Jones, Application for Reconsideration by, [2023] PBRA 70 (19 April 2023) [2023] PBRA 70

PBRA
Jones, Application for Reconsideration by, [2023] PBRA 70 (19 April 2023)
[2023] PBRA 70 · 2023-03-17
[1]This is an application by Jones ('the Applicant') for reconsideration of the decision of a panel of the Parole Board ('the panel') who on 17 March 2023, after oral hearings on 14 November 2022 and 6 March 2023, 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 43. He is serving an indeterminate sentence (imprisonment for public protection) for a series of sexual offences ('the index offences'). As the sentencing judge observed, those offences represented a gross breach of trust. The offences were interfamilial and they occurred when he was babysitting the victims. The offences with which he was charged were specimens of a course of conduct which began when he was aged 17 and spanned a period of about 10 years. It is clear that the offences had a lasting impact on the victims, and caused a schism within the family which continues to this day.[4]The Applicant was aged 32 when, on 3 May 2012, he was sentenced for these offences. His minimum term ('tariff') was set at 4 years less the time he spent in custody on remand. It expired on 21 February 2016. He has had no other convictions before or since. Apart from the index offences he has been a law-abiding citizen.[5]His behaviour has been generally good throughout his sentence, and in 2013 and 2015 he completed accredited programmes designed to reduce his risk of further offending. Professionals were (and are) satisfied that he completed all necessary 'core' risk reduction work.[6]In October 2017 he was transferred to an open prison. He appeared to be doing well there, and reached the point where he had successfully completed four overnight leaves to probation hostels. However, in February 2019, a search of his cell revealed the presence of a hardcore porn magazine, which he had purchased on one of those leaves. As a result of the finding of the magazine he was returned to a closed prison.[7]In September 2020 the Applicant was again transferred to an open prison where he remains. In March 2021 his case was considered by a panel of the Board which decided not to direct his re-release on licence.[8]The present review of his case by the Board commenced in August 2021. On account of the COVID restrictions the review has taken some time to be concluded but on 14 November 2022 an oral hearing commenced. By that time the Applicant had completed many overnight leaves to a probation hostel: the first of those was in March 2021. They had all passed without incident except for something which happened when he was returning to the prison by train from the first of those overnight leaves. It will be necessary to discuss that incident (' the train incident' ) in some detail below.[9]The Applicant's parents have been supportive throughout his sentence.[10]At the hearing on 14 November 2022, which was conducted by video link, the panel took evidence from Ms B [the Applicant's Prison Offender Manager ('POM') who has been responsible for supervising him in prison]. After hearing Ms B's evidence the panel decided that it was necessary to adjourn the hearing to obtain further evidence about the train incident.[11]The adjourned hearing on 6 March 2023 was again conducted by video link. By that time the Applicant had successfully completed 16 overnight leaves. At the hearing oral evidence was taken by the panel from: - Ms B; - Dr B [an independent forensic psychologist who had assessed the App licant's risk on three occasions at the request of his solicitors] - Ms H [his Community Offender Manager ('COM'), the official who is prospectively responsible for supervising him in the community if and when he is released on licence] and - the Applicant himself.[12]After the hearing, as agreed with the panel, closing representations were submitted in writing by the Applicant's legal representative.[13]The Applicant was seeking a direction for release on licence, which was supported by Dr B, Ms B and Ms H, as officials responsible to the Secretary of State, were prohibited (by recent directions issued by him) from expressing any view about the Applicant's suitability for release on licence: however, included in the dossier was a report of 8 April 2022 in which (before that prohibition) Ms H had supported release on licence. There is nothing to suggest that she had had any reason to change her view.[14]The panel decided not to direct the Applicant's release on licence but to recommend that he should remain in an open prison. Their reasons will be discussed below. The Applicant's solicitors now apply for a direction that the panel's decision not to direct release should be reconsidered. The test for release on licence[15]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[16]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.[17]Reconsideration will only be directed if one of more of the following three grounds is established:(a) It contains an error of law or(b) It is irrational or(c) It is procedurally unfair.[18]A decision that a prisoner is or is not suitable for release on licence is eligible for reconsideration whether it is made by(a) A paper panel (Rule 19(1)(a) or (b)) or(b) An oral hearing panel after an oral hearing, as in this case, (Rule 25(1)) or(c) An oral hearing panel which makes the decision on the papers (Rule 21(7)).[19]The panel's decision in this case not to direct release on licence is thus eligible for reconsideration. The application for reconsideration is made on the ground of irrationality. No error of law or procedural unfairness is suggested. The test for irrationality[20]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."
