Rashid, Application for Reconsideration [2024] PBRA 159 (03 September 2024) [2024] PBRA 159

PBRA
Rashid, Application for Reconsideration [2024] PBRA 159 (03 September 2024)
[2024] PBRA 159 · 2024-06-04
[1]This is an application by Rashid (the Applicant ) for reconsideration of a decision dated 4 June 2024 of a panel of the Parole Board (the Panel ). The Panel concluded its review of the Applicant’s case on the papers. 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(c) the decision 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 papers are: · an application for reconsideration dated 12 July 2024 submitted by the Applicant’s solicitors; · the Panel’s decision dated 4 June 2024; · a dossier of 441 pages; and · a reply on behalf of the Secretary of State (the Respondent ) dated 25 July 2024.[4]I also listened to a recording of the directions hearing held by the Panel on 15 May 2024 (the recording ). Request for Reconsideration[5]The application for reconsideration is dated 12 July 2024. The Applicant’s current solicitors did not represent him during his Parole Board review. The application submits that there are three grounds for seeking a reconsideration. I have distilled the main arguments from a lengthy application. They are: Ground 1 - Error of law The application submits that it was unlawful for the Panel to have prevented the Applicant from presenting his case at an oral hearing and from being given an opportunity to explain how he had reduced his risk. It further submits that the Applicant should have had access to an interpreter to present his case. Ground 2 - Procedural Unfairness The application submits that there are three main areas which evidence procedural unfairness.(a) the Applicant was prevented from understanding and presenting his case effectively by the prison offender manager ( POM ) and by the legal representative who was acting for the Applicant at the directions hearing on 15 May 2024. i) In relation to the POM, it is alleged that the POM sought to dissuade the Applicant during supervision sessions from insisting on having an interpreter to assist him when he was undertaking risk reduction work, that the POM gave the Applicant conflicting advice about whether he needed to undertake more offending behaviour work, that the POM gave him a verbal warning after the hearing on 12 January 2024 (mistakenly referred to as a directions hearing in the application) that if he insisted on having an interpreter to assist him with risk reduction work, he was unlikely ever to be released, and that the POM was incorrect when she told the Panel that the Applicant was willing to complete a programme called Building Choices without the aid of an interpreter. ii) In relation to his legal representative, it is alleged that she did not inform him fully of the case against him and did not seek his instructions before agreeing that his review should be “ concluded on the papers ”.(b) the Panel erred in proceeding without an interpreter for the Applicant even though there was “ significant evidence ” available to the Panel that he continued to face language barriers.(c) the Panel failed to ensure that the Applicant understood the process so that he could make an informed contribution at the hearing, and the Panel failed to seek to understand the Applicant’s views, which was exacerbated by the Applicant not having access to an interpreter. Ground 3 - Irrationality The application submits that “ a core body of evidence [needed] to effectively and fairly assess the applicant’s risk was absent ”. The application highlights that there was no risk management plan before the Panel which would have been material to a fair assessment of the Applicant’s risk. Background[6]The Applicant was convicted of attempted rape and false imprisonment in 1998. He was 36 years old at the time. His victim was a sex worker. He was given a mandatory life sentence for the offence of attempted rape, and a sentence of 18 months for false imprisonment. A life sentence was imposed because he had previous convictions for rape and buggery. His life sentence tariff of four years less time spent in custody on remand expired in 2001. The Applicant’s forensic history shows that he committed sexual offences against women he did not know, and that two of his victims were sex workers.[7]The Applicant has completed several interventions in custody including the Enhanced Thinking Skills programme, the adapted Sex Offender Treatment Programme, the adapted Better Lives Booster programme, and the Thinking Skills Programme. He progressed to open conditions in 2013 but was returned to the closed estate in 2015 due to concerns about his involvement in the drug culture. The Applicant progressed to the open estate on two more times in 2017 and 2018. He was returned to closed conditions on both occasions for drug-related reasons.