Collins, Application for Reconsideration [2024] PBRA 182 (16 September 2024) [2024] PBRA 182

PBRA
Collins, Application for Reconsideration [2024] PBRA 182 (16 September 2024)
[2024] PBRA 182 · 2024-07-27
[2024] PBRA 182     Application for Reconsideration by Collins     Application[1]This is an application by Collins (‘the Applicant’) for reconsideration of a decision of a panel dated 27 July 2024 (‘the Decision’) making no direction for release and no recommendation for 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(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 Decision, the Application for Reconsideration and the dossier. PPCS were given an opportunity to make representations on the Application for Reconsideration, but they chose not to make any representations.   Request for Reconsideration[4]The application for reconsideration is dated 16 August 2024.[5]The grounds for seeking a reconsideration on grounds of irrationality and procedural unfairness are that:(a) “The panel have drawn conclusions on matters that they did not take evidence in        respect of”; (Ground 1)(b) “The panel have not weighed the risk factors in a fair manner”; (Ground 2) and(c) “The panel failed to properly consider the unanimous and comprehensive official        recommendations”. (Ground 3)   Background[6]On 4 August 2011, the Applicant, who was then 31 years old and then had no previous convictions, received an indeterminate sentence of imprisonment for public protection (IPP) sentence with the minimum term being specified at 2 years and 157 days for 2 offences of sexual assault of a female child under the age of 13 years, 5 offences of taking, permitting to be taken or making, distributing or publishing indecent photographs or pseudo photographs of children, 1 offence of possessing an indecent photograph of a child and 20 offences of making indecent photographs of children.[7]These offences, which will be referred to as ‘the index offences', were committed against the daughter of a friend when the child was aged between 9 and 18 months. An assessment made by a Forensic Psychiatrist to assist the court when sentencing the Applicant concluded that “weighing up all the evidence available to me, I concluded that [you] present a significant risk to children”.[8]On 22 June 2016, the Applicant was released on licence by the Parole Board after a hearing, but his licence was revoked on 25 September 2018. Recall proceedings were instigated after the Applicant made an admission to probation that there were indecent images and videos on his phone. This admission came after the police had taken his phone for examination due to intelligence that his phone contained downloaded illegal pictures of children. The panel assessed this offending on licence as being “offence paralleling with the index offences”. The Applicant was sentenced in respect of his offending on licence on 28 October 2019 to 20 months’ custody for one count of possessing indecent images of children. The panel considered that the recall was appropriate.   Current Parole Review[9]On 21 September 2021, the Applicant’s case was referred to the Parole Board to consider whether it would be appropriate to direct the Applicant’s release.   10.It was recorded by the panel that the Applicant engaged well with supervision, that he attended all appointments and presented to professionals as coping well with life in the community, but the panel considered that the Applicant’s “engagement with supervision was superficial in that he was not open and honest about the difficulties he was facing in his relationship at the time, and nor did supervision dissuade him from consuming drugs and accessing illegal images”.   11.The panel noted and commented on all the information in the dossier and that the Applicant has completed one to one work with psychology to develop strategies to manage. The Applicant’s Prison Offender Manager (POM) explained that the Applicant is on the Enhanced level of the IEP scheme, that he has a trusted position as a gym cleaner, that he has not breached the trust placed in him, that his conduct is exemplary, that he has no outstanding risk work risk factors which is a view shared by his present Community Offender Manager (COM) but not by his previous COM. The panel have concluded its own risk assessment and is of the opinion that there is insufficient evidence to support the present POM’s view on this matter which is that the one-to-one work has created a better understanding of the Applicant’s negative traits and how to work through them and has increased self-awareness. The Applicant’s POM recommended the Applicant’s release.   12.The Applicant gave evidence, and he explained that at the time of the offences he was struggling and the child who was the victim of them had been “already abused by someone else”. As for the recall offences, the Applicant stated that relationship problems and cocaine use had triggered sexual offending but he “seemed in difficulties to answer when asked why relationship problems and cocaine triggered sexual offending in him”. The panel considered it “essential for [the Applicant] to understand those links and to generate different coping strategies that [do] not involve the abuse of children or use of illegal online child sexual abuse images.”   13.When asked about his use of the “Dark Web”, the Applicant said that he did not realise that he had accessed it. The panel considered this claim as “lacking credibility”… “given the steps that must be taken to access the Dark Web”.   14.When asked about his sexual interest in children, the Applicant denied it and explained that if he had such an interest, he “would masturbate about them and talk about them”. The panel considered that “this explanation does not explain why [the Applicant] chose sexual abuse of a child and viewing of illegal images of children online to gain ‘thrills and excitement’ as opposed to other material and experiences that is available on the internet and which does not concern the sexual abuse of children.”   