Jeffers, Application for Reconsideration [2024] PBRA 152 (19 August 2024) [2024] PBRA 152

PBRA
Jeffers, Application for Reconsideration [2024] PBRA 152 (19 August 2024)
[2024] PBRA 152 · 2014-01-24
[1]This is an application by Jeffers ('the Applicant') for reconsideration of a decision of the Parole Board ('the Board') not to direct his release on licence. The decision was made by the Chair of the panel of the Board which had been due to conduct an oral hearing of the case but which, for reasons explained below, decided instead that the Panel Chair should make a negative decision on the papers.[2]Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2022) provides that applications for reconsideration of panel decisions may be made, either by the prisoner or by the Secretary of State for Justice, in eligible cases. The Secretary of State is the Respondent to any reconsideration application made by a prisoner, and will be referred to as such in this decision.[3]Rule 28(2) specifies the types of case in which reconsideration applications may be made. They include cases, like the Applicant's, where the prisoner is serving an extended determinate sentence.[4]A reconsideration application may be made on the ground(a) that the panel's decision contains an error of law and/or(b) that it is irrational and/or(c) that it is procedurally unfair.[5]This is an eligible case, and an application for reconsideration has been made by the Applicant's legal representative on his behalf on the grounds of procedural unfairness and error of law. The application was made within the prescribed time limit.[6]I am one of the members of the Board who are authorised to make decisions on reconsideration applications, and this case has been allocated to me. I have considered the application on the papers.[7]The documents which have been provided to me and which I have considered are:(a) The dossier of papers provided by the Respondent for the Applicant's case: the dossier now runs to 293 numbered pages and includes the Panel Chair's decision;(b) The representations made by the Applicant's legal representative in support of this application for reconsideration; and(c) An e-mail from the Public Protection Casework Section ('PPCS') of the Ministry of Justice stating on behalf of the Respondent that he does not wish to submit any representations in response to this application. Background and history of the case[8]The Applicant is aged 45. He is a Rastafarian. He had a very difficult childhood and from the age of 13 accumulated a substantial criminal record. It culminated in the commission of two offences of robbery and one of possessing a shotgun with the intention of committing an indictable offence (the 'index offences').[9]On 24 January 2014, having pleaded guilty to all three of the index offences, the Applicant received an extended determinate sentence comprising a custodial term of 15 years and an extended licence period of 5 years.[10]He became eligible for early release on licence on 22 October 2023. If not released early on licence by direction of the Board he will be automatically released on licence in October 2028 (his 'conditional release date'). His sentence will not expire until November 2033.[11]His sentence has not progressed smoothly. He has accumulated a large number of proved adjudications for poor behaviour (including assaults on prison officers) and a large number of negative reports by staff. When he has felt that he is being treated fairly by staff he has behaved well and has attracted many positive reports, but when he feels he is being treated unfairly he responds by misbehaving in one way or another. He has been convicted and sentenced on two occasions by the courts for assaulting prison officers. Conversely a prison officer is reported to be awaiting trial for assaulting the Applicant. There have no doubt been faults on both sides: there is clear evidence that some officers have failed to show appropriate respect for the Applicant's religion.[12]Because of these difficulties the Applicant has not completed any of the risk-reduction programmes normally considered necessary for someone with his record of serious offending. He has been described by a psychologist as being highly motivated to change his life but there have been hurdles in the way of his undertaking any of the normal programmes. He has no confidence in staff at his present establishment, and although he has volunteered to participate in a Therapeutic Community he has been turned down because he has been unable to demonstrate a sustained period of good behaviour in custody.[13]The Applicant's case was referred to the Board in January 2023 to decide whether he should be released early on licence.[14]In May 2023 a Psychological Risk Assessment ('PRA') was carried out by a prison psychologist. To his credit the Applicant engaged positively in the assessment. It was a very detailed assessment and, whilst concluding that the Applicant currently poses a high risk of serious harm to the public in the community and also to staff in prison, and therefore that he should remain in prison, the psychologist recognised the Applicant's difficulties and a number of positive factors. She made helpful suggestions for possible routes for progression.[15]In August 2023 the Applicant's case was reviewed on the papers by a Member Case Assessment ('MCA') member of the Board who directed that the case should proceed to an oral hearing. Her reasons were as follows:
"Given the serious nature of his offending; to explore the PRA and whether [the Applicant's] risk of serious harm could be safely managed in the community, the panel considered that the case should be referred to an oral hearing. The oral hearing is likely to focus upon the treatment needs as identified in the PRA and how and where they should be addressed; details of the risk management plan and the recommendations of professionals."
