Blackwood, Application for Reconsideration [2024] PBRA 169 (09 September 2024) [2024] PBRA 169

PBRA

Blackwood, Application for Reconsideration [2024] PBRA 169 (09 September 2024)

[2024] PBRA 169 · 2024-06-14

[1]This is an application by Blackwood (the Applicant) for reconsideration of a decision of an MCA paper review dated 14 June 2024 not 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

[3]I have considered the application on the papers. These are the application for reconsideration; the MCA paper decision; the decision refusing an application for an oral hearing following the paper decision and the dossier. Request for Reconsideration

[4]The application for reconsideration is undated but it is accepted that it was made in time.

[5]The grounds for seeking a reconsideration are that the failure to direct an oral hearing before reaching a decision was wrong in law; irrational and rendered the procedure unfair. It is also submitted that the MCA member should have sought further information before reaching a decision. It is said that this failure was irrational and procedurally unfair. Background

[6]On 16 March 2018 the Applicant was sentenced to an extended determinate sentence of 12 years for an offence of aggravated burglary. The custodial period was set at 9 years and there was an extended licence of 3 years. The Applicant broke into the house of an acquaintance during the night when the occupants were sleeping. He stabbed one of the occupiers who he disturbed. The Applicant was 17 at the time he committed the offence and 18 at the time of sentence. By the time of sentence he had been diagnosed with autistic spectrum disorder. The Applicant's first parole review was conducted on paper on 16 January 2023. No direction was made for release and the panel considered it unnecessary to hold an oral hearing. At 4.2 of that decision the panel said " He is therefore assessed as presenting a high risk of causing serious harm. He has yet to engage in any interventions on the current sentence to address risk and a clear treatment pathway is identified." The Prison Service in response indicated that the Applicant would undergo interventions identified by the Prison service by the Programmes Needs Assessment as appropriate. The Applicant was transferred to his current establishment to carry out the Becoming New Me (BNM+) adapted programme for domestic violence, sex or other offending but a further assessment carried out at the same establishment determined that he did not meet the need for it. Current parole review

[7]The Applicant's case was referred to the Board on 11 January 2024. The paper review refusing to direct release was on 14 June 2024. That panel also concluded that an oral hearing was not required and it appears no submissions were made by the Applicant requesting one. An oral hearing application was made following that decision. That application was rejected by a panel of the board on 24 July 2024. There were submissions made in support but the application was rejected. The panel said " an oral hearing is not required in all cases. In [the Applicant's] case there is no support for his release with recommendations for interventions to look at his offending and risk factors linked to it. The panel considers that in the absence of such work and evidence of consistently good behaviour in custody, an oral hearing would be premature". The Relevant Law

[8]The panel correctly sets out in its decision letter dated 14 June 2024 the test for release. Parole Board Rules 2019 (as amended)

[9]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)).

[10]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)). Irrationality

[11]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.

[12]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 para 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. "

[13]In R(on the application of 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 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).

[14]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 DSD was binding on Saini J.

[15]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.

[16]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 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. 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;

(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. The overriding objective is to ensure that the Applicant's case was dealt with justly. Error of law

[20]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.

[21]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

[22]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. Reconsideration as a discretionary remedy

[23]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 Secretary of State (the Respondent)

[24]The Respondent has made no submissions in response to this application. Discussion

[25]I have not found this an easy decision to make. The Applicant has been diagnosed with autistic spectrum disorder. It is well recognised that prisoners with this condition may find it difficult to cope with prison conditions and there is evidence that this is true of the Applicant. It is also a matter of concern that despite spending six years in custody and it being recognised that there is core risk reduction work which needs to be carried out, none has been identified. As the panel that rejected his application for release said at 2.6 " His COM [Community Offender Manager] recommends that [the Applicant] engage with accredited programmes but it is not clear what would be suitable for him, taking account of his autism and mental health difficulties."

[26]The Applicant was transferred to his current establishment in August 2023 in order to go on the BNM+ programme as that was assessed by his previous prison in the prisoner needs assessment as being a suitable programme for him but they decided he was not suitable. This transfer was difficult for the Applicant to deal with because of his autism.