15.The panel considered that the Applicant’s explanations and comparisons “would appear to indicate a flippant attitude to the harm he and others caused through the abuse of children being undertaken and then shared and watched by him and others on the internet”. The Applicant confirmed that thrill-seeking was all that was necessary for him and “sexual arousal was not necessary to achieve that”.   16.The Applicant contended that one-to-one work “has helped him to cope with the negatives” but the panel pointed out that that the Applicant’s access to the internet is “currently controlled by his location [in prison]”. The Applicant considered that on release he “will replace the thrill and excitement he [craved] … with going to the gym [or doing] sport”. The conclusion of the panel was that this approach of the Applicant was “unrealistic” as he “needs to do more planning regarding how he will self-manage some of his risk factors.”   17.The Applicant stated that he did not expect to be lonely on release as he expected to see and spend time with his sister, his children and his mother, but they all reside in the exclusion zone that the Applicant could not enter. So, if the panel directed release, he could not access the support and company of those relatives. The panel was therefore concerned that should the panel direct release “[the Applicant] has not made strong and identifiable plans and developed strategies to ensure that he would not be lonely or isolated upon release” and “an additional concern is that [the Applicant] has lost his relationship with [his former partner whom] he saw as protective and supportive.”   18.The panel considered that “the issues of loneliness, boredom and isolations are among the [Applicant’s] core risk factors” and that his strategies and “[his] plans for [dealing with them] would benefit from further thought and development”. It also noted that any external management of these risk factors “relies on [the Applicant] being open and honest with those supervising him [when] such openness and honesty was lacking during [his] recent period of time on licence”.   19.The Prison Psychologist stated that the new information since her most recent report was that the Applicant had lost his relationship with his partner, but the psychologist did not consider that this will not mean that there is an increase in the risk posed by the Applicant. She considers that the Applicant has “developed skills in responding to stress and understands healthy pornography and that [the Applicant] has looked at managing increased sexual thoughts”. The panel assessed that the Applicant had not provided evidence that “his justification for, minimisation of and attitudes to his offending had changed significantly and that he employed justification and minimisation in his evidence to the panel”. In reaching that conclusion, the panel was “aware that an Oral hearing setting can be stressful but is concerned that [the Applicant] did not fully manage that stress using [the] skills it is said he had developed.”   20.According to the Prison Psychologist, the risk management plan provides “the necessary supports, controls and monitoring” needed to keep the Applicant under control. The panel assessed the risk of further sexual violence to be greater than low and that “the controls in place to prevent that will only succeed if [the Applicant] is fully engaged and is fully open and honest.”   21.The evidence of the Prison Psychologist was that “all core work has been completed and that [the Applicant] has developed insight into his functioning” and that he does not employ “impression management”, but the panel disagrees with that last conclusion as evidence “around [the] recall are evidence of impression management and a reluctance to be open and honest about the reality of how life was going [and] this presentation ultimately resulted in the monitoring in place failing to detect problems and there was further serious offending whilst on licence”. The panel also noted that at the hearing, the panel “observed a level of impression management being used that went beyond an understandable wish to present as best case he could for his oral hearing”.   22.The panel noted that warning signs that the Applicant’s risk of offending “would not necessarily be immediately apparent to professionals working with [the Applicant]”. The panel noted that the Applicant was planning to be an HGV driver, but was concerned about this as while working as an HGV driver he “would place himself in an isolated position in his lorry and whilst on the road, he could also access the internet across the country in different locations, making it difficult for his activities online to be checked and monitored effectively”. The psychologist recommended the Applicant’s re-release.   23.The COM gave evidence and stated that the triggers to re-offending for the Applicant included cocaine misuse which was a concern together with “relationship problems”. The COM wanted the Applicant to continue jotting down negative thoughts and daily learning logs; both of these tasks can be carried out in the community, and he has nothing to be completed in custody. The panel agreed that the Applicant should keep on working on his risk factors and developing coping strategies and keeping his daily learning log but considers that this constituted core work which should be continued and expanded in custody.   24.The COM recommended release.      