Devlin, Application for Reconsideration [2023] PBRA 171 (28 September 2023) [2023] PBRA 171

PBRA

Devlin, Application for Reconsideration [2023] PBRA 171 (28 September 2023)

[2023] PBRA 171 · 2023-08-31

[1]This is an application by Devlin (the Applicant) for reconsideration of a decision made by an oral hearing panel dated 31 August 2023 not to direct his release.

[2]Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2022) (the Parole Board Rules ) 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,

(b) that it is irrational and/or

[3]I have considered the application on the papers. These are the decision, the dossier, and the application for reconsideration. Background

[4]The Applicant received a sentence of life imprisonment on 23 February 2001 following conviction for wounding with intent to cause grievous bodily harm to which he pleaded guilty. The tariff was set at two years and expired in February 2003. He is therefore now some 20 years post-tariff.

[5]He was first released on licence in March 2013, but recalled the following month after failing to return to his designated accommodation. He had also tested positive for cocaine and benzodiazepine.

[6]He was released on licence again in September 2020, but recalled again in December 2021 after relapsing into substance misuse and suffering a deterioration in his mental health which resulted in him being sectioned in November 2021.

[7]The Applicant was 28 years old at the time of sentencing and is now 51 years old. This is his first parole review since his second recall. Request for Reconsideration

[8]The application for reconsideration is dated 17 September 2023 and has been drafted by solicitors acting for the Applicant.

[9]It argues that the decision was irrational and/or procedurally unfair. These submissions are supplemented by written arguments to which reference will be made in the Discussion section below. No submissions were made regarding error of law. Current Parole Review

[10]The Applicant's case was referred to the Parole Board by the Secretary of State (the Respondent) in January 2022 to consider whether to direct his immediate release. If immediate release was not directed, the Board was asked to consider whether the Applicant was ready to be moved to open prison conditions.

[11]In March 2022, his case was directed to oral hearing. An extensive list of directions was set, including a psychiatric report and a confirmed risk management plan in the light of that psychiatric assessment.

[12]The matter proceeded to an oral hearing on 25 May 2023 before a three-member panel, including a psychiatrist specialist member. The Applicant was legally represented throughout the hearing. The Respondent was not legally represented. The panel heard oral evidence from the Applicant, his Prison Offender Manager ( POM ), his Community Offender Manager ( COM ), an HMPPS psychiatrist (the prison psychiatrist ), a psychiatrist commissioned by the Applicant (the Applicant's psychiatrist ) and a psychologist commissioned by the Applicant (the Applicant's psychologist ).

[13]At the end of the hearing, the panel decided it needed further information before it could complete its risk assessment. Its adjournment directions of 2 June 2023 note that the panel considered that the "risk management plan was not fully developed" and set "directions for a fully developed risk management plan" with "particular consideration...given to the availability of accommodation and support in the community should [the Applicant] be released". It noted that arrangements for move-on accommodation and eligibility for after-care support under section 117 of the Mental Health Act 1983 also needed to be clarified.

[14]Section 117 after-care services are services meeting a need arising from or related to the Applicant's mental disorder and reducing the risk of a deterioration of his mental condition (and, accordingly, reducing the risk of him requiring admission to a hospital again for treatment for mental disorder).

[15]In essence, then, there were three uncertain matters which the panel specifically considered to be deficiencies in the proposed risk management plan: release accommodation, move-on accommodation and section 117 after-care support.

[16]On 29 June 2023, the COM produced a report which noted the following: a) The Applicant had been accepted by specialist psychologically informed designated accommodation which would be available between one and four weeks after any final release decision had been made; b) The outcome of the referral for move-on accommodation was not known; and c) The section 117 after-care support had not been clarified.

[17]Written legal representations dated 6 July 2023 submitted that the recent COM update did not satisfy the panel's directions and therefore that the risk management plan remained incomplete. As such, it would be unfair for the panel to conclude its review and make a decision before the directions had been properly met. However, it was also argued that the Applicant nonetheless met the test for release and invited the panel to make a direction for release.

[18]On 11 July 2023, the panel further adjourned the review " because of the continuing absence of a risk management plan" . In doing so it reiterated its earlier directions information relating to move-on accommodation and section 117 after-care, as well as further information relating to community mental health and substance misuse referrals, and opportunities for community support and intervention.

[19]The COM responded on 8 August 2023 as follows: a) The specialist psychologically informed designated accommodation would accommodate the Applicant for a minimum of six months; b) " Hopefully" the move-on accommodation would be in a position to take him afterwards; c) An assessment for move-on accommodation would take place on 10 August. If the Applicant was successful, he would be placed on a waiting list, but there was no guarantee of a bedspace becoming available; and d) The situation regarding section 117 after-care support remained unknown and the COM could not say when she would have an outcome. She was awaiting the acceptance of the referral, but, based on preliminary correspondence (referring to a 2020 psychological report), she felt acceptance was " unlikely ".

