Lewis, Application for Reconsideration [2024] PBRA 128 (10 June 2024) [2024] PBRA 128

PBRA

Lewis, Application for Reconsideration [2024] PBRA 128 (10 June 2024)

[2024] PBRA 128 · 2024-04-26

[1]This is an application by Lewis (the Applicant) for reconsideration of a decision of a Member Case Assessment (MCA) single member panel (the panel) on 26 April 2024 to conclude his review on the papers. The panel issued a decision on 26 April 2024 the outcome of which was not to direct release or to send the case to an oral hearing. The application was made through his legal representatives.

[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

[3]I have considered the application on the papers. These are the application dated 17 June 2024; the dossier as seen by the panel; the updated dossier with legal representations dated 24 April 2024 and the original email attaching the 24 April 2024 legal representations. I also asked for but did not receive - it appears these were perhaps not sent by the legal representatives - some additional attachments that were indicated in those representations of 24 April. I do not consider them necessary for my decision. Request for Reconsideration

[4]The application for reconsideration is dated 17 June 2024.

[5]The grounds for seeking a reconsideration is procedural unfairness. In summary, the application submits that the legal representatives asked for, and were granted by the panel, an extension to 24 April 2024 to provide further legal representations before the panel considered the case. They indicated that they had had some difficulties in getting time for a consultation with their client at the prison. The Stakeholder Response Form used by the legal representatives to make their application for an extension of time was replied to by the panel. The panel granted the extension and also indicated that they would review the case on 26 April 2024. The decision, dated 26 April 2024, notes that ‘ no further legal representations were submitted’ .

[6]The application submits that this is incorrect, and that legal representations were sent on 24 April 2024 but were clearly not before the panel when they made their decision. Background

[7]The Applicant is serving an extended determinate sentence for the offence of wounding with intent to cause grievous bodily harm. The sentence is for 90 months in total, made up of 54 months in custody and 36 months extended on licence. He was concurrently convicted for 12 months imprisonment for the offence of possessing an offensive weapon (blade) in a public place. He was convicted in October 2021 and was 42 years at that time. He was 45 years old at the time of the panel’s decision. He has been eligible for early release since 10 March 2024 (Parole Eligibility Date), he will be released in September 2025 (Conditional Release Date) and his sentence will expire in September 2028.

[8]The brief circumstances of the index offence are that the Applicant asked the victim, who was in his car in a queue at a garage, for money, and when he refused he attacked him through the victim’s lowered car window, stabbing him twice in his armpit and arm. At that time the Applicant was on licence, having been released from an earlier conviction. The Applicant has a long history of violent offending as well as general offending. Current parole review

[9]The Applicant’s Parole Eligibility Date (PED) was 10 March 2024. In June 2023 the Secretary of State referred his case to the Parole Board in order for a consideration of whether he should be released at his PED.

[10]On 22 December 2023 an MCA member (the panel) considered the referral and the dossier and adjourned their decision for further information. The reports directed were considerable in number and included a direction for a psychological risk assessment (PRA). Deadlines were given for all these reports.

[11]I have noted that the panel subsequently accepted that a PRA was not appropriate at that time since the Applicant was due to commence high intensity offence focused work. I further note that the dossier seen by the panel indicates that the Applicant, for reasons that do not need to be considered here, disengaged from this work after about 3 months. The panel granted an extension for further legal representations to 24 April, and having seen no further representations, made their decision on 26 April 2024 on the evidence before them at that time. The Relevant Law

[12]The panel correctly sets out in its decision letter dated 26 April 2024 the test for release. Parole Board Rules 2019 (as amended)

[13]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)).

[14]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)). Procedural unfairness 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. 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;

(d) they were prevented from putting their case properly;

(e) the panel did not properly record the reasons for any findings or conclusion; and/or

(f) the panel was not impartial. The overriding objective is to ensure that the Applicant’s case was dealt with justly. Other

[18]In the cases of Osborn v Parole Board

[2013] UKSC 61

, the Supreme Court comprehensively reviewed the basis on which the Parole Board should consider applications for an oral hearing. Their conclusions are set out at paragraph 2 of the judgment. The Supreme Court did not decide that there should always be an oral hearing but said there should be if fairness to the prisoner requires one. The Supreme Court indicated that an oral hearing is likely to be necessary where the Board is in any doubt whether to direct one; they should be ordered where there is a dispute on the facts; where the panel needs to see and hear from the prisoner in order to properly assess risk and where it is necessary in order to allow the prisoner to properly put his case. When deciding whether to direct an oral hearing the Board should take into account the prisoner’s legitimate interest in being able to participate in a decision with important implications for him. It is not necessary that there should be a realistic prospect of progression for an oral hearing to be directed.