[8]The Applicant was released from the closed estate in September 2020. He was recalled in December 2022. One of the reasons for his recall was his alleged contact with a sex worker, which was in breach of one of his licence conditions. Current parole review[9]The Respondent referred the Applicant’s case to the Parole Board in January 2023. The case was directed to an oral hearing in March 2023. Since English is the Applicant’s third language, his legal representative was asked to advise the Parole Board if an interpreter was needed to ensure the Applicant had a fair hearing. Having taken the Applicant’s instructions, his legal representative confirmed that an interpreter was required.[10]A remote hearing by video link was held on 12 January 2024. Evidence was taken from the POM, and the Applicant’s community offender manager (COM), and possibly (it is unclear from the Panel’s adjournment decision) from a trainee forensic psychologist ( Psychologist ). An interpreter attended to assist the Applicant. The professionals were said to agree that in their view the Applicant needed to complete further work before they could consider his release. The Applicant told the Panel that he was willing to complete further work but said that no work had been identified for him.[11]The hearing was adjourned to obtain clarity about what work could be undertaken by the Applicant and whether an interpreter could be used to assist the Applicant, and to allow a viable risk management plan could be developed. The Panel said that it proposed to hold a directions hearing to address the issues raised at the hearing.[12]A directions hearing was held on 15 May 2024. At the date of the directions hearing, the Applicant was 22 years over tariff. The Panel, with the agreement of the Applicant’s legal representative, concluded the review of the Applicant’s case on the papers having taken limited evidence from the professionals and very little evidence from the Applicant. The reply on behalf of the Respondent[13]The Respondent submitted representations on three specific allegations made against the POM.

(a) First allegation:

“ the applicant was prevented from putting their case properly before the panel by his POM. Following the directions hearing in January 2024, the applicant was dissuaded during supervision sessions by his POM in insisting on the help of an interpreter whilst he completed risk reduction work.”
The Respondent submitted that following an in-depth review of the dossier and the offender’s NOMIS, there is no evidence to substantiate the above statement and no evidence to confirm that the POM has dissuaded the offender during supervision sessions to find an interpreter.

(b) Second allegation:

“ In addition to this, the applicant’s POM approached him during his attendance at a workshop in prison and informed him that he did not need to do further courses due to the language problem. He was also told at another time that courses were being considered but this may be for completion either in the community or in custody.”
The Respondent submitted that there is no evidence in the dossier to support the allegation made, and set out the following extract from a report dated 13 May 2024 from the COM:
“A more favourable position would be for him to remain in custody and complete the Building Choices Programme. This is an alternative to the Horizon Programme which is no longer being completed in custody. After speaking to the POM who is due to attend the hearing on 15/05/24, she confirmed to myself on 09/05/24, [the Applicant] is happy to complete the programme and is happy to continue this without an interpreter being present. The Programme tutors confirmed he is suitable to complete the programme. Also, from what the POM informed me this has more 1-2-1 sessions compared to the Horizon Programme, which will benefit [the Applicant] more. It is important that this is completed so [the Applicant] can address his sexual offending behaviour.” (c) Third allegation: “ Although an interpreter was provided for the applicant at the directions hearing, the verbal warning to him by his Prisoner Offender Manager following that hearing included the statement that should he insist on having an interpreter to help him with his risk reduction work, he would likely never be released.”
The Respondent submitted that the required information could not be obtained because the POM was on leave, but stated that the Applicant’s requirement for an interpreter fluctuates. In support of this comment it set out the following extract from the psychological report dated 27 June 2023:
“ On 13/06/2023, [the Applicant] stated that the use of an interpreter was “essential” for our interview and his oral hearing because he might “say something that could be taken as an offence” and he would want to prevent being misunderstood. On 15/06/2023 an interpreter via phone through Big Word was used to allow [the Applicant] to answer more sensitive topics in his first language (Sylheti) and provide him with the opportunity to make any additional comments. An interpreter was not used during previous interviews due to records documenting [the Applicant’s] ability to fully engage with professionals without the use of one, and him not requesting one during the consent stage. Also, based on my ongoing communication with [the Applicant], I assessed that his level of understanding was sufficient, and he could express himself adequately.”