[16]In due course a 2-member panel was appointed to conduct the oral hearing, and the hearing was listed to take place on 20 March 2024.[17]A difficulty arose in December 2023 when the Board was informed that the Applicant had been charged with an offence of rape which was to be tried in the Crown Court in April 2024. It emerged that the victim of the alleged rape was the Applicant's former partner, and the rape was alleged to have taken place in 2010. The Applicant denies the allegation. The parole hearing was adjourned by the Panel Chair to await the outcome of the rape trial. This was a sensible step given that the professional witnesses (and indeed the panel) would have had difficulty in assessing the Applicant's risk to the public without knowing the outcome of the trial.[18]The rape trial went ahead in April 2024 but the jury failed to agree and were discharged. On 10 May 2024 the Panel Chair adjourned the parole hearing for a second time, for the same reason as before. There was inevitably a delay while the prosecution decided whether to ask for a re-trial.[19]By 15 June 2024 the prosecution had decided that there should be a re-trial but it was not known when that retrial would take place. On that date the Panel Chair issued directions in which he stated that the panel was in the position that the outcome of the Applicant's trial was unknown, and "could be many months in the offing" . He went on to say that " it seemed that a hearing was not going to be possible until the court proceedings had been resolved" . Therefore, he said, " the panel was of the view that a 'no release' decision on the papers should be made with a caveat that the Applicant could ask the Secretary of State to refer the case back to the Parole Board should his Court case be concluded" . He invited the parties to make representations about that proposal.[20]No representations were made on behalf of the Respondent save to say that he did not object to the course proposed. On 25 June 2024 the Applicant's solicitors submitted representations requesting that the case should proceed to a hearing as originally directed by the MCA member. The representations included the following:
"[The Applicant] advises that he has been notified that the CPS will be seeking are-trial however a date is yet to be formally confirmed. [The Applicant] informs us that when speaking with prison staff they have advised him that it is showing on the system that he is due to appear in court in August 2024."
[21]On 4 July 2024 the Panel Chair issued a 'no release' decision on the papers, explaining his reasons. He indicated that his co-panellist was in agreement with that decision.[22]On 23 July 2024 the Applicant's legal representative submitted the present application for reconsideration on behalf of the Applicant. The Relevant Law[23]The panel correctly sets out in its decision letter dated 4 July 2024 the test for release. Parole Board Rules 2019 (as amended)[24]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)).[25]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)). Error of law 26.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.[27]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. The test for procedural unfairness[28]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.[29]An Applicant seeking to complain of procedural unfairness under rule 28 must normally show that(a) express procedures laid down by law were not followed in the making of the relevant decision; and/or(b) they were not given a fair hearing; and/or(c) they were not properly informed of the case against them; and/or(d) they were prevented from putting their case properly; and/or(e) the panel did not properly record the reasons for any findings or conclusion; and/or(f) the panel was not impartial.[30]The overriding objective is to ensure that the Applicant's case was dealt with justly. It follows that other grounds for a finding of procedural unfairness may emerge in future. The request for reconsideration in this case[31]As noted above, this request for reconsideration of the Panel Chair's decision was made by the Applicant's legal representative on his behalf on the grounds of error of law and procedural unfairness. The legal representative's submissions are detailed and helpful. In essence he submits that in this case the Panel Chair failed to follow established procedures (i.e. the Osborn principles) and failed to allow the Applicant to put his case properly. The reply on behalf of the Respondent[32]As also noted above, as a party to parole proceedings the Respondent is entitled to submit representations to the Board in response to an application by a prisoner for reconsideration of a panel's decision, but PPCS have indicated on behalf of the Respondent that she does not wish to submit any representations in this case. Discussion[33]I do not need, for the purposes of my decision, to address all the matters helpfully set out in the Panel Chair's decision and in the legal representative's submissions. There are two key questions which I need to answer in order to reach my decision, and I will focus on those. If (but only if) I answer both questions in favour of the Applicant I must direct reconsideration of the Panel Chair's decision.[34]The first question is whether, applying the Osborn principles, the circumstances of this case are such that it should (subject to any exceptional circumstances) be considered at an oral hearing.[35]If the answer to that question is in the affirmative, the second question is whether there were exceptional circumstances (the delay in the conclusion of the criminal proceedings against the Applicant) which justified the Panel Chair in departing from the need for an oral hearing. Question 1: Did this case (subject to any exceptional circumstances) fall within the need for an oral hearing on the basis of the Osborn principles?[36]I have no doubt that it did. It was certainly unlikely that an oral hearing would result in a direction for the Applicant's release on licence but, as Osborn and the other cases make clear, that is not the test for a decision to direct such a hearing. The test is whether fairness requires it, and there are various reasons why that may be the case. The MCA member was satisfied that there were such reasons in this case, and the Applicant's legal representative has amplified those reasons.