Reid, Application for Reconsideration by, [2023] PBRA 15 (23 January 2023) [2023] PBRA 15

PBRA

Reid, Application for Reconsideration by, [2023] PBRA 15 (23 January 2023)

[2023] PBRA 15 · 2022-12-10

[1]This is an application by Reid ('the Applicant') for reconsideration of the decision of a panel of the Parole Board ('the panel') which on 10 December 2022, after an oral hearing on 2 December 2022, issued a decision not to direct his release on licence.

[2]I am one of the members of the Parole Board ('the Board') who are authorised to make decisions on reconsideration applications, and this case has been allocated to me. Background and history of the case

[3]The Applicant is aged 59. He has a substantial criminal record which includes convictions for wounding with intent (the 'index offence') and a number of offences of assault occasioning actual bodily harm and threatening behaviour. He suffers from significant mental health problems, problematic personality traits and an addiction to Class A drugs.

[4]In November 2002, at the age of 38, he received a sentence of life imprisonment for the index offence. The circumstances of that offence have been summarised as follows in decisions of the Board: He had gone to the flat of his male adult victim, which was situated below his own believing him to have stolen money from him. He kicked open his door and entered armed with a knife and proceeded to stab him in the chest, neck and stomach. It is reported that any of those wounds could have proved fatal without prompt medical attention. He had, at that stage, already been diagnosed with [a mental health condition]. He had stopped taking his medication and had also been using heroin . Having committed the offence, he presented himself at a forensic psychiatric hospital.

[5]The Applicant's tariff was set at 5 years. He was released on licence in May 2015 but recalled to prison in December 2019 as a result a return to drug use and concerns about his behaviour. He has remained in prison since then. In April 2021 a panel of the Board, after an oral hearing, decided not to direct his re-release on licence and not to recommend a move to open conditions.

[6]It is convenient at this point to mention that the Applicant has been detained in psychiatric units before and during this sentence.

[7]The present review of his case by the Board commenced in November 2021. In April 2022 a MCA panel directed that the case should proceed to an oral hearing.

[8]At the oral hearing on 2 December 2022 evidence was given by the Applicant and by three professional witnesses. The professional witnesses were: - A prison psychologist (Ms D); - The official responsible for supervising the Applicant in prison (Ms W); and - The official prospectively responsible for supervising him in the community if and when he is released on licence (Ms S).

[9]The panel's decision was issued on 10 December 2022, and this application for reconsideration of that decision was submitted by the Applicant's solicitors on 28 December 2022. The Relevant Law The test for release on licence

[10]The test for release on licence is whether the Applicant's continued confinement in prison is necessary for the protection of the public. The rules relating to reconsideration of decisions 11.Under Rule 28(1) of the Parole Board Rules 2019 (as amended in 2022) a decision is eligible for reconsideration if (but only if) it is a decision that the prisoner is or is not suitable for release on licence. 12.Reconsideration will only be directed if one of more of the following three grounds is established:(a) It contains an error of law

(b) It is irrational

(c) It is procedurally unfair. 13.A decision that a prisoner is or is not suitable for release on licence is eligible for reconsideration whether it is made by: (i) A paper panel (Rule 19(1)(a) or (b)); or (ii) An oral hearing panel after an oral hearing, as in this case, (Rule 25(1)); or (iii) An oral hearing panel which makes the decision on the papers (Rule 21(7)). 14.The decision of the panel in this case not to direct release on licence is thus eligible for reconsideration. It is made on the ground of irrationality. No error of law or procedural unfairness is suggested. The test for irrationality 15.In R (DSD and others) v the Parole Board

[2018] EWHC 694 (Admin)

( the " Worboys case "), the Divisional Court set out the test for irrationality to be applied in judicial reviews of Parole Board decisions. It stated at paragraph 116 of its decision: "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." 16.This was the test which had been set out by Lord Diplock in CCSU v Minister for the Civil Service

[1985] AC 374

and applies to all applications for judicial review. 17.The Administrative 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 Board in making decisions relating to parole. 18.The Parole Board, when deciding whether or not to direct a reconsideration, adopts the same high standard as the Divisional Court for establishing ' irrationality '. The fact that Rule 28 uses the same adjective as is used in judicial review cases in the courts shows that the same test is to be applied. The application of this test to reconsideration applications has been confirmed in previous decisions under Rule 28: see, for example, Preston