The Respondent added that if the Applicant asked for an interpreter, it would be facilitated. The Relevant Law[14]The Panel correctly sets out in its decision letter dated 4 June 2024 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[15]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)).[16]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)).[17]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[18]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.[19]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. ”[20]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) .[21]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.[22]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.[23]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. Procedural unfairness[24]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.[25]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.[26]The overriding objective is to ensure that the Applicant’s case was dealt with justly. Error of law[27]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.[28]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. Other[29]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. Discussion[30]Ground 1 - Error of law : the application submits that it was unlawful for the Panel to have prevented the Applicant from presenting his case at an oral hearing, and from being given an opportunity to explain how he had reduced his risk with the benefit of an interpreter.[31]The Applicant’s case was directed to an oral hearing in March 2023 following an assessment of his case. Legal representations requesting an oral hearing had been submitted by the Applicant’s solicitors for consideration as part of that assessment. The Applicant was disputing crucial aspects of his recall.[32]A hearing took place on 12 January 2024. It was adjourned on the day. In its adjournment decision, the Panel recorded that all the professionals agreed at the hearing that the Applicant needed to complete further work before they could consider his release. The Panel also noted that the Applicant told them that he was willing to complete further work. The Applicant had the benefit of having an interpreter at the hearing. T he POM told the Panel that a programme needs assessment ( PNA ) had been carried out and had identified that there was outstanding work for the Applicant to undertake. There is no copy of the PNA or a summary of the PNA in the dossier.[33]It was unclear what work would be suitable for, and could be undertaken by, the Applicant. There was a discussion about the Kaizen programme ( Kaizen ), an accredited programme for adult males who have committed violent or sexual offences and who present a high or very high risk of reoffending. It was confirmed during the hearing that Kaizen could be completed on a one-to-one basis. The COM commented that he had completed three Maps for Change sessions with the Applicant but had stopped because he considered that the Applicant “ needed more in-depth work ”. The COM expressed the view that Kaizen “ was the most suitable way forward ”.[34]There were several references to the Applicant’s language difficulties during the hearing:(a) The Applicant told the Panel that he had not been able to express himself during the PNA or with other professionals and that his perceived attitudes might be the result of “ the language barrier ”.(b) The POM said that Kaizen “ was probably best done with the help of an interpreter ”.(c) The COM mentioned that he had been obliged to speak in English and Urdu to make the Applicant understand, and there had been occasions when the Applicant still found it difficult as his first language is Bengali.(d) The Panel expressed concerns that the Applicant’s “ clear language issues may have contributed to the position that he found himself in .”[35]The hearing was adjourned on the application of the Applicant’s legal representative to enable the COM to complete a risk management plan, to engage more with the Applicant, and to discuss options for “ any outstanding work ” with the POM. It was agreed that a directions hearing would be held in May 2024. The Panel directed the attendance of all the witnesses and an interpreter at the directions hearing.[36]During the adjournment period, a stand-in POM (not the Applicant’s usual POM) and the COM submitted reports. In her report dated 30 April 2024, the POM reported that the prison was moving away from Kaizen and the Horizon programme and was rolling out a programme called Building Choices. It was proposed that the Applicant would be among the first cohort of participants for the Building Choices and, if successful, the programme would be completed by mid-July 2024. The POM noted in her report that the Applicant was now saying that he did not need an interpreter for any offending behaviour work, but commented that “ this standpoint has fluctuated over time ”. The POM advised that the prison’s treatment manager had met the Applicant and assessed that “ his English language is established enough to complete an accredited programme without the use of an interpreter. ” In his report, the COM considered that it was “ imperative that [the Applicant] completes the Building Choices programme prior to any consideration to a release into the community or open conditions. ”[37]The Panel’s decision sets out a summary of the evidence taken and decisions made at the directions hearing held on 15 May 2024:
“[The Applicant] informed the panel he was happy to proceed without an interpreter. The POM confirmed that [the Applicant] had told staff he would complete interventions without the need of an interpreter too. The POM, COM and prison Psychologist said that the ‘Building Choices’ programme had been identified for [the Applicant] to complete. He had agreed to complete the programme … . The panel were advised that the timeline included, Building Choices programme, 4-week post programme review, 3-6 months stability and a chance to consolidate his learning, Psychologist assessment and then a COM report with a full RMP. This could take until April/May 2025. The legal representative asked if the case could be concluded on the papers due to the work that [the Applicant] still had to complete. The panel adjourned the case and have now concluded the case on the papers.”
