Rickwood, Application for Reconsideration [2024] PBRA 104 (28 May 2024) [2024] PBRA 104
PBRA
Rickwood, Application for Reconsideration [2024] PBRA 104 (28 May 2024)
[2024] PBRA 104 · 2024-04-18
[1]This is an application by Rickwood (the Applicant ) for reconsideration of a decision of an oral hearing panel dated 18 April 2024 not to direct his release.[2]Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2022) (the Parole Board Rules ) provides that applications for reconsideration may be made in eligible cases (as set out in rule 28(2)) either on the basis(a) that the decision contains an error of law,(b) that it is irrational and/or(c) that it is procedurally unfair.[3]I have considered the application on the papers. These are the oral hearing decision, the dossier (consisting of 623 pages), and the application for reconsideration (dated 9 May 2024). Background[4]The Applicant received an extended sentence of 13 years (comprising a custodial term of eight years with five years on extended licence) on 14 August 2014 following conviction for causing grievous bodily harm with intent to do grievous bodily harm to which he pleaded guilty. His conditional release date has now passed, and his sentence expires in May 2027.[5]The Applicant was 22 years old at the time of sentencing and is now 32 years old.[6]The Applicant was automatically released on licence on 20 May 2022. His licence was revoked on 8 December 2022 and he was returned to custody the following day. Request for Reconsideration[7]The application for reconsideration has been submitted by the Applicant.[8]It argues that the decision not to release the Applicant was irrational and contained an error of law. No matters of procedural unfairness were raised.[9]These grounds are supplemented by written arguments to which reference will be made in the Discussion section below. Current Parole Review[10]The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) to consider whether to direct his release. This is the Applicant’s first parole review since his recall.[11]A three member panel of the Parole Board convened to hear the Applicant’s case on 5 March 2024. It heard oral evidence from the Applicant, together with his Prison Offender Manager ( POM ), Community Offender Manager ( COM ), and an HMPPS psychologist.[12]The Applicant was legally represented throughout the hearing. The Respondent was not represented by an advocate.[13]The hearing adjourned for further information concerning the Applicant’s eligibility for an Intensive Intervention and Risk Management Service ( IIRMS ). This was received on 21 March 2024. Legal representations were also invited, but nothing further appears to have been submitted on the Applicant’s behalf.[14]The panel did not direct the Applicant’s release. The Relevant Law[15]The Parole Board will direct release if it is no longer necessary for the protection of the public that the prisoner should be confined. The test is automatically set out within the Parole Board’s template for oral hearing decisions. Parole Board Rules 2019 (as amended)[16]Rule 28(1) of the Parole Board Rules provides the types of decision which are eligible for reconsideration. Decisions concerning whether the prisoner is or is not suitable for release on licence are eligible for reconsideration whether made by a paper panel (rule 19(1)(a) or (b)) or by an oral hearing panel after an oral hearing (rule 25(1)) or by an oral hearing panel which makes the decision on the papers (rule 21(7)). Decisions concerning the termination, amendment, or dismissal of an IPP licence are also eligible for reconsideration (rule 31(6) or rule 31(6A)).[17]Rule 28(2) of the Parole Board Rules provides the sentence types which are eligible for reconsideration. These are indeterminate sentences (rule 28(2)(a)), extended sentences (rule 28(2)(b)), certain types of determinate sentence subject to initial release by the Parole Board (rule 28(2)(c)) and serious terrorism sentences (rule 28(2)(d)).[18]A decision to recommend or not to recommend a move to open conditions is not eligible for reconsideration under rule 28. This has been confirmed by the decision on the previous reconsideration application in Barclay [2019] PBRA 6 . Irrationality[19]In R(DSD and others) v the Parole Board [2018] EWHC 694 (Admin) , the Divisional Court set out the test for irrationality to be applied in judicial reviews of Parole Board decisions. It said at para. 116, “The issue is whether the release decision was so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. ”[20]This test was set out by Lord Diplock in CCSU v Minister for the Civil Service [1985] AC 374 . The Divisional Court in DSD went on to indicate that in deciding whether a decision of the Parole Board was irrational, due deference had to be given to the expertise of the Parole Board in making decisions relating to parole. The Board, when considering whether or not to direct a reconsideration, will adopt the same high standard for establishing ‘irrationality’. The fact that rule 28 contains the same adjective as is used in judicial review shows that the same test is to be applied.