[21]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.[22]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. 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 .[23]One situation which may give rise to a finding of irrationality is where the panel has given inadequate or indefensible reasons for its decision, or for its finding on a significant fact. The giving of reasons is important because, if they are given, they may expose any weakness in the panel's route to its conclusions. If inadequate reasons are given the reconsideration panel (or the courts on an application for judicial review) will be left without the material necessary to enable them to be satisfied that the panel's reasoning was defensible. The application for reconsideration in this case[24]The Applicant's solicitors make three submissions in support of the application for reconsideration. Put shortly the submissions are that:(1) The panel attached too much weight to the paucity and style of entries in the sexual thoughts diaries which the Applicant had been advised by professionals to keep;(2) The panel attached too much weight to what happened in the train incident; and(3) Although they accepted Dr B's risk assessments, the panel failed to give adequate and defensible reasons for rejecting her opinion that the Applicant's risk would be safely manageable on licence in the community. The Secretary of State's (the Respondent) response to the application[25]By e-mail dated 03 April 2023 the Public Protection Casework Section ('PPCS') on behalf of the Respondent stated that he offers no representations in response to the application. Documents considered[26]I have considered the following documents for the purpose of this application:(i) The dossier provided by the Secretary of State for the Applicant's case, which now runs to page 550 and includes a copy of the panel's decision letter;(ii) The representations submitted by the Applicant's solicitors in support of this application; and(iii) The e-mail from PPCS stating that the Secretary of State offers no representations in response to the application. Discussion[27]It will be convenient to consider in turn each of the grounds submitted by the Applicant's solicitor in support of this application. Ground 1: The panel attached too much weight to the paucity and style of entries in the sexual thoughts diaries which the Applicant had been advised by professionals to keep.[28]Sexual thoughts diaries are a useful tool for those responsible for managing a sex offender's risk. The Applicant had been advised to keep one by Dr B in 2017 and by another Forensic Psychologist in 2019. He had also been encouraged to keep one by other professionals (Ms B's predecessor, Ms B herself and Ms H).[29]The panel in its decision described the Applicant's progress (or lack of it) in keeping such a diary as follows:
'... His reluctance to do so has been a consistent theme in open conditions. The previous POM reported having received a limited amount of diary work from [the Applicant], and that what they had seen lacked insight into sexual thoughts. The COM reported that in meetings with her [the Applicant] had said that he had been keeping up with his diary work, making more of an effort to record his sexual thoughts, but did not bring the diaries with him'
'The legal representative's closing submissions refer to diaries provided to the previous POM having gone missing, suggesting a partial explanation for [the Applicant's] reluctance to commit his sexual thoughts to paper, but it seems clear that [Dr B's] original recommendation in 2017 has been repeated by successive professionals, but he has been consistently reluctant to do so. 'The POM told the panel that she has explained to [the Applicant] several times what is required of a sexual thoughts diary, but he has nonetheless failed to produce what he has been asked to. [The Applicant] said he had suffered bouts of thrush for several months which ... reduced his sex drive. He had a medical [procedure] in October 2022 following which his sexual thoughts had increased ... 'On the day of the reconvened hearing, the POM told the panel that [the Applicant] had provided diary 6 entries to her, dated between September 2022 and February 2023. He had provided them to the COM on a ROTL a few days before the hearing ... [The Applicant] said he had sent the diary entries in the post to his legal representative to be given to [Dr B] ahead of his interview with her, but he later discovered that they had not been sent out of the prison. They were returned to him before he showed them to the COM. However, the panel noted that he had not mentioned having sent the entries to [Dr B] during his interview with her, or their absence, despite discussing them. 