Parsons, Application for Reconsideration [2024] PBRA 153 (16 August 2024) [2024] PBRA 153

PBRA
Parsons, Application for Reconsideration [2024] PBRA 153 (16 August 2024)
[2024] PBRA 153 · 2024-07-01
[1]This is an application by Parsons (the Applicant) for reconsideration of a decision dated 1 July 2024 not to direct his release. The decision was made by a panel following an oral hearing.[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 the paper decision, the dossier (consisting of 610 numbered pages), and the application for reconsideration dated 25 July 2024. The application was accompanied by various items of email correspondence. I have also seen additional items of internal Parole Board administrative email correspondence. Background[4]The Applicant received a sentence of detention for public protection (DPP) on 2 July 2012 following conviction after trial for attempted murder. He also received a two year concurrent sentence following conviction for possession of an offensive weapon in a public place to which he pleaded guilty. The minimum term of the DPP sentence was set at nine and a half years less time spent on remand (reduced to eight years less time spent on remand on appeal: R v Parsons [2012] EWCAM Crim 2480) and expired in October 2019.[5]The Applicant was 20 years old at the time of sentencing and is now 32 years old.[6]He was released on licence on 18 December 2019 following an oral hearing. His licence was revoked in February 2023, and he was returned to custody. The Request for Recall Report (Part A) dated 10 February 2023 notes that the Applicant had been arrested in connection with alleged voyeurism. He had also reportedly breached his exclusion zone on eight occasions which he is said to have admitted. This was his first recall on this sentence. Request for Reconsideration[7]The application for reconsideration has been submitted by solicitors on behalf of the Applicant and pleads grounds of both procedural unfairness and irrationality.[8]These grounds are supplemented by written arguments to which reference will be made in the Discussion section below. Current Parole Review[9]The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) in March 2023 to consider whether to direct his release. This is the Applicant’s first parole review since recall. If release was not directed, the panel was invited to advise the Respondent whether he should be transferred to open conditions. It is only the decision not to direct release that is subject to reconsideration.[10]The case was reviewed by a single member Member Case Assessment panel (MCA panel) on 20 April 2023. This panel directed the matter to an oral hearing. In doing so, further directions were made, including a psychological risk assessment (PRA) and a report from the police regarding their investigations into the allegations of further offending.[11]After some delays (not of the Applicant’s making), the hearing was listed for 12 March 2024. On 8 January 2024, the appointed panel chair issued Panel Chair Directions (PCDs) noting that the directed police report contained allegations of sexual misconduct and directed further information from the police, together with an addendum PRA in the light of the police information and an update from the Applicant’s Community Offender Manager (COM).[12]On 31 January 2024, further PCDs were issued adjourning the hearing. These noted that the Applicant had commissioned and disclosed his own PRA. This was admitted by the panel chair, and its author added to the hearing timetable. In consequence of this (and noting that the professional opinions of the two PRA authors differed) the panel chair considered that there would be insufficient time for the case to be concluded in its allotted slot. A joint psychology report was also directed to provide an overview of agreed areas of agreement and disagreement in assessments and conclusions.[13]The hearing was relisted for 25 June 2024.[14]On 27 March 2024, further PCDs were made. These noted that the directed joint psychological report was late and set a revised deadline. The directed police statements were also significantly overdue, and a case conference was directed to discuss the information required and the issues surrounding lateness. A police representative was directed to attend, along with the Applicant’s legal representative. Directions note that the reason for the legal representative’s attendance was “ to represent [the Applicant’s] interests” . Within the directions to the Parole Board case manager, the panel chair noted their availability as either 8 May or 9 May 2024 at 4pm.[15]On 3 April 2024, these PCDs were issued by the Parole Board case manager. They noted that t he panel chair had directed that a case conference should be arranged on “ either 8 th or 9 th May at 4pm”. The Applicant’s legal representative was asked to confirm which date she could attend “ by return email”.[16]On 4 April 2024, the police witness replied (to all, so including the Applicant’s legal representative) stating that she would not be able to attend on 8 May 2024, but could attend on 9 May 2024.[17]On 9 April 2024, the Parole Board case manager emailed the Applicant’s legal representative asking if she could attend the case conference on 9 May 2024 at 4pm, so that it could be set up, and arrangements confirmed with the panel chair.[18]On 11 April 2024, the Applicant’s legal representative replied to say she could attend on 9 May 2024 at 4pm.[19]On 16 April 2024, a Teams link and case conference timetable were issued for 9 May 2024 at 4pm.[20]Later on 16 April 2024, the police witness replied (to the Parole Board case manager only) to say that she could not attend at 4pm on 9 May 2024 as she would have finished her duty for the day. She asked if the conference could be arranged earlier in the day.