[2019] PBRA 1

. The request for reconsideration in this case 19.The solicitors submit that a number of factors were present in this case which the panel failed to consider (or to apply to its assessment of the Applicant's risk of serious harm to the public). These factors were described by the solicitors as follows: (1) There is no evidence of any recent use of substance misuse, which has been determined as the Applicant's main risk factor; (2) The Applicant's behaviour in prison has generally been good: Ms W confirmed that he is an enhanced prisoner, remains in employment and receives positive entries. (3) Accommodation has been confirmed within Ms S's updated report. (4) There is no further core risk reduction work required for the Applicant to complete in closed conditions. (5) The risk posed by the Applicant is not imminent. (6) There would be clear warning signs before risk became imminent. (7) The Applicant has evidenced a degree of insight into his offending, and internal protective factors to evidence a reduction in risk. (8) The Applicant has evidenced a willingness and motivation to comply with the requirements of his licence. (9) The Applicant has evidenced that he is open and honest, and he has built up a relationship with the professionals who would be managing him in the community. The Secretary of State's (The Respondent) position

[20]The Public Protection Casework Section of the Ministry of Justice ('PPCS') have stated on behalf of the Respondent by e-mail that she offers no representations in response to the application. Documents considered

[21]I have considered the following documents which have been provided for the purpose of this application:(a) The dossier provided by the Secretary of State for the Applicant's case, which runs to 291 numbered pages;

(b) A copy of the panel's decision letter;

(d) The e-mail from PPCS referred to above. Discussion 22.It is convenient to consider in turn each of the factors relied upon by the solicitors. Some of them are stronger than others, and they need to be set against other factors identified by the panel in its decision. (1) There is no evidence of any recent use of substance misuse, which has been determined as the Applicant's main risk factor 23.It is to the Applicant's credit that he has managed to abstain from illegal drugs since his recall to prison, a fact of which the panel was fully aware and clearly took into account. The panel recorded in its decision that he is currently on a methadone script to manage his addiction, and that he hopes that if released the script will be changed to Subutex to enable him to remain free from illegal substances. 24.The Applicant's abstinence from illegal drugs in prison is certainly a factor in his favour. However, against it must be set the fact that when he was on licence in the community he did, after a lengthy period of abstinence from illegal drugs, relapse into the use of Class A drugs which resulted in a deterioration in his behaviour. If he had not been recalled there would clearly have been a significant risk of further serious violence. (2) The Applicant's behaviour in prison has generally been good: Ms W confirmed that he, as an enhanced prisoner, remains in employment and receives positive entries. 25.The Applicant has certainly remained in employment, receiving good reports for his work, which is to his credit. He has also received a number of positive entries, mainly for his performance at work. 26.However, as the panel recorded in its decision, since 2019 he has also attracted a large number of negative entries. The most recent report in the dossier of his progress in custody refers to 4 positive entries and 6 negative entries between April and August 2022. As recorded by the panel in its decision, Ms W told the panel at the hearing that since August 2022 there had been 5 more positive entries and one more negative one. 27.Whilst the Applicant has generally maintained enhanced status, in April 2021 he lost it for a time after receiving proved adjudications for (a) destroying or damaging prison property (b) using threatening, abusive or insulting words and behaviour towards staff (apparently in telephone calls when he believed he had been burgled and complained that the staff had not told him) and (c) disobeying a lawful order. In September 2022 he lost his enhanced status again, as a result of three further reports of threatening and abusive behaviour towards staff. 28.Many of the negative entries related to threatening or aggressive behaviour towards staff (often associated with a deterioration in the Applicant's mental state or his difficulty in coping with stress). The incidents in April 2021 which led to his loss of his enhanced status followed the adverse decision of the panel which had considered his case at that time. 29.Ms W gave evidence to the panel about her own experiences of her dealings with the Applicant. As recorded in the panel's decision she stated that their working relationship had been inconsistent and depended on how mentally well he was. She explained that on some occasions he did not want to engage and on others he did and they had good conversations. Recently, she said, it had been difficult to engage him, and he had become angry, derogatory and threatening towards her. This behaviour seemed to be related to his beliefs (a) that he did not require a psychological risk assessment and (b) that Ms W was not doing enough to help him to find a post office account which he believed he had in the community. 30.Ms D had a similar experience of dealing with the Applicant. She interviewed him on 4 occasions in July 2022. She summarised his presentation in her report as follows:

