McEwen, Application for Reconsideration by [2023] PBRA 95 (23 May 2023) [2023] PBRA 95

PBRA

McEwen, Application for Reconsideration by [2023] PBRA 95 (23 May 2023)

[2023] PBRA 95 · 2023-03-30

[1]This is an application by McEwen (‘the Applicant’) for reconsideration of the decision of a panel of the Parole Board (‘the panel’) who on 30 March 2023, after three oral hearings, 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 41. He has an extensive record of serious violent offending. He is currently serving two concurrent sentences of imprisonment for public protection (‘IPP’) for kidnapping and wounding with intent to cause grievous bodily harm (‘the index offences’). He had been convicted of those offences after a contested trial.

[4]He was aged 27 when he was sentenced on 29 March 2010 for the index offences. His minimum term (‘tariff’) was set at 4 years. He appealed against his conviction, but his appeal was dismissed.

[5]His tariff expired on 29 March 2014 and in 2016 a panel of the Board recommended to the Secretary of State that he should be moved to an open prison. However, before that move could take place evidence emerged that he had expressed Islamist extremist views in prison, so he remained in a closed prison. He had converted to Islam at some time before he committed the index offences.

[6]In July 2018 he was finally moved to an open prison, but he had not been there very long when he was found to be in possession of a mobile telephone, as a result of which he was returned by the Secretary of State to a closed prison.

[7]Subsequently another panel of the Board recommended a return to an open prison but, again as a result of concerns about extremist views, the Secretary of State declined to accept that recommendation.

[8]The present review of the Applicant’s case by the Board commenced in July 2022. An oral hearing was directed. There were some unfortunate delays but in due course the case was allocated to the panel to conduct an oral hearing. The panel initially comprised an independent Chair, a judicial member and a psychologist.

[9]The first of three oral hearings by the panel had to be adjourned because significant fresh evidence was given by one of the witnesses in the course of her evidence.

[10]The second hearing also had to be adjourned because fresh evidence had again emerged, and the professional witnesses had not been able to discuss it with the Applicant.

[11]The third hearing took place on 24 March 2023. Unfortunately, the judicial member of the panel was unwell on the day of the hearing and, by agreement with the Applicant’s legal representative, the hearing proceeded with a two-member panel. Another change was that the Applicant’s Prison Offender Manager (POM) had been replaced by a new one.

[12]Oral evidence was taken by the panel from the Applicant himself, his original POM (Ms L), his new POM (Ms S), his Community Offender Manager (‘COM’) (Ms T) and a Prison Psychologist (Ms F).

[13]Written submissions were, by agreement, provided after the hearing by the Applicant’s legal representative.

[14]By a decision dated 30 March 2023 (but apparently not served on the Applicant’s POM and legal representative until the evening of 11 April 2023) the panel decided not to direct the Applicant’s release on licence and not to recommend another transfer to open conditions. The judicial member who had participated in the first two hearings played no part in that decision.

[15]The delay in serving the decision on the Applicant’s POM and legal representative seems to have been due to an administrative error.

[16]On 2 May 2023 the present application was lodged for reconsideration of the panel’s decision. The Relevant Law The test for release on licence

[17]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

[18]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.

[19]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

[20]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

[21]The panel’s decision in this case not to direct release on licence is thus eligible for reconsideration. The decision not to recommend a move to an open prison is not eligible for reconsideration.

[22]The application for reconsideration is made on the grounds of irrationality and procedural unfairness. There is no suggestion of an error of law. 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;

(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]The request was supported by detailed written representations by the Applicant’s solicitors and extensive hand-written representations by the Applicant himself. These representations will be considered below. The Secretary of State’s response (the Respondent)

[31]By e-mail dated 5 May 2023 the Public Protection Casework Section (‘PPCS’) on behalf of the Respondent have 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 838 numbered pages and contains a copy of the panel’s decision;

(ii) The representations submitted by the Applicant’s solicitors in support of this application;

(iii) The representations submitted by the Applicant himself; and

(iv) The e-mail from PPCS stating that the Secretary of State offers no representations in response to the application. Discussion

[33]Before embarking on a discussion of the individual points raised by the Applicant and his legal representative, I should make a general observation.

[34]The panel set out the reasons for their decision in considerable detail over 18 pages. Their principal task was to decide whether the risk of serious harm to the public posed by the Applicant would, with the proposed risk management plan in place, be safely manageable on licence in the community. If they could not be satisfied that it would, they could not direct his release on licence.