[21]Internally, the Parole Board case manager advised the panel of the police witness’s updated unavailability (although correctly noting that all prior correspondence clearly stated the conference would take place at 4pm). The panel chair said that she could be available on 8 May 2024 any time before 4pm.[22]On 22 April 2024, the Parole Board case manager advise the police witness that the panel could not convene earlier on 9 May 2024 and asked if it would be possible for her to arrange different working hours that day.[23]Then, on 23 April 2024, a different Parole Board case manager (covering the assigned case manager) emailed the Applicant’s legal representative, stating “ we are in the process of scheduling a case conference for 8 May with a 2:30pm start”. It also noted that the panel chair had asked if the Applicant’s legal representative could sign an undertaking not to disclose the details of the meeting to the Applicant. It concluded by saying “ It is essential that the Panel have you in attendance”.[24]Later on 23 April 2024, the covering Parole Board case manager emailed an updated timetable to the Applicant’s legal representative and the police witness confirming that the case conference would be now held on 8 May 2024 with a 2.30pm start.[25]On 8 May 2024 (at 7.58pm), the Applicant’s legal representative replied (to the first email sent on 23 April 2024) with apologies for lateness but confirmed she was “ happy to sign the undertaking ”.[26]Then, at 9.03pm, the Applicant’s legal representative emailed again to say " I have replied to the email about the undertaking, but I notice that the email said a case con on the 8 th @ 2.30pm… I always understood this to be taking place on the 9 th @ 4pm”.[27]On 9 May 2024, the original Parole Board case manager replied to say as follows:
“The date and time of the case conference were changed as the police officer was unavailable. The attached email informing you of the new time was issued by my colleague … in my absence. The case conference went ahead yesterday, and I have received panel chair directions which I will be issuing out. The panel chair notes in the PCD that [the] legal rep had been invited by the Chair to attend. She was not in attendance. The Chair recorded all of the case conference which is available for review by [the Applicant’s legal representative] upon request.”
[28]Further PCDs dated 8 May 2024 record the outcome of the case conference. They note that the Applicant’s legal representative did not attend. It is recorded that the panel of three members conducted a case conference with two police officers and discussed the police information available (including crime reports, custody records and statements) and what could helpfully be disclosed to the panel and the Applicant. Additional directions were set for police disclosure of evidence. It was noted that the case conference had been recorded and would be available for review by the Applicant’s legal representative upon request.[29]The review proceeded to an oral hearing on 25 June 2024 before a three member panel, including a psychologist specialist member. Evidence was taken from the Applicant, a stand-in Prison Offender Manager (POM), his COM, the HMPPS forensic psychologist, and the prisoner-commissioned forensic psychologist. The Applicant was legally represented throughout proceedings and extensive closing submissions were submitted after the hearing, primarily in relation to the panel considering making findings of fact on the evidence before it.[30]The panel’s decision notes that a case conference was set up for 8 May 2024 with two police officers and the legal representative to discuss outstanding statements directed by the Parole Board in relation to allegations of sexual misconduct by Mr James. It further notes that the legal representative did not attend but the panel chair decided to continue with the case conference and ensured there was a full recording of the meeting which could be accessed by the legal representative afterwards.[31]The decision also notes the following:
“An email was sent to [the Applicant’s legal representative] on 9/5/2024 by the Parole Board case manager, informing of this. No reply was received by the Parole Board ahead of the hearing asking for the recording/transcript of the case conference. The legal representative stated that she was not made aware of the change of the date of the case conference to 8/05/2024; however, the chair has subsequently seen an email from the Parole Board dated 23/04/2024 sent to [the Applicant’s legal representative] informing her of the new date and time.”
[32]In its decision, the panel made a number of findings of fact. It made no direction for release (and no recommendation for open conditions). The Relevant Law[33]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)[34]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)).[35]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)).[36]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 . Procedural unfairness[37]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.[38]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.[39]The overriding objective is to ensure that the Applicant’s case was dealt with justly. Irrationality[40]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 (CA) 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.[41]In R(DSD and others) v Parole Board [2018] EWHC 694 (Admin) the Divisional Court applied this test to Parole Board hearings in these words (at [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 .”
