Smith-Layne, Application for Reconsideration [2023] PBRA 86 (10 May 2023) [2023] PBRA 86

PBRA
Smith-Layne, Application for Reconsideration [2023] PBRA 86 (10 May 2023)
[2023] PBRA 86 · 2023-04-21
[1]This is an application by Smith-Layne (‘the Applicant’) for reconsideration of the decision of a panel of the Parole Board (‘the panel’) who on 21 April 2023, after oral hearings 20 October 2022 and 9 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 now aged 35. He has an extensive record of serious offending, into which it is unnecessary to go into any detail. He is currently serving a sentence of imprisonment for public protection (‘IPP’) for an aggravated burglary (‘the index offence’) in the course of which he inflicted serious injuries on his estranged partner.[4]He was aged 23 when he was sentenced on 23 December 2012 for that offence. His minimum term (‘tariff’) was set at 3½ years. It expired on 13 April 2014. He progressed sufficiently well to be moved to an open prison but he was then returned to a closed prison as a result of a series of adverse reports.[5]In October 2020 a panel of the Board recommended a return to an open prison but a further series of adverse reports meant that that did not happen.[6]The present review of the Applicant’s case by the Board commenced in May 2021. It has been significantly delayed. A single member MCA panel of the Board directed that there should be an oral hearing. The hearing was due to take place in February 2022 but was deferred at the Applicant’s request to allow him to have a period of stability after a move from one closed prison to another.[7]The case was then re-allocated to the present panel.[8]In August 2022 there was, for a short time, a deterioration in the Applicant’s behaviour. The Applicant, who suffers from a serious medical condition which requires daily medication, attributed that deterioration to the fact that, on his account, the prison Healthcare team had failed to give him his medication. The medication was normally given to him on an ‘in possession’ basis, i.e. he was provided with a supply which he could keep in his cell and take daily. The Applicant said that he had repeatedly raised with a custodial manager his concerns about the Healthcare team failing to give him the medication. He said that that failure resulted in an increase in his anxiety. The healthcare team denied his allegation.[9]That dispute led to the adjournment of the oral hearing which commenced on 26 October 2022. The panel understandably directed that at the adjourned hearing the custodial manager and a member of the Healthcare team should attend to give oral evidence.[10]Those directions were not complied with. The custodial manager was said to be unavailable and the Deputy Head of Healthcare notified the Parole Board that no representative would be attending the hearing.[11]In this unsatisfactory state of affairs the panel stated at one point in its decision that they ‘found insufficient information to make a finding of fact on the reasons for [the Applicant’s] deterioration in behaviour in August 2022’ and at another point that only limited weight could be attached to that deterioration.[12]When the adjourned hearing took place on 9 March 2023 the Applicant was faced with a choice between requesting another adjournment or agreeing to the hearing proceeding without the two important witnesses. He opted for the latter course and the hearing proceeded.[13]At the hearing oral evidence was given by: - The Applicant - His prison Offender Manager (‘POM’) - His new Community Offender Manager (‘COM’) - His previous COM and - A Prison Psychologist.[14]The Applicant’s previous COM and the Prison Psychologist supported release on licence to a specialised probation hostel, and the Applicant’s POM supported another period in an open prison. The Applicant’s current COM does not appear to have made any recommendation as she was new to the case.[15]It would have been anticipated that the panel’s decision would be issued within the usual 14 days. However shortly after the hearing the Secretary of State received and passed on to the Board information suggesting that the Applicant had recently taken illegal drugs on more than one occasion.[16]I have not seen whatever document passed between the Secretary of State and the Parole Board conveying that information (it may have been an e-mail and thus not added to the dossier) but the Panel Chair issued the following direction on 15 March 2023 explaining the position and what was to be done about it: “[The Applicant’s] parole review was considered at an oral hearing concluded on 9 March 2023. Following the hearing, the panel was provided with additional information including details of alleged drugtaking by [the Applicant] on 9 and 10 March 2023, together with the outcome of a well-being check conducted with him on 11 March 2023 at 10:23 AM. The panel considered this to be relevant information to be considered alongside the existing dossier and the evidence taken over the course of the hearings on 26 October 2022 and 9 March 2023. A brief report from Healthcare … will be required to confirm the outcome of their assessments on 4 March and 10 March 2023, when called for [the] incidents. A further opportunity will be provided for any legal or personal representations to be submitted on the additional information. Any such representations are to be received by the Parole Board no later than Wednesday, 19 April 2023. Thereafter, this case will be concluded on the papers”.[17]I will need to consider below in some detail the sequence of events which followed the issuing of those directions. Suffice it to say at this point that the panel issued its decision on the papers on 24 April 2023 having made a finding (on balance of probabilities) that the Applicant had taken illegal drugs on 4 March 2023. The Relevant Law The test for release on licence[18]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[19]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.[20]Reconsideration will only be directed if one or 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.[21]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)).[22]The panel’s decision in this case not to direct release on licence is thus eligible for reconsideration. The test for irrationality[23]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.”
