Benwell, Application for Reconsideration [2022] PBRA 56 (10 May 2022) [2022] PBRA 56

PBRA
Benwell, Application for Reconsideration [2022] PBRA 56 (10 May 2022)
[2022] PBRA 56 · 2022-03-29
[1]This is an application by Benwell (the Applicant) for reconsideration of a decision of a Panel of the Parole Board (the panel) dated the 29 March 2022 not to direct release.[2]Rule 28(1) of the Parole Board Rules 2019 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 dossier and the decision letter, together amounting to 731 pages, and the grounds in support of the application. Background[4]On the 21 April 2011, the Applicant was sentenced to an extended determinate sentence comprising a custodial part of 10 years and an extended licence of 5 years for offences of robbery, false imprisonment and kidnapping. He and an accomplice kept the father of a man said to owe him money and two women confined in the man's house whilst they stole money and jewellery. A knife and an imitation handgun were used to facilitate the offences.[5]The Applicant had been released on licence and recalled twice. His sentence expiry date is the 20 April 2026.[6]The Applicant was aged 30 at the time of sentencing. He is now 41 years old. Request for Reconsideration[7]The application for reconsideration is dated the 17 April 2022.[8]The grounds for seeking a reconsideration are based on procedural unfairness and as follows:
"The panel informed the Applicant's solicitor it would take into account further relevant information which had come to light after the oral hearing (police information relating to the circumstances of the Applicant's recall and a psychological risk assessment), but then issued its decision without taking those matters into consideration."
Current parole review[9]The Secretary of State's referral required the panel to consider release. The oral hearing took place on the 17 March 2022 and was conducted by way of a telephone conference. The hearing had previously been adjourned on two occasions, the first time in order to obtain a psychological risk assessment. The panel heard evidence from the Prison Offender Manager, the author of the psychological risk assessment, and the Community Offender Manager. The Relevant Law[10]The panel correctly sets out in its decision letter dated the 29 March 2022 the test for release. Parole Board Rules 2019[11]Under Rule 28(1) of the Parole Board Rules 2019 the only kind of decision which is eligible for reconsideration is a decision that 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 19(1)(a) or (b)) or by an oral hearing panel after an oral hearing (Rule 25(1)) or by an oral hearing panel which makes the decision on the papers (Rule 21(7)). Procedural unfairness[12]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.[13]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 the panel was not impartial.[14]The overriding objective is to ensure that the Applicant's case was dealt with justly. The reply on behalf of the Secretary of State[15]The Secretary of State chose to make no representations in the case. Discussion[16]The Applicant had been released on licence on the 16 December 2019 and had been returned to custody on the 3 February 2020. Apparently, this was the second recall although the Secretary of State's referral at page 2 of the dossier describes it as the first recall.[17]On the 18 March 2020, the Parole Board considered re-release on the papers and recited a summary of the facts forming the basis of the alleged offence leading to recall and, on the basis of those allegations, found the recall justified.[18]Since then, the prosecution has offered no evidence against the Applicant and it appears the police have offered the Applicant compensation for wrongful prosecution.[19]The panel conducted an oral hearing on the 17 March 2020 and in due course issued a decision letter. At page 2 the letter states "In view of the court outcome, this offence was not weighed in the balance ... by the panel when considering its decision".[20]It is not pedantic to point out that the use of the word "offence" would be inappropriate if both the prosecution and the police now accepted no offence had been committed. It is unclear whether the panel ever considered the possible position that [a] the Applicant had not committed an offence nor acted in a way inconsistent with his licence conditions and so should not have been recalled and [b] there was therefore no evidence his risk had increased since release.[21]However, this point is not raised in the grounds in support of the application.[22]Curiously, and also on page 2, in red type the following sentence appears "Awaiting confirmation that he was referring to the recall matter". I have taken the view that the contents of a decision letter should be taken at face value, and it would not be right to ask the chair to explain further that sentence. It is not clear how important to the decision making process this information was, but the use of the word "Awaiting" raises the suspicion that this decision letter is not a completed and final document.[23]The grounds in support of the application state that on the 28 and the 29 March 2022, the Applicant's solicitor informed the Parole Board that the Applicant had been offered compensation for wrongful arrest and that he had just received a psychological assessment from prison psychologist which was said to be relevant to the decision.[24]On the 31 March 2022, the Parole Board responded on behalf of the panel chair by saying the panel had taken into account the police information although, given the parts of the decision letter quoted above, it is difficult to see how, and, that if the Applicant wanted the panel to take into account the assessment there would have to be a short adjournment "likely to be weeks rather than days so all the parties had the chance to respond ".[25]Importantly, the email said " Once the decision is issued, it is of course final unless an application is made using the reconsideration mechanism. Therefore, please can you let me have your reps by return, as regards the above points, as the release of the decision is imminent."[26]The assessment was sent to the Parole Board. The grounds do not give the precise date but there is no suggestion from the Secretary of State that the decision letter was issued because the assessment had not been sent in time.[27]On the 5 April 2022, the Parole Board sent the solicitor the decision letter refusing to direct release. The email continued, "I have taken advice from the Board's legal team, who advise that because the panel had already begun the process of agreeing the decision and had concluded that process in order to meet the decision deadline before learning that you wished to adjourn and could provide detailed information, we are not now able to revisit that decision as the Board is functus officio and cannot consider new information. The only option available now is an appeal via the reconsideration process."[28]The decision letter is dated the 29 March 2022. Plainly the chronology does not make sense and something has gone wrong. Essentially, the panel did not receive and so could not consider all the relevant facts relating to recall and, crucially, having raised a reasonable and legitimate expectation it would, the panel did not consider the assessment of prison psychologist.[29]It should be stated that there was an abundance of evidence to justify the panel refusing to direct release and it may be the facts of the recall and the contents of the assessment would not alter the panel's decision, but it is equally clear the panel had been contemplating an adjournment and further representations in respect of its contents.[30]It is crucial to the fairness of proceedings that all relevant evidence is considered by the tribunal. In this case, the panel acted fairly and correctly and made preparations for all the evidence to be considered properly but for some reason, not identifiable in the papers, it concluded the case without considering all the evidence.[31]In those circumstances the procedure was flawed. Decision[32]I consider, applying the test as defined in case law, that the decision was procedurally unfair. 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.[33]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.[34]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. James Orrell 10 May 2022