[27]The COM says at p.122 of the dossier:

" Given (the Applicant's) previous offending along with his index offence demonstrates that he has outstanding work to complete in relation to his tendency to use violence, as such he will need to complete core risk reduction work to demonstrate a reduction in risk of re-offending"

. That core risk reduction work is not being carried out because no-one has been able to identify what is suitable.

[28]Was the apparent lack of availability of core reduction work and lack of a sentencing pathway considered by the panel that conducted the review on the papers and if not, should they have been, when deciding whether an oral hearing was necessary?

[29]The panel who carried out the review said that it found no reasons for an oral hearing having considered the principles in Osborn

2013 UKSC 61

. The panel took into account in reaching that decision that the Applicant had not submitted any reasons for an oral hearing. The Applicant was represented at the time and representations should have been made. Nevertheless, it is impossible to know whether the panel took into account the situation of the Applicant in prison and the difficulties that face him in achieving release.

[30]The decision of the panel did not become final until the Applicant had the opportunity to apply for an oral hearing. The Applicant did apply but was refused. The panel that refused an oral hearing said " An oral hearing is not required in all cases. In [the Applicant's] case there is no support for his release, with recommendations for interventions to look at his offending and risk factors linked to it. The panel considers that in the absence of such work, and evidence of consistently good behaviour in custody, an oral hearing would be premature."

[31]The decision of the panel which considered the application for an oral hearing seems to have been concerned with the chances of success of the application for release. That is not surprising as the submissions from the Applicant's legal representative were based on the need for an oral hearing because, it was argued, if there was one, the application for release was likely to be successful.

[32]While it may have been true that there were recommendations for interventions to look at his offending and risk factors it is arguable that there was no worked out plan for making that happen.

[33]From reading the decisions, it may be that both panels in considering whether there should be an oral hearing did not take into account the problems that the Applicant faced in achieving release in the lack of any clear plan for providing the core training that he needed, particularly in light of his autism. If they did they haven't spelt that out in their decisions.

[34]Should they have considered those matters as part of a fair process? The leading authority on the circumstances in which an oral hearing should be directed is Osborn -v- Parole Board

[2013] UKSC 61

. At 1(v) of the judgment Lord Reed said " The question whether fairness requires a prisoner to be given an oral hearing is different from the question whether he has a particular likelihood of being released or transferred to open conditions, and cannot be answered by assessing that likelihood."

[35]I consider that, on the basis of the contents of the written decisions, there is a risk that the panel considering the application for an oral hearing may have only applied the test of the likelihood of release. If that was not the case, then the decision doesn't seem to me to make that clear.

[36]Further at 1(ix) Lord Reed said " The Board's decision, for the purposes of this guidance, is not confined to its determination of whether or not to recommend the prisoner's release......,but includes any other aspects of its decision (such as comments or advice in relation to the prisoner's 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".

[37]The panel that refused release did suggest further steps that should be taken but concluded " Risk factors in his case are complex and there is not a clear pathway for future sentence planning at this time, although all professionals recommend further work in custody taking account of his diagnoses." It may be that concerns about the lack of any clear future sentence planning after the length of time that this Applicant has been in custody may come within Lord Reed's guidance in 1(ix).

[38]If the issues that the panels had to consider in deciding whether to order an oral hearing were limited to whether there was any prospect that the application for release would succeed, then I would dismiss this application, as that would have been a perfectly rational decision on the evidence but that was not the only issue and on reading the decisions I am not convinced that the wider considerations set out by Lord Reed were addressed. It may be that if they had been considered the same result would have followed but I cannot be convinced of that and that will be an issue for another panel to look at.

[39]The guidance from Lord Reed was provided to ensure that hearings were fair. If there should have been an oral hearing then the procedure of making a decision on the papers was unfair, I have therefore considered this application under the heading of procedural unfairness.

[40]While the Applicant argues that the panel should have sought further information before making a decision, I do not consider that there is any merit in that. Decision

[41]For the reasons that I have given I do find that the hearing was procedurally unfair in that I am not convinced that proper regard was given to all of the guidance of the Supreme Court given in Osborn and all relevant factors were properly considered. The application for reconsideration is therefore granted and the issue whether to direct an oral hearing should be reconsidered. John Saunders 09 September 2024