[35]I have set out in the table below the grounds advanced by the Applicant’s solicitors with my responses to them. I will then discuss the further representations made by the Applicant himself. Complaint Response Ground 1 We submit the continued adjournments of part heard hearings has led to a disjointed review which, we say, has demonstrated a procedurally unfair decision. The adjournments were no fault of the Applicant or the panel. Unfortunately delays of this kind do occur from time to time. The important question is whether as a result of the delays the panel after the final hearing failed to give proper consideration to the relevant evidence. I am not persuaded that they did. They provided a careful and accurate analysis of the relevant evidence and the views of the professional witnesses. Ground 2 All witnesses including the Applicant were under significant stress to remember previous evidence given and errors were made. The Applicant’s evidence was certainly inconsistent but having examined the inconsistencies I do not think they can be attributed to stress resulting from the delays. The Applicant should have been able to remember the matters on which his evidence changed, and he was clearly untruthful on certain points. Ground 3 The Applicant has demonstrated throughout his custodial sentence that he is open and honest. This has been supported by the evidence of his POM. Staff members all confirmed that the Applicant is compliant with Good Order and Discipline and is open and honest. Further, this view of the Applicant’s behaviour was also supported by the Prison Imam. The panel faithfully recorded the evidence of the Applicant’s good custodial behaviour and his general openness and honesty in his dealings with prison staff. They clearly took it into account. They wrote in their decision:

“ The POM and [the Applicant] gave full evidence at the first hearing. It is clear from this evidence that [the Applicant] continues to evidence good behaviour, he has had trusted positions in prison, observes his religion and that he is focused on being released. There was a recent positive entry where he had intervened to stop an officer being attacked. His last adjudication had been in 2016, and he had consistently been Enhanced on the IEP regime. There had been no evidence of drug misuse, and his plans on release are to settle down, have a family and lead a peaceful life.”

However, an important issue for the panel to decide was whether, if the Applicant was released on licence, he could be relied on to be open and truthful with those who would be managing him in the community. At the final hearing there was clear evidence that he had not been open and honest with the panel and professionals about certain matters relevant to the management of his risk. That caused the professional witnesses to modify their recommendations. The panel recorded the psychologist Ms F’s evidence in this respect as follows:

“In relation to the evidence of being dishonest, she agreed that this made things ‘very difficult’ with respect to assessment. She posited the following reasons, one that he had lacked the understanding that he needed to be open; one that his suspicious personality wanted to know why people wanted to know, and also that his rigid thinking gave him a tendency to push back on rules that he felt should not apply to him. She also felt that he was very keen to be understood and that might make him be less than fully open about problem areas. Any number of things could be in play. She accepted that this was a concern. He needed to be able to engage fully in the community with professionals. She felt that he was more isolated in the community than he might think, and if he did not see professional relationships as supportive then things that he felt were not relevant might not be disclosed by him. [Ms F] did not change her risk assessment but acknowledged that it was very difficult to make an assessment given the new information relating to dishonesty. She also had concerns about his attitude towards his COM which was mistrustful and dismissive.”

Similarly, the COM Ms T’s evidence, as recorded by the panel, was as follows:

“She told the panel that in her view the Applicant was very challenging to work with, there was a level of mistrust and she had struggled to explain to him why some of the disputed licence conditions were necessary and proportionate. She was very concerned about his attitudes with respect to disclosing relationships.” “She told the panel that when she first began working with the Applicant, they had established a good working relationship although it had always been challenging, and it was not until she had not shifted from her position with respect to elements of the risk management plan that she noticed a decline in his engagement.” “She was concerned that he had not been forthcoming to the panel. Earlier, she had supported release. However, by the time of the third hearing her recommendation had changed . Because of his lack of engagement, she could not be confident that the risk management plan would be able to manage his risk in the community.”

