Chiswick, Application for Reconsideration [2024] PBRA 124 (10 July 2024) [2024] PBRA 124

PBRA
Chiswick, Application for Reconsideration [2024] PBRA 124 (10 July 2024)
[2024] PBRA 124 · 2024-05-22
[1]This is an application by Chiswick (the Applicant) for reconsideration of a decision of a panel of the Parole Board at an oral hearing dated 07 May 2024 not to direct release. That panel recommended that the Applicant move 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 (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 a dossier of 326 pages (including the decision letter) as well as the application for reconsideration. Subsequent to that, there was a witness statement provided by the Applicant's solicitor exhibiting his notes of the oral hearing.[4]In addition, I have listened to the audio recording of the hearing. Background[5]The Applicant was sentenced to Imprisonment for Public Protection (IPP) on 1 July 2011, with a tariff of 5 years, for an offence of sexual assault of a female by penetration.[6]He has been twice released and recalled, most recently in July 2019. This was his fourth review on this sentence overall. Request for Reconsideration[7]The application for reconsideration is dated 31 May 2024. As originally drafted it contained a number of assertions as to what was said at the hearing, without anything to support it. Directions were issued to clarify this, following which a witness statement and the Applicant's lawyer's notes of the hearing were provided.[8]The grounds for seeking a reconsideration are set out in narrative form, but are essentially that the decision is an irrational one. However, much of the grounds are taken up with rearguing his case for release and giving reasons why the panel's conclusion on open conditions (which is not within the scope of the reconsideration mechanism) was incorrect.[9]The reasons in support for the decision being an irrational one appear to be as follows:a. It was disputed that one particular comment (" He denied having sexual thoughts in custody ") was made,b. The panel placed undue reliance on the conclusion that there was a lack of a pro-social network,c. The panel did not have a new psychological report,d. All the professionals recommended release.[10]The representations also refer to the Applicant's application for Judicial Review following his last Parole Board review where judgment was handed down on 22 May 2024 - [2024] EWHC 1223 (Admin) , Fordham J), so after the panel heard the case on the current application. It is said that this shows that the decision was an irrational one, although it is not said why. Current parole review[11]The Applicant's case was referred to the Parole Board in August 2023 to consider whether to direct release or, if not, whether to recommend a move to open conditions.[12]An MCA member of the Parole Board considered his case in January 2024 and directed an oral hearing. The Applicant was represented by his current solicitors prior to then, and throughout this review.[13]That MCA member directed a number of reports be added to the dossier, including a previous psychological assessment from 2022.[14]The case was heard at the oral hearing by a three person panel of the Parole Board, including a specialist psychologist member. The panel was chaired by an experienced retired Circuit Judge. The Relevant Law[15]The panel correctly sets out in its decision letter dated 07 May 2024 the test for release and the issues to be addressed in making a recommendation to the Secretary of State (Respondent) for a progressive move to open conditions.[16]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)[17]Under Rule 28(1) of the Parole Board Rules 2019 the only types of decisions which are eligible for reconsideration are those concerning whether the prisoner is or is not suitable for release on licence. Such a decision is eligible for reconsideration whether it is 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)).[18]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)).[19]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 . Illegality[20]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.[21]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. Irrationality[22]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. "[23]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.[24]The application of this test has been confirmed in previous decisions on applications for reconsideration under rule 28: Preston [2019] PBRA 1 and others. Procedural unfairness[25]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.[26]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.[27]The overriding objective is to ensure that the Applicant's case was dealt with justly. Other[28]It is possible to argue that mistakes in findings of fact made by a decision maker result in the final decision being irrational but the mistake of fact must be fundamental. The case of E v Secretary of State for the Home Department [2004] QB 1044 sets out the preconditions for such a conclusion:
" 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."