[37]In his reconsideration submissions the legal representative points out that a number of the matters identified in Osborn and the other cases as requiring an oral hearing were present in this case. These were as follows: - "Important facts were in dispute, and a significant explanation or mitigation had been advanced which needed to be heard orally in order fairly to determine its credibility (this applied to factual allegations made in reports by professionals concerning the Applicant's behaviour in custody). - The Board could not make an independent assessment of risk, or of the means by which it should be managed and addressed. Such an assessment fairly depended upon the view formed by the Board of characteristics of the Applicant which could best be judged by seeing or questioning him in person. - A face to face encounter with the Board, or the questioning of those who have dealt with him, was necessary in order to enable him or his representative to put their case effectively or to test the views of those who have dealt with him. The panel's independent assessment of risk, and of the means by which it should be managed and addressed, might benefit from the closer examination which an oral hearing could provide. - The Applicant had a legitimate interest in being able to participate in a decision which had important implications for him, where he had something useful to contribute. - A decision by the Board should not be c onfined to its determination of whether or not to recommend his release, but also needs to fairly assess and include other aspects such as comments or advice in relation to his treatment needs or the offending behaviour work which is required, which will in practice have a significant impact on his management in prison or on future reviews."[38]In addition to these matters the legal representative states that a particularly important reason for an oral hearing in this case was the effect which a paper decision (which would inevitably be a negative one) would be likely to have on the Applicant. This factor is referred to in Osborn and other cases.[39]In Osborn, Lord Reed drew particular attention to the need to avoid a sense of injustice in a prisoner resulting from the lack of an opportunity to contribute to the proceedings. Lord Reed adopted the observations of Lord Phillips in a different context: Lord Phillips referred to " the feelings of resentment that will be aroused if a party to legal proceedings is placed in a position where it is impossible for him to influence the result".[40]Three subsequent cases quoted by the legal representative are of particular relevance to the present case in this connection.[41]In R ex p Stubbs (2021) EWHC Admin 605 one of a number of points made by the judge in the Admin Court, in quashing a decision made on the papers, was that the value of the prisoner being able to contribute to the proceedings " applies with particular force in the present case. The information in the dossier showed that the Claimant was negatively affected by his perceptions of having been treated unfairly and that this had created obstacles to his ability or willingness to engage in relevant programmes and impacted on his rehabilitation. I have already referred to the extremely limited evidence for some security reports, as to which the previous Parole Board had commented "As a consequence, you feel frustrated and resentful that you are labelled as something that you consider that you are not, and this appear to have been a barrier to your progression through your sentence". The value to the Claimant of having an oral hearing was reinforced by the fact that he had spent a considerable amount of time in custody, could not progress ... and yet was unable to obtain a transfer to another provision [I think this must be a typing error for 'prison'] where he could make progress, and that there did not appear to be any practical plan to break the impasse." The legal representative points out, correctly, that in the present case there was clear evidence within the dossier of the Applicant feeling unfairly treated and highly frustrated and resentful that he has been labelled as something that he considers he is not, and about the lack of progress which he had been able to make during his sentence.[42]In R (Wylie) v Parole Board [2024] EWHC 52 the judge in the Administrative Court held that the refusal of the Parole Board to grant an oral hearing was procedurally unfair, notwithstanding that a police investigation remained live but was shortly to be concluded. Procedural fairness required an oral hearing, or at least an adjournment to clarify matters. The judge further held that a further potential referral to the Parole Board did not assist on whether it was fair to grant an oral hearing. 43.In R (Garmson) v Parole Board [2024] EWHC 1106 the judge in the Admin Court held that a decision of the Parole Board to conclude a case on the papers, having previously directed it to an oral hearing, was unlawful as it focussed on the likelihood of release, and failed to consider whether an oral hearing was required in light of the facts of the case and the importance of what was at stake.[44]All in all I am entirely satisfied that, subject to any exceptional circumstances justifying a different conclusion, this case is a classic example of one where the application of the Osborn principles should result in an oral hearing taking place. Question 2: were there exceptional circumstances which justified the Panel Chair making a negative decision on the papers?