'All the professional witnesses noted that the diaries lacked any significant reference to sexual thoughts, and that the diaries were mainly descriptive, but more akin to coping diaries. Both the POM and the COM said [the Applicant] was able to discuss his sexual thoughts in meetings with them. [The Applicant] told the panel that there were feelings of shame and embarrassment around writing the diary entries, though he was quite open and honest about the contents when he discussed them with the COM. [Dr B] said that, as his sex drive had returned, completion of and discussion about the sexual thought diaries were important, and that it would be a warning sign in supervision if he were to try to avoid sharing them during supervision.'[30]In the 'Conclusion' section of their decision the panel stated:
'[The Applicant] has been in open conditions for over two years and has completed a significant number of periods on temporary licence in the community. Overall his regime compliance has been good. However, there are areas which have raised concern for the panel, specifically around [the Applicant's] self-management. Whilst he was able to identify a number of risk factors, and to that extent showed insight, his insight in other areas was lacking to a significant degree. '[The panel] found [the Applicant's] reluctance to properly complete a sexual thought diary concerning. It has been repeatedly identified as an essential risk management tool by almost every professional he has worked with since 2017. Both the POM and the COM confirmed that the requirements of the diary have been explained to [the Applicant] several times, leading the panel to the conclusion that the lack of information as to sexual thoughts and feelings in the few entries provided is deliberate on [the Applicant's] part...He has indicated that his 'sex drive' has returned, and the panel anticipates that [he] is experiencing an increase in sexual thoughts that he would be required to reflect in his sexual thoughts diary.'
[31]In their representations in support of this application, the solicitors make the following submissions about this topic: "The Panel attached too much weight on the lack of diaries entries and the style that they had been drafted... [The Applicant] explained that he had completed sexual thoughts diaries and had passed them to his previous POM. That POM left his role and the diaries went missing (which was confirmed by the current POM in oral evidence). [The Applicant] also explained that he had suffered a medical condition that diminished his sex drive. He explained that the condition was very painful and has only just been addressed through [a medical procedure]. This occurred late last year. He explained that he was advised by [the] medical professional treating him to allow it to heal. [The point being made is that for a period he had no sexual thoughts to write up.] The Panel during the course of the hearing assumed that there should have been more entries as more home leaves had taken place since his operation but [the Applicant] explained that [that was not the case]. With regards to the style [of such entries as were made], [Dr B] accepted during the course of her evidence that following a previous assessment she had advised [the Applicant] to complete the logs in the way in which he was completing them.... [Dr B] identified that the diaries would be helpful particularly for guiding supervision sessions but what was more important was his willingness and openness to discuss his sexual thoughts with professionals, and [the Applicant] was comfortable and able to do so.'[32]This last point had been made in rather more detail, as follows, in the legal representative's written closing submissions to the panel:
'Whilst there was concern regarding the amount and quality of the sexual thoughts diaries, Dr B's reflection is particularly important when she identified that the diaries are helpful to guide and prompt discussion in supervision sessions, [but] what is really important is that [the Applicant] talks openly to professionals, which he is doing. The COM reported that he has engaged with office visits and supervision sessions and she considers him to be open and forthcoming with information during their meetings.'