Ground 4 The Applicant has, in relation to his index offence, completed all of the offence focused work set out within his sentence plan. In fact, of importance there has not been any offence paralleling behaviour in terms of violence since 2011. This evidence we say has not been balanced within the decision letter of the parole board. I cannot agree that there was any lack of balance. The panel clearly recognised these factors and took them into account. They wrote in their decision: "As documented in the dossier, [the Applicant] has completed a significant amount of offence focused work. This has included [at this point the panel gave details of the various courses he had successfully completed]. More recently he has undertaken one to one sessions with a psychologist. All witnesses told the panel that there was no more offence focused work for him to undertake in custody.” “[The Applicant] does have protective factors. Witnesses told the panel, and the panel accepts, that his faith is a protective factor. He is a practising Muslim. He has clearly worked hard to understand the religion and is devout, praying several times a day, attending Friday prayers and engaging with the Imams in prison. He has stated that he is resolved to live a life of peace and has rejected violence. He has in general behaved well during his long time in custody and is given credit for this by the panel. He has held highly trusted jobs in custody. [He] has been willing to complete offence focused work. All witnesses and report writers indicate that he has gained considerable insight into himself and the triggers to his former offending. He has a personal support network, including his father, and has engaged in rehabilitation planning work with agencies.” However, having acknowledged all those matters, they wrote: “It is clear that despite warning and challenge during the review process along with time to reflect, he has not understood the need to be open. This is a real shame because in many ways [the Applicant] has done very well, staying away from trouble, learning about his faith and engaging with the Imam, working as a trusted prisoner. These many positives are undermined by his mistrust, suspicion and reluctance to engage and be fully open.” The many positive factors occupied a relatively small part of the panel’s decision because they were not controversial whereas the less positive factors required detailed examination. Ground 5 The Panel focused on the Applicant’s involvement with women and the monies received. We say with the backdrop of his positive behaviour over the years too much reliance was placed on this particular area by the Panel in reaching their decision. This is in our view irrational. We say with the backdrop of his positive behaviour over the years too much reliance was placed on this particular area by the Panel in reaching their decision. This is in our view irrational. In fact, very little credit appears to have been given to the considerable positive evidence received. The Applicant’s involvement with several women was one of the matters which required detailed examination because of the Applicant’s conflicting accounts and the evidence which showed that in a number of respects he had not been telling the truth about these women. His relationships with these women were of some significance because, although he had not been convicted of any offences of domestic violence, the panel needed to consider his attitudes towards potential intimate partners and any risk which he might pose to them. This was because, as Ms F wrote in her psychological risk assessment: “[The Applicant] has had limited experience of healthy intimate relationship[s] based on equality and open communication. He states there has been no intimate partner violence, but his relationships have been primarily sexual and focused on short term sexual gratification rather than something more meaningful. There is evidence of Police call outs in one relationship, but he describes this as ‘not’ a relationship but living together out of convenience. He accepts a sexual element and fathering his son. [The Applicant] reports aims and hopes for future relationships but will likely need support to assist him managing expectations, frustration and communication/problem solving. Given he currently on occasions express frustrations unhelpfully, it will be important to keep developing skills to manage this and it will be important for him to work with professionals and future partner[s] around what his expectations of himself, his partner and his relationship are to support him to further develop relationship skills. It may be that he struggles to manage conflicts and expresses frustrations unhelpfully. A positive indicator would be [the Applicant] being open to support from professionals including alongside a future partner and showing motivation to form and maintain healthy relationships. Support could include within his faith to align his values with practical skills. There is considered to be a moderate likelihood of difficulties managing frustrations within a relationship, but it is not considered that an escalation to intimate partner violence is imminent. This can be moderated by support in the early stages of forming relationships, including support within his religious community, should he find this helpful. [The Applicant] objected to this being considered an area of potential problems for him and states this is not based on evidence. He stated that it was him who called the Police previously.” Quite apart from this helpful analysis of this particular area of risk, the fact that the Applicant was evasive and untruthful about his contacts with women during his sentence raised concerns about whether he could be relied on to be open and honest in other respects. Significant credit was given to the positive evidence: see the last entry above. Ground 6 The panel did not test our client’s risks in relation to his index offences. In fact, nothing was asked of him in this regard despite the risk reduction work completed during the term of his imprisonment. The panel did of course summarise the index offences in their decision, as they were required to do. They did not need to explore the offences in any detail. It was common ground that the Applicant had successfully completed