Bryce, Application for Reconsideration [2023] PBRA 205 (29 November 2023) [2023] PBRA 205

PBRA

Bryce, Application for Reconsideration [2023] PBRA 205 (29 November 2023)

[2023] PBRA 205 · 2023-10-16

[1]This is an application by Bryce (the Applicant) for reconsideration of an oral hearing decision dated 16 October 2023 (and issued on 17 October 2023) not to direct release following an oral hearing by a three-member panel (the Panel) on 9 October 2023 by video link.

[2]Rule 28(1) of the Parole Board Rules 2019 (as amended) (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 consist of the Applicant’s dossier now running to 362 pages (including the index, a copy of the written closing submissions made to the hearing panel on behalf of the Applicant dated 10 October 2023, a copy letter dated 16 September 2016 from the Applicant’s previous Community Offender Manager (COM), and the decision), plus the Applicant’s application for reconsideration dated 6 November 2023 (consisting of 13 pages of notes and accompanying documents) and a further undated five pages of notes, together with a response on behalf of the Secretary of State (the Respondent) dated 13 November 2023 and an updated OASys, a probation service assessment report, regarding the Applicant dated 8 October 2023 (which I eventually received on 21 November 2023)(the updated OASys). I have also considered further material sent by the Applicant’s legal representative on 27 November 2023 which I have considered, and which does not affect the decision.

[4]The updated OASys although dated 8 October 2023 was, according to the completed document, signed off on the 26 and 27 September 2023. It was thus signed off and completed before the oral hearing (and indeed expressly written for the purposes of that hearing) which took place on the 9 October but was not included in the dossier at that time nor otherwise placed before the Panel before they issued their decision. This is of some importance as explained below. Background

[5]The Applicant is aged 51. He was sentenced, following a guilty plea, on 22 April 2013 for a number of sex offences over an extended period involving children (the index offences). He was sentenced to an extended 20-year term comprising a 15-year custodial term and a five-year extended licence. His parole eligibility date was 14 December 2022, his conditional release date is in December 2027, and his sentence expiry date is in December 2032.

[6]The index offences included serious sexual offences involving a child under 13, breaches of a Sexual Offences Prevention Order (SOPO) (arising from previous convictions for making and possessing indecent images of children), causing a child to watch a sexual act, and causing or inciting a child under 13 to engage in sexual activity. The breaches of the SOPO involved other children. Request for reconsideration

[7]The application for reconsideration was received on 6 November 2023.

[8]The stated grounds for seeking a reconsideration are as follows: irrationality, specifically:a. The recommended programme Horizon, a training course addressing sex offending, is available to the Applicant in the community, and

b. The updated OASys was not included in the dossier before the Panel.

[9]The Respondent in the response filed in answer to the application confirmed that the updated OASys was not before the Panel and had not been directed pursuant to any MCA directions, nor requested, nor received in time (but otherwise made no further representations). Indeed, there has been some delay in obtaining this document which was not received by the Parole Board before 21 November 2023 when it was passed to me. I have had the advantage also of considering the Applicant’s considerable notes in support of his application as mentioned above.

[10]In addition to the above, the Applicant makes a number of points in these supporting notes. Many of these objections take the form of what he perceives to be incorrect factual statements made in the OASys (or other documents) before the Panel and in the decision itself. It is unnecessary for me to set them all out but, in summary, the principal objections, as it seems to me, are as follows:a. Incorrectly swapping or conflation of OSP/I and OSP/C risk assessments by the Panel as recorded in the Decision of high risk of contact sexual offending and medium risk of internet based sexual offending, whereas reports indicated the reverse.

b. Some confusion as to whether he had or had not been assessed or was suitable for the KAIZEN programme (a training course addressing the use of violence and sex offending).

c. The above, coupled with many alleged factual inaccuracies, together with the non-availability of the updated OASys rendered the Panel’s decision irrational. Current parole review

[11]The Panel hearing was the Applicant’s first review. The Panel consisted of three members, two independent members, and a psychologist. The Panel hearing was conducted via video link and heard evidence from the relevant Prisoner Offender Manager (POM), COM, and the prison psychologist as well as the Applicant who was professionally represented. The Secretary of State was not represented. Closing submissions on behalf of the Applicant were submitted following the conclusion of the hearing (above).