[20]Further written legal representations dated 21 August 2023 noted that the Applicant had instructed that he had completed an assessment with the move-on accommodation provider. They continued to submit that the Applicant met the test for release and invited the panel to direct accordingly.

[21]In its decision, the panel acknowledged that, at the time it made its decision, it was not known whether the Applicant would be accepted for move-on accommodation and that the COM had been unable to ascertain whether section 117 after-care would be available. It noted that acceptance of the referral would be necessary to manage the Applicant's risk. Moreover, the decision noted that the assessor " may have come to a different view" had they been provided with more recent clinical notes.

[22]In conclusion the panel did not consider the risk management plan to be " sufficiently certain to manage [his] risk " and was particularly concerned about " the lack of guaranteed move-on accommodation... and the likely lack of mental health support from the community team ".

[23]It also noted that all professional witnesses (save the Applicant's psychiatrist who was not sufficiently familiar with the statutory release test to offer a view) supported release under a robust risk management plan, save the COM who continued to support a move to open conditions.

[24]The panel did not direct the Applicant's release. The Relevant Law

[25]The Parole Board will direct release if it is no longer necessary for the protection of the public that the prisoner should be confined. The test is automatically set out within the Parole Board's template for oral hearing decisions. Parole Board Rules 2019

[26]Rule 28(1) of the Parole Board Rules provides the types of decision which are eligible for reconsideration. Decisions concerning whether the prisoner is or is not suitable for release on licence are eligible for reconsideration whether 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)). Decisions concerning the termination, amendment, or dismissal of an IPP licence are also eligible for reconsideration (rule 31(6) or rule 31(6A)).

[27]Rule 28(2) of the Parole Board Rules provides the sentence types which are eligible for reconsideration. These are indeterminate sentences (rule 28(2)(a)), extended sentences (rule 28(2)(b)), certain types of determinate sentence subject to initial release by the Parole Board (rule 28(2)(c)) and serious terrorism sentences (rule 28(2)(d)).

[28]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 on the previous reconsideration application in Barclay

[2019] PBRA 6

. Irrationality

[29]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. "

[30]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.

[31]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

[32]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.

[33]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;

(d) they were prevented from putting their case properly; and/or

(e) the panel was not impartial.

[34]The overriding objective is to ensure that the Applicant's case was dealt with justly. The reply on behalf of the Respondent

[35]The Respondent has submitted no representations in response to this application. Discussion

[36]The submission regarding reconsideration is a simple one: it was unfair for the panel to conclude the review while there was still uncertainty around the elements of the proposed risk management plan, particularly given that the panel has adjourned twice for further information which had not been provided at the time it made its decision.

[37]The evidence within the dossier prior to the decision is very clear. The panel considered the risk management plan to be deficient for the lack of clarity around move-on accommodation and after-care provision. It adjourned twice for this deficiency to be rectified. The COM was twice unable to provide the clarity that the panel considered to be fundamental to its decision.

[38]The panel then made no direction for release, and, in doing so, cited concerns regarding the same uncertainties within the risk management plan.

[39]The panel also concluded the review in the knowledge that the Applicant had undertaken an assessment for move-on accommodation.

[40]The decision also shed some doubt on the COM's view that the Applicant was unlikely to be granted section 117 after-care.

[41]Turning to the written legal representations submitted during the course of the review, it could be considered contradictory for the Applicant simultaneously to argue that it would be unfair to make a decision in the absence of full information and to invite the panel to make a decision directing release. This weakens the Applicant's case in the sense that inviting the panel to conclude the review anyway carried with it the risk of a negative decision.

[42]However, I do not consider that the contradictory submissions fatally undermine the Applicant's case for reconsideration.

[43]A further adjournment would have permitted the outcome of the move-on accommodation referral to be known, as well as the formal outcome of the section 117 after-care referral. These were matters that were so fundamental to the panel's risk assessment that it adjourned twice for them to be determined. While I accept that parole reviews cannot be allowed to drift indefinitely, it cannot, as a general principle, be fair for any panel to embark upon a course which mandates certain information, only to conclude a prisoner's review when that information remains unknown, but not unknowable.

[44]The unfairness here is, in my view, compounded by the Applicant being 20 years over a two-year tariff and on his second recall.

[45]As such, I find that the Applicant was deprived of a fair hearing.

[46]Irrationality is also pleaded, but, having concluded there was procedural unfairness, I do not need to analyse the alternate ground. Decision

[47]For the reasons set out above, the panel's decision was procedurally unfair and the application for reconsideration is granted. Stefan Fafinski 28 September 2023