Forrester, Application for Reconsideration [2024] PBRA 178 (18 September 2024) [2024] PBRA 178

PBRA
Forrester, Application for Reconsideration [2024] PBRA 178 (18 September 2024)
[2024] PBRA 178 · 2024-07-09
[1]This is an application by Forrester (the Applicant) for reconsideration of a paper decision dated the 9 July 2024 made by a parole board member in the Member Case Assessment (MCA) process. The decision was not to direct release.[2]Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2022) (the Parole Board Rules) provides that applications for reconsideration may be made in eligible cases (as set out in rule 28(2)) either on the basis(a) that the decision contains an error of law,(b) that it is irrational and/or(c) that it is procedurally unfair. This is an eligible case, and the application was made in time.[3]I have considered the application on the papers. These are the dossier, the decision of an MCA member, the application for reconsideration by the prisoner made through his solicitor by email, a copy of a custody record and the response by the Secretary of State (the Respondent). Request for Reconsideration[4]The application for reconsideration is dated 19 August 2024.[5]The grounds for seeking a reconsideration are that the decision was procedurally unfair. Background[6]The Applicant is 60 years old and is serving an indeterminate sentence for public protection. He was released in 2019 and has now been recalled. His tariff expired in 2007. The index offence was sexual assault. He was 41 years old when sentenced.[7]The recall occurred in circumstances where he was alleged to have breached his sexual registration requirements by using a name unknown to the police.[8]Additionally in April of 2024 he had offered a female a lift in his car. The female was apparently considered to be vulnerable and had been reported as a missing person. This behaviour was considered by the police to potentially raise the possibility of a charge of kidnap. There were also concerns about breaches of licence conditions, in particular notifying the supervising officer of personal relationships. Current parole review[9]On 9 July 2024, a member case assessment (MCA) took place. The Applicant's case was reviewed by way of a paper review. In the decision, the MCA member indicated that the Applicant's legal representative had confirmed that the allegation relating to kidnapping was still subject to investigation and was due to be reviewed in July 2024. It was also noted that no timescale was given for the matter to be concluded. The MCA member indicated that it appeared that the matter would not be concluded within the eight week timescale required by Parole Board guidance and therefore proceeded to consider the evidence as available at the time.[10]Subsequent enquiries have revealed that the information provided to the MCA member was inaccurate. The police had in fact concluded that no further action should be taken in the kidnapping case in April 2024. The police had not informed the Applicant's solicitors or the parole board of the decision.[11]The Applicant's solicitor therefore argues that the decision should be reconsidered. The Relevant Law[12]The panel correctly sets out in its decision letter dated 9 July 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)[13]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)).[14]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)).[15]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[16]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.[17]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. "[18]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).[19]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.[20]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.[21]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;(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. The overriding objective is to ensure that the Applicant's case was dealt with justly. Error of law[25]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.[26]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.[27]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.[28]Omitting to put information before a panel is not a ground for procedural unfairness, as has been confirmed in the decision on the previous reconsideration application in Williams [2019] PBRA 7 . This is the case even where the information, had it been before the panel, would have been capable of altering its decision, or prompting the panel to take other steps such as putting the case off for an oral hearing where the new information and its effect on any risk assessment could be examined. This is because procedural unfairness under the Rules relates to the making of the decision by the Parole Board, and when making the decision the panel considered all the evidence that was before them. There was nothing to indicate that further evidence was available or necessary, and so there was nothing to indicate that there was any procedural unfairness.[29]It is possible to argue that mistakes in findings of fact made by a decision maker result in the final decision being irrational, but the mistake of fact must be fundamental. The case of E v Secretary of State for the Home Department [2004] QB 1044 sets out the preconditions for such a conclusion:
" there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter; the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable; the appellant (or his advisors) must not have been responsible for the mistake; and the mistake must have played a material (though not necessarily decisive) part in the tribunal's reasoning ."
See also R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] AC 295, which said that in order to establish that there was a demonstrable mistake of fact in the decision of the panel, an Applicant will have to provide " objectively verifiable evidence " of what is asserted to be the true picture.[30]Reconsideration is a discretionary remedy. That means that, even if an error of law, irrationality, or procedural unfairness is established, the Reconsideration Member considering the case is not obliged to direct reconsideration of the panel's decision. The Reconsideration Member can decline to make such a direction having taken into account the particular circumstances of the case, the potential for a different decision to be reached by a new panel, and any delay caused by a grant of reconsideration. That discretion must of course be exercised in a way which is fair to both parties. The reply on behalf of the Respondent[31]The Respondent made no representations. Discussion[32]Irrationality is not argued by the Applicant's solicitor in this case. I agree with their view, I do not consider that the decision could be considered to be irrational in the sense set out above. On the basis of the evidence before the MCA member at the time of the decision the outcome was reasonable and understandable.[33]So far as procedural unfairness is concerned, it appears to me that the Applicant was prevented from putting his case properly. This was not the fault of the MCA member, or the Applicant's solicitor but arose as a result of the failure by the police to communicate their decision appropriately and promptly. The Applicant would have legitimate arguments about his risk based upon the decision of the police. However as noted in paragraph 28 above, omitting to put information before a panel is not a ground for procedural unfairness, as confirmed in the decision on a previous reconsideration application in Williams [2019] PBRA 7 . Findings of fact[34]As set out above it is possible to argue that mistakes in findings of fact made by a decision maker result in the final decision being irrational. The mistake of fact must however be fundamental. In this case whether the Applicant was to be charged with an offence of kidnapping was fundamental to the decision of the member in this case. An obvious mistake of fact therefore occurred in this case. The mistake was one which, in my determination, materially affected the decision of the MCA member. I therefore determine that this matter should be reconsidered. Decision[35]Accordingly, whilst I do not find there to have been a procedural irregularity, I find applying the principles enunciated in the case of E v Secretary of State for the Home Department [2004] QB 1044 . the decision to have been irrational because of the mistake of fact relating to the police information. 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. HH Stephen Dawson 18 September 2024