Madden, Application for Reconsideration by the Secretary of State for Justice [2023] PBRA 148 (03 December 2023) [2023] PBRA 148

PBRA
Madden, Application for Reconsideration by the Secretary of State for Justice [2023] PBRA 148 (03 December 2023)
[2023] PBRA 148 · 2023-07-10
[1]This is an application by the Public Protection Casework Section (PPCS) Reconsideration Team on behalf of the Secretary of State (the Applicant) to reconsider the Parole Board Member's decision issued on 10 July 2023 (the Panel Decision) to release Madden (the Respondent).[2]Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2022) ) provides that applications for reconsideration may be made in eligible cases (as set out in rule 28(2)) either on the basis(a) that the decision contains an error of law, and/or(b) that it is irrational and/or(c) that it is procedurally unfair.[3]I have considered the application on the papers. These are the panel decision, the application for reconsideration of the panel decision, the email dated 4 August 2023 from the Respondent's legal representative containing the response to the application for reconsideration and the dossier containing 180 pages.[4]The grounds for seeking reconsideration are that it was irrational for the panel member: 1) To conclude on the limited written evidence provided to the panel member that it was safe to release the Respondent after a paper hearing when there had been no consideration of whether there had been an assault committed by the Respondent, and when there had not been an oral hearing which would have allowed the panel to consider the concerns of the senior probation officer (SPO) and explore aspects of the recall incident which had not been addressed within the dossier (Ground 1). 2) To refer to evidence that is not contained within the parole dossier or make an inference that the evidence in the parole dossier exonerated the Respondent (Ground 2). 3) Not to provide sufficient and/or adequate reasons to explain why it decided not to follow the recommendation of the report writer (Ground 3). Background[5]On 13 January 2012, the Respondent, who was then 21 years of age, received concurrent indeterminate sentences of imprisonment for public protection for offences of rape, false imprisonment, and attempted arson with intent to endanger life with a tariff of 3 years and 145 days. On the same day, he received a concurrent sentence of 3 years' imprisonment for an offence of administering a noxious substance. At the time when the index offences were committed, the Respondent was subject to a community order for harassment.[6]The victim of the index offences was a 16-year-old girl with whom the Respondent had been having a relationship. On the day of the index offences, the Respondent and the victim had sexual intercourse and a point came when the victim became distressed and asked the Respondent to stop. He continued to have sexual intercourse and thought that the victim had given her consent again although he did not ask her and he did not stop.[7]The Respondent threatened the victim with a knife, doused the victim with turpentine, and he lit a piece of paper to frighten the victim. He did not accept that he had a knife. The Respondent did not think at the time that he had unlawfully imprisoned his victim, but by the time of the hearing before the panel, he had appreciated that his intimidating actions would have prevented his victim from leaving and so his conduct would constitute unlawful imprisonment. When questioned by the panel member, the Respondent continued to deny all elements of his offending except to admit the dousing of his victim.[8]The Respondent has a significant past criminal record which includes convictions for robbery in 2008 and for harassment of one of his former partners in 2010. He had also committed offences of assault and had failed to comply with court orders. When the jury delivered their verdicts for the index offences, the Respondent's reaction was to assault the two officers leaving them on the floor when he went down to the cells.[9]In 2018, the Respondent was released on licence on the direction of the Parole Board, and following release, his attendance at appointments and supervision was very good. There were no concerns about the Respondent's conduct until 10 February 2023 when the Respondent's brother alleged that the Respondent had attacked him and tried to strangle him. As a result, the Respondent was arrested, charged, and recalled to custody on 13 February 2023. The panel member concluded that the decision to recall the Respondent appears to have been " appropriate ".[10]The SPO did not support the Respondent's release in the absence of further information relating to the allegation by the Respondent's brother that the Respondent had tried to strangle him. The SPO considered that further relevant information would be required from the police for him to fully assess the risk posed by the Respondent and his suitability for release.[11]The panel member then explained that " since the allegation [of the attempted strangulation] was made, the charges have been dropped and it has come to light in evidence from [the mother of the Respondent and of his brother who he allegedly tried to strangle] that [the Respondent's brother] has mental health difficulties and that the allegations may have been false. There is no reliable evidence to suggest [the Respondent] committed any offences, and he denies that he did. Therefore, the benefit of any doubt is given to him against his record of very good compliance for several years in the community."