[12]The decision was, as stated, not to direct release. The conclusions of the Panel were summed up in the decision as follows:

“4.2. Mr Jackson is given credit for his positive behaviour in custody. He has been willing to undertake offending behaviour work and it seems that he was not able to access this in the earlier part of his sentence because of the risk assessment tool that was used at that time. 4.3. However, the panel has to consider the risk of harm Mr Jackson may cause if he is released into the community. In his case he committed very serious sexual offences against his own daughter which will have caused her long lasting emotional and psychological harm. A number of risk factors have been identified, including the excessive use of pornography which was sometimes extreme; a sexual attraction to children and continuing sexual preoccupation which is evidenced by his behaviour in custody. From his evidence the panel did not consider that he had looked in any detail at the causes and consequences of his offending. Rather, the panel took the view that he had limited insight into why he had offended and had limited risk management strategies at this stage aside from what would be offered by external controls. 4.4. Furthermore, core risk reduction work has now been recommended. Mr Jackson is encouraged to engage with this to be in a better position to argue for release at his next review. However, because of unaddressed areas of risk, the panel concludes that it remains necessary for the protection of the public that Mr Jackson is confined.”

The Relevant Law

[13]Since I regard this case as somewhat unusual in order to put matters in context, I have summarised the relevant law more fully than might otherwise be the case below. Parole Board Rules 2019 (as amended)

[14]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)).

[15]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)) (relevant to this case), 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)).

[16]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

[17]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. ”

[18]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.

[19]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 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. 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. The overriding objective is to ensure that the Applicant’s case was dealt with justly. Other

[23]It must also be remembered that it is possible to argue that mistakes in findings of fact made by a decision maker result in the final decision being irrational, but the mistake of fact must be fundamental. The case of E v Secretary of State for the Home Department

[2004] QB 1044

sets out the preconditions for such a conclusion:

“ there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter; the fact or evidence must have been ‘established’, in the sense that it was uncontentious and objectively verifiable; the appellant (or his advisors) must not have been responsible for the mistake; and the mistake must have played a material (though not necessarily decisive) part in the tribunal’s reasoning.”

See also R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions

[2003] AC 295

, which said that in order to establish that there was a demonstrable mistake of fact in the decision of the panel, an Applicant will have to provide “ objectively verifiable evidence ” of what is asserted to be the true picture.

[24]In Oyston

[2000] PLR 45

, at paragraph 47 Lord Bingham said:

“ It seems to me generally desirable that the Board should identify in broad terms the matters judged by the Board as pointing towards and against a continuing risk of offending and the Board’s reasons for striking the balance that it does. Needless to say, the letter should summarise the considerations which have in fact led to the final decision. It would be wrong to prescribe any standard form of Decision Letter and it would be wrong to require elaborate or impeccable standards of draftsmanship. ”

[25]Of particular relevance in this case is the principle that omitting to put information before a panel is not necessarily a ground for procedural unfairness, as has been confirmed in the decision on the previous reconsideration application in Williams

[2019] PBRA 7

. This is the case even where the information, had it been before the panel, would have been capable of altering its decision, or prompting the panel to take other steps such as putting the case off for an oral hearing where the new information and its effect on any risk assessment could be examined. This is because procedural unfairness under the Rules relates to the making of the decision by the Parole Board, and when making the decision the panel considered all the evidence that was before them. There was nothing to indicate that further evidence was available or necessary, and so there was nothing to indicate that there was any procedural unfairness. The reply on behalf of the Respondent

[26]I have mentioned this above in paragraph 3 within the application section and paragraph 9 within the request for reconsideration section. Discussion

[27]The real issue in this case is the failure to place the updated OASys before the Panel. That, it will be recalled, had been signed off and completed before the Panel hearing on 9 October, but was not placed in the dossier. The only excuse so far as I can ascertain for the omission is the fact that no updated OASys had been requested, directed, nor received for inclusion in the dossier before the hearing. The result was that the latest OASys report included in the dossier was one produced in May 2022, over a year earlier. It is also right to emphasise that subsequent to this report no one appears to have either requested an update or directed a more up-to-date report (though other reports were updated including reports relevant to risk assessment).

