Onyeagucha, Application for Reconsideration [2024] PBRA 199 (14 October 2024) [2024] PBRA 199
[1]This is an application by Onyeagucha (the Applicant) for reconsideration of a decision of a panel of the Parole Board dated the 26 August 2024 making no direction for release following an oral hearing on 13 August 2024.[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 application for reconsideration, submissions from the Secretary of State (the Respondent), the decision and the dossier. Request for Reconsideration[4]The application for reconsideration is dated 20 September 2024.[5]The grounds for seeking a reconsideration are that there was procedural unfairness in the way the decision was reached and the decision was irrational. It is said that the panel failed to apply the Parole Board guidance, applied the wrong release test and the panel put too much weight on the uncertainties in relation to deportation. Background[6]The Applicant was sentenced to an extended sentence of 12 years detention on 13 November 2017 for an offence of wounding with intent to cause grievous bodily harm. The custodial part of the sentence was 9 years detention with an additional licence period of 3 years. The Applicant was 18 years of age at the time of sentence. Current parole review[7]The Parole Board hearing was initially listed on 4 April 2024 but was adjourned to obtain further information from the Immigration Enforcement Department. Further information was received on 28 June 2024 which was then considered by report writers. The hearing resumed on 13 August 2024.[8]At the hearing on 13 August 2024 the panel heard from the Prisoner Offender Manager (POM); the Community Offender Manager (COM) and a psychologist. On 17 April 2024, in addition to requiring information to be supplied by the Immigration Service, the panel directed that an immigration officer should attend the resumed hearing to answer questions about the Applicant's immigration status. That was subject to a proviso that the officer could be stood down if the written information covered the relevant issues. While it is not clear from the dossier it would appear that the officer was stood down as no immigration officer attended the hearing. I am unable to say whether the Applicant agreed to standing the immigration officer down.[9]The panel set out in their decision the response from the Immigration Enforcement Department. In summary that was that the Applicant had been served with a deportation notice from which he had not appealed. Having been served with a deportation notice he will not be allowed to access public funds or obtain paid employment in this country. The Applicant has applied for the voluntary return scheme and has been accepted. If he is released by the Board he may be detained pending deportation (elsewhere in the dossier it is said he would be detained). He could apply for bail if detained. Application has been made for an emergency travel document to the Belgium Embassy and obtaining this was in hand at the time the information was supplied to the panel. It normally takes a week to obtain the emergency travel document and it is valid for two weeks from the date of issue. The Relevant Law[10]The panel correctly sets out in its decision letter dated 26 August 2024 the test for release. The Applicant suggests at para 8 of his application that the wrong test was applied. Having considered what he says I do not consider that there is any merit in that argument. Parole Board Rules 2019 (as amended)[11]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)).[12]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[13]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.[14]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. "[15]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).[16]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.[17]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.[18]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. The reply on behalf of the Respondent[22]In a response dated 27 September 2024 the Respondent reiterated the information provided by PPCS to the panel about the Applicant's immigration status. Discussion[23]I have found this a very difficult case to decide as no doubt the panel did, as they were faced with a very difficult set of facts. The professional evidence was mixed but the panel appear to have accepted that there was an arguable case for release.[24]The panel accepted that there was no more core work to be done in custody. They also accepted that the Applicant could be safely managed in approved premises. The panel did not reject the idea that the Applicant's risks could be safely managed in Belgium where he would have family support.[25]The difficult issue for the panel was that if the Applicant was released from prison he might be detained pending deportation. If he was detained he could apply for and be granted bail. The evidence was that if released into the community the Applicant would have no means of supporting himself as he would have no money from public funds and he would not be allowed to work. While his mother had offered to provide some support, she had a limited income and a number of other calls on it. The panel understandably concluded that if the Applicant had no way of supporting himself, he might turn to criminal associates and return to crime as the only way of living. This was at least one of and it may be the principal reason that parole was refused.[26]Complaint is made that the panel did not follow the Parole Board guidance on deportation. I can find no evidence to support that. The panel did adjourn to get up to date information and I cannot find any other part of the guidance which they did not follow. It would however have been helpful if the panel had said that they had consulted the guidance, if they had, and followed it. It is not clear to me whether the Applicant's legal representative referred the panel to it. If she didn't, then she should have done rather than just complaining retrospectively about the panel not following it.[27]The situation which has arisen in this case seems to me to be unfair to the Applicant. He agreed to deportation and the panel did not reject the idea that the Applicant would meet the test for release if he was detained until deported to Belgium where he would get support from his family. The Applicant would not meet the test for release if he was not detained after release on parole or was granted bail after initial detention as he would have no means to support himself and might resort to crime to do so.[28]If that is a result which is properly reached, then the fact that it would be unfair to the Applicant does not mean that it is not the right result but it should give pause for thought.[29]I think that the reasoning of the panel is perfectly rational. So, reconsideration on the basis of irrationality must fail. The question that I have had to consider is whether the way the decision was reached was procedurally unfair.[30]In my judgment faced with the decision that the panel had to make they did need further evidence from the immigration service. Was it really likely that the immigration service would not detain the Applicant? Was it really likely that bail would be granted to the Applicant who had just been released from prison for a very serious offence and might be let loose into the community with no way of lawfully obtaining the necessary money to live. How quickly is it likely that the service could process the removal of the Applicant? Would it extend beyond a period in approved accommodation?[31]In my judgment the situation that arose in this case ought to be one that is capable of resolution, and it could well be that with further enquiries from a witness who was present, it could have been.[32]Accordingly, I consider that the procedure adopted by not requiring an immigration officer to attend or failing to adjourn further to get one there meant that the hearing was procedurally unfair. While I am aware that adjournments are rightly not encouraged, if it could solve this particular problem then I consider that it would have been justified. Decision[33]This is a difficult case and I understand the problems that the panel faced. They were in a Catch 22 situation, but I do think that further efforts should have been made to resolve it. Accordingly, I grant the reconsideration on the basis that the way in which the decision was made was procedurally unfair. John Saunders 14 October 2024