[33]The amount of weight which was or ought to have been attached to a particular piece or pieces of evidence is always a difficult matter to evaluate when an application is made for reconsideration of a panel's decision. The panel was certainly entitled to attach a significant amount of weight to the Applicant's failure to write up more than he did about his sexual thoughts.[34]On the other hand the panel does not seem to have addressed the point made by Dr B, and to that extent their conclusion can be regarded as failing to provide adequate reasons for their decision on this important part of the case. If this had been the only ground advanced by the solicitors I might well have regarded it as insufficient to justify reconsideration of the panel's overall decision. However, it needs to be seen in conjunction with the other grounds advanced by the solicitors, which I will now discuss. Ground 2: The panel attached too much weight to what happened in the March 2021 incident.[35]The probation hostel at which the Applicant has spent his overnight leaves is some distance away from the prison where he is detained, and he has had to make his own way there and back by rail.[36]The only direct evidence of the train incident came from the Applicant himself. His account was that he had been sitting reading a book at a table seat next to the aisle (he prefers an aisle seat to a window seat as he has to drink a lot of fluids for medical reasons and has to use the toilet frequently) and during the journey a woman and her two children came and sat at the same table. The woman and one of her children sat opposite him and the other child (a boy aged about 11) sat at the window seat next to him. At one point, he had to stand up and move to let the boy out to use the toilet.[37]No doubt one of the conditions to which the Applicant has been subject on his temporary releases is that he should not have any contact with a child under a certain age. His temporary licence conditions do not appear to be in the dossier but they were probably in a standard form along the following lines:
'You must not have unsupervised contact with any children under the age of 16 without the prior approval of your supervising officer except where that contact is inadvertent and not reasonably avoidable in the course of lawful daily life'
. There does not appear to be any evidence that the Applicant had received any instructions or advice from any professional about what he should do if a parent and child came to sit next to him on a train as happened on this occasion.[38]The only evidence to contradict the Applicant's account comes from an account given by another prisoner who was on the train. He apparently told his own POM about the incident. His account, as recorded in prison records with a 'low reliability' rating, was that when the boy got up from his seat to go to the toilet 'the Applicant stood up and looked to be about to follow the boy but realised he was being watched and sat down again'.[39]This suggestion has been consistently denied by the Applicant. He says that he has been the subject of a number of false allegations by other prisoners . There is of course also the possibility that the other prisoner genuinely misinterpreted the situation.[40]The Applicant told the panel in answer to their questions that he should ' possibly ' have moved seats when the family sat down, but the train was very busy, he was engrossed in his book and had not thought anything of the situation (or how it might be perceived in the context of his offending behaviour).[41]The panel dealt with this matter as follows in their decision when setting out their conclusions:
'The incident on the train caused the panel concern. [The Applicant] said that the allegation must have been made by someone who he does not get on with for malicious reasons, and had not considered that someone observing the situation may have understandably been genuinely concerned as to its inappropriateness. The allegation that [the Applicant] had intended to follow the child to the toilet was uncorroborated, so that the panel did not feel able to attach significant weight to it. However, [the Applicant's] behaviour, and his account to the panel, around his continued proximity to two children on the train demonstrated a significant lack of insight into his risks and the need to actively manage risk in the community.'