"Overall, [the Applicant's] presentation has been varied and unpredictable, ranging from verbal aggression to friendliness at the extremes. It was encouraging that he continued to engage with interviews despite the emotional impact, and that he was always on time and well-prepared. In my opinion, it is likely that [the Applicant] found the interview process stressful, and this resulted in emotional arousal that may not have been seen under other conditions, such as a brief wing encounter. According to [the Applicant], it was me asking questions he felt were repetitive that triggered the instance of verbal aggression ... . In my opinion, [the Applicant] presented as though he was struggling with his mental health; he was unfocused, ruminating on perceived wrongs, struggled to manage his emotions, and his speech was disorganised." 31.Ms D also wrote in her report that in interview the Applicant exhibited periods of rumination, focusing on money he believes he has in a Post Office account, past experiences of being robbed and burgled, and ways in which he believes he has been wronged by the judicial system. He believed that a psychiatric report written at the time of his sentencing was responsible for him receiving a life sentence, and he spent considerable time in the interview trying to discredit the author of that report. 32.Similarly, he accused the Parole Board of ' delaying tactics' in deferring his oral hearing. Ms D and Ms W tried to explain that that was not the case but he was adamant that it was. He said that he had dismissed his previous legal representative because he blamed her for not challenging the Parole Board's decision to direct a psychological report. He presented as very rigid in his thinking in that regard, and it was difficult to correct factual inaccuracies. Likewise, it was difficult to focus him in interview, as he would often begin answering the question but move quickly on to unrelated rumination. These difficulties were of course indicative of the Applicant's personality and mental health difficulties. 33.Ms S has known the Applicant since 2015. In her report she painted a similar picture to that painted by Ms S and Ms D. She wrote: "