[24]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.[25]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.[26]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 test for procedural unfairness[27]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 from the issue of irrationality which focuses on the actual decision.[28]The kind of things which might amount to procedural unfairness include:(a) A failure to follow established procedures;(b) A failure to conduct the hearing fairly;(c) A failure to allow one party to put its case properly;(d) A failure properly to inform the prisoner of the case against him or her; and/or(e) Lack of impartiality.[29]The overriding objective in any consideration of a prisoner’s case is to ensure that the case is dealt with fairly. The request for reconsideration in this case[30]This application for reconsideration was made by the Applicant’s solicitor on his behalf on 25 April 2023. It is made on the grounds of irrationality and procedural unfairness. There is no suggestion of an error of law. The Secretary of State’s response to the application[31]By e-mail dated 27 April 2023 the Public Protection Casework Section (‘PPCS’) on behalf of the Secretary of State stated that he offers no representations in response to the application. Documents considered[32]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 1271;(ii) The panel’s decision;(iii) The representations submitted by the Applicant’s solicitor in support of this application; and(iv) The e-mail from PPCS stating that the Secretary of State offers no representations in response to the application. Discussion[33]For the purpose of this decision, it is necessary to focus on the panel’s finding that on 4 March 2023 the Applicant had been under the influence of illicit substances. That finding was made on balance of probabilities, i.e. on the basis that the allegation was more likely than not to be true (that being the standard of proof applicable in civil proceedings including parole proceedings).[34]The finding was clearly a significant factor in the panel’s decision not to direct the Applicant’s release on licence. There was a good deal of evidence to support release, and if the finding had not been made it is certainly possible (and indeed quite likely) that release would have been directed.[35]I therefore need to determine whether the finding was justified. If it was not, this application must be granted and a re-hearing ordered.[36]The evidence on which the panel relied in support of its finding was hearsay evidence, in other words not evidence provided orally by a witness with first-hand knowledge of the facts whose evidence could be tested by questioning.[37]Hearsay evidence is admissible in parole proceedings under Rule 24(6) of the Parole Board Rules. That rule states that a n oral hearing panel may produce or receive in evidence any document or information whether or not it would be admissible in a court of law. Whilst that may sound straightforward enough, it is subject to the overall requirement of fairness under Article 5(4) of the European Convention for the Protection of Human Rights and Freedoms.[38]It is self-evident that there may be some cases in which it is fair to make a finding of fact on the basis of hearsay evidence and others in which it is not. The Rules do not contain any guidance on the question when it is or is not fair to rely on hearsay evidence to establish disputed facts. The Court of Appeal has stated that what is or is not fair in any individual case will depend on all the circumstances of that case and is a matter for the panel to decide: it should consider the evidence and decide whether it is fair to rely on the hearsay evidence and, if so, how much weight to place on it. [R. (on the application of Sim) v Parole Board (2003) EWCA Civil 1845 and R. (on the application of Brooks) v Parole Board (2004) EWCA Civil 80].[39]The panel in this case evidently concluded that it was fair to rely on the hearsay evidence about what happened on 4 March 2023 and that significant weight should be attached to it. In order to decide whether that conclusion was justified I need to examine all the evidence and arguments available to the panel and their explanation of their reasons for their conclusion.[40]In pursuance of the panel’s direction of 15 March 2023, Heal thcare duly provided the following brief report (undated) of the relevant entries in the Applicant’s medical record:
“4/3/23 - Patient found under the influence, Patient has slurred speech, unsteady on feet, placed on 15 min well-being observations, no treatment given as Patient refused Healthcare input and became agitated. 10/3/23 - Patient reported unresponsive, on Healthcare arrival Patient talking in full sentences, alert and orientated, Glasgow Coma Score 15/15, refused examination telling Healthcare to ‘get out’, became agitated, unable to carry any observations. Patient placed on 5 minute wellbeing observations.”
