Chambers, Application for Reconsideration [2024] PBRA 140 (25 July 2024) [2024] PBRA 140

PBRA

Chambers, Application for Reconsideration [2024] PBRA 140 (25 July 2024)

[2024] PBRA 140 · 2024-06-06

[1]This is an application by Chambers (the Applicant ) for reconsideration of a decision dated 6 June 2024 of a panel of the Parole Board (the Panel ) following an oral hearing held remotely by video on 28 May 2024. The Panel decided not to direct the Applicant’s release and not to make a recommendation for his transfer 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 that:(a) the decision contains an error of law;

(b) the decision is irrational; and/or

[3]I have considered the application on the papers. These papers are: · an application for reconsideration dated 27 June 2024 submitted by the Applicant’s solicitors; · the Panel’s decision dated 6 June 2024; and · a dossier of 753 pages. Request for Reconsideration

[4]The application for reconsideration is dated 27 June 2024.

[5]The ground for seeking a reconsideration is that the Panel’s decision is irrational.

[6]The application submits that there are four areas which evidence that the Panel’s decision was irrational:(i) its consideration of the Applicant’s time in the community;

(ii) its consideration of the circumstances of the Applicant’s further offending;

(iii) its failure to follow witness evidence; and

(iv) its consideration of further offence focused work by the Applicant.

[7]The application does not always identify the irrationality in the Panel’s thinking and decision-making, which has obliged me to look at the principal themes being advanced and deduce what was considered to be irrational.

[8]Argument 1: in relation to the Panel’s consideration of the Applicant’s time in the community, the application submits that the Panel “ highlighted that [the Applicant’s] behaviour in the community was not as it should have been ”. The application acknowledges that the Applicant attracted new convictions while on licence but submits that the Panel’s views were “ not necessarily in line with what the professional witnesses said ”. To illustrate its point, the application mentions that the Panel noted that there was evidence of the Applicant being more proactive with probation and that probation did not find any indication that the Applicant had returned to substance misuse. The application refers to the evidence of the community offender manager ( COM ) that if he had been the COM at the time, he would have increased supervision of the Applicant. The application states, “ This is implied as an alternative to recall ” and that the Panel appeared to disagree with this and “ suggested that the recall was appropriate ”. Having said that, the application confirms that the Applicant does not dispute the recall itself. It is unclear how this relates to irrationality by the Panel. In conclusion, the application points out that the Applicant was in the community for three years at the time of his recall and had not committed further offences immediately on release.

[9]Argument 2: in relation to the Panel’s consideration of the circumstances of the Applicant’s further offending, the application submits that the Panel’s description of an incident involving his partner in June 2022 was not factually correct but it does not identify in what way this demonstrates irrationality. The application provides the Applicant’s account of the incident and concludes, “ To be clear, [the Applicant] did not use violence against anyone, which is a significant change from his behaviours in the past ”.

[10]Argument 3: the application submits that the Panel failed to follow witness evidence. It acknowledges that the Panel is not required to accept professional recommendations but submits that “ the evidence has not been taken into consideration and rather has just been dismissed by the panel ”. The application points out that the prison offender manager ( POM ) and the COM were in support of the Applicant’s release, and that(i) they were fully aware of the issues he faced last time;

(ii) they considered that he had worked hard to re-engage with them;

(iii) they felt that he could be safely managed in the community; and

(iv) they did not consider his risk to be imminent and that there would be clear warning signs which would be picked up before any risk of causing serious harm arose. The application questioned the Panel’s assessment that there would not be sufficient warning signs in the community or in open conditions on the basis that the COM had provided a list of warning signs and that if the Applicant disengaged, the COM would be the first person to notice this change. The application also submitted that the Panel had not provided “ much by way of a rationale ” for its conclusion that the Applicant’s risk would be imminent on release. The application argued that the Applicant had been in the community for a long time and that his risk of causing serious harm to the public had not increased and he had not used violence against another person. The application also pointed out that the Applicant had been open and honest about his involvement in a burglary offence and that even if he had been charged, his behaviour “ does not amount to risk of serious harm ”.

[11]Argument 4: in relation to the Panel’s consideration of further offence focused work by the Applicant, the application submits that the Panel’s comment that he had refused to undertake any further risk reduction work (which the Panel considered was evidence of a lack of insight) was not accurate. The application submitted that the Applicant had admitted that he had initially refused to complete any further risk reduction work, but that subsequently, he had completed a programme called Motivation and Engagement. The application referred to the “ extremely high volume of work ” completed by the Applicant prior to his release and said that he had already undertaken the Thinking Skills Programme which would therefore no longer be available to him. The application also mentioned that any consolidation work could have been completed in the community, as suggested by the COM. Background