The conclusion from the professionals involved in this case is that it is considered that when [the Applicant's] mental health is not managed effectively, he struggles to regulate his emotions and implement learned skills effectively. When unwell, his thinking and behaviour is affected considerably, impacting those around him significantly in a negative manner. There are a number of examples in which [the Applicant] has been verbally abusive and used aggressive language and demonstrated unpredictable, threatening behaviour. When unwell, he is also recorded as presenting as being unfocused, he ruminates on perceived wrongs and struggles to manage his emotions. He has a tendency to be erratic and blame others when unwell. He has also used sexually inappropriate language towards female staff members and made bizarre comments. He can also become suspicious and paranoid which leads him to find it difficult to trust others and this in turn leads to social isolation and problems in his relationships with others...When his mental health is well managed, his behaviour and attitude is much improved. He is capable of demonstrating remorse, is friendly, respectful and polite and is willing to engage." 34.The experiences of the professional witnesses were echoed by the Applicant's presentation when he gave evidence to the panel. The panel recorded in its decision that throughout the hearing he 'came across as fixated on money, not having enough, people taking his money, not helping him find his post office account, and making money'. At times it became challenging to keep him focussed and to answer the questions the panel required to be answered, as opposed to what he wanted to tell the panel. (3) Accommodation has been confirmed in Ms S's updated COM report. 35.The accommodation confirmed was a standard probation hostel. The panel was not satisfied that a standard probation hostel would be capable of managing the Applicant's complex mental health needs. This was a reasonable conclusion on the evidence. 36.In addition, vulnerability is one of the Applicant's risk factors and Ms D and Ms S both told the panel in evidence that they believed that he would find living in a probation hostel difficult and other residents might take advantage of him. Ms D said that that concern was evidenced by the fact that he had allowed other prisoners to use his PIN in prison (see paragraph 50 below). (4) There is no further core risk reduction work required for the Applicant to complete in closed conditions. 37.This was agreed to be the case. It was a significant point in the Applicant's favour and was recognised by the panel. If the Applicant had needed to complete any further core risk reduction work in closed conditions, he would certainly not have met the test for re-release on licence. 38.However, the fact that there was no outstanding core risk reduction work, whilst a point in the Applicant's favour, was far from a conclusive one. There are often cases where there is no outstanding core risk reduction work but there are other reasons why the test for re-release is not met. The panel believed that to be the case here. (5) The risk posed by the Applicant is not imminent. 39.The evidence on this point was not as clear as this submission perhaps suggests. It was summarised as follows by the panel: [Ms W] did not assess [The Applicant] as an imminent risk of serious harm, but [said that] it would increase to high if he stopped taking his medication or started using illicit substances. [Ms S] said that she was not able to assess the imminency of his risk of serious harm, but added that his initial release would be destabilising but he would have additional support and would need to be open and honest with professionals managing him. [Ms D] said that [the Applicant] has different engagement styles and can go from being friendly and polite to being verbally aggressive. In relation to how his presentation could manifest into his risk in the community, [Ms D] believed that verbal aggression would be likely, and specifically if he does not like an answer to a question, feels let down, or events he has no control over, all of which would be regular events in the community. She believed that a verbal incident could escalate to physical aggression, such as violence towards property and/or the person ... The imminency of his violence would be verbal aggression, and if that did not resolve the matter, then it could result in physical violence. Recent behaviour she had witnessed, if demonstrated in the community, could result in an imminent risk of serious harm, and this is predicated [on the fact] that people may not be able to identify that his verbal violence could become physical. 40.If the Applicant's risk had been assessed as imminent, it would have been difficult to say that he met the test for re-release on licence. The fact that (with the above qualifications) his risk was not assessed to be imminent, whilst a point in the Applicant's favour, was again far from a conclusive one. The Board is not confined to assessing a prisoner's risk in the short term: it is required to look further into the future and to decide whether he poses a longer-term risk to the public. (6) There would be clear warning signs before risk became imminent 41.Ms S told the panel that she believed warning signs of his risk increasing would be identifiable and would include changes in his presentation, irritability, paranoia, bearing grudges, being sensitive to setbacks, agitation and substance misuse. 42.Some of these factors have at times been familiar features of his presentation in prison and it might perhaps not be too easy for Ms S or any other professionals in the community to detect a significant deterioration in his presentation evidencing an increase in risk. Nevertheless, Ms S's evidence on this point is positive and is properly relied upon by the solicitors. The panel was clearly aware of it and must have taken it into account in its risk assessment. (7) The Applicant has evidenced a degree of insight into his offending, and internal protective factors to evidence a reduction in risk 43.In its decision the panel (which had had the advantage of hearing the Applicant give evidence) stated that 'During the hearing [the Applicant] demonstrated some insight into his mental health, but limited insight into his violent offending.' The evidence would seem to support that view. 44.Ms W told the panel that she believed the Applicant's protective factors are his awareness of his mental health needs, routine, and motivation and drive to be released from prison and get his life back. Ms D said that she believed his protective factors to include his motivation for work, and positive feedback from his employment (despite being signed off as medically unfit) and his willingness to engage with professionals. 