[41]It was on that basis of that report that on 18 April 2023 the Applicant’s solicitors made the following written submissions:
“[The Applicant] denies he was under the influence on either occasion and says he had not taken drugs. He was not drug tested on either occasion. The reason he refused healthcare assistance was because he thought they were overreacting. He was not ill and did not feel their assistance was necessary. [The Applicant] says that on 4/3 he was laying down when first observed and when he spoke his speech was not slurred and he was not unsteady on his feet. He only became agitated as he felt healthcare intervention was unnecessary. The wellbeing observations do not record any further concerns or displays of symptoms of being under the influence. [The Applicant] says that on 10/3 he was laying down and asleep. He became agitated because he felt healthcare intervention was unnecessary. The report confirms when healthcare arrived he was alert, orientated and talking in full sentences. The wellbeing observations do not record further concerns or displays of being under the influence. The Glasgow Coma Score (GCS) is recorded at 15/15. This score evaluates level of consciousness, awareness and coma. A score of 15 indicates no signs of impaired consciousness or impaired awareness and no sign of neurological concern. ‘The panel has heard full and positive evidence over two hearings and [the Applicant] is requesting that the panel consider his application for release. If the panel feel they cannot make a positive decision following the evidence provided by healthcare [the Applicant] would request a further hearing to explore the issues surrounding the allegations.”
[42]After the Applicant’s solicitors had provided those submissions other documents were added to the dossier. It is possible to trace the stages by which that occurred.[43]It is recorded in the panel’s decision that on 21 April 2023 the panel considered an updated dossier paginated to 1234 pages, concluding with closing legal submissions dated 18 April 2023 (the submissions to which I have just referred).[44]By the time the panel issued its decision on 24 April 2023 the dossier was recorded as containing 1271 pages. The documents added between 21 and 24 April were: a) A case note made by a wing officer about the Applicant collecting his medication on 7 March 2023 (of little relevance for present purposes); b) Negative behaviour entries made by wing staff about the events of 4, 9 and 10 March 2023; c) A report of the well-being visit made to the Applicant on 11 March 2023; d) A list of the Applicant’s visits by friends, family and his solicitor between 27 December 2010 and 30 January 2022 (of little relevance for present purposes); and e) An e-mail sent by a member of Healthcare staff reporting a visit to see the Applicant on 7 March 2023.[45]The case notes of 4, 9 and 10 March 2023 are of some relevance to the allegations of drug use, as is the report of the well-being visit on 11 March 2023. The latter is not as clear as it might have been but on the face of it suggests that the Applicant made a general admission of drug use.[46]The e-mail of 7 March 2023 is perhaps worth quoting:
“I have just been to see [the Applicant] after being made aware that there was a [call to Healthcare] reported over the weekend. This did surprise me as I know he has been doing very well recently and he has his parole coming up this Thursday. [The Applicant] told me that he was no[t] under the influence, he had a panic attack and the officers found some vape capsules and a bit of paper in his cell and jumped to the conclusion that he had taken too much spice. They have not taken his enhanced status off him and he has not had a 'nicking' and he says that they said to him that they will just leave it. They did not do any drugs tests on the vape capsules, piece of paper or urine and he says that this is because they accept his explanation. However, it still remains a NOMIS entry. He says that the reason for his panic attack was due to anxiety about his parole hearing. He has not been able to sleep and feels constantly anxious. Due to this I have referred him to an anxiety workshop.”