The Analysis of Manageability of Risk   25.The panel noted that the OASys risk prediction score showed that the Applicant posed a low predicted risk of violent reconviction according to static factors and a low prediction of proven non-violent offending and a low probability of any proven reoffending for offenders who share the Applicant’s age, gender and offending history.   26.Although the panel is aware that the assessments in paragraph 25 are actuarially  correct, they consider that they underestimate the actual risks posed by the Applicant at the time of the Decision, for a combination of factors that are not directly assessed by those tools such as “personality traits/disorders, the impact of [the Applicant’s] own life trauma and how that impacts upon his attitudes, beliefs, thinking, personality and his behaviour, the factors specific to sexual offending behaviour, and the length of time that [the Applicant] has been in custody”.   27.The Risk Serious Recidivism (RSR) score is Indicated as being “high” and the Applicant has been assessed using the OASys Sexual Reoffending Predictor (OSP) which is a primarily actuarial risk assessment tool which is used to assess the likelihood of proven sexual reoffending for adult males. In the Applicant’s case, the OSP/C predicts further reoffending involving possessing or downloading of indecent images of children. The Applicant has been assessed as “High” on OSP/1.   28.The OASys risk scores indicate a high risk of serious harm to children, a low risk of serious harm to known adults and to the public. The panel agrees with the dynamic risk scores provided except that it assesses the risk of harm to a known adult/partner to be medium not low; this is on the basis of the Applicant’s attitude to women and evidence of negative behaviour in relationships and “this is in addition to the harm caused to a partner of his choosing to sexually offend against a child in the family”.   29.The panel considered the Community Risk Management Plan (RMP) and the requested licence conditions and having concluded its risk assessment, the panel decided that “it is premature to implement an RMP/release plan, and that the RMP provided would not manage the risks [the Applicant] currently poses”.   30.The panel explained that the Applicant has undertaken programme and other treatment on this sentence and since recall.   31.Nevertheless  the panel concluded that “there remain outstanding treatment needs and consolidation work in respect of thinking skills, emotional self-regulation, sexual offending, distorted attitudes and beliefs in relationships, poor attitude to women, consolidation of his learning to ensure that the learning is properly internalised, development of insight and responsibility taking, insight into personality traits, increased insight into the triggers to his sexual offending, a willingness to be open about negative or difficult developments, and a need to develop skills in being open, honest and co-operative with professionals involved in his case in order that his  risks can be managed” (hereinafter referred to as ‘the outstanding work’).   32.The panel stated that “having considered all the oral and written evidence available to it” that:(a) protective factors in the Applicant’s case could be (i) his very good custodial conduct, (ii) his trusted positions of employment (iii) his motivations to hold employment in the community and (iv) his willingness and ability to access treatment therapy and one to one psychological assessment; but(b) it was “in difficulties to [access] any protective factors that would currently serve                to reduce [the Applicant’s] risk or to indicate that risk is manageable were [the                Applicant] to be in the community”; and(c) “risk reduction and consolidation work identified in the decision letter [as the      outstanding treatment needs and consolidation work] is required before [the      Applicant] can be safely released in the community”; and(d) the risks posed by the Applicant “are currently unmanageable and would be       imminent were he to be released at this stage in his sentence”; and that(e) therefore, the panel makes no direction for release.   The Relevant Law   33.The panel correctly sets out in its decision letter dated 27 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)   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. In those circumstances, the application for reconsideration of the decision not to make a recommendation for open conditions cannot be pursued and it will not be considered further in this Decision.   Irrationality   37.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.   38.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.”   39.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).   40.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. 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.   41.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   42.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.   43.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.   44.The overriding objective is to ensure that the Applicant’s case was dealt with justly.   Reconsideration as a discretionary remedy   45.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)   46.PPCS on behalf of the Respondent, was requested to submit representations in relation to the Application for Reconsideration but it chose not to make any representations.   Discussion   Ground 1   47.This Ground is that “the panel have drawn conclusions on matters that they did not take evidence in respect of”. It is contended that the panel attached great significance to their conclusion that “there remain outstanding treatment needs and consolidation work in respect of [matters including] distorted attitudes and beliefs in relationships” and a “poor attitude to women”. I will refer to these specific important factors collectively as ‘the Applicant’s specified treatment needs.’   48.The case for the Applicant is that his specified treatment needs “were not raised or explored in oral evidence at the hearing and the professionals did not raise them as active concerns [at the hearing]”.   49.The Applicant’s case is that in consequence, the panel erred in their reference to the Applicant’s specified treatment needs when it concluded in relation to them in paragraph 3.6 of the Decision (with emphasis added) that:
