Cook, Application for Reconsideration [2024] PBRA 116 (12 June 2024) [2024] PBRA 116

PBRA
Cook, Application for Reconsideration [2024] PBRA 116 (12 June 2024)
[2024] PBRA 116 · 2024-05-13
[1]This is an application by Cook (the Applicant) for reconsideration of a decision of an oral hearing panel dated 13 May 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. This is an eligible case, and the application was made in time.[3]I have considered the application on the papers. These are the oral hearing decision, and the dossier (consisting of 536 pages). Request for Reconsideration[4]The application for reconsideration is dated 29 May 2024.[5]The grounds for seeking a reconsideration are as follows: a) It was irrational for the panel to conclude there was little more to be gained by further adjourning the Applicant’s parole review; and b) The decision was procedurally unfair as the witnesses reached their professional opinions (with which the panel disagreed) on different information to that before the panel.[6]These grounds are supplemented by written arguments to which reference will be made in the Discussion section below. Background[7]The Applicant received an extended sentence for offenders of particular concern (SOPC) on 2 March 2017 following conviction for seven sexual offences against a female child under the age of 13. The SOPC consisted of a 10 year custodial term with a one year period on extended licence.[8]The Applicant was 31 years old at the time of sentencing and is now 39 years old.[9]His parole eligibility date passed in January 2022. His conditional release date falls in January 2027 and his sentence expires in January 2028. Current Parole Review[10]The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) in January 2023 to consider whether or not it would be appropriate to direct his release.[11]A three member panel of the Parole Board (comprising a judicial chair and two independent members) convened to hear the Applicant’s case on 28 February 2024. It heard oral evidence from the Applicant, together with the Prison Offender Manager (POM), the previous POM, an HMPPS-commissioned forensic psychologist, a psychologist commissioned by the Applicant and the Community Offender Manager (COM).[12]The Applicant was legally represented throughout the hearing. The Respondent was not legally represented.[13]The COM told the panel that referrals for designated accommodation were still pending, but there had been no acceptance of a placement in principle. Without clarity on the proposed release arrangements, the panel was unable to reach an informed decision, and it adjourned for the COM to make further enquiries. An update was directed from the COM within 14 days, and the Applicant’s legal representative was invited to make closing written submissions within seven days of the COM update.[14]On 14 March 2023, the COM advised that the application for placement at designated accommodation had been rejected. An alternative Community Accommodation Service Tier 3 (CAS3) option was not available but was being reviewed.[15]On 18 March 2023, the COM advised that CAS3 accommodation had been secured with a move-in date of 25 March 2024.[16]The Applicant’s legal representative noted in writing that this date would not be viable (given the timeframe for issuing a provisional decision and the operation of the 21-day reconsideration window).[17]On 5 April 2024, the review was adjourned further, for the COM to advise: a) whether an appeal had been lodged against the refusal of a placement in designated accommodation (and if so, the outcome); b) whether the CAS3 accommodation remained available; and c) what accommodation was proposed after a period in either designated accommodation or a CAS3 property.[18]On 2 May 2024, the COM responded as follows: a) an appeal had been lodged, but was unsuccessful; b) CAS3 accommodation would be sourced in the event of a release decision (if the Applicant was deemed suitable) and there would be a two-week window to explore options; and c) if CAS3 accommodation was available, the Applicant could work with the Local Authority to find independent move-on accommodation; alternatively, he could reside at his mother’s address (which was only suitable after a period of time at a monitored residence such as a CAS3 property). Availability would be looked at on 7 May 2024.[19]The panel did not direct the Applicant’s release.[20]On the matter of accommodation, the panel considered that: a) The accommodation proposals were “ far too speculative” (para. 3.9). b) It was concerned about the “ lack of suitable accommodation in the absence of which there was a risk of a return to the lifestyle prevalent at the time of the index offences” (para. 3.15). c) The panel placed more weight than professional witnesses on “ the necessity for release to settled accommodation so that [the Applicant] can be properly supervised and monitored and adopt a settled lifestyle” (para. 4.1). d) In its view “ despite the time allowed, no positive proposals for a satisfactory release address have emerged. The panel did not feel that there was anything to be gained by further adjourning a decision” (para. 4.6). The Relevant Law[21]The panel correctly sets out the test for release in its decision. Parole Board Rules 2019 (as amended)[22]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)).[23]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)).[24]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[25]The power of the courts to interfere with a decision of a competent tribunal on the ground of irrationality was defined by the Court of Appeal (Civil Division) in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA) 230 (Lord Greene MR) in these words:
“ if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere ”
. The same test applies to a reconsideration panel when determining an application on the basis of irrationality.[26]In R(DSD and others) v the Parole Board [2018] EWHC 694 (Admin) [116] (Leveson P), the Divisional Court applied the Wednesbury test to parole board hearings in these words:
“ 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 .”
