Toulson, Application for Reconsideration [2024] PBRA 246 (23 December 2024) [2024] PBRA 246

PBRA
Toulson, Application for Reconsideration [2024] PBRA 246 (23 December 2024)
[2024] PBRA 246 · 2024-11-18
[1]This is an application by Toulson (‘the Applicant’) for reconsideration of the decision of a panel of the Parole Board not to direct his release on licence. He is serving a sentence of imprisonment for public protection (‘IPP’).[2]Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2024) provides that applications for reconsideration of panel decisions may be made, either by the prisoner or by the Secretary of State for Justice, in eligible cases. The Secretary of State is the Respondent to any reconsideration application made by a prisoner, and will be referred to as ‘the Respondent’ throughout this decision.[3]Rule 28(2) specifies the types of cases in which reconsideration applications may be made. They include cases, like the Applicant’s, where the prisoner is serving an IPP sentence.[4]A reconsideration application may be made on the ground(a) that the panel’s decision contains an error of law and/or(b) that it is irrational and/or(c) that it is procedurally unfair.[5]In this case an application for reconsideration has been made by the Applicant in person on all three grounds. The application has been made within the prescribed time limit. It is therefore an eligible case.[6]I am one of the members of the Board who are authorised to act as ‘Reconsideration Panels’ to make decisions on reconsideration applications, and this case has been allocated to me. I have not found it necessary to receive any oral evidence and I have considered the application on the papers.[7]The documents which have been provided to me and which I have considered for the purposes of this application are:(a) The dossier of papers provided by the Respondent in the Applicant’s case (the dossier now runs to 394 numbered pages and includes the Panel Chair’s decision);(b) the representations made by the Applicant in support of his application for reconsideration;(c) an e-mail dated 18 November 2024 from the Applicant’s Prison Offender Manager (‘POM’) attaching further representations by the Applicant; and(d) an e-mail from the Public Protection Casework Section of the Ministry of Justice (‘PPCS’) dated 22 November 2024 stating on behalf of the Respondent that she does not wish to submit any representations in response to this application. Background and history of the case[8]The Applicant is now aged 50. He suffers from various problematic personality traits. He had a disruptive childhood and was expelled from school and relocated in a boarding school from which he regularly absconded. He started to offend at the age of 10 and subsequently accumulated a significant criminal record. His convictions included a number of offences of actual or threatened violence.[9]The offence for which he is serving his current sentence (the ‘index offence’) occurred in November 2007. In short the Applicant robbed a mini-cab driver in the early hours of the morning, stealing money from him and inflicting an injury with some kind of a weapon.[10]He was convicted after a contested trial and was sentenced on 15 May 2009. The minimum period which he was ordered to spend in prison before he could be released on licence (his ‘tariff’) was fixed at 5 years less the time which he had spent in custody on remand. His tariff expired in March 2014.[11]During his sentence he has completed appropriate risk reduction programmes but his behaviour towards prison staff has often been poor and he has sometimes refused to engage with them.[12]His first release on licence was in 2018. He was on licence in the community for five months before he was arrested for aggressive behaviour towards a sex worker. He was granted bail but absconded. He remained unlawfully at large for nearly three months before being arrested and returned to prison.[13]He was re-released on licence in September 2019 by direction of the Parole Board. He was recalled again in May 2020 as a result of being arrested for a further offence of robbery which he had committed in February of that year at a petrol station. He stole money from the till after throwing a cup of coffee at the cashier. In due course he pleaded guilty to that offence (on the day fixed for a trial) and received a 43 month sentence to run concurrently with his IPP sentence.[14]Following his second recall his case was reviewed by the Board in March 2021. The then panel decided on the papers not to direct his release on licence. In any event he would not have been eligible for release from prison under his 43 month sentence until the end of November 2022.[15]A further review of the Applicant’s case was concluded on 17 May 2023. An oral hearing had been directed but at the Applicant’s request the case was decided on the papers by the Panel Chair. The Panel Chair recorded the reasons for the decision being made on the papers as follows:
‘An SHRF [Stakeholder Response Form] from [the Applicant’s] Legal Representative dated 20/04/2023 informed the Panel Chair that [the Applicant] no longer wished to participate in his Parole process and does not want to have any further contact with the prison OMU or his POM going forward and that his instructions to his Legal Representative were terminated.’
[16]The present review of the case by the Board commenced on 5 April 2024. The usual reports were obtained by the Respondent. On 30 June 2024 the Applicant’s Community Offender Manager (‘COM’) stated in her report (‘PAROM 1’):
‘I do assess that [the Applicant] can be managed through residing at [specialised accommodation] which will allow him to work with staff in a psychologically informed environment to work on his challenging interpersonal skills. [The Applicant] needs to open himself up for the support that [the specialised accommodation] can provide and have a genuine desire to work on his difficulties in building and maintaining professional relationships and addressing his persecutory attitudes.’