[42]In R(Wells) v Parole Board [2019] EWHC 2710 (Admin) Saini J set 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 the Divisional Court in R(Secretary of State for Justice) v Parole Board [2022] EWHC 1282 (Admin).[43]As was made clear by Saini J in Wells, 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 DSD was binding on Saini J.[44]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.[45]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. The reply on behalf of the Respondent[46]The Respondent has submitted no representations in response to this application. Discussion[47]Submissions on behalf of the Applicant on the ground of procedural unfairness argue that the legal representative should have been told that the case conference on 9 May 2024 had been cancelled and sought availability for 8 May 2024. The legal representative notes that she was unavailable on 8 May 2024 (as she was involved in another parole hearing) and that no contact had been made with her firm to ascertain her whereabouts (particularly as previous correspondence had noted that it was “ essential that the Panel have you in attendance” ).[48]Having reviewed the correspondence, it is clear that the legal representative was emailed on 23 April 2024 with an updated timetable confirming that the case conference would be held on 8 May 2024 with a 2.30pm start. While I accept that the message could have done more to highlight the fact that the agreed date had moved, this does not relieve the recipient of their duty to read it carefully and thoroughly.[49]Moreover, with regard to the legal representative’s lack of availability on 8 May 2024, I note that she was asked to confirm which date(s) she could attend “ by return email” on 3 April 2024. I have no evidence to suggest that she replied to that enquiry. Equally, if the reissued timetable had been properly read on 23 April 2024, the legal representative could have raised the issue of her non-availability then, rather than after the event.[50]With that said, it is very clear that (at least prior to the case conference taking place) the attendance of the Applicant’s legal representative had been considered essential. On that basis, it is difficult for me to understand why the case conference proceeded as it did. Moreover, any attempt I might make to fathom the panel’s reasons for proceeding would be nothing more than speculation and could consequently be unfair to the panel itself. I therefore refrain from doing so.[51]The application goes on to make a ‘justice being seen to be done’ argument: that an informed observer would consider that the Applicant was entitled to feel that, as a discussion about his case was made without his legal representative’s input and behind closed doors, then he could not be sure that discussion was adverse or prejudicial to his case (no matter how inaccurate or unfair that suspicion might be).[52]Although this part of the application is founded on basic principles of natural justice, the essential principles of a conference being (as a simple matter of interpretation) a forum in which parties to proceedings confer, and in which a third party may be present, are set out in rule 7.[53]In particular, rule 7(6) provides that “ a directions hearing or case management conference may proceed in the absence of a prisoner who is represented at the hearing, or an unrepresented prisoner who chooses not to attend.”[54]In the Applicant’s case, the second limb does not apply, as he was represented. This was clearly and obviously known to the panel.[55]Therefore, the conference could only proceed in the absence of the Applicant if he was represented at the case conference. He was not, and the offer of a recording after the conference is not sufficient or adequate to remedy the panel’s breach of rule 7(6).[56]The questions for me then become(a) whether the breach of rule 7(6) amounts to procedural unfairness and, if so,(b) whether, on that basis, I grant reconsideration of the decision (given that reconsideration is a discretionary remedy).[57]I find that the breach of rule 7(6) does amount to procedural unfairness for precisely the natural justice reasons advanced on behalf of the Applicant. Although I have no reason to suspect that the panel acted in anything other than a meticulously fair manner in the case conference itself, the mere fact that it took place without the party for whom liberty was at stake being present or represented, is enough for it to feel unfair.[58]Turning to the second question, cases in which the party to Parole Board cases have been represented are highly unlikely to generate a successful appeal if there had been no challenge made to the alleged irregularity. However, in this instance the Applicant’s legal representative submits that she raised her concerns about the case conference at the start of the hearing and the decision records her statement that she was not made aware of the case of date. The panel chair notes that the email of 23 April 2024 informing the Applicant’s legal representative of the new date was “ subsequently seen”. I am therefore satisfied that an appropriate challenge was made at the time and, in all the circumstances, am also satisfied that the decision must be reconsidered. The application is therefore granted accordingly.[59]Having found sufficient procedural unfairness to grant reconsideration on that basis, there is no need to consider the arguments based on irrationality and therefore I make no finding on irrationality either way. Decision[60]For the reasons set out above, the application for reconsideration is granted. Stefan Fafinski 16 August 2024