[45]The reasons given by the Panel Chair for concluding this review on the papers with a negative decision were set out in his decision as follows: [In the Introductory section of the decision] "Due to the time elapsed since the MCA and the original oral hearing date, the panel chair invited representations from both parties, under Rule 21, to conclude the case on the papers. PPCS had no objections. [The Applicant's] legal representative ... stated that [the Applicant] still wished for his case to be listed. The panel considered this request but due to the length of time elapsed, and no detail on when the court case would be concluded, in terms of fairness to [the Applicant] it was appropriate to conclude the case on the papers. The panel chair concluded the case on the papers in full consultation and agreement with the other panel member." [In the Conclusion section of the decision] "The panel took due note of [the Applicant's] representative's representations dated 25 June 2023 requesting that the case not be concluded on the papers. In considering these representations the panel took due note of the Parole Board's Oral Hearing guidance notes. The panel noted that the case has been directed to an oral hearing at MCA stage and a panel had been assigned. The panel is making a decision on the papers under Rule 21. This does not set aside the MCA direction but enables the panel to consider that the oral hearing is no longer required. This is because there have been significant developments since the MCA stage, which in the [Applicant's] case, is a new and unresolved criminal matter. The panel has determined that the decision is clear and obvious from the papers, that there is an outstanding criminal charge and investigation which has now been ongoing since October 2023. There was a trial in April 2024 where the jury was unable to reach a verdict and were discharged, and a retrial is currently being arranged with no formal date yet agreed. The usual delay to take into account for such matters is eight weeks and in [the Applicant's] case the delay is significantly more than this, and the panel believes that through three adjournments and numerous updates from the Community Offender Manager that it has done all it can to conclude the case in reasonable timescale, bearing in mind that the original MCA directing the case to an oral hearing was completed in August 2023, and the original date of [the Applicant's] oral hearing was planned for 20 March 2024. The panel believes it has made significant efforts and adjustments to allow the oral hearing to proceed but there is no indication of any specific date on which any criminal proceedings will be concluded. The panel has assessed in detail what is fair to [the Applicant], including the [Osborn] principles. It is noted that [the Applicant] disputes some of the detail in reports in the dossier and maintains his innocence for the alleged offence for which he is currently awaiting retrial. However the panel cannot proceed until the outcome of this serious criminal allegation through a court hearing is concluded, as the allegation relates specifically to risk, and a further custodial sentence could be imposed should [the Applicant] be found guilty. At a future hearing [the Applicant] will be able to put forward his case in detail to any issues in the dossier which he disputes. Therefore the panel is of the view that a no release decision on the papers is appropriate."[46]It is clear, therefore, that the Panel Chair's decision was essentially based on his desire to complete this review without further delay. The Board is indeed under a duty to complete parole reviews within reasonable time scales, and the usual length of adjournment to take account of pending criminal proceedings or other factors delaying the progress of a review is indeed around 8 weeks. However, each case must turn on its own facts, and to my certain knowledge there have been many cases in which fairness to the prisoner has required much longer adjournments and not decisions made on the papers before all necessary evidence is available. I find it difficult to accept the Panel Chair's observation that " in terms of fairness to [the Applicant] it was appropriate to conclude the case on the papers". On the contrary I believe that, for the reasons set out in paragraphs 37-43 above, fairness required that the Applicant should have the benefit of an oral hearing even if there was a significant delay in it taking place.[47]The legal representative submits, and I agree, that if nothing else the Parole Chair should have adjourned the case for further information to be obtained about when the retrial of the rape allegation would take place. It should have been possible to obtain such information.[48]The Panel Chair stated that the retrial might be "many months in the offing". However, there was no reason to doubt the Applicant's report to his legal representative that he had been told by prison staff that he was due to appear in court in August 2024 (i.e. this month). That piece of information was included in the legal representative's representations to the Panel Chair but was not mentioned by the Panel Chair in his decision. Of course it did not mean that the retrial itself would take place this month, but it was likely that the court would at least fix a date for the retrial. It is to be hoped that the court, taking into account the Applicant's parole position as well as the concerns of the complainant, will be able to accommodate the retrial sooner rather than later.[49]The Panel Chair in his directions of 15 June 2024 had stated (though he did not repeat it in his decision) that: "It seems that a hearing is not going to be possible until the court proceedings have been resolved. Therefore the panel is of the view that a no release decision on the papers is appropriate with a caveat that [the Applicant] can ask the Secretary of State to refer the case back to the Parole Board should his Court case be concluded".[50]I do not think that that ' caveat' (even if it had been made in the decision) would have been sufficient to remedy the unfairness caused by making a negative decision on the papers without the Applicant having any opportunity to participate in the proceedings. There is no certainty that the Respondent would accede to a request for an early re-referral. Decision[51]For the reasons which I have explained above, I am satisfied that the Applicant's legal representative has made out his case for reconsideration on the grounds of error of law (failing to pay sufficient regard to the Osborn principles) and procedural unfairness (making a negative decision on the papers instead of adjourning the case). I must therefore allow this application and quash the Panel Chair's decision. Jeremy Roberts 19 August 2024