[12]In September 2011, the Applicant was given a sentence of imprisonment for public protection ( IPP ) after pleading guilty to committing arson with intent to endanger life. The minimum term of six years expired on 4 October 2017 (the tariff expiry date is incorrectly recorded in the Secretary of State’s referral). The arson offence was an act of revenge in response to a minor incident a few hours before. The Applicant poured petrol through the letter box of a terraced house and set it alight. The arson was committed very late at night and the Applicant knew the house was occupied by people who were asleep. Several occupants were badly injured. This was the Applicant’s second IPP sentence. He had been given an IPP sentence earlier the same year (April 2011) after pleading guilty to wounding with intent to do grievous bodily harm. This offence was committed while the Applicant was on bail for the arson offence. The Applicant stabbed his co-defendant in the arson offence three times with two kitchen knives after his co-defendant intervened in a violent argument between the Applicant and his female partner. In an attempt to escape the Applicant’s ongoing attack, the co-defendant fell from a bedroom window and sustained serious injuries.

[13]The Applicant was 28 years old when he committed the arson offence. He has a history of general and intimate partner violence and anti-social behaviour often fuelled by alcohol or drugs. Current parole review

[14]The Secretary of State referred the Applicant’s case to the Parole Board in September 2022. The case was directed to an oral hearing in January 2023. The Panel convened on 26 October 2023 but adjourned the hearing because it was advised that the Crown Prosecution Service ( CPS ) was likely to charge the Applicant for a burglary offence allegedly committed by him and others in June 2022. Further adjournments were directed in the absence a charging decision. On 1 May 2024, a directions hearing was held at which the police confirmed that the CPS no longer intended to charge the Applicant as it would not be in the public interest given the time that had elapsed since the burglary had been committed.

[15]A remote hearing by video took place on 28 May 2024. The Applicant was seeking release.

[16]The Panel comprised three independent members (an additional panel member had been added for the hearing). Evidence was taken from the Applicant’s POM and the Applicant’s COM. The Applicant also gave evidence to the Panel.

[17]The Applicant had completed several accredited programmes and interventions during his sentence and had spent several years in a psychiatric hospital where he engaged in therapy to address a personality disorder. He progressed to the open estate in 2017 and his release was directed in July 2019. He was recalled in June 2022. While he was on licence, he committed six further offences for which he was convicted. He was also investigated for a burglary offence but a decision was made not to bring charges against him. The Relevant Law

[18]In its decision letter dated 6 June 2024, the Panel correctly sets out the test for release and the issues to be addressed in making a recommendation to the Secretary of State for a progressive move to open conditions. Parole Board Rules 2019 , as amended

[19]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)).

[20]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)).

[21]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

[22]The power of the courts to interfere with a decision of a competent tribunal on the ground of irrationality was defined in Associated Provincial Houses Ltd v Wednesbury Corporation 1948 1 KB 223 by Lord Greene 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.

[23]In R(DSD and others) v the Parole Board

2018 EWHC 694

(Admin) , a Divisional Court applied this test to parole board hearings in these words at paragraph 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. ”

[24]In R(on the application of Wells) v Parole Board

2019 EWHC 2710

(Admin) Saini J sets out what he 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 a Divisional Court in the case of R(on the application of the Secretary of State for Justice) v the Parole Board

2022 EWHC 1282

(Admin) .

[25]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 R(DSD and others) v the Parole Board

2018 EWHC 694

(Admin) was binding on Saini J.

[26]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.

[27]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. Other

[28]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

[29]The Secretary of State did not make any submissions in response to the application. Discussion

[30]References to paragraphs are to paragraphs in the Panel’s decision.

[31]Argument 3: while the application acknowledges that the Panel is not obliged to accept the opinions and recommendations of professional witnesses, it submits that the Panel failed to consider, and dismissed, the evidence of the POM and the COM.

[32]The application notes that the POM and the COM were in support of the Applicant’s release. It states that they considered that the risk the Applicant presented in the community was not imminent, that there would be clear and detectable warning signs of an escalation in his risk, and that his risk could be managed in the community.

[33]The Panel examined in detail the Applicant’s index offences, his progress before his release in 2019, his further offending in the community, allegations of abusive behaviours towards his partner, and his custodial conduct, which was not consistently positive, following recall. The Panel gave the Applicant, who was legally represented, an opportunity to give his account of events, and questioned the POM and the COM on issues of risk and risk management. The Panel appeared fair in its presentation of the evidence taken.