[17]On 2 August 2024 the Applicant’s solicitors submitted on his behalf a request that his case should proceed to an oral hearing. They stated:
‘[The Applicant] makes an application to the parole board to direct his review to an oral hearing in line with the principles set out in Osborn, Booth and Reilly. ‘In the [COM’s report] the COM has assessed that [the Applicant] can be safely managed in the community at [the specialised accommodation], which would provide OPD (Offender Personality Disorder) formulation in a community setting alongside being subject to licence conditions. ‘Further to paragraph 2.18 of the previous decision, it remains the case that [the Applicant] is continuing to strengthen his ties in the community. Although [there has been a change of COM] [the Applicant] has maintained an active role in the formulation of the risk management plan, and he is keen to continue this with his new COM once they have been introduced. ‘It is submitted that the benefits of an oral hearing at this stage would allow the Parole Board to question [the Applicant] and take live evidence in relation to his progression and future plans. An oral hearing would also give the Board the opportunity to assess the recommendations made by professionals and those responsible for his supervision.’
[18]By 12 September 2024 the Applicant had changed his mind about wanting an oral hearing. On that date his solicitors submitted the following representations on his behalf:
‘[The Applicant] makes an application for his case to conclude on the papers. [He] instructs that he wishes to conclude on the papers for the following reasons: (a) He is frustrated by the delays in his case. He has been recalled for 4 years and states that he has never had an oral hearing, and has not been able to sit in front of a panel making a decision in his case; (b) [He] raises that at his last hearing, reports were directed and not served on time, one being served the day before his hearing; (c) [He] has recently been assigned a new Community Offender Manager (“COM”), who he has had no contact with. He advises that this is the second time he has received a new COM shortly after the submission of the COM reports for Parole; (d) As a result of the above, he feels the Parole process is impacting his mental health significantly and as a result he wishes for his Parole review to be concluded on the papers. He does not wish his review to proceed to oral hearing. ‘It is submitted that the panel should take into consideration that [the Applicant] is an IPP sentenced prisoner, and the significant psychological toll this type of sentence may leave IPP prisoners subject to. The panel will also appreciate that the general timescale for Parole reviews has increased in recent years, causing prisoners to wait lengthier periods for reviews. It is submitted that this combination of factors can, and has, significantly impacted the mental health of [the Applicant] and those in similar circumstances, and as such the panel should take this into consideration in respect of their decision.’
[19]On 20 September 2024 the case was reviewed by a specialist MCA member of the Board. Despite the Applicant’s request the MCA member decided that the case should proceed to an oral hearing. He explained very fully and clearly the reasons for that decision. It is worth quoting those reasons, which were as follows:
‘The MCA member is part of the newly formed Parole Board Taskforce on IPP prisoners and which is dedicated to ensuring that post tariff IPP prisoners who might appear to be “stuck” in the system are case managed carefully and within the special group of Parole Board members so that each prisoner has the best opportunity to make the most effective application to the Parole Board. The purpose is to try and focus on the progression of such IPP prisoners but never at the expense of public safety. If an MCA member directs a case to an Oral Hearing the intention is that they would hold onto the case and likely be the Chair of the panel. They would then continue to case manage the review to ensure that all was on track and would be able to issue Panel Chair Directions (PCDs) in the future. ‘The MCA member notes that [the Applicant] is very frustrated with the review, the time taken and the changes in his offender management both within the prison and in the community. ‘The MCA member notes that there were legal Reps in August 2024 and then further reps in September 2024. The former sought a direction to an Oral Hearing and the latter, expressing [the Applicant’s] frustration with the process asked for a decision to be made on the papers by the MCA member. It would appear from these Reps that [the Applicant] has been further frustrated by the fact that his COM… - who wrote the PAROM 1 report in the dossier and was supportive of release - has been removed as his COM. It is not clear who has replaced her. It would appear that this has opened up all of [the Applicant’s] negative feelings about any Parole application. ‘Consequently, the latter legal Reps are asking of the case to be concluded on the papers. The MCA member [wonders] if this is not just a code for him seeking a no direction for release decision from the MCA member and he can thus be left alone and remain untouched in his cell. ‘The MCA member notes that this is what happened at the last review in 2023 in that [the Applicant] sought a decision on the papers and he received a decision to not direct his release. It is not unreasonable for an MCA member to conclude that if there is an expression that the prisoner does not want to contribute these plays to the potential to manage his risk in any other setting than remaining in prison. ‘However, the current MCA member is not rushing to this conclusion and does recognise the enormous frustration that IPP prisoners can get to feel about the review process