[12]The panel member summed up the Respondent's conduct by observing that " having been released in 2018, he was reportedly doing very well until what now appears to have been a false allegation of assault was made by his brother [and] although charged, charges were withdrawn when evidence emerged which tended to exonerate the Respondent ". There had been no consideration by the panel member of the circumstances of the alleged assault or the risk posed by the Respondent. The Relevant Law[13]In dealing with the grounds for reconsideration in this application, it is necessary to stress five matters of basic importance.[14]First, in determining whether to direct reconsideration, the Parole Board adopts the same test for irrationality as the High Court adopts on an application for judicial review: see, for example Preston [2019] PRBA 1 .[15]Second, a decision will be irrational if it is " outside the range of reasonable decisions open to the decision-maker ", which is the "Wednesbury unreasonable" test ( Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 ) . It will also be irrational if " manifestly disproportionate or inadequate weight has been accorded to a relevant consideration ". ( See R (Gallagher) v Basildon DC [2011] PTSR 731 [31] and [41]) .[16]Third, a decision may be irrational where a panel has failed to give sufficient reasons for its decision. The importance of giving reasons was reiterated in R (on the application of Stokes) v Parole Board [2020] EWHC 1885 [35] (Admin) . In that case, the court cited the following explanation given by Lord Carnwath in Dover District Council v CPRE Kent [2017] UKSC 79 [51] for the need to give reasons in public law decision-making when he stated that:
" I think it important that there should be an effective means of detecting the kind of error which would entitle the court to intervene, and in practice I regard it as necessary for this purpose that the reasoning of the [decision maker] should be disclosed... It is to be noted that a principal justification for imposing the duty was seen as the need to reveal any such error as would entitle the court to intervene, and so to make effective the right to challenge the decision by judicial review."
[17]Fourth, it follows that a panel of the Parole Board, before ordering the release of a prisoner must be entitled to conclude from the limited written evidence provided to the Panel that it was safe to release the Respondent. The panel would not be entitled to reach that conclusion after a paper hearing where there had been an " unexplained evidential gap or leap ": see the decision of Saini J in R (on the application of Wells) v Parole Board [2019] EWHC 2710 (Admin) , or where manifestly disproportionate inadequate weight had been accorded to a relevant consideration because in those situations the decision would be irrational as explained in paragraph 14 above.[18]Fifth, as Lord Reed explained when giving the judgment of the Supreme Court in Osborn v Parole Board [2013] UKSC 61 [2] , the situations " in which an oral hearing will be necessary. will often include [circumstances] w here facts which appear to the Board to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility. The board should guard against any tendency to underestimate the importance of issues of fact which may be disputed or open to explanation or mitigation ." The reply on behalf of the Respondent[19]The Respondent's legal representative contended in their response to the application for reconsideration that the panel's direction for release was not outside the range of reasonable decisions open to the decision maker and therefore was not irrational because for among other reasons: (a)The Respondent had conformed to the conditions of his licence conditions for half a decade without a single concern being raised; (b) a decision had previously been made allowing him to be released from open conditions following an oral hearing at which it was held that he posed no risk when not in a relationship and there was no reason for the panel member to depart from that previous assessment of the oral panel; (c) he remained compliant with the police investigation; (d) the Respondent's brother, the alleged victim of the attempted strangulation, declined to provide police with a statement and so it is contended that there was no reliable evidence that an offence had been committed; (e) the prosecution reviewed the evidence in the light of the Respondent's plea of not guilty and the case was adjourned for trial and when the Crown Prosecution Service (CPS) reviewed the evidence, they made the decision to offer no evidence and he was formally acquitted as there was no evidence that he had committed an offence; (f) in the circumstances there was no further evidence to be obtained and considered as the allegation leading to recall was unproven; (g) the assessment of the statement of The Respondent's mother is irrelevant; (h) the Risk Management Plan (RMP) has been accepted as appropriate and the Respondent has proved that he is willing and able to remain compliant; (i) there is a positive recommendation contained within the Part B report; (j) " directing an oral hearing would cause an unnecessary delay and be irrational in itself given the current oral hearing listing time frames "; and (k) the Respondent should be released as he does not pose an imminent risk and the application for reconsideration should not be accepted. Ground 1[20]It is contended that it was irrational for the panel member to conclude on the limited written evidence provided to him that it was safe to release the Respondent after a paper hearing when there had been no consideration of whether there had been an assault and there had not been an oral hearing which would have allowed the panel to consider the concerns of the SPO and explore aspects of the recall incident which had not been addressed within the dossier. The issue is whether the decision to conclude that it was safe to release the Respondent was irrational in the light of the material considered by the Panel or whether in the absence of evidence relating to the assault from the police and other witnesses there was what Saini J described as an " unexplained evidential gap or leap " and/or whether manifestly inadequate weight has been accorded to a relevant consideration.