Haylock, Application for Reconsideration [2024] PBRA 144 (14 August 2024) [2024] PBRA 144
PBRA
Haylock, Application for Reconsideration [2024] PBRA 144 (14 August 2024)
[2024] PBRA 144 · 2024-06-27
[1]This is an application by Haylock (the Applicant) for reconsideration of a decision of the Panel given on 27 June 2024 (the Decision) after an oral hearing on 23 January 2024 to refuse to direct the Applicant’s 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 Decision, the Application for Reconsideration, the email dated 22 July 2024 from the Public Protection Casework Section (PPCS) on behalf of the Secretary of State (the Respondent) stating that no representations will be served in response to the Application for Reconsideration, an email seeking additional information from the legal representative dated 15 July 2024 and the response from the legal representative dated 16 July 2024 giving the information sought and the Dossier totalling 700 pages. Request for Reconsideration[4]The Application for Reconsideration is dated 9 July 2024.[5]The grounds for seeking a reconsideration are that the Decision was procedurally unfair because:(a) there was a delay of more than 5 months between the end of the oral hearing on 23 January 2024 and the delivery of the Decision on 27 June 2024 notwithstanding that: (i) the written record of the Decision should have been delivered to the Applicant within 14 days of the making of the decision as specified in Rule19(8) of the Parole Board Rules 2019; (ii) on 5 February 2024, a Panel Chair Direction (PCD) was sent to the Applicant’s legal representative in which it was recorded first that “ the Panel Chair had made a decision in this case but had not been able to complete the Decision letter ” and that “ the Panel Chair intends to issue the decision letter by 21 February 2024 if not sooner ”; (iii) the decision letter was not issued by 21 February 2024 or prior to 15 March 2024 when the Applicant’s legal representative wrote to the Board asking what was “happening with the decision in this case ?” (iv) on 12 April 2024, the Applicant’s legal representative wrote to the Board explaining that a decision had not been received in the Applicant’s case and they would be making “a formal complaint at the delay ” as well as requesting “a decision as soon as possible”. The complaint was acknowledged in three emails of 15 April 2024, but the decision of the Panel was still not produced; (v) by an email dated 26 April 2024, the complaint was upheld as “ a statutory deadline was not met” and that the Panel Chair had breached the Member’s Code of Conduct; (vi) on 3 May 2024, the Applicant’s legal representative wrote to the Board stating that the Decision had not been supplied and asking when “ we are going to get the decision?” (vii) on 15 May 2024, the Applicant’s legal representative wrote to the Board expressing his disappointment that his last email had not been answered and recording that the Case Manager had told him that the Panel Chair was “ long term sick and that the probable outcome would be to have another hearing ”. In the same email, the Applicant’s legal representative responded to the Board stating if the only solution is another hearing “ can that be actioned as a priority ?” (viii) On 7 June 2024, the Board wrote to the Applicant’s legal representative stating that the Panel chair had now returned to work and “ we will ensure that [your] client’s decision is dealt with as early as possible. ” (ix) On 14 June 2024, the Applicant’s legal representative wrote to the Board pointing out that the Decision remains outstanding and that the Panel Chair who had heard the Applicant’s case was then sitting on hearings even though “she has numerous decisions to write up.” (x) On 27 June 2024, the decision of the Panel was finally produced. (Ground 1 ) And/or because:-(b) the hearing on 23 January 2024 was unexpectedly and unfairly curtailed. It started at 10am and it was anticipated that the whole day would be available for the hearing until at 13.55 hours, the Panel Chair announced they had another hearing commencing at 14.30 hours. This was the first time that another hearing had been mentioned and at this time the COM had not given evidence. He had to complete his evidence in “ barely 20 minutes ”, which led to a rushed hearing. (Ground 2) Background[6]On 29 November 2007, the Applicant, who was then 18 years old, was sentenced to detention for public protection with a minimum term of 3 years less time spent on remand for an offence of robbery.[7]He was released on licence on 16 September 2016, but he was recalled to custody on 3 November 2021 and has remained in custody since then. He has not challenged his recall and the Panel considered it appropriate. Current parole review[8]Evidence was given by the Applicant’s Prison Offender Manager (POM), his Community Offender Manager (COM), a Forensic Psychologist and a Substance Misuse Worker as well as the Applicant who was legally represented. The Relevant Law[9]The Panel correctly sets out in its Decision letter dated 27 June 2024 the test for release and the issues to be addressed in making a recommendation to the Respondent for a progressive move to open conditions. Parole Board Rules 2019 (as amended)[10]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)).[11]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)).[12]The Panel refused to recommend that the Applicant should be moved to open conditions but this decision is not being challenged on this application as the decision to recommend or not to recommend a move to open conditions is not eligible for reconsideration under rule 28 as was explained in Barclay [2019] PBRA 6 . Procedural unfairness[13]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.[14]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;(e) the panel did not properly record the reasons for any findings or conclusion; and/or(f) the panel was not impartial.[15]The overriding objective is to ensure that the Applicant’s case was dealt with justly. Reconsideration as a discretionary remedy[16]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 Respondent.[17]By an email dated 22 July 2024, PPCS on behalf of the Respondent stated that no representations would be served in response to the Application for Reconsideration. Discussion[18]The Applicant contends that the Decision was procedurally unfair for two reasons. First, complaint is made of the delay of more than 5 months between the end of the hearing and the delivery of the Decision notwithstanding that the Decision should have been delivered to the parties speedily.[19]The second complaint of procedural unfairness arises because the parties to the parole hearing had anticipated that the hearing could take the whole of the working day, but the parties were told at 13.55 on that day that there was another hearing starting at 14.30 and the COM still had not given his evidence. (i) Delay of 5 months between end of hearing and delivery of Decision[20]It is easy to understand why it is considered necessary to have a stipulated relatively short period between the hearing and the delivery of the Decision to the parties. First, a short period means that the Decision will be given when all the facts would still be fresh in the mind of the decision makers. Second, the requirement that there should be a short period between the end of the hearing and the delivery of the decision ensures that the detained person is not deprived of his freedom for any longer than is necessary. Third, in many cases, decisions refusing to release prisoners often contain recommendations about the programmes they should carry out to ensure that they could be safely released in the future. In those cases, the sooner that the prisoner and the prison authorities know about the programmes that the prisoner should engage in the better.[21]Fairness to the prisoner means that he should receive the decision speedily and that there should be sanctions to ensure that this occurs as long delayed decisions are unfair to prisoners. In the present case there was a delay of more than 20 weeks in delivering the decision, which amounted to procedural unfairness. (ii) Abruptly ending the hearing earlier than expected[22]In the light of my conclusion that Ground 1 succeeds, there is no need to deal with Ground 2. Decision[23]Accordingly, I conclude in the light of the tests set out in case law, that the Decision of 27 June 2024 to be procedurally unfair solely for the reasons set out above. The Application for Reconsideration is therefore granted and the case should be reheard at a fresh hearing. Sir Stephen Silber 14 August 2024