Dickinson, Application for Reconsideration [2023] PBRA 40 (21 March 2023) [2023] PBRA 40

PBRA
Dickinson, Application for Reconsideration [2023] PBRA 40 (21 March 2023)
[2023] PBRA 40 · 2023-02-03
[1]This is an application by Dickinson (the Applicant) for reconsideration of a decision made by an oral hearing panel dated 3 February 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(c) that it is procedurally unfair. This is an eligible case, and the application was made in time.[3]I have considered the application on the papers. These are the decision, the dossier, and the application for reconsideration. I have also reviewed various items of email correspondence. Background[4]The Applicant received a sentence of detention at Her Majesty’s pleasure on 18 October 1993 following conviction for arson endangering life.[5]His tariff expired on 23 December 1996. The Applicant was 17 years old at the time of sentencing and is now 46 years old. This is his first parole review. Request for Reconsideration[6]The application for reconsideration is dated 17 February 2023 and has been drafted by solicitors acting for the Applicant.[7]It argues that the decision was both irrational and 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[8]The Applicant’s case was referred to the Parole Board by the Secretary of State in February 2021 to consider whether to direct his release. The referral was made following the decision of the First-tier Mental Health Tribunal that if the Applicant has not been subject to sections 47/49 of the Mental Health Act 1983 he would have been suitable for a conditional discharge into the community.[9]The Applicant is currently a patient in a secure psychiatric unit.[10]His parole review has been subject to a number of adjournments, primarily concerned with delays in finding appropriate specialist accommodation. Oral hearings had taken place on 9 November 2021 and 22 March 2022 (although these were largely procedural).[11]The most recent oral hearing took place on 9 August 2022, before a three-member panel consisting of two independent members and a psychologist specialist member. It was held remotely by video conference. The Applicant was legally represented throughout the oral hearing. This was again adjourned.[12]In written representations dated 7 November 2022, the Applicant’s legal representative sought (amongst other things) further directions relating to the search for suitable release accommodation.[13]On 14 November 2022, the panel chair issued notice that the panel was considering concluding the current review on the papers under the provisions of Parole Board rule 21, with a recommendation to the Secretary of State that the case should be re-referred to the Parole Board once suitable accommodation had been found.[14]At the same time, the panel directed updated reports from the Applicant’s Social Worker and a capacity statement. Both items had a deadline of 30 November 2022.[15]Legal representations were invited on behalf the parties by 5 December 2022.[16]Representations on behalf of the Applicant, dated 3 December 2022, objected to conclusion on the papers. It was argued that doing so would not be a fair disposition of the review and that, without the accountability of the Parole Board process, the process could ‘ grind to a halt’ . As such, a directions hearing was sought as a next step in the process. It noted that a meeting had been set for 15 December 2022 to discuss a proposal for bespoke supported accommodation arrangements in the community.[17]Representations on behalf of the Respondent, dated 9 December 2022, supported conclusion on the papers. It noted that the OM and Social Worker were in favour of doing so, and further it can be confirmed that a short review, following consultation with the relevant stakeholders, would be set to allow the appropriate time to obtain accommodation and confirm a suitable release and risk management plan. To further support this, we are actively communicating with the relevant parties and authorities (and taking legal advice) to ensure that all avenues are considered in order to secure accommodation for the Applicant.[18]On 9 December 2022, the panel issued a further adjournment notice. It referred to both sets of representations, particularly the Applicant’s point that a further meeting regarding accommodation options had been set. It concluded that the panel had decided to keep open the option of concluding the review under rule 21 but would defer that decision until after it had seen an update on the accommodation situation. It directed an update from the Social Worker (including minutes from or a summary of the meeting on 15 December 2023) by 6 January 2023. Further legal representations were invited no later than 16 January 2023. The panel indicated that it would decide how to proceed with the review on or around 19 January 2023.[19]On 6 January 2023, a report from the Social Worker noted that there were still no offers of viable placements that could be considered at that stage, which meant that no applications for funding could be made. However, it did note that there was a further update due from one provider (IC) during the week commencing 9 January 2023.[20]On 18 January 2023, the Applicant’s legal representative submitted that it would remain unfair to conclude the review on the papers. It was argued that the Respondent (and his officers) was failing to discharge the duty to provide an effective risk management plan and that a conclusion on the papers would therefore be inappropriate. It was argued that it was particularly troubling for the Respondent to advocate for the review to be concluded on paper when it was, in fact, the Respondent’s failure to provide a properly developed plan that had led to the possibility of a paper conclusion being mooted.[21]It was further noted that the Social Worker report inferred that IC would be prepared to accept a referral and, as such, asked that the panel set further directions for an update from the Social Worker on the progress of the IC accommodation proposal.[22]In a decision dated 3 February 2023, the panel concluded the review on the papers under rule 21 and did not direct the Applicant’s release. In doing so, it noted that the review had been open for two years, and, there being no suitable accommodation available, it considered that it had to conclude the review, with the recommendation that the Respondent re-referred the case once there was a fully developed risk management plan in place, which included suitable specialist accommodation provision in the community.