45.The panel concluded that whilst the Applicant's intentions were good there was a significant risk that in practice he might find it difficult consistently to employ his learning and give effect to his good intentions, and there would have to be a heavy reliance on external controls. This view was justified by the Applicant's repeated difficulty in putting his learning into practice in the controlled prison environment. (8) The Applicant has evidenced a willingness and motivation to comply with the requirements of his licence. 46.Ms S told the panel that she believed that that Applicant was likely to comply with supervision on licence, because historically he had done so and he was aware of the consequences should he fail to comply. 47.He had certainly complied with supervision on licence for a substantial time, which was greatly to his credit and a factor which carries a good deal of weight in his favour. However, it has also to be taken into account that he eventually found it impossible to maintain that level of compliance, necessitating his recall. 48.The danger is, of course, that one or more of his triggers might at any time come into play and spoil his compliance. Ms W identified his triggers as (a) ruminations about money (which was linked to the index offence, and has continued in custody), (c) drug use (but there has been no evidence of illicit use in custody), (c) deteriorating mental health and (d) an increase in frustration and stress. Ms D identified them as (a) perceived injustice (b) finances (c) the parole process (d) housing options in the community (e) feeling unfairly treated (f) substance misuse and (g) lack of control that increases his frustration. Ms S added hopelessness as a result of frustration and anger. 49.Of course, the parole process can be removed from this list if the Applicant is released on licence, but the other factors may certainly recur at any time and indeed are likely to do so. (9) The Applicant has evidenced that he is open and honest, and he has built up a relationship with the professionals who would be managing him in the community. 50.Whilst the Applicant appears normally to have been open and honest with professionals, it emerged at the hearing that that was not always the case. Ms W stated in evidence that he had had no domestic visits, and she was quite pleased to see that what appeared to be the names of two family members had been added to his PIN phone contacts. She regarded that as a positive development. However, when the Applicant gave evidence, he disclosed that the two names were not those of his own contacts but contacts of other prisoners who had paid him in vapes for allowing them to use his PIN. It was to his credit that he did not lie to the panel about that arrangement, but it showed that he had been prepared to mislead professionals in the first instance. 51.The panel stated in its decision that it was not satisfied that the Applicant would be open and honest with probation. In support of that view, in addition to the matter of the PIN phone, the panel referred to his long-standing negative view of probation and the steps which he was known previously to have taken in the past to conceal his substance misuse. I cannot find that that view was unreasonable. 52.The Applicant does appear to have built up quite a good relationship with Ms S over the substantial time she has known him. She told the panel that their working relationship had generally been quite positive, though she had experienced some difficult interactions when engaging by telephone and email, and she was disappointed that he was not open and honest with her about contacts with family members. 53.In addition to analysing the points made by the solicitors and referring to points made by the panel or in the dossier which might be set against them, I need to refer to a specific point made by the panel in its decision which is not mentioned by the solicitors. It concerns the proposed risk management plan. 54.Ms D told the panel that she believed that the risk management plan had gaps relating to how the Applicant's mental health would be managed in the community. She was aware that the community mental health team would be involved, but until the Applicant was released there would be no way of knowing what the management would feature. 55.Ms S informed the panel that she was currently unaware of the content of the Applicant's mental health care package. She explained that she had attempted to find out but had been told that the responsibility was with the mental health in-reach team (responsible for managing the Applicant's mental health in prison), and planning for community support would not commence until his case was transferred to the community mental health team on release from prison. 56.I have carefully considered all the points made by the solicitors and I have reminded myself that the test for directing re-consideration on the ground of irrationality is as set out above. My conclusion is that this was a case in which views could and did reasonably differ. Some panels might have been persuaded to direct the Applicant's release on licence while others would not have done. I cannot find that this panel's decision was in any way irrational. It set out a list of the reasons which led it to the conclusion that the test for re-release was not met. I cannot find any flaw or irrationality in any of its reasoning. 57.In particular I cannot fault its acceptance of Ms D's view that there was a significant gap in the risk management plan. The risk management plan is a key part of the assessment of a prisoner's risk, particularly in the case of a prisoner with significant mental health and personality difficulties. Management of this prisoner's mental health would be an essential part of the risk management plan in his case, and no details of the plan for managing it were available to the panel. 58.This flaw was of course not the fault of the Applicant or any of the professionals involved in the case. It was a consequence of the system. Decision and concluding observations 59.For the reasons set out above I am regretfully driven to the conclusion that I cannot direct reconsideration of this decision: the panel's decision cannot be said to meet the test for irrationality. 60.I have the greatest sympathy for the situation in which the Applicant has found himself, and the Secretary of State may well agree that that situation is unsatisfactory and could be said to be unfair, and that something should be done about it. 61.One possibility would be to transfer the Applicant to a hospital setting where he could receive appropriate treatment and a pathway might be found for his reintegration into the community. He himself has said that prison is not the place for him and that he would prefer to be in a more therapeutic environment. 62.Another possibility would be to arrange for a detailed plan (which could be considered by the next panel) for the management of his mental health in the community. 63.These are of course matters well beyond my remit, but the Secretary of State may wish to give them some consideration. Jeremy Roberts 23 January 2023