Parle, Application for Reconsideration [2024] PBRA 1 (08 January 2024) [2024] PBRA 1

PBRA

Parle, Application for Reconsideration [2024] PBRA 1 (08 January 2024)

[2024] PBRA 1 · 2023-11-28

[1]This is an application by Parle (the Applicant) for reconsideration of an undated decision of a panel of the Parole Board (the Panel Decision) received by the Applicant on 28 November 2023 not to direct the release of the Applicant but instead to make a recommendation to the Secretary of State (the Respondent) that the Applicant should be moved to open conditions.

[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 either on the basis(a) that the decision is irrational, and/or

(b) that it is procedurally unfair.

[3]I have considered the application by listening to a recording of the oral hearing leading to the Panel Decision and by considering:(a) The Panel Decision;

(b) The Applicant’s application for reconsideration dated 13 December 2023 and the notes taken by the Applicant’s Solicitors relied on by the Applicant in support of his application for reconsideration and sent on 19 December 2023;

(c) The email dated 22 December 2023 from the Public Protection Casework Section (PPCS) on behalf of the Respondent stating that no representations will be made by the Respondent in response to the application for reconsideration; and

(d) the Applicant’s dossier containing 575 pages.

[4]The grounds for seeking reconsideration of the Panel Decision are that its decision to decline release was procedurally unfair because:(a) The Panel stated in paragraph 2.16 of the Panel Decision that the Applicant accepted in his evidence that he sat on his brother-in-law when the Applicant had not at any time stated that and when his evidence was that when his brother-in-law fell over, the Applicant grabbed his brother-in-law (Ground 1).

(b) The Panel stated in paragraph 2.14 of the Panel Decision that the Applicant in his evidence had stated that he “had pulled open a kitchen drawer” when the Applicant’s evidence was that when the drawer was open, he put his hand in the open drawer and pulled out the knife when not intentionally or deliberately looking for a knife but he grabbed it when seeking something to protect himself (Ground 2). Background

[5]On 9 March 2007, the Applicant, who was then 34 years of age, was sentenced to an indeterminate sentence of imprisonment for public protection with a minimum term of 3 ½ years less time spent on remand for the index offence of wounding with intent to cause grievous bodily harm. The victim was the Applicant’s former girlfriend and he returned to her home when he proceeded to assault her by punching her using his clenched fist and then kicking her when she was on the ground. He then dragged her by her hair and then threatened to kill her.

[6]The sentencing judge dealing with the index offence recorded that the index offence occurred when the Applicant obtained from the workshop the knife and then used it for “the deliberate stabbing of [the victim] in the chest area, causing a collapsed lung and then holding it to her throat”. The sentencing judge dealing with the index offence concluded that “this incident only ended when the police arrived”.

[7]The Applicant had moved to open conditions in 2019, but he was returned to closed conditions after he allegedly threatened his female Prison Offender Manager. Prior to his most recent release in March 2022, the Applicant had been released and then recalled on three occasions during his present sentence in 2013, 2015 and 2019. The Applicant’s Recall from the 2022 Release

[8]The Applicant was released on 14 March 2022 at the direction of the Parole Board but he was recalled on 9 June 2022 and returned to prison on 17 June 2022. The application for reconsideration relates to the events leading to the Applicant’s recall which occurred when the Applicant and his partner were with her family on holiday at a caravan park. The Applicant has explained that he had not wanted to go on that holiday with his partner and her family, but that he had gone at the behest of his partner. The Panel Decision noted that prior to his recall, the Applicant had been drinking all day and he had argued with his partner about the family dog. On the evening of that day, the Applicant’s partner, who had wanted to stay in her parent’s caravan, had gone with her father to the caravan she was sharing with the Applicant in order to collect some items as she did not wish to stay there. An altercation took place between the Applicant and his partner’s father during which the Applicant is alleged to have said “I know where you fucking live and you’re a dead man”.

[9]According to the police report, they were called by a third party who stated that there had been an altercation in a neighboring caravan in which it was alleged that the Applicant had had “a verbal fight” with his partner’s father and a physical fight with her brother-in-law when he was extremely intoxicated. The evidence was that the fight had taken place outside of the caravan and the Applicant is alleged to have gone back into the caravan and retrieved a serrated bread knife with which he had chased his brother-in-law. The brother-in-law has not been willing to provide a statement to the police. The Applicant’s partner described the Applicant as being “in a state of red mist”.

[10]According to the Panel Decision, the Applicant has “since said that he picked up the knife to defend himself when faced with seven members of his partner’s family who were hostile towards him” . According to the panel, it had a duty to consider the appropriateness of the Applicant’s recall and “on all the evidence open to it [it] found the recall was appropriate [and] this is because [the Applicant] was suspected of further offending”.

[11]The panel made the following findings in relation the incident which led to the Applicant’s recall: - “[The Applicant] had been drinking although it is not possible to quantify his level of drunkenness; - There was an altercation which involved [the Applicant], his father-in-law and his brother-in-law; - The altercation took place in the context of a familial dispute; - [The Applicant] accepted that he sat on his brother-in-law; - [The Applicant] accepted that he caused fear; - [The Applicant] accepted that he picked up a knife”. The panel recorded that the Applicant “had pulled open a kitchen drawer” and taken out the knife.

[12]Ground 1 challenges the contention that the Applicant “accepted that he sat on his brother-in-law” as the Applicant stated that when his brother-in-law fell over, he grabbed him and crucially, he did not at any time during the hearing state that he sat on his brother-in-law.

