Fofanah, Application for Reconsideration [2024] PBRA 219 (06 December 2024) [2024] PBRA 219
[1]This is an application by Fofanah (the Applicant) for reconsideration of a decision of an oral hearing panel dated 25 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 2024) (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. The application was made in time, however the question of its eligibility is dealt with in the Discussion section below.[3]I have considered the application on the papers. These are the oral hearing decision, the dossier consisting of 622 pages and the application for reconsideration. Request for Reconsideration[4]The application for reconsideration is dated 21 October 2024. It has been drafted by solicitors acting for the Applicant. It submits that the decision is irrational. The submission is supplemented by written arguments. Background[5]The Applicant received a sentence of imprisonment for public protection on 17 November 2005 following guilty pleas to offences of robbery and possessing a firearm when committing an offence. He also received a concurrent determinate sentence of 2 years 2 months for wounding. His tariff was set at 5 years less time spent on remand and expired on 20 April 2010.[6]In 2013 whilst in open conditions he committed two attempted robberies whilst armed with an imitation firearm. He received an extended sentence of nine years and 6 months with an extension of 4 years following his guilty plea to those matters. At the same time, he also received concurrent sentences of imprisonment for offences of escape and possession of an imitation firearm.[7]The Applicant was aged 22 at the date of sentencing in 2005 and is now aged 41 years old. Current parole review[8]The Applicant's case was referred to the Parole Board by the Secretary of State (the Respondent) in January 2023 to consider whether the Applicant was ready to be moved to open prison conditions. Specifically, it was stated that this was not a referral under section 28(6)(a) of the Crime (Sentences) Act 1997 (that is to consider whether or not it would be appropriate to direct the Applicant's release). The referral also stated that if the panel did not recommend a move to open conditions it was not being asked to comment on or make any recommendation about whether or not it would be appropriate to direct the Applicant's release.[9]The case proceeded to an oral hearing via video conference on 19 August 2024. The panel consisted of a judicial member, a psychologist member and an independent member. It heard evidence from the Applicant's Prison Offender Manager (POM), the Community Offender Manager (COM) and a prison psychologist. The Applicant was legally represented throughout the hearing. The Respondent was not represented by an advocate. 10.The panel did not direct the Applicant's release nor make a recommendation for open conditions. The reply on behalf of the Respondent 11.The Respondent has submitted no representations in response to this application. Discussion 12.The powers of a panel are set out in the terms of the Respondent's referral which the panel must follow. In this case the terms of the referral were as follows. "1. The case of this post tariff expired life indeterminate sentenced prisoner is referred to the Parole Board by the Secretary of State under section 239(2) of the Criminal Justice Act 2003. Although the prisoner is post tariff, please note this is not a referral under section 28(6)(a) of the Crime (Sentences) Act 1997, as the prisoner is currently serving a further sentence which has an earliest potential release date of 27/08/2023. 2. The prisoner is currently detained in closed conditions and the Board is asked to consider whether the prisoner is ready to be moved to open prison conditions in accordance with the directions issued by the Secretary of State under section 239(6) of the Criminal Justice Act 2003 on the transfer of indeterminate sentence prisoners to open conditions. 3. The Board is also asked to identify any areas of concern to be tackled and/or issues to be resolved before the next review. 4. The Board is asked to give full reasons - which will be disclosed to the prisoner - for any recommendation it makes and to include any continuing areas of risk that need to be addressed. 5. The Board should note that, if it does not recommend a move to open conditions, it is not being asked to comment on or make any recommendation about; i) whether or not it would be appropriate to direct the prisoner's release. As noted above, whilst the prisoner is post tariff, release cannot be considered at this review as a result of a further sentence currently being served;..." 13.With regard to indeterminate sentence cases, if a prisoner has received a new determinate sentence and the earliest point of potential release (that is, the conditional release date (CRD) or parole eligibility date (PED)) of the new sentence renders the prisoner ineligible for a review of release, PPCS will set up a review to consider suitability for open conditions in line with the CRD or PED of the new determinate sentence. This will ensure that the prisoner can be considered for suitability for open conditions, provided there is sufficient time. In this case the referral was made in January 2023 when that was the position. By the time the case was before the Parole Board the situation had changed but the terms of the referral remained as set out in January 2023. Decision 14.In the circumstances of the referral before the panel, there was no jurisdiction to consider the question of release. The panel could only consider the question of open conditions which had been referred to it. The decision made therefore is procedurally defective. 15.Under Rule 29 of the Parole Board Rules 2019 (as amended in 2024) this error of procedure does not automatically invalidate any step taken in the proceedings. Under the same rule, acting as a Duty Member I set aside the purported decision of 25 September 2024 and make the following directions. Barbara Mensah 6 December 2024