[27]In R(Wells) v Parole Board [2019] EWHC 2710 (Admin) [32] (Saini J), the Divisional Court set out what it described as a more nuanced approach in modern public law which was “ to test the decision maker’s ultimate conclusion against the evidence before it and to ask whether the conclusion can (with due deference and with regard to the panel’s expertise) be safely justified on the basis of that evidence, particularly in a context where anxious scrutiny needs to be applied) ”. This test was adopted by the Divisional Court in R(Secretary of State for Justice) v the Parole Board [2022] EWHC 1282 (Admin) .[28]As was made clear by Saini J this is not a different test to the Wednesbury test. The interpretation of and application of the Wednesbury test in parole hearings (as explained in DSD ) was binding on Saini J.[29]It follows from those principles that in considering an application for reconsideration the reconsideration panel will not substitute its view of the evidence for that of the panel who heard the witnesses.[30]Further while the views of the professional witnesses must be properly considered by a panel deciding on release, the panel is not bound to accept their assessment. The panel must however make clear in its reasons why it is disagreeing with the assessment of the witnesses. Procedural unfairness[31]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 to the issue of irrationality which focusses on the actual decision.[32]In summary an Applicant seeking to complain of procedural unfairness under rule 28 must satisfy me that either:(a) express procedures laid down by law were not followed in the making of the relevant decision;(b) they were not given a fair hearing;(c) they were not properly informed of the case against them;(d) they were prevented from putting their case properly; and/or(e) the panel was not impartial.[33]The overriding objective is to ensure that the Applicant’s case was dealt with justly. The reply on behalf of the Respondent[34]The Respondent has submitted no representations in response to this application. Discussion[35]It is first argued that it was irrational for the panel to conclude that there was little more to be gained by further adjourning the review.[36]The panel was advised that there would be a review of the availability of CAS3 accommodation on 7 May 2024. This review would have taken place before the panel’s decision was issued on 13 May 2024. The panel did not direct an update from the COM; neither did the Respondent (on behalf of the COM) proactively offer an update despite the standard direction to parties that they are responsible for ensuring that any developments in this case considered to be relevant to risk are reported to the Parole Board Case Manager within 48 hours of parties becoming aware of them.[37]The position seems to be that, from 7 May 2024, updated information on the potential availability of CAS3 accommodation would have been known, but it was not sought by the panel nor proffered by the Respondent.[38]While I accept that parole reviews cannot be allowed to drift indefinitely and the Applicant has a right to a speedy review of his detention, to conclude a review on the basis of information that is unknown but not unknowable at the time the review was concluded seems unreasonable.[39]However, this unreasonableness would only give rise to a successful application for reconsideration if it also rendered the decision not to direct the Applicant’s release also to be Wednesbury unreasonable (in the sense in which it was clarified by DSD and Wells ).[40]The uncertainty around release accommodation appears to have been pivotal to the panel’s decision and, although I cannot say for certain that the panel’s decision would have been different if suitable accommodation had been available, there is certainly a possibility that it might have been. The fact that the panel initially adjourned for more information about accommodation suggests that there was at least a time at which the panel had the possibility of releasing the Applicant to suitable accommodation within its contemplation. If it had not, then the panel could simply have concluded the review then, on the basis that it would not have directed release even with the most cast-iron set of release and move on accommodation options.[41]Moreover, the professional witnesses had not given their views on the Applicant’s suitability for release in the event that accommodation options were more fluid (as advanced by the Applicant in the second ground for reconsideration). In any event, there was strong professional support for release before the accommodation matter had been determined (although the panel was perfectly entitled to disagree with that support; as it did).[42]In the circumstances of this particular case, I am satisfied that the unreasonableness of concluding a decision without knowing the outcome of the 7 May 2024 review even though it had taken place, is sufficient to make the panel’s decision irrational.[43]Having so decided, I do not need to consider the second ground of procedural unfairness. Decision[44]For the reasons set out above, the application for reconsideration is granted. Stefan Fafinski 12 June 2024