[38]I have listened to the recording of the hearing on 15 May 2024 which has added considerably to my understanding of how the hearing was conducted and how the Panel addressed the issues which arose. The Panel took evidence from the POM, the Psychologist, and the COM. The Panel also spoke to the Applicant. There was no interpreter at the hearing even though the Panel had directed that an interpreter should be present, and an interpreter was listed on the timetable. At the beginning of the hearing, the POM told the panel chair that the Applicant had said that he did not need an interpreter for the hearing which she said she had accepted at face value since the Applicant had decided to undertake Building Choices without an interpreter. At this stage, it would have been good practice for the panel chair to ask the Applicant directly about his willingness to participate in the hearing without an interpreter. Despite the Panel’s previous concerns about the Applicant’s ability to express himself in English, and the concerns expressed by the other professionals, the panel chair did not do so, and the hearing was conducted without an interpreter to assist the Applicant.[39]The Panel questioned the professionals about Building Choices to understand more about the aims of the programme, its duration, and how it would be delivered. The Panel asked the Psychologist for her views about a consolidation period after the completion of the programme. She replied that the Applicant might have an opportunity to consolidate his learning during the programme but if a post-programme consolidation period was considered to be beneficial, ideally it would be between three to six months.[40]The Panel accepted without challenge the evidence of the witnesses that the Applicant should remain in custody to undertake Building Choices and possibly complete a period of consolidation, and this approach informed the Panel’s questioning. The Panel did not explore whether the Applicant could undertake work in the community. The Applicant was not asked for his views on the plan that had been outlined by the witnesses. The Panel may, to some extent, have been influenced by the Applicant’s statement that he was willing to “ do everything that they ask of me ”. However, it is clear from subsequent discussions between the panel chair and the Applicant that(i) the Applicant had a limited understanding of what was being proposed and its implications for him, and(ii) the Applicant wanted to give evidence to the Panel about his learning, thinking, and behaviour.[41]It is unfortunate that the Applicant was not well served by his legal representative. She did not question or challenge the evidence of the professionals and she did not ask the Applicant any questions. She said that she had been able to meet the Applicant a few days before the hearing, but it is unclear whether she had full instructions from him. Much of the evidence presented at the hearing was new to the Panel and would have been new to the Applicant, who was expected to understand and respond to it at the hearing, and without the aid of an interpreter. The fact that a prisoner is legally represented does not in my view discharge the duty of the Panel to test the evidence of witnesses to enable it to reach a robust and evidence-based assessment of risk. Although this was intended to be a directions hearing, important issues relating to the Applicant’s progress were discussed in detail.[42]The panel chair spoke directly to the Applicant on three occasions. On the first occasion, the panel chair wanted to check if the Applicant understood what had been discussed and asked him if he knew “ what is going to happen after the hearing ”. The Applicant’s language difficulties were evident from his response to the panel chair, “ I don’t really know what’s going to happen ”. Although the Applicant indicated later in the hearing that he was willing to complete Building Choices, it became clear that he was under a significant misapprehension about what this meant. He said that he had been told that it was a seven week course which once completed would place him in a better position for release. He did not appear to appreciate that what the professionals were proposing was a programme followed by a three to six month period to consolidate learning.[43]Although this is not reflected in the Panel’s decision, it was the panel chair who suggested to the Applicant’s legal representative that concluding the review of the Applicant’s case at this stage might be the best option. The panel chair quite properly suggested that the Applicant’s legal representative might wish to discuss matters with the Applicant. However, the Applicant’s legal representative decided to agree that the Panel should make a decision on the papers without further evidence being taken without discussing matters with the Applicant or taking his instructions.