[34]Having explored the issues, the Panel stated that its main concerns were the Applicant’s impulsive behaviour, his lack of consequential thinking skills, his poor anger management, and a lack of insight. The Panel considered that in-depth and structured consolidation work was required to strengthen the Applicant’s internal factors in managing his longer term risk, and the Panel was not satisfied that this consolidation work would be completed in the community. The Panel also believed that, “ risk would be imminent upon any release especially as he has a pattern of breaching conditions within and outside of custody ”. In addition, the Panel did not believe that there would be sufficient warning signs of the Applicant’s risk increasing in the community or in open conditions. In paragraph 4.4, the Panel concluded, “ Taking account of all the evidence, and in particular [the Applicant’s] offending history, his behaviour since being in custody, the oral evidence, the Panel did not consider that the controls and support provided by the risk management plan would be sufficient to manage the risk of harm which [the Applicant] presents. ”

[35]It is essential for any panel to explain how it has reached any assessments and conclusions which underpin and support its decision. The Panel’s key assessments and conclusions should be adequately explained and presented in a way that can be understood by the Applicant and others. There are several areas which are highly relevant to the assessment of risk and the manageability of risk where I do not consider that this was achieved by the Panel.

[36]First, it is unclear on what basis the Panel concluded that the Applicant’s risk of causing serious harm was imminent. It did not make any reference in this context to the fact that the Applicant had been on licence for almost three years before committing violent offences (namely assaults on emergency workers) and that he had not committed or been involved in any violence since his recall. The POM stated that there was no evidence of violent incidents “ even though the establishment has become more violent and unstable in the past year ” and that she considered that the Applicant had managed to remove himself from risky situations and avoid any issues. The COM considered that the Applicant’s concerning custodial behaviour did not indicate “ attitudes around harming others ”. However, the Panel did not comment on whether the POM’s evidence suggested that the Applicant had developed any internal controls, and was less likely to resort to violence to resolve conflict or if he became angry. The Panel also did not indicate why it did not agree with the COM’s comment.

[37]Secondly, the Panel did not explain why it concluded that there would not be sufficient warning signs of the Applicant’s risk of serious harm increasing. The POM and the COM provided a list of what they considered to be “ identifiable warning signs ” however, the Panel does not comment on them or explain why in its view they would not be sufficient and/or detectable.

[38]Thirdly, and most significant in my view, the Panel does not justify why it “ did not consider that the controls and support provided by the risk management plan would be sufficient to manage the risk of harm which [the Applicant] presents. ”. Both the POM and the COM considered that the proposed risk management plan ( Plan ) would safely manage the Applicant’s risks.

[39]The Panel sets out the features of the Plan in detail but there is limited analysis of the Plan and whether it could manage the Applicant’s risks in the community. The Plan differed from the previous risk management plan and had been strengthened, but the Panel failed to consider whether it addressed any of its main concerns and/or would mitigate the Applicant’s risk of causing serious harm. I have briefly highlighted certain aspects of the Plan.(a) At the hearing, the COM said that he believed a PIPE (Psychologically Informed Planned Environment) approved premises ( AP ) would be more suitable than a standard AP for the Applicant given his personality disorder diagnosis and background. The COM was confident that he would be able to secure a PIPE AP placement for the Applicant and said that it could provide the Applicant with a stable foundation. The Panel did not obtain any further information from the COM to allow it to consider whether a placement in a PIPE AP would address any of its concerns. It did not explore, for example, what psychological interventions might be available to the Applicant, whether any accredited programmes or consolidation work could be delivered to the Applicant while he was a resident at the PIPE AP (particularly given the Panel’s reservations about the successful completion of consolidation work in the community), whether access to support from psychologically trained staff would be of benefit and whether the Applicant was likely to engage, and what transitional services were available. This information is likely to have informed the Panel’s assessment of the manageability of the Applicant’s risk in the community.

(b) There was no concrete move-on plan before the Panel. Reference was made to section 117 aftercare (under the Mental Health Act 1983, as amended) but the COM was unsure if this would be available to the Applicant. No further enquiries were made by the Panel. The possibility of supported accommodation with a keyworker or support worker to monitor the Applicant’s mental health, assist with practical matters, and liaise with the probation service was also not explored. This information would also have been relevant to the Panel’s assessment of the manageability of the Applicant’s risk in the community.

(c) A list of support services was provided but their implications for risk management or for the development of the Applicant’s internal controls was not explored with the COM. IIRMS (Intensive Intervention and Risk Management Services) was also mentioned but no evidence is taken from the COM to explore whether it would support the Applicant in addressing his risks and gaining insight, whilst recognising that IIRMS is a voluntary intervention.

(d) Additional licence conditions had been proposed by the COM which had not formed part of the Applicant’s previous licence including a GPS tag and an alcohol monitoring tag. While the Panel highlighted that both tags would be available for a maximum of 12 months, it did not consider the impact of the tags on the Applicant’s risks in the short term and the longer term.

[40]In my view, the Panel did not explain or justify the key assessments and conclusions on which it based its decision that the Applicant did not meet the test for release. It is on that ground that I find that its decision was irrational. It is unnecessary for me to address the other arguments advanced in the application. Decision

[41]Accordingly, I consider, applying the test as defined in case law, the Panel’s decision to be irrational. 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 panel by way of an oral hearing. Hedd Emrys 25 July 2024