[21]The fact that there was no evidence in the police's possession which could have established the guilt of the Respondent in a criminal trial did not relieve the authorities and the Panel from its separate crucially important duty to determine whether it was safe to release the Respondent and that duty would entail carrying out a proper investigation to see what can be discovered. Indeed, there are, for example, many cases in which there have been allegations of serious violence in domestic relationships in which the victims later refused to give evidence and in consequence a verdict of " not guilty " had to be entered. In such cases, it does not follow that this verdict means that it must therefore be safe to release the alleged offenders without, for example, the authorities carrying out further and separate investigations to discover what happened, what did not happen or what had been threatened to discover what risk would be posed by the offender if he were to be released.[22]Indeed, it is noteworthy that in the case of the Respondent, the SPO was unable to support his release without further information from the police regarding the allegation which led to the recall. The SPO considered that he would need further information from the police in order to fully assess the Respondent's risk and his suitability for release. Such information would have included the police's account of contact with the witnesses present at the time of the assault, an account of what the police were told when summoned to the scene of the assault and any further information which showed why the police decided to withdraw allegations against the Respondent.[23]Indeed, these matters which I will call " the outstanding SPO evidence " were matters in respect of which the Panel Member should have sought information before deciding whether it was safe to release the Respondent. The failure to do so was what Saini J described as an " unexplained evidential gap or leap " and therefore irrational. An alternative way of reaching that conclusion was that the panel member had acted irrationally in failing to investigate these outstanding matters which showed that " manifestly disproportionate or inadequate weight has been accorded to a relevant consideration".[24]A further matter of concern is that the panel attached importance to the witness statement of the Respondent's mother that the Respondent's brother had mental health difficulties, but it did not consider her reliability in the light of her close family relationship with the Respondent, or the nature and effect of the alleged mental illness suffered by the Respondent's brother. These were important matters which should have been explored before the panel reached its conclusions; they could and should have been more effectively considered especially as that evidence would have been relevant to the issue of whether the Respondent was violent and/or was likely to be violent in the future. Therefore, my conclusion is that this was a further example of an " unexplained evidential gap or leap" in the panel member's reasoning and or a further instance of a failure to investigate or of " manifestly disproportionate or inadequate weight " having been accorded to a relevant consideration.[25]If (which is not the case) I had any doubt on reaching that finding that the panel member's decision was irrational for those reasons, I would have reached the same decision that his decision was irrational because for other reasons there was what Saini J described as an " unexplained evidential gap or leap " and/or a failure to investigate other matters which showed that " manifestly disproportionate or inadequate weight has been accorded to a relevant consideration" . Those other reasons, which I will call " the Community Offender Manager's (COM) reasons " were specified by the COM's report (which was completed on behalf of the COM by the SPO) of 26 June 2023 in which it was explained that on that date which preceded the panel member's decision that there was insufficient material to make a final assessment of the risk posed by the Respondent. I do not know if the panel member had seen the COM's report or the COM's reasons before coming to the panel decision, but the crucial fact is that the COM's reasons show what a professional considered to be lacking in the material then available to enable a decision to be made as to whether it was safe to release the Respondent. This is important because the panel member also did not have the COM's reasons open to him when he made his decision.[26]The COM's report explained that there were:
"A number of outstanding sources of information which will assist in making a final assessment of risk, the likelihood of compliance and re-release suitability [and] these include to request from [the police]; the reason the charge had been withdrawn; a copy of the 999 transcript to understand who contacted the police, what was shared with and heard by the operator; accounts from the police officers on response in terms of what did they observe when they arrived [at the scene of the alleged assault]; and " to contact with the mother, sister, and brother where possible to understand their accounts of the alleged assault, consider safety planning which may include potential non-contact /exclusion conditions of the family home."
