is unproven and was not subject to any fact-finding exercise by the Board. Such an allegation should have been subject to a fact-finding exercise or disregarded: Pearce, R (On the Application Of) v Parole Board of England and Wales & Anor [2022] EWCA Civ 4 . The same error is made in relation to the concerns expressed in the decision reasons regarding persistent security reports suggesting involvement in mobile phones and drugs, which is not corrected by the acknowledgment that none of the reports had been corroborated. 17.The decision reasons state that the Board was concerned by the Applicant's apparent reluctance to comply with the proposed exclusion zone, which is a rational concern. 18.However, the decision reasons also state that the Board considered that the absence of any overnight releases on temporary licence meant that the Applicant had not been sufficiently tested in the community. I consider that that conclusion is marred by the irrational approach to unproven allegations that is described above. 19.I note that the Applicant requested through his representatives shortly before the hearing that his case be concluded on the papers, on the basis that continuing with the review would not be effective given the recommendation made by the Probation Service together with Approved Premises requiring an Adult Social Care Assessment and the timescales for these to be explored. However, it is not in the gift of a prisoner to request that their review is discontinued, and a request for a review to be concluded without a hearing does not preclude a request for reconsideration of the decision on a review, whether or not it is concluded following an oral hearing (which need not involve the attendance of the prisoner or their representative). Decision 20.Reconsideration is accordingly directed. Timothy Lawrence 4 May 2022