[23]Within its decision, the panel notes that on 26 January 2023, the Social Worker advised by email that ‘ the vacancy that [IC] has at present is not suitable and there are too many variables in regards to risk’. The Relevant Law[24]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[25]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)).[26]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)).[27]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[28]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. ”[29]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.[30]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[31]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.[32]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(e) the panel was not impartial.[33]The overriding objective is to ensure that the Applicant’s case was dealt with justly. The reply on behalf of the Secretary of State[34]The Secretary of State (the Respondent) has submitted representations dated 10 March 2023. These will be referenced in the Discussion section below. Discussion Procedural unfairness[35]The first ground argues that the decision was procedurally unfair, as the evidence which led the panel to conclude the case on the papers was not disclosed to the Applicant or his legal representative.[36]Decisions to conclude cases on the papers after a direction for an oral hearing are governed by rule 21. The application sets out what it clearly believes to be the correct wording of rule 21. However, it is incorrect. The wording within the application predates the amendments to rule 21 introduced by the Parole Board (Amendment) Rules 2022. The new rule broadens the consideration of a panel beyond additional evidence (to include conclusion in the interests of justice or the effective management of a case); however, the mechanism insofar at the new rule relates to additional evidence is the same as provided by the old rule. As such, the legal basis for the application is not undermined simply because the law stated is no longer in force, as its principles and operation are transposed into the current law.[37]For clarity, the material parts of rule 21 are:
“(2) The Board must notify the parties where it is considering making a direction [to decide the case on the papers] and its reasons for doing so as soon as practicable. (3) Within 14 days of notification under paragraph (2), the parties may make representations on – (za) the reasons provided by the Board for the proposed direction; (a) the contents of any further evidence, and (b) whether they agree to the case being decided by a panel on the papers.”
[38]The panel gave notice that it was considering conclusion on the papers on 14 November 2022 and representations were received from the Applicant on 3 December 2022 and Respondent on 9 December 2022. While this was outside the statutory timeframe, the Applicant’s submissions were received within the timetable set out in the panel’s notice. The Respondent’s submissions were late but were nevertheless considered in the panel’s subsequent adjournment note of 9 December 2022. Directions were set for further evidence from the Social Worker to be provided by 6 December 2022.[39]The directed report was added to the dossier on 6 January 2023. It was open to the Applicant to make further representations on that point, and his legal representative did so.[40]The problem arises in respect of the further information relating to IC. On 9 January 2023 and 26 January 2023, the Parole Board case manager wrote to the Social Worker, copying PPCS on behalf of the Respondent, to chase the update from IC referred to in the report of 6 January 2023.[41]On 26 January 2023, the Social Worker replied to the Parole Board case manager only (but not PPCS on behalf of the Respondent, nor the Applicant’s legal representative) noting the current vacancy at IC was not suitable. The Respondent has confirmed that PPCS did not have sight of the information and was therefore unable to add it to the dossier.[42]On 26 January 2023, the Parole Board case manager forwarded the update to the panel only. The panel made its decision to conclude the review on the papers on the basis of this further information, noting ‘ the recent information from Social Services, and no early prospect of a community placement, has led to the panel deciding to conclude [the Applicant’s] current review under rule 21’.[43]The panel made this decision (at least in part) on the basis of evidence which neither the Applicant nor the Respondent had seen. I fully accept that the panel probably did so on the (not unreasonable) assumption that the evidence had been properly disclosed. However, it had not. This resulted in the Applicant (and the Respondent) being unable to make any further representations upon it (and also led to the undesirable consequence that the first the Applicant knew that the IC option had disappeared was from the panel’s decision).[44]This means that the panel (perhaps inadvertently) made its decision based on evidence that it had seen, but which neither party to the proceedings had. This cannot be anything other than procedurally unfair, and the application for reconsideration must be granted on that basis. Irrationality[45]Having granted the application, I do not need to consider the second ground in any detail. However, in short, I do not find the panel’s decision to have been irrational. While I fully accept the Applicant’s submissions that the consequence of the early conclusion of the review effectively endorses the Respondent’s ongoing and prolonged tardiness in failing to provide a robust and complete risk management plan, it is open to any panel to conclude a review (provided it does so in a procedurally fair manner) on the basis that the evidence before it at the time is such that the statutory release test is not met. The Respondent argues as such. Reviews cannot be allowed to drift interminably, and any decision to have concluded would not be so outrageous that no other panel would have done so. The test for irrationality sets a high threshold which is not met here. Decision[46]Applying the tests as defined in case law, I find the decision not to release the Applicant to be 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 at an oral hearing. Stefan Fafinski 21 March 2023