See also R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] AC 295 , which said that in order to establish that there was a demonstrable mistake of fact in the decision of the panel, an Applicant will have to provide " objectively verifiable evidence " of what is asserted to be the true picture.[29]In Oyston [2000] PLR 45 , at paragraph 47 Lord Bingham said:
" It seems to me generally desirable that the Board should identify in broad terms the matters judged by the Board as pointing towards and against a continuing risk of offending and the Board's reasons for striking the balance that it does. Needless to say, the letter should summarise the considerations which have in fact led to the final decision. It would be wrong to prescribe any standard form of Decision Letter and it would be wrong to require elaborate or impeccable standards of draftsmanship. "
The reply on behalf of the Secretary of State[30]The Secretary of State (the Respondent) did not originally make any representations. However, after the Applicant submitted evidence to support his contentions about the hearing, there was a short response.[31]However, these were limited to stating the Prison Offender Manager (POM) "cannot remember word for word what they had said at the hearing" . It then goes on to state that if she was asked now whether he had sexual thoughts in prison, she would say " he does, however, his sexual preoccupation is low, he does not find managing the thoughts difficult in prison as an outlet such as a relationship is not available to him and over time it becomes less of a concern for him ".[32]I record this further answer, although this is not admissible in relation to this application. In any event, the question that this answers of whether he has sexual thoughts in prison, but whether he told her that he did not.[33]Significantly, the Respondent did not dispute the Applicant's assertions, or seek to argue that the decision was safe. Discussion[34]I shall consider each point in turn, although it is important to step back and look at the points cumulatively to see if the allegation of irrationality is made out. 1 - The comment in relation to his sexual thoughts.[35]This relates to one line in the summary of the POM's evidence as follows:
" He denied having sexual thoughts in custody "
. This was returned to in the conclusion, where the panel gave reasons for not following the recommendations of the professionals: "The prison offender manager reported [the Applicant] telling her he experienced no sexual thoughts in custody".[36]The panel states that " it is difficult to accept this statement at face value, which suggests limited openness with professionals which needs further testing ".[37]The Applicant's case is that this was not said at the hearing. Instead, it is said that he said that his levels of sexual preoccupation were low in prison.[38]Having listened to the recording of the hearing, it is unclear where the summary of the evidence contained in the above line comes from.[39]The POM appears to say that the Applicant's sexual preoccupation levels in custody "aren't high" . Later in the evidence, there is the following when discussing the question of open conditions: Question – "the other thing that I was wondering is...given that he's pretty honest that in custody [he doesn't] really have these sexual thoughts they all go away, and [when he gets] into the community, they re-surge [a period in open conditions may enable him to practice managing them] ?" Answer - " Yes, in terms of being around women he can have a sexual relationship with ."[40]This was answered, with the next question including " because he doesn't have the sexual thoughts in custody and then he gets released and the sexual thoughts re-occur ".[41]When the Applicant was questioned he was asked:
"...we have read in the dossier and [the POM] has said that within custody your sexual preoccupation [and] your sexual needs are obviously very low - how do you feel they are going to be if re-released?"
[42]This was returned to later on:
"...One of the benefits... of open conditions... is that because you don't have ...the sexual thoughts in custody, and they do resurge when you go into the community, you can practice managing them and having those open conversations about your sexual thoughts with [your Community Probation Officer]." "if you go directly in the community you missed out on that testing ability - it's just to be clear - If you weren't in open do you think that you can still do all of that without testing that out as you don't know how they could resurge until you're back out there?"
[43]When he answered the question, the Applicant did not challenge the premise in the question that he did not have any sexual thoughts in custody, although he did not accept it.[44]For completeness, the community probation officer was asked:
"and you might not have been able to ascertain this as his sexual thoughts ... are not really there while he's in custody, certainly not to the level [that they are] in the community, but do you know where his sexual interests lie? Have you had these conversations?"