[27]I regard the COM's reasons and the outstanding SPO evidence as being the matters which any reasonable panel member should have considered when deciding it was safe to release the Respondent even if he had not read the COM's report of 26 June 2023. The failure by the panel member to consider these matters was irrational and led to there being what Saini J described as an " unexplained evidential gap or leap " in the reasoning and/or it showed that "manifestly disproportionate or inadequate weight has been accorded to a relevant consideration ".[28]A further and alternative reason why the Applicant contends that the panel decision given without the benefits of an oral hearing was irrational because in the words of the application for reconsideration:(a) "An oral hearing may have been more appropriate to hear this case thoroughly and fairly, in order to fully apply a robust release test and test the evidence.";(b) "An oral hearing would have allowed a panel to fully consider the SPO's concerns via oral evidence, explore aspects of the recall incident which have not been addressed within the dossier, the authenticity of the witness and her statement, and hear oral evidence from [the Respondent]";(c) "It would have provided the opportunity to direct and consider any risk-related evidence by the Police in regard to the recall incident"; and(d) "[therefore] in lieu of the Panel not taking the opportunity to consider further relevant evidence...the test for release and ultimately the decision to release [the Respondent]."[29]Each of these points are correct, but there is no evidence of the reasons why an oral hearing was not ordered by the panel member or indeed if the panel member actually considered holding an oral hearing notwithstanding the fact that evidence that would have emerged from such a hearing would be likely to have been of crucial relevance to whether it was safe to release the Respondent. This is significant because the long-established principles laid down by the Supreme Court in the decision in Osborn show why an oral hearing would have been required in this case and they include, as explained in paragraph 17 above situations " in which an oral hearing will be necessary will often include [circumstances] w here facts which appear to the Board to be important are in dispute." In this case, the oral hearing would have been necessary to determine the important facts of whether and how, if at all, the Respondent attempted to strangle his brother in February 2023.[30]Those principles are totally inconsistent with the submission of the Respondent's legal representative made in response to the reconsideration grounds that it would not be wrong to refuse to order an oral hearing as it " would cause an unnecessary delay and be irrational in itself given the current oral hearing listing timeframes." This response is totally inconsistent with the Osborn principles.[31]For all these reasons, this reconsideration has to be ordered as first, it was irrational to conclude that it was safe to release the Respondent on the limited material before the panel member in the absence of crucial information necessary to determining whether it safe to release the Respondent. Second, it was irrational not to hold an oral hearing which would or could have provided crucial information which was necessary to determine whether it safe to release him. Therefore, reconsideration must be ordered on either of these bases. As the decision to release the Respondent will in any event have to be reconsidered, I can deal with the remaining grounds relatively briefly. Ground 2[32]This ground is that it was irrational for the panel to refer to evidence that was not contained within the parole dossier or draw an inference that the evidence in the parole dossier exonerated the Respondent.[33]Paragraph 4.2 of the decision states of the Respondent that " Although charged, charges were withdrawn when evidence emerged which tended to exonerate [the Respondent] ". This suggests that the event triggering the decision to withdraw the charges against [the Respondent] occurred " when evidence emerged which tended to exonerate [the Respondent] ". In other words, there was some crucial evidence which emerged which led to the charges being withdrawn.[34]It has not been possible to identify from the panel decision what that evidence was and so there was in Saini J's words " unexplained evidential gap or leap ". This ground succeeds and constitutes a further reason why reconsideration must be ordered as it was irrational for the panel not to explain what this evidence was. Ground 3[35]This ground is that it was irrational for the panel not to provide sufficient and/or adequate reasons to explain why it decided not to follow the recommendation of the report writer which did not support release based on the lack of information available at the time of the paper hearing regarding the recall. The lack of information also resulted in concerns about the effectiveness of the proposed risk management plan, including the, '...suitability of this address... an alternative address may need to be proposed'.[36]The panel placed unsubstantiated weight on the police's decision to withdraw the charge of non-fatal strangulation, but failed to explain why further it did not seek to obtain what I have described as the outstanding SPO evidence and the COM's reasons. So, this ground succeeds, and reconsideration must be ordered. Decision[37]Therefore, reconsideration of the panel decisions as for the reasons explained it was irrational to conclude that it was safe to release the Respondent on the material before the panel member and or not to hold an oral hearing. Sir Stephen Silber 21 August 2022