“The panel assesses that there remain outstanding treatment needs and consolidation work in respect of thinking skills, emotional self-regulation, sexual offending, distorted attitudes and beliefs in relationships, poor attitudes to women, consolidation of his learning to ensure that the learning is properly internalised, development of insight and responsibly taking insight into his personality traits, increased insight as to the triggers to his sexual offending, a willingness to be open about negative or difficult developments and a need to develop skills in being open, honest and cooperative with professionals.”   50.It is contended on the Applicant’s behalf that while he gave some evidence in respect of his previous behaviour in relationships, no question was raised by the panel in respect of his distorted and poor attitude at the time of the hearing. On the contrary, there was evidence before the panel that the professional witnesses considered that the Applicant’s most recent relationship was considered to be protective. So, the position at the hearing was that there was no contrary evidence before the panel to show that treatment or consolidation work was then required in relation to the specified treatment needs or any of them before he could be safely released.   51.Further, no evidence or submissions have been adduced by PPCS in answer to the Grounds for Reconsideration to justify the finding that before the Applicant could be safely released there remained at the time of the Decision “outstanding treatment needs and consolidation work in respect of…. distorted attitudes and beliefs in relationships, poor attitudes to women”
. In all the circumstances, for these reasons, I have concluded that the panel erred in making that finding as there was no basis at the time of the Decision for holding that the Applicant had “outstanding treatment needs and consolidation work [in relation] to distorted attitudes and beliefs in relationships [and] poor attitude to women”.   52.It therefore becomes necessary to consider whether this erroneous finding made by the panel should result in the decision being found to be irrational. In E v Secretary of State for the Home Department [2004]1QB 2044, the Court of Appeal explained that before a decision can be held to be irrational on account of a mistake by the decision maker, it is necessary to show that:   “First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning.”   53.I have considered with care all the evidence adduced to ascertain if each of these requirements specified in paragraph 52 above was satisfied bearing in mind that it was “the assessment of the panel that risk reduction and consolidation work identified in this decision letter [which included the Applicant’s specified treatment needs which are specified in paragraph 47 above] is required before [the Applicant] can be safely managed in the community.”   54.I have concluded that each of these four requirements specified in paragraph 52 is satisfied. I am further fortified in reaching that conclusion by the fact that PPCS have not made any submissions which would undermine that conclusion or show that reconsideration should not be ordered.   55.As Ground 1 succeeds, reconsideration will be ordered, and therefore it is not necessary to comment on Grounds 2 or 3.   Decision   56.Accordingly, I do consider, applying the test as defined in case law, that the Decision of the panel dated 27 July 2024 to be irrational. I do so solely for the reasons set out above. The application for reconsideration is therefore granted and I order that this case should be reviewed by a panel by way of an oral hearing.   Directions   57.I have given careful consideration to whether this case should be reconsidered by the original panel or whether it should be considered afresh by another panel.   58.I have no doubt that the original panel would be fully capable of approaching the matter conscientiously and fairly. However, the question of justice being seen to be done arises again. If the original panel were to adhere to its previous decision, there would inevitably be room for suspicion that it had simply been reluctant to admit that its original decision was wrong. However inaccurate or unfair that suspicion might be, it would be preferable to avoid it by directing (as I now do) that the case should be reheard by a fresh panel.   59.The following further directions are now made:   (a)        The panel for the rehearing should consist of 3 members, one of whom should be a psychologist. (b)        The re-hearing should be expedited. (c)        The original decision and this decision must be removed from the dossier and must not be seen by the new panel. (d)        The new panel should be told that this is a reconsideration, but not made aware of the reasons why it was ordered. (e)        The new panel should also be advised that the fact that this is a reconsideration should not in any way affect their decision. It is a complete re-hearing.  (f)         The POM, the COM and the Prison Psychologist should serve 14 days before the rehearing updated reports on the Applicant’s conduct and also their recommendations to the panel on how the Applicant’s parole application should be disposed of.                                                                                                Sir Stephen Silber                                                                                                 16 September 2024