[21]The application of this test has been confirmed in previous decisions on applications for reconsideration under rule 28: Preston [2019] PBRA 1 and others. Error of law[22]An administrative decision is unlawful under the broad heading of illegality if the panel: a) misinterprets a legal instrument relevant to the function being performed; b) has no legal authority to make the decision; c) fails to fulfil a legal duty; d) exercises discretionary power for an extraneous purpose; e) takes into account irrelevant considerations or fails to take account of relevant considerations; and/or f) improperly delegates decision-making power.[23]The task in evaluating whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring the duty or power upon the panel. The instrument will normally be the Parole Board Rules, but it may also be an enunciated policy, or some other common law power. The reply on behalf of the Respondent[24]The Respondent has submitted no representations in response to this application. Discussion Error of law[25]I will deal with the Applicant’s second ground for reconsideration first.[26]It is submitted that the panel’s decision contained an error of law as it did not correctly apply the test for release in the Applicant’s case.[27]It is submitted that, since the Applicant is serving an extended determinate sentence and was recalled during the extension period, panels are required to ‘reverse the test’ and apply a presumption in favour of release. In such cases it is argued that the panel should direct release unless it is positively satisfied that continued detention is necessary for the protection of the public.[28]The Applicant seeks to rely on the judgment of the Court of Appeal (Civil Division) in R(Sim) v Parole Board [2003] EWCA Civ 1845 , [2004] QB 1288 (CA) (Elias J) [65], specifically:(1) The decision to continue to detain a prisoner who has been subject to recall during an extended licence period is a decision which attracts the safeguards of article 5 [of the European Convention on Human Rights]; it is not a sufficient response to say the detention is justified by the original sentence. Accordingly, the detention must be consistent with the aims and objectives of the original sentence and must be subject to regular supervision by reviews which are compliant with article 5(4) (as indeed they currently are).(2)Section 44A(4) of the Criminal Justice Act 1991 must be construed so that the Parole Board is obliged to conclude that it is no longer necessary to detain the recalled prisoner unless the board are positively satisfied that the interests of the public require that he should be confined.[29]However, a distinction may be drawn between the extended sentence in Sim and the extended sentence imposed upon the Applicant.[30]This distinction was considered most recently by the Supreme Court in R(Pearce and another) v Parole Board [2023] UKSC 13 (Lord Hodge and Lord Hughes) [8], as follows: It is convenient to note that in R (Sim) v Parole Board [2004] QB 1288 (“Sim”) it was held that in the specific case of an early model of extended sentence, created by the Crime and Disorder Act 1998 , article 5(4) of the ECHR required the Board positively to be satisfied that it remained necessary for the protection of the public that the prisoner remain in custody, as distinct from permitting release only when the Board was satisfied that it was no longer necessary for him to remain confined. This inversion of the natural meaning of the words of the universally formulated statutory test was held to result from the fact that for that particular form of extended sentence the sentencing court would not necessarily have found the prisoner to pose any risk of causing serious harm to the public, and would not, as a result, have had it in mind that he should be detained unless it was shown that he no longer presented a danger to the public of such harm: see para 47 in the judgment of Keene LJ in the Court of Appeal. The Board appears since to have taken the view that this approach is also required in the case of extended sentences of two different models, created by the CJA 2003 (the extended sentence for public protection (“EPP”) and the LASPO extended determinate sentence (“EDS”)). The correctness of this view has not been debated in the present case, and it does not affect the question which is raised before us. It ought, however, to be observed that there is an arguably significant difference between the 1998 model of extended sentence and the two later models. Both later models are available to the sentencing court where, and only where, the prisoner is found to be dangerous, that is to say presents a danger to the public of serious harm through the commission of further offences—see sections 227(1)(b) CJA 2003 and section 226A(1)(b), now section 280(1)(c) Sentencing Act 2020. In this respect, both later model extended sentence prisoners are in a similar category to those made subject to life or IPP indeterminate sentences. In all such cases, it might be said that the sentencing court did indeed have it in mind that continued detention after the end of the custodial element of the sentence would be necessary unless it be shown that the danger to the public was not present and that that was the occasion for the extension of the licence period. If that were correct, the necessary link between the sentence of the court and the continued detention of the prisoner would be established and article 5(4) would not require any inversion of the natural meaning of the statutory language (see the reasoned speeches of the House of Lords in R (Walker) v Secretary of State for Justice [2010] 1 AC 553 , especially per Lord Brown of Eaton-under-Heywood, at paras 49–50 and 60, and Lord Judge CJ, at paras 103, 108 and 123). It is, however, not necessary to resolve this question for the purposes of the present case.