Rybialek, Application for Reconsideration [2024] PBRA 214 (06 November 2024) [2024] PBRA 214

PBRA
Rybialek, Application for Reconsideration [2024] PBRA 214 (06 November 2024)
[2024] PBRA 214 · 2024-09-16
[1]This is an application by Rybialek (the Applicant) for reconsideration of a decision made by an oral hearing panel dated 16 September 2024 not to direct his 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.[3]I have considered the application on the papers. These are the decision, the dossier (consisting of 733 numbered pages), and the application for reconsideration, dated 4 October 2024. I have also listened to the audio recording of the hearing (which is five hours and 57 minutes in length). Background[4]On 31 August 2005, the Applicant received a sentence of life imprisonment following conviction after trial for murder. His tariff was set at 18 years and expired in August 2023. On the same occasion, he also received a concurrent nine year determinate sentence for robbery (now served).[5]The Applicant was 27 years old at the time of sentencing and is now 46 years old. Request for Reconsideration[6]The application for reconsideration has been submitted by solicitors on behalf of the Applicant and argues that the panel's decision was procedurally unfair and/or irrational.[7]These grounds are supplemented by written arguments to which reference will be made in the Discussion section below. Current Parole Review[8]The Applicant's case was referred to the Parole Board by the Secretary of State (the Respondent) in November 2022 to consider whether or not it would be appropriate to direct his release. This is the Applicant's first parole review.[9]The Applicant's review proceeded to an oral hearing on 13 September 2024, before a three-member panel including a psychologist specialist member. The panel heard evidence from the Applicant, his Prison Offender Manager (POM), his Community Offender Manager (COM), and an HMPPS forensic psychologist. The Applicant was legally represented throughout proceedings.[10]The POM and COM did not support release. The psychologist did support release. The panel made no direction for release, but did advise the Respondent that the Applicant should be transferred to open conditions. It is only the decision relating to release that is open for possible reconsideration. The Relevant Law[11]The Parole Board will direct release if it is no longer necessary for the protection of the public that the prisoner should be confined. The test is automatically set out within the Parole Board's template for oral hearing decisions. Parole Board Rules 2019 (as amended)[12]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)).[13]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)).[14]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 . Procedural unfairness[15]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.[16]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; and/or(e) the panel was not impartial.[17]The overriding objective is to ensure that the Applicant's case was dealt with justly. Irrationality[18]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 (CA) 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.[19]In R(DSD and others) v Parole Board [2018] EWHC 694 (Admin) the Divisional Court applied this test to Parole Board hearings in these words (at [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 ."
[20]In R(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 the Divisional Court in R(Secretary of State for Justice) v Parole Board [2022] EWHC 1282 (Admin).[21]As was made clear by Saini J in Wells, 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.[22]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.[23]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. The reply on behalf of the Respondent[24]The Respondent has advised that no representations will be submitted in response to this application. Discussion[25]First, it is submitted that the decision was procedurally unfair because the Applicant was denied the opportunity to make closing comments at the end of the hearing despite having been advised to the contrary at the start of the hearing.[26]Having carefully listened to the recording of the entire hearing, I note the following: a) At the start of the hearing, the Applicant (through his legal representative) asked if he could give his oral evidence to the panel last. b) When asked why, the Applicant stated that going last " gives me an opportunity to digest what everybody's said from their professional perspectives. They may say something that I might be able to clear up... so therefore if I go last, then I'll have the opportunity to clear up any points...it's more for that and for my own peace of mind really, so I've covered everything I wanted to cover". c) The panel chair explained it would be helpful for the Applicant to give evidence before the HMPPS forensic psychologist. d) However, he then said, " if we ask some initial questions of you, and then we'll come back to you right at the end. If you keep any notes - as will [your legal representative] - then we'll give you another opportunity right at the end to clarify or add anything that you feel is necessary at that stage. How does that sound?". e) The Applicant agreed. f) The panel chair then sought agreement from the Applicant's legal representative, saying " we'll run the way we intended but we'll definitely give [the Applicant] an opportunity to cover any issues right at the end ". g) The Applicant's legal representative agreed. h) At the end of the hearing, the panel chair addressed the Applicant's legal representative to say, " unless you want to go back to [the Applicant] for anything having heard evidence from the COM we can take closing remarks". i) The Applicant began to speak, and the panel chair interrupted and asked him to " hold on". j) The Applicant's legal representative said she intended to make closing submission in writing, and the hearing was wrapped up with no further comment from the Applicant.[27]It is very clear from the opening exchanges that it was extremely important for the Applicant to feel he had every opportunity to give full evidence to the panel and to respond to the professional opinions of other witnesses. It is equally clear that the expectation was very clearly set that he would have an opportunity to address the panel at the end of the hearing.[28]At the end of the hearing, however, when the Applicant started to address the panel, he was closed down by the panel chair and was not given the opportunity that was definitively given to him at the start of the hearing.[29]It is argued that the Applicant was prevented from putting his case properly, in the sense that the expectation that he would be permitted to address the panel at the end of the hearing would have influenced the way in which he gave answers in his primary oral evidence. It is difficult to say whether this is accurate: the Applicant gave extensive oral evidence over almost two and a half hours and there may well have been little else that he wanted to say. However, the fact that he did try to speak again at the end of the hearing suggested that he at least had something to say; an opportunity which was denied.[30]Set against that, the Applicant was legally represented throughout the hearing, and his legal representative did nothing at the end of the hearing to remind the panel of the promise that had been made at the start of the hearing, choosing instead to focus on the mechanics of making closing submissions. Allegations of procedural unfairness are harder to establish when no challenge was made to the purported irregularity at the time, especially in cases such as this in which the Applicant has had the benefit of legal representation.[31]Moreover, reconsideration is a discretionary remedy. That means that, even procedural unfairness is established, I am not obliged to direct reconsideration of the panel's decision. I can decline to make such a direction having considered 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.[32]Having given such extensive oral evidence over an extended period of time, it is highly unlikely that the panel would have heard anything new from the Applicant at the end of the hearing that would have affected its decision not to direct his release.[33]It is also unfortunate that the Applicant's legal representative did not intervene at the end of the hearing.[34]However, in my view, neither the fact that the panel's decision may not have been affected, nor any lack of attention from the Applicant's legal representative, would negate the sense of unfairness that the Applicant would undoubtedly have felt, having sat through a six hour hearing with the clearly-set expectation that he would get to address the panel at the end before being closed down when he attempted to do so.[35]I therefore find that the Applicant was prevented from putting his case properly and that the hearing was consequently unfair. This amounts to procedural unfairness and therefore I am bound to grant the application for reconsideration.[36]As an aside (and not argued on the face of the application) rule 24(9) also provides that " After all the evidence has been given, if the prisoner is present at the hearing, the prisoner must be given the opportunity to address the panel". As such, the panel also failed to follow an express procedure laid down by law.[37]Having found procedural unfairness, there is no need for me to consider the submissions made under the heading of irrationality, and I make no findings on the rationality of the panel's decision. Decision[38]For the reasons set out above, the application for reconsideration is granted. Stefan Fafinski 06 November 2024