[28]The dossier also included copious notes made by the Applicant challenging statements made in reports in the dossier. Although the Panel recorded they had noted all evidence carefully and had taken account of the closing written representations made on the Applicant’s behalf, the decision does not specifically draw attention to the Applicant’s own notes included in the dossier, nor were they mentioned in the closing representations. Whether these or any of the matters now included in the Applicant’s notes in support of his application, were actually ventilated at the hearing, I know not.

[29]It is difficult to see that there was anything irrational about the decision of the Panel not to release the Applicant based on the material before them. Nothing in the alleged factual errors at the end of the day appears to me to be fundamental, nor the confusion about what programmes should or should not have been completed or the Applicant’s eligibility or otherwise for them.

[30]What makes the case unusual to my mind is that it seems to fit more appropriately under procedural unfairness, in that it was not the decision itself that was flawed on the face of it, but that there was unfairness in the way the decision was made. The updated OASys was prepared for the Panel hearing, completed, and signed off but simply not made available (on the apparent basis that no one ordered it or asked for it). Although this ground too presents difficulties for the Applicant as is clear from the law outlined above and the case of Williams . I have not, however, in reaching these views conducted a line-by-line analysis of the Applicant’s alleged factual errors, nor, more significantly, have I conducted the same exercise with the updated OASys nor a detailed comparison with the earlier one in the dossier. It must be said, however, that my overall impression, having read and considered it, is that had the updated OASys been before the Panel it is more than likely the result (no decision for release) would have been the same.

[31]All that said, I bear in mind five particular and in my judgment important matters: first, the length of time between the original OASys (May 2022) and the hearing (October 2023); second, the fact that the OASys had been prepared for and would have been available to the Panel; third, the delay in producing or procuring the updated OASys to be produced to me; fourth, that I have no knowledge of whether and to what extent the factual errors alleged by the Applicant either initially as contained in the dossier or latterly in support of his application were put or investigated by or before the Panel; fifth, the sense of grievance that the Applicant undoubtedly feels in the way in which the decision was reached such that he must have felt he had not been afforded a full and fair hearing.

[32]The conflation of risks by the Panel as mentioned above is but one specific matter that plainly concerned the Applicant and has resulted, no doubt, in the impression that his case was not dealt with as fairly and scrupulously as it should particularly as regards the important matter of risk assessment.

[33]Taken item by item, these matters (the omission of the updated OASys from the dossier, the alleged factual errors, and the availability or otherwise of programmes) may ultimately not assist the Applicant. The confusion over whether a Horizon programme was or was not available or whether the Applicant was or was not suitable for KAIZEN merely adds to the totality of alleged errors and is nothing in itself taken in isolation.

[34]Nevertheless, I remind myself that in all these cases the overriding objective is to ensure that the Applicant’s case was dealt with justly. Moreover, of course, justice must not only be done, but be seen to be done. As I have said, I have no doubt that the Applicant in the present circumstances has a wholly understandable sense of grievance that his case has not been dealt with as fully and fairly as it might.

[35]Standing back, therefore, and looking at matters as a whole, in my judgment whilst the decision, even if in places it may not be wholly accurate as to the evidence as to risk assessment before the Panel (the conflation point above-mentioned), is by no means irrational, justice ought to be done and be seen to be done in the light of the updated OASys and further up-to-date information and reports at a fresh hearing. At that hearing whether and, if so, what factual errors there are, whether there is or is not any confusion over programmes and eligibility, can all be looked at and assessed and corrected or otherwise. Accordingly, whilst I ground this decision, notwithstanding Williams, on the basis of procedural unfairness, I accede to the application.

[36]I stated above that this is an unusual case. Unusual, because it is a combination of factors that lead me to this conclusion not each or every factor taken in isolation. It is essential to realise that this is not a reason for suggesting that unrecorded factual allegations will lead to a successful application for reconsideration, nor will the absence of a report or document, as the summary of the law above makes clear. Rather, it is, as I have said, a question of standing back and looking at matters as a whole. At the end of the day, it is justice and the requirement for justice to be done and be seen to be done which trumps the isolated cards in the pack. Decision

[37]Accordingly, for the reasons set out above, the application for reconsideration is therefore granted. HH Roger Kaye KC 29 November 2023