[13]When it considered whether the Applicant could be released, the panel concluded that: -The recall demonstrated that the Applicant had “active core risk factors including alcohol misuse, the use of violence to assert his dominance and relationships” ; - it “shared the Community Offender Manager’s view that the circumstances of the recall were offence paralleling [with the index offence]”; and that - it concluded that “it was not confident that [the Applicant’s] risks could be safely managed in the community” as “he is yet to consistently demonstrate that he can manage them [and that] he needed to remain imprisoned for the protections of the public and did not direct release”.

[14]Ground 1 requires consideration of the significance of the erroneous statement that the Applicant “accepted that he sat on his brother–in-law” against the background that the Applicant’s “active core risk factors” included “the use of violence to assert his dominance and relationships”. The Relevant Law Procedural Unfairness

[15]A party seeking to complain of procedural unfairness under Rule 28 has to establish that either(a) express procedures laid down by the law were not followed in the making of the relevant decision;

(b) they were not given a fair hearing;

(d) they were prevented from putting their case fairly; and/or

(e) the panel was not impartial.

[16]The overriding objective is to ensure that the Applicant’s case was not dealt with justly.

[17]The grounds for seeking reconsideration are that the panel made errors in stating what evidence had been adduced on various issues. It is not every error made by the panel which inevitably means that reconsideration has to be ordered. In the case of E v Secretary of State for the Home Department

[2004] QB 1044

, the circumstances in which reconsideration can be ordered where a panel had made a mistake in recording the evidence were described in this way:

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

The reply on behalf of the Respondent

[18]PPCS stated in an email dated 22 December 2023 that the Respondent was not making any representations in response to the Applicant’s Reconsideration Application. Discussion

[19]In dealing with the grounds for reconsideration, it is necessary to stress that the reconsideration mechanism is not a process by which the judgment of the panel when assessing risk can be lightly interfered with. Nor is it a mechanism in which the member carrying out the reconsideration was entitled in a case where it is contended that the panel made a mistake to substitute his or her view of the facts in place of those found by the panel unless the conditions specified in E v Secretary of State which are set out in paragraph 17 above have been satisfied.

[20]Those conditions in E v Secretary of State which have to be satisfied before reconsideration can only be ordered on the grounds of mistakes in a panel decision are first, that the mistake was objectively verifiable; second, that the Applicant or his advisers must not have been responsible for the mistake; and third, that “the mistake must have played a material (though not necessarily decisive) part in the [panel]’s reasoning .” Ground 1

[21]This ground of challenge is that, as explained, th e Panel stated in paragraph 2.16 of the Decision that the Applicant accepted in his evidence that he sat on his brother-in-law when the true position is that the Applicant had not at any time accepted that he sat on his brother-in-law, but that his clear evidence in the form of the recording of the hearing of the panel hearing was that the Applicant stated that when his brother-in-law fell over, he grabbed him and crucially, he did not at any time during the hearing state that he sat on his brother-in-law.

[22]This is borne out by the contemporaneous notes taken by the Applicant’s legal representative, and no contrary evidence has been adduced.

[23]It is clear that at no point did the Applicant accept that he sat on his brother-in-law and that the Applicant and his advisers were not responsible for the mistake which was “uncontentious and objectively verifiable” in the light of the Applicant’s evidence.

[24]So the issue in determining whether reconsideration can be ordered is whether or not the incorrect statement by the panel that the Applicant had stated in his evidence that he had sat on his brother-in-law had a material (though not necessarily a decisive) part in the panel’s reasoning.

[25]I have concluded that the issue of whether the Applicant said that he sat on his brother-in-law (as opposed to stating that grabbed him) was material to the panel’s decision on the crucial issue of the risk posed by the Applicant if released into the community because of the following factors which individually or cumulatively show the materiality of this evidence in that:(a) The Applicant’s brother-in-law has not provided a statement and accordingly, the statement of the Applicant as to what he did to his brother-in–law when he fell is highly material to the risk posed by the Applicant as it was the only relevant and direct contemporaneous evidence on what the Applicant did to his brother-in-law after he fell.

(b) This evidence relates to what has been described as “[the Applicant’s] active core risk factors [which includes]…the use of violence to assert his dominance and relationships” which were material issues.

(c) The Applicant had explained in evidence that he grabbed his brother-in-law and this constituted a material difference from the statement that he was sitting on his brother-in-law. Indeed, an allegation of sitting on an adversary shows that the Applicant used violence to assert dominance and that violence is much more serious and much more concerning than the violence associated with simply grabbing his brother-in-law.

(d) The panel shared the view of the Community Offender Manager that “the circumstances of the recall were offence paralleling” and those circumstances must have included how the Applicant treated his brother-in-law and whether he sat on him as opposed to merely grabbing him.

(e) There was an enhanced need for the panel to consider with particular care whether it was safe to release the Applicant because by the time when the panel was deciding whether to release the Applicant, he had already been released and then recalled within short periods of release on three previous occasions during his present sentence in 2013, 2015 and 2019 and these recalls were on the basis that the Applicant could not be safely released. This meant that there was a need for special care to consider the risk posed by the Applicant if released into the community and this entailed the material issue of how the Applicant when released treated his brother-in law when he fell to the ground including whether the Applicant sat on him. Decision 26.For all these reasons, this application for reconsideration must be granted. 27.In those circumstances, it is not necessary to deal with Ground 2. Sir Stephen Silber 08 January 2024