Wilson, Application for Reconsideration [2024] PBRA 206 (17 October 2024) [2024] PBRA 206
PBRA
Wilson, Application for Reconsideration [2024] PBRA 206 (17 October 2024)
[2024] PBRA 206 · 2024-08-16
[1]This is an application by Wilson (the Applicant) for reconsideration of a paper decision by a member made pursuant to the Member Case Assessment (MCA) process. The decision was dated the 16 August 2024. The decision was to make no direction for 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 consisting of 163 pages, the application for reconsideration by the Applicant, further emails from the prison service regarding a query relating to the application, an email from PPCS on behalf of the Secretary of State (the Respondent) indicating that no representations would be offered by the Respondent. Request for Reconsideration[4]The application for reconsideration is dated 28 August 2024.[5]The grounds for seeking a reconsideration are set out below.[6]I asked for further particulars of the Applicant’s grounds as it was not clear what information had been given to the Applicant about his right to make representations in advance of a decision in the Member Case Assessment process. The replies were ambiguous and it was not entirely clear what information had passed between the prison and the Applicant on this topic. Background[7]The Applicant is serving a sentence of life imprisonment for the offence of murder. He was sentenced in 1989. He has been released on earlier occasions and recalled. This review was of his third release. He was living in probation provided accommodation and had failed to return within the curfew times and was alleged to have been taking alcohol, in circumstances where alcohol was a noted risk factor. Current parole review[8]The Applicant was last released on licence on the 22 April 2024, his licence was revoked and he was recalled on the 17 May 2024.[9]An MCA member considered the Applicant’s case on paper and made no direction for release. The Relevant Law[10]The panel correctly sets out in its decision letter dated 16 August 2024 the test for release. 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 ) 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.[18]Further while the written 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[22]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.[23]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. Osborn[24]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.[25]In Oyston [2000] PLR 45 , at paragraph 47 Lord Bingham said: “ It seems to me generally desirable that the Board should identify in broad terms the matters judged by the Board as pointing towards and against a continuing risk of offending and the Board's reasons for striking the balance that it does. Needless to say, the letter should summarise the considerations which have in fact led to the final decision. It would be wrong to prescribe any standard form of Decision Letter and it would be wrong to require elaborate or impeccable standards of draftsmanship. "[26]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. Reconsideration as a discretionary remedy[27]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[28]The Respondent made no representations. Ground and Discussion Ground[29]The Applicant in this case (who is unrepresented), argues that he was not given a fair hearing because he was not able to make representations and put his case before the Parole Board in advance of the panel member making a decision about release. The Applicant indicates that he was told by the prison that he had to complete a specific form in order to make representations. He indicates that he had asked for this form on a number of occasions but had not been provided with the relevant form. Discussion[30]The position is that no specific form is required in order to make representations to the Parole Board where a review is being considered. I requested further information from the prison. Specifically whether the Applicant had been told that a form was required to be completed in order to make representations. The response from the prison was ambiguous. However, it appears likely that the prison did not clearly inform the Applicant that he was able to make representations, in advance of the panel decision relating to release, without the necessity of completing any specified form.[31]As indicated above, omitting to put information before a panel is not a ground for procedural unfairness and reconsideration as has been confirmed in the decision of Williams [2019] PBRA 7 . This would be the case even if the information would have been capable of altering the final decision of the panel.[32]As also indicated above, in this case the Applicant was unrepresented. The decision was made by a single Parole Board member at the initial case assessment stage (MCA). In the case of Osborn (see above), the Supreme Court considered the situations where an oral hearing should be directed by the Parole Board.[33]An oral hearing does not need to be directed in every case, however, the Supreme Court ruled that a hearing should be directed if fairness to the prisoner requires one. Specifically it was indicated by the court that an oral hearing should be directed where there is any doubt as to whether a hearing should take place or not or in circumstances where it may be necessary in order to allow the prisoner to properly put his case before the board.[34]In this case, there is no reference within the (MCA) decision as to whether the principles of the case of Osborn were considered by the duty member. Without such a reference, it is unclear whether the duty member considered the prisoner’s legitimate interest in being able to participate in a decision with important implications for him. It is also unclear whether the duty member considered whether it was necessary to see and hear from the prisoner in this case, (and if not why not). Reliance was placed entirely upon an interview between the Community Offender Manager and the Applicant. The inference within that interview was that the Applicant felt that the recall was unfair, because he had not committed any further offences but had been recalled for breaches of licence conditions.[35]In the light of these considerations, I determine that this matter should be reconsidered. This decision is on the basis of procedural unfairness specifically relating to the requirements of the case of Osborn and the need to ensure that the right to a fair hearing has been appropriately considered and, if necessary, given to an Applicant. This is particularly the case where the prisoner is legally unrepresented and in circumstances where no written representations have been considered in advance of the decision. Decision[36]Accordingly, whilst I do not find there to have been an irrational conclusion, I do consider, applying the test as defined in case law, that the decision was 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 a paper hearing. S Dawson 17 October 2024