the necessary work to reduce his risk of future offending of that kind. The panel’s decision was not primarily based on the facts of the index offences but on the Applicant’s lack of honesty and openness and the consequent difficulty in accepting that his risk would be safely manageable on licence in the community. Ground 7 Regarding alleged extremist views and behaviours, the Panel accepted in their decision letter that there are no concerns or evidence relating to extremism. Despite this they did not fully explore with the COM the justification for terrorist-related licence conditions. The panel’s approach to this topic was eminently fair to the Applicant and cannot be faulted. They referred to the evidence which had caused concerns in 2020, which included an allegation in a report that the Applicant had said that as a Muslim he was entitled to talk about Jihad; that British soldiers were an oppressive occupying force not protecting anyone but killing innocent people in the name of democracy; and that the ‘ battlefield’ war against British people in Afghanistan and Iraq was justified. Furthermore, a search of the Applicant’s cell in 2020 had revealed the presence of a CD with lectures by Anwar al Awlaki, and a poem that raised concerns about affiliations with Islamic State. However, they then referred to a specialist assessment carried out in January 2022 which concluded that the Applicant ‘ presented overall a low risk of becoming involved in extremism, but because of the previous concerns, she recommended that he continued to be monitored so that any increase in risk would be detected. When discussing the present position, the panel wrote: “The panel took no further evidence about extremist concerns at the third hearing as there had been no further concerns raised in the new information provided. Having considered all the evidence before it, the panel finds that while there is no evidence that there are any current concerns about extremist belief or intent, because of his lack of honesty a cautious approach must be taken to any accounts given by [the Applicant] and where possible corroboration must be sought.” This was a realistic and sensible approach. There were certainly reasonable grounds for the specialist assessor (and the panel in their decision) advocating a cautious approach to the possibility of a future interest in Islamist terrorism or to the Applicant’s vulnerability to indoctrination. It was part of the panel’s responsibility to assess the necessity and proportionality of any licence conditions proposed by probation, which in this case included several conditions of a kind often proposed when an offender has been convicted of a terrorist offence. The panel stated in its decision, when discussing the proportionality of those conditions in this case: “It is entirely accepted that [the Applicant] has not been convicted of any relevant offences. However, it is also clear that he has said things that have indicated some concerning thoughts in the past, and he has had on one occasion material from a person whose speeches have since been banned.” “These are not especially onerous conditions if [the Applicant] thinks about them. If he is, as he says, free of any thoughts of an extremist nature, then he should not be concerned about the non-association condition or the one regarding possessing extremist material”. “The only condition that he might find restrictive might be attending an approved place of worship. The COM explained at the hearing that the reason for this was to ensure that [the Applicant] was at a Mosque where they knew any persons of concern and could monitor any associations, and this was more to be protective of [the Applicant] because of concerns of being influenced by radicalised people.” “In the opinion of the panel these are proportionate conditions. Should [the Applicant] prove to be engaging well with his licence, the COM will have the ability to lift restrictions as proportionate.” This approach was, I believe, entirely appropriate and was in no way irrational or unfair. Ground 8 Within the decision reference is made to the Applicant having been assaulted for commenting about bombing a stadium. The Applicant strenuously denies this was ever said. This is not recorded anywhere within the dossier. Further, Instructing Solicitors are somewhat surprised that this particular very relevant comment was not explored by the Panel at all. In fact, no questions were asked of the Applicant about this. The reference was to another allegation mentioned in a report. It is clear that the panel were not placing any weight on that allegation in deciding not to direct the Applicant’s release on licence. What they were doing was to point out that, if and when the Applicant was released on licence, those responsible for managing his case would need to be alert to any sign of interest in any form of terrorist activity or of vulnerability to indoctrination. In those circumstances there was no need to ask questions about this allegation. The panel were well aware that the Applicant denied it. Ground 9 Reference was also made in the decision to the Applicant having associated with a prisoner convicted of a terrorist offence. This did not happen and is completely denied. There are no terrorist convicted prisoners held at the prisons where the Applicant has been detained. There is no reference to this within the dossier. The Applicant was not challenged about it during his oral hearing. Despite this area having not been tested by the Panel they stated within their decision: “ Having considered all the evidence before it, the panel finds that while there is no evidence that there are any current concerns about extremist belief or intent, because of his lack of honesty, a cautious approach must be taken to any accounts given by [the Applicant] and where possible. corroboration must be sought”. This was another allegation mentioned in a report, and the same comments apply as they do to the previous point. Ground 10 “ A panel of the Parole Board in 2016 recommended that [the Applicant] be transferred to open conditions. This was agreed to by the Secretary of State, however he was not transferred because during a telephone conversation with his then partner he was heard to say that he wished to become ‘a martyr for