[44]At the end of the hearing, the panel chair attempted to explain to the Applicant what had been decided and said that the professionals were trying to help him to make progress. The Applicant said that he did not fully understand what had been agreed. He started to speak about previous courses he had completed, he said that his behaviour in custody was positive, that he was using the skills he had acquired in the past, and that he was managing his emotions in custody which he said was “ not easy at all ”. However, he was prevented from giving any further evidence by the panel chair on the basis that a decision had been made to conclude his review without taking further evidence.[45]This was the Applicant’s first review following his recall in December 2022. The Panel did not make a decision about whether the recall was appropriate. Although the Applicant disputed important aspects of the recall events, the Panel did not ask him for his account of the recall, and appears to have accepted the COM’s position from his reports.[46]I am satisfied that the Panel acted unlawfully. The Panel lost sight of several of the key principles set out in Osborn, Booth and Reilly (2013) UKSC 61 . The Panel did not ensure that the Applicant had a fair hearing. The Panel failed to recognise that one of the reasons for holding an oral hearing is to give the prisoner an opportunity to give an account of himself and to participate in a review which has important implications for him. The Applicant was not given the opportunity to give an account of his time in the community (over two years), or the recall events, which significantly, he was disputing. It is also the role of the Panel to ensure that the Applicant can participate fully in the hearing, can follow what is being discussed, and can understand the impact of any decisions on him. The Panel was aware of the Applicant’s language difficulties and had directed the attendance of an interpreter at the directions hearing. Although the panel chair was told by the POM that the Applicant did not require an interpreter, the panel chair should have questioned the Applicant more robustly about his need for an interpreter, particularly given the Panel’s decision not to reconvene but instead to determine his review on the limited evidence taken to that point, and on the papers. The Panel was not mindful of the fact that the Applicant was not only a recalled prisoner but also an indeterminate sentence prisoner who was 22 and a half years over tariff requiring the Panel to bring considerable ‘anxious scrutiny’ to its exploration and assessment of risk. The Panel must be, and must be seen to be, impartial and independent in all aspects of its conduct of the Applicant’s case. The Panel followed the plan outlined by the professionals and appeared to accept their evidence without proper challenge and scrutiny.[47]Having concluded that the Panel’s decision is unlawful, it is not strictly necessary for me to address issues of alleged procedural unfairness and irrationality. However, I believe that for completeness, it may be worthwhile addressing some of the issues raised in the application.[48]Several allegations have been made about the POM and her role in advising and persuading the Applicant not to insist on having access to an interpreter. I have no evidence on which to make any findings about the POM’s actions but I would highlight that it was the POM at the hearing on 12 January 2024 that suggested that Kaizen was “ probably best done with the help of an interpreter ”. It also seems to me quite possible that the Applicant may have misunderstood the POM’s advice to him given his language difficulties.[49]I agree that the Panel made a significant error in proceeding without an interpreter. Given what each of the professionals and the Panel had said previously, it was inconsistent and ill-judged for the Panel to proceed without an interpreter. The error was exacerbated by the Panel’s decision to continue with the hearing after the Applicant made it clear to the panel chair on several occasions that he did not understand what was happening or what the implications of the discussions were for him. Decision[50]Accordingly, applying the test as defined in case law, I consider, that the Panel’s decision was unlawful and 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 panel by way of an oral hearing. Hedd Emrys 03 September 2024