Shabbaz, Application for Reconsideration [2024] PBRA 232 (03 December 2024) [2024] PBRA 232
[1]This is an application by Shabbaz (the Applicant) for reconsideration of a decision of a panel of the Parole Board dated the 24 October 2024 making no direction for release and making no recommendation for a transfer to open conditions following an oral hearing on 23 October 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; the decision of the panel and the dossier. Request for Reconsideration[4]The application for reconsideration is dated 30 October 2024.[5]The grounds for seeking a reconsideration are that the way in which the decision was reached was procedurally unfair. The Applicant argues that in the light of the contents of the decision letter it is clear that the panel had reached the decision not to release before they considered the final submissions of the Applicant's legal representative. Background[6]The Applicant is serving a sentence of imprisonment for public protection for offences of manslaughter and robbery imposed on 8 June 2011. The minimum period that the Applicant had to serve before he could be considered for parole was 5 ½ years. He has been released on licence and recalled on three occasions. He was first released on 11 April 2016 and recalled 5 months later; he was re-released on 30 July 2021 and recalled 4 months later and finally he was released on 8 January 2024 and recalled 3 months later. Current parole review[7]The Applicant's case was referred to the Parole Board on 12 April 2024. The oral hearing was on 23 October 2024 when the Applicant was 33 years of age. The panel said in their adjournment notice that when it became apparent at the start of the hearing that the risk management plan would need to be revised to find alternative accommodation, the Applicant indicated that he wanted to proceed without an adjournment. The panel did not adjourn but continued with the hearing. Instead, the panel decided to adjourn at the end of the oral hearing. The panel adjourned the hearing at the end of 23 October in order, according to the Applicant's representative, to decide whether there should be an adjournment to get an updated risk management plan. This was before any final submissions by the Applicant's representative. Later on the same day, the panel made a direction requesting final submissions from the Applicant by close of play on 24 October 2023. That is consistent with the account given by the Applicant's representative.[8]At the oral hearing the panel heard evidence from the Prison Offender Manager (POM); the Community Offender Manager (COM) and a prison psychiatrist. After the hearing and following a further direction, submissions in writing were made by the Applicant's representative dated 24 October 2024. The Relevant Law[9]The panel correctly sets out in its decision letter dated 24 October 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)[10]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)).[11]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)). 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.[15]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 (Respondent)[16]The Respondent has made no submissions in response to this application. Discussion[17]The panel adjourned at the end of the oral hearing to consider whether it needed to adjourn the case to get an updated risk management plan. It also put off until that decision had been made considering submissions from the Applicant's representative. The panel acted for all the right reasons as it wished to give the Applicant the opportunity to comment on all the evidence that it would be considering in making its decision.[18]In its decision letter at 3.1 the panel said " The panel considered whether it was necessary to adjourn for an updated risk management plan but came to the view that it could not envisage a risk management plan that was likely to be effective in managing [the Applicant's] risks so did not consider it to be necessary".[19]The Applicant argues that as the decision not to adjourn for an updated risk management plan pre-dated the panel's consideration of the submissions of the Applicant, in light of the above observation the panel had made up its mind to refuse before considering submissions.[20]In my judgment that argument is correct. By acting in the way it did, while for understandable reasons, the panel either actually decided to refuse the application before considering final submissions on behalf of the Applicant or gave that impression. If the panel had decided, when deciding not to adjourn, that no risk management plan could manage the Applicant's risk then in reality they had decided not to grant the application.[21]It is difficult to see how the panel could have allowed release if it had already determined that no risk management plan could be effective in managing the Applicant's risk.[22]It follows that the panel reached its decision or gave the impression that it had before it had considered the submissions.[23]It is a pre-requisite of a fair trial that the decision should not be made until the Applicant has had an opportunity to make submissions and had them considered by the panel. In my judgment the panel should have considered final submissions before deciding whether to adjourn as, if it decided not to, that was likely to be decisive.[24]Accordingly, I do not think that it is possible to say that the Applicant had a fair trial.[25]I have considered whether I should nevertheless refuse the application as the grant of reconsideration is a discretionary remedy.[26]As the Applicant is serving an IPP and is 9 years over tariff, I do not think it would be right to do that.[27]Accordingly, for the reasons I have given I have decided that the hearing was procedurally unfair. The application for reconsideration is therefore granted and the case should be reviewed by way of an oral hearing. John Saunders 03 December 2024