Islam’. Concerns were raised regarding a possible intention of a terrorist act, and his cell was searched ”. The facts of the above paragraph have not been fully explored. There has not been a full transcript provided and [the Applicant] is clear that he used the wording “ Shahada ” and that this has been interpreted to mean “ martyr ”. This is not the case at all. [The Applicant] describes the word in his Arabic interpretation as “ testification of faith ” this he refers to within his reconsideration statement. We reiterate despite the above comments the panel highlight in their decision letter that they accept there is no evidence, of extremism. However, we say significant time and effort has gone in to rehearsing old ground which was said by a previous panel to have been “ put to bed ”. There appears to have been significant weight given to low rated, minimal security that has been poorly misunderstood and as a result has led to involvement with the National Security Division and proposed terrorist-related licence conditions. Witnesses over the last two parole reviews have demonstrated in clarity the reality of [the Applicant’s] beliefs and ideologies, and that they do not align with any extremist views. There has been no further evidence provided to the panel to give rise to any concerns. We say although it documented that there is no evidence or concerns of any extremism, he has not been interviewed, arrested or charged in relation to extremism. Despite this, this label is looming over our client and distracting away from the core issue here, his risks relating to his index offences. As explained above the panel gave no weight to these matters in deciding not to direct the Applicant’s release on licence. It was entirely appropriate that the concerns raised in 2016 and 2020 and the need for those managing the Applicant’s case in the community to be alert to any future concerns about possible future signs of any future interest in terrorist activity or vulnerability to indoctrination should lead to (a) the transfer of the case to the National Security Division and (b) some terrorist-related licence conditions (see above). The Applicant, who is clearly prone to rigid thinking, seems to have had great difficulty in understanding this. Ground 11 Further, a lot of attention has been given to his relationships with women and risks in this regard. There has been no evidence of domestic violence against women whatsoever. Again [the Applicant] has not been arrested, interviewed or charged in relation to domestic abuse related matters. Domestic abuse did not form part of his index offence and therefore has never been one of his risk levels. [The Applicant] appreciates children were present during the commission of his index offence. This he has always regretted. Please see comments above about possible future intimate relationships. Ground 12 [The Applicant], despite challenging terrorist and domestic abuse related licence conditions, confirmed he is willing to work with his COM. He is also willing to reside in a specialised probation hostel. The anxieties caused to my client through being dealt with by the National Security Section and the terrorist-directed licence conditions temporarily impacted on his relationship with his Probation Officer. This was not given any weight by the Panel. Of course, the Applicant said he was willing to work with the COM but his past attitude towards her and failure to be open and honest with her gave rise to a reasonable concern about whether he would be able to turn his good intentions into reality. Ground 13 Regarding the licence conditions the Parole Board said the following: “These are not especially onerous conditions if [the Applicant] thinks about them. If he is, as he says, free of any thoughts of an extremist nature, then he should not be concerned about the non-association condition or the one regarding possessing extremist material”. This we say is indicative of the fact that extremism despite “ having been put to bed ” is still very much present when considering our client and his perceived risks. Licence conditions should be considered solely on their safeguarding effect and proportionality. As explained above this was a perfectly reasonable comment by the panel. The panel had to consider the proportionality of the proposed conditions, and the fact that a condition should not be onerous to a well-motivated prisoner is obviously relevant to proportionality. The panel made it clear that potential interest in extremism and vulnerability to indoctrination were not relevant to the decision whether to direct the Applicant’s release on licence but were certainly relevant to his licence conditions.

[36]Many of the points raised by the Applicant in his own representations duplicate points made by the solicitors, to which I have given my responses in the table above. I need not repeat those responses here. The Applicant’s other points are directed to refuting any suggestions of dishonesty and criticising his COM.

[37]There was clearly a substantial body of evidence, carefully considered by the panel, to show that the Applicant had not been completely open and honest with professionals. There may be some force in some of the Applicant’s arguments, but I am afraid I cannot accept that all of the evidence of lack of openness can be explained away.

[38]As regards the COM, the undoubted problems in the Applicant’s relationship with her, their relationship have been largely due to the Applicant’s rigid thinking and inability to understand and accept explanations given to him for such things as licence conditions, and his consequent mistrust of the COM. Like the panel, I think it is a shame that the Applicant’s excellent progress in so many respects has been spoiled by the problems identified by the panel which prevented them from being able to direct his release on licence at this stage. It is to be hoped that by the time of his next review he will have been able to understand and address those problems and to demonstrate that he can do what he needs to do if he is to progress. Decision

[39]For the reasons which I have explained above I am unable to find that there was any irrationality or procedural unfairness in the panel’s decision, and I must therefore refuse this application. Jeremy Roberts 23 May 2023