[42]The solicitors make a number of points about this. They rely on Dr B's evidence at the hearing that, whilst remaining in his seat once the family sat around him on the train was not advisable, it was ' not a risk' . Dr B believed that on the contrary it was a useful learning experience for the Applicant who had taken note of the concerns raised by the professionals: during the period of more than 18 months since the incident there had been 15 successful overnight leaves without any incident. The solicitors submit that one isolated incident that occurred early on in the overnight leave process should not be regarded as undermining all the subsequent overnight leaves which have clearly demonstrated that the Applicant is more than capable of managing his risks.[43]Another point which they make is that the Applicant's offences were of a specific type in circumstances very different from those of the incident on the train. They were all inter-familial offences which he is unlikely ever to have the opportunity to repeat even if he wished to: though they were of course very serious, the Applicant was not a sexual predator seeking to commit offences outside the family home against children whom he did not know. Realistically, therefore, he posed little if any risk to the boy on the train.[44]There is much force in the solicitors' submissions and in Dr B's analysis of the situation. The Applicant was placed, through no fault of his own, in a difficult situation and in the absence of any evidence that any professional had given him any specific instructions or advice about how he should deal with such a situation I am persuaded that this ground for reconsideration must succeed: the panel did not give adequate and defensible reasons for departing from Dr B's analysis, so their approach to this particular part of the evidence must be regarded as irrational. Ground 3: Whilst accepting Dr B's risk assessments, the panel failed without good reason to accept her opinion that the Applicant's risk would be safely manageable on licence in the community.[45]Dr B is a Senior Forensic Psychologist. She has carried out assessments of the Applicant's risk on three occasions. In her latest assessment, in February 2023, using the appropriate structured risk assessment tools, she concluded that the Applicant should be managed as posing a ' moderate ' risk of future sexual offending, with low- moderate imminence in the community. She identified a high level of protective factors (i.e. factors making it less likely that the Applicant will re-offend). She believed that with a robust risk management plan in place his risk would be safely manageable in the community.[46]The proposed risk management plan, which the panel described in its decision, was certainly a robust one, and Ms H (who would be responsible for supervising the Applicant and carrying the plan into effect) told the panel that she felt it addressed all risk-related concerns.[47]The panel were of course not obliged to follow the opinions of professional witnesses but if they were going to depart from those opinions they needed to give adequate and defensible reasons for doing so.[48]It is clear that their principal reasons for departing from Dr B's recommendation were the train incident and Applicant's failure to keep more detailed sexual thoughts diaries, which I have discussed above. After referring to those matters the panel stated:
'.....[the Applicant's] resistance to completing thought diaries has, in part, led to a lack of transparency with professionals about his self-management during periods on temporary licence in the community, specifically the recognition of risky situations, how he has managed them, and the thoughts he has had. The panel considered that [the Applicant] has not yet demonstrated the appropriate level of openness and honesty with professionals tasked with risk management, nor has he adequately demonstrated his own ability to manage his risks in the community.'
[49]I do not need to repeat the conclusions which I have set out above about the train incident and the sexual thoughts diaries. I am afraid I cannot regard those two matters, as I have analysed them above, as providing sufficient support for the panel's rejection of Dr B's very clear and carefully reasoned assessment and recommendation. Decision and closing observations[50]In the light of the above discussion I am driven to the conclusion that the panel provided insufficient reasons to justify their decision. I agree with the solicitors that the panel attached too much weight, in reaching their overall assessment of the manageability of the Applicant's risk of serious harm to the public, on the two matters which appear to have led them to decide against a direction for release on licence. I also agree that they provided insufficient reasons for departing from Dr B's opinions and recommendation.[51]I must therefore grant this application and direct reconsideration of the panel's decision. My supplementary directions are set out below.[52]Before leaving this case I must make some reference to a development which has occurred since I was asked to consider the case. It does not make any difference to my decision but it would be remiss of me not to mention it and explain why it is not relevant to this decision but could possibly be relevant to the rehearing of this case. Attaching weight to unproven allegations[57]In this case the panel correctly applied the law as it was understood as a result of the decision of the Court of Appeal in the case of R (Pearce) v Parole Board (2022) EWCA 4. That meant that, unless the panel could make finding that the other prisoner's allegation about the train incident was more likely than not to be true, it could not attach any weight to that allegation. It could however, and did, consider whether any of the surrounding circumstances might be relevant to the Applicant's risk.[58]There has now been a successful appeal by the Board to the Supreme Court against the decision in Pearce , as a result of which a finding of fact is no longer essential before any weight can be attached to an unproven allegation. But there are various steps which have to be gone through before a panel can attach weight to such an allegation.[59]The rationality or irrationality of a panel's decision must of course be judged on the basis of the law as it was understood to be at the time of that decision. But reconsideration is a discretionary remedy and cases may possibly arise in which, even if there has been some irrationality in a decision, it may be appropriate not to direct reconsideration because a change in the law has made it inevitable that a rehearing would result in the same outcome. I need say no more than that this is certainly not such a case. Jeremy Roberts 19 April 2023