[47]It is clear that these documents were seen by the panel but it is unclear whether they were seen by the Applicant and his solicitor before the panel issued its decision on 24 April 2023.[48]What is clear is that there were no submissions by the solicitor about the additional documents, some of which were obviously of some significance. I would be reluctant to criticise the solicitor if she saw the additional documents in time to make any submissions about them but did not do so. They had been very recently added to the dossier. The solicitor had reasonably requested a further oral hearing if the panel were minded to make a decision adverse to the Applicant. I can see no evidence that she had been notified that that request had been refused. Nor had she been invited to make any submissions about the additional documents.[49]The panel simply proceeded to make its finding of fact and issue a negative decision on the papers. It explained its finding (and its decision not to convene a further hearing) as follows: “As highlighted above after the hearing but prior to issuing a decision, the panel received further information provided by the Secretary of State. This included details of alleged drugtaking by [the Applicant] on 9 and 10 March 2023, together with the outcome of a well-being check conducted with him on 11 March 2023 at 10:23am. The panel adjourned to receive further information from Healthcare. The report confirms that clinical staff were called on both 4 March and 10 March. On the first occasion, the patient [the Applicant] was observed to have slurred speech and to be unsteady on his feet and was placed on 15-minute well-being observations. No treatment was provided as he refused and became agitated. On 10 March, clinical staff attended again but found [the Applicant] to be talking in full sentences and to be alert and orientated (GCS 15/15). There is no record of clinical staff attending on 9 March 2023. “Written representations submitted on [the Applicant’s] behalf make clear that he denies being under the influence on either occasion and declined medical assistance as he felt this was unnecessary. He was not subject of a drug test on either occasion. The panel noted legal representations seeking an oral hearing; however, the panel concluded that clinical staff were capable of giving expert evidence on such issues and [the Applicant’s] response was adequately documented by his legal team. There was nothing further to be gained in terms of either fairness or effectiveness in convening another hearing. “Taking into account all the available information, the panel, on the balance of probabilities, was satisfied that [the Applicant] had been under the influence of an unknown illicit substance on 4 March 2023. The panel found insufficient evidence that he had been under the influence on either 9 or 10 March 2023”.[50]I am afraid I find these reasons insufficient to justify making a finding on the hearsay evidence when oral evidence would have been available at a further hearing, and I am particularly concerned by the fact that the panel did not invite further submissions from the Applicant’s solicitor when the latest information (which must have influenced the panel’s finding and decision) became available between 21 and 24 April. I agree that the clinical staff were capable of giving expert evidence about the Applicant’s condition on 4 March 2023, but diagnosing the reason(s) for a patient’s presentation is not always easy and it is not unknown for clinical staff to misinterpret it as being due to drug use.[51]It follows from the above that I must find there was a procedural irregularity in this case and that that irregularity may have resulted in a decision which would not have been made if the irregularity had not occurred. The ground of procedural unfairness is therefore established. It is unnecessary to consider the ground of irrationality. Decision[52]I fully understand the panel’s reluctance to embark on another hearing but for the reasons which I have explained above I am satisfied that this application should be granted. There must be a re-hearing. It is possible, of course, that the result will be the same but that will depend on the next panel’s view of the evidence provided to it. Jeremy Roberts 10 May 2023