[31]The Supreme Court noted obiter that there could be a significant difference between the 1998 model of extended sentence (in Sim ) and the EPP being served by the Applicant following a finding of dangerousness reached by the sentencing judge.[32]While the obiter view of the Supreme Court is highly persuasive, it also acknowledges (without further comment) that the Parole Board has taken the view that the inverted approach from Sim does apply to the EPP and EDS sentences. As this is an approach that has consistently been taken by the Parole Board, it would not be unreasonable for the Applicant to have a legitimate expectation that the Sim test would be applicable to his review. Therefore, unless and until a higher court clarifies whether the Sim inversion does, in fact, apply, I consider that it does apply in the Applicant’s case. Any other finding would create uncertainty and potential unfairness to the Applicant (and potentially other prisoners serving EPP and EDS sentences).[33]The panel’s decision notes the Sim approach to the application statutory release test in the ‘Any other information’ section of the decision cover sheet as follows: As [the Applicant] is an extended sentence recall prisoner in the extension period of his sentence, the panel is guided by the judgment in Sim, which requires the panel to direct release unless positively satisfied that continued detention is necessary for the protection of the public.[34]It is submitted that there is no reference to the test in the panel’s conclusion. I do not find that reference to the specific wording of the test is necessary, provided that the panel’s decision enables the reader to understand clearly why the panel concluded that continued detention was necessary for the protection of the public. This would, of course, be easier with explicit reference to the wording of the test, but a panel’s duty to give reasons will not be fatally undermined without it. To say otherwise would automatically undermine reasoned and cogent conclusions for reasons of form over substance.[35]The question before me then becomes whether the panel’s conclusion provides enough by way of reasons for the reader to conclude it has understood and applied the test from Sim acknowledged in the preamble (in line with a panel’s common law duty to give reasons set out in R(Wells) v Parole Board [2019] EWHC 2710 (Admin) ).[36]The panel concludes that it is “ satisfied that it remains necessary for the protection of the public that [the Applicant] continues to be confined in prison” . This certainly alludes to the test set out in Sim and reflects the inversion of the standard test.[37]My assessment of whether the panel has explained its application of Sim is very finely balanced.[38]However, on balance, I find that the panel’s stated reasons are not quite sufficient to have overturned the presumption in favour of release and do not demonstrate how the panel was positively satisfied that the Applicant should remain in custody. While the decision outlines clear and cogent factors for and against release, it does not explicitly address and weigh them against the Sim test.[39]It is, of course, more than likely that the panel, in reaching its conclusion, was positively satisfied that the Applicant needed to remain in prison for public protection. However, as already stated, this is not sufficiently clearly set out in its conclusion and therefore I do find that(a) the panel failed to rebut the presumption from Sim and consequently(b) did not fulfil its legal duty to do so. It follows that the application for reconsideration must be granted.[40]As an aside, if I had been persuaded by the Supreme Court’s obiter statements in Pearce that the Sim test did not apply to the Applicant’s EPP sentence, I would have found that the reasoning set out in the panel’s conclusion (when set against the ‘standard’ statutory test) was both adequate and sound. Irrationality[41]Having granted the application for reconsideration, there is no need for me to consider the submissions made in respect of purported irrationality in any detail, although I observe that they are largely concerned with the panel’s interpretation and weighting of the evidence and would, in my view, have met with limited prospects of success. Decision[42]For the reasons set out above, the application for reconsideration is granted. Stefan Fafinski 28 May 2024