Answer - " No, we haven't had those specific conversations "[45]It appears that the Applicant never said to the panel that he had no sexual thoughts in custody, nor did the POM relay that she had been told that.[46]However, from the questions of the panel it appears that they were under the impression that that was the case. This was uncorrected by the Applicant although, in the circumstances of the questions and answers, I do not consider that that can mean that he is deemed to have accepted it.[47]For that reason, I consider that the Applicant has established that there was a mistake of fact in the decision letter.[48]It is then necessary to consider whether it is fundamental to the decision.[49]Whilst this is only a short line in the panel's letter, it seems to me that the real significance of this is the inference that the panel then drew as to the honesty of the Applicant. In addition, this features in the critical paragraph where the panel were explaining why they were not following the recommendations of the professionals.[50]My concern is that if the decision were to stand with an apparent error as set out above, the Applicant would have a legitimate sense of grievance that the panel made a fundamental mistake of fact that went to the heart of the decision.[51]In those circumstances, whilst the decision itself could not be described as irrational in the colloquial meaning of the word, it seems to me that this ground is made out and fairness requires that the decision be reconsidered. 2- The lack of a 'pro-social network'.[52]The panel concluded that the Applicant had 'very limited personal support in the community', which is something that he needed to develop. This conclusion was not challenged by the Applicant, but it is submitted that this could be achieved by the Applicant being released.[53]I do not consider that this point has merit. It is one factor that the panel relied on, and it was for them to assess how much weight it has. Their conclusion that this was something that needed to be worked upon prior to release, and that could be done in open conditions, was one that was explained by them and was one that they were entitled to come to.[54]Much of the argument put forward in this heading amounts to setting out arguments why the panel should have directed release. Even if I found that those were persuasive, and that I would have directed release, that cannot make the decision irrational. 3 - The lack of a psychological report.[55]The grounds complain that the psychological report from 2022 was not referenced in the hearing and that, in addition, the panel's concerns " could have been explored through a further psychological report ".[56]The simple answer to first point is that the panel did not consider it necessary. The answer to the second point is that this was never suggested by the Applicant, or considered necessary by the panel.[57]The MCA member who directed an oral hearing was not a member of the panel that considered the case at an oral hearing. That member will conduct an overview of the case and direct material that might be of assistance to the panel at the oral hearing. It will be the panel at the oral hearing who decides whether it needs to be explored.[58]In addition, the panel Chair will issue directions about a month before the hearing ('PCD' - Panel Chair Directions). This will follow a further review of the case and, if it is considered necessary, would direct a psychological report. None was done so at that stage. It is also open to the panel at the oral hearing itself to adjourn for that purpose.[59]Had the MCA member, the panel Chair at the PCD stage, or the full panel at the oral hearing considered that a psychological report was needed, then they would have directed one. Their (implicit) decision that it was not, is not an irrational one.[60]The Applicant was represented throughout, and it was open to him (at any stage) to have requested that a report by directed. That this was not done suggests that the Applicant himself did not consider that a report was needed.[61]In the circumstances, there is nothing in this point. 4 - The decision was against the recommendations[62]By the hearing, the Applicant's POM and community probation officer were both recommending release.[63]That was obviously a point in the Applicant's favour, and was relied on at the hearing in support of his application for release.[64]It is trite law that a panel is not bound by the recommendations of the professionals, even if they are unanimous, or else there would be no need for an oral hearing. However, a unanimous recommendation is something that will weigh heavily on the panel and, whilst they are entitled to not follow that recommendation, the reasons why not must be carefully explained.[65]The Applicant has not elaborated on this point.[66]In the letter the panel set out reasons for concern about his likely compliance in the community and noted the recommendations, and the reasons for it, but then gave reasons why they " had less confidence" that the professionals did. Leaving aside the point set out in ground 1, there is nothing in this ground. Decision[67]Accordingly, I do consider, applying the test as defined in case law, that the decision to not direct release to be irrational/procedurally unfair. I do so solely for the reasons set out above under Ground 1.[68]The application for reconsideration is therefore granted and the case should be reviewed by a fresh panel by way of an oral hearing. Daniel Bunting 10 July 2024