[19]Reconsideration is a discretionary remedy. That means that, even if an error of law, irrationality, or procedural unfairness is established, the Reconsideration Member considering the case is not obliged to direct reconsideration of the panel’s decision. The Reconsideration Member can decline to make such a direction having taken into account the particular circumstances of the case, the potential for a different decision to be reached by a new panel, and any delay caused by a grant of reconsideration. That discretion must of course be exercised in a way which is fair to both parties. The reply on behalf of the Secretary of State

[20]The Secretary of State made no submissions in relation to this application. Discussion

[21]I have already outlined the key information relevant to the ground of challenge. The issue for me is whether there was any procedural unfairness when the panel made its decision without considering the representations provided on 24 April 2024.

[22]Having granted the extension to 24 April 2024, it would normally be reasonable for a panel to wait until close of play that day to consider their decision. However in this case the panel had already indicated that they would review the case on 26 April 2024, two days after the further representations were due to be received.

[23]I note that the email sent by the legal representatives enclosing their legal representations was sent at 19:33 on 24 April 2024. Some hours after close of play on that day.

[24]Having noted that it is in my view reasonable that by the date of the review which was 26 April 2024, the further representations would be in the dossier and therefore available to the panel.

[25]In fact it appears that the panel decided to download the dossier for review on 25 April 2024, the day before they indicated they would consider the case. For some reason unknown to me (I have attempted to get details but they are not available) the representations were not uploaded onto the dossier on that day. Neither is there any evidence that the relevant Parole Board staff notified the panel that the representations had been received. Not seeing any further representations in the dossier, the panel went on to make its decision the next day (26 April 2024).

[26]No doubt there were a number of administrative hiccups here. They are: § The legal representations were sent after close of play (normally 5pm) on the agreed day. No warning was given by the representatives about this delay. § The panel was not notified of receipt of the representations. § The representations were not uploaded to the dossier by the day/time the panel decided to download the dossier. § The panel downloaded the dossier a day before they had indicated they would review the dossier and make their decision.

[27]As part of my consideration of this challenge I have carefully read the initial legal representations (undated but considered by the panel), as well as the representations dated 24 April. While there are some repeated points in the latter representations, there are points that are taken that are new, some of them responding to material that had been added to the dossier after the panel’s original adjournment - therefore the representations of 24 April included submissions on the new material.

[28]The first representations apply for release on the papers or in the alternative an oral hearing, providing details as to why an oral hearing was appropriate in this case and citing the case of Osborn above.

[29]The second set of representations repeat the request for release or an oral hearing. Various challenges to information in the dossier as well as points to be explored in explanation of the Applicant’s behaviour (during an oral hearing) are provided.

[30]I note that the decision letter states in its penultimate paragraph “ When making a decision to conclude on the papers, the panel took into consideration the principles set out in the case of Osborn, Booth and Reilly

(2013) UKSC 6

concerning oral hearings but determined there are no reasons to direct one, and (the Applicant) has not asked for one. Taking all the information into account the panel could not be satisfied that it is no longer necessary for him to be confined for the protection of the public and, accordingly, made no direction for his release.”

[31]Clearly, this is incorrect. The initial and lengthy legal representations that were seen by the panel make it quite clear that if the panel were not minded to release the Applicant on the papers, the Applicant sought an oral hearing. This was emphasized in the unseen second set of representations.

[32]In considering the administrative ‘ hiccups’ as well as the above incorrect statement, I find that the ground for procedural unfairness to be made out. Although the representations arrived late, the legal representations might reasonably have assumed that they would have been put before the panel before the panel made its decision on the basis that the panel made it clear they would consider their decision on 26 April, two days after receipt of the representations.

[33]Even if I had decided that because of the lateness of the legal representations it was reasonable for the panel to make its decision without seeing these additional representations, I would still have granted the reconsideration because the panel in its conclusion wrongly stated that an oral hearing had not been asked for, and therefore was not in a position to explain why it might refuse a prisoner an oral hearing despite the prisoner asking for one. In making this decision I do not consider that a prisoner should automatically be granted an oral hearing when they ask for one, but reasons for any refusal to grant a hearing in this situation is necessary given the principles provided for in the case of Osborn , and these reasons need to take into account the submissions made in any application for an oral hearing. Decision Accordingly, I do consider, applying the test as defined in case law, that the decision dated 26 April 2024 to be procedurally unfair. I do so solely for the reasons set out above. The application for reconsideration is therefore granted and the case should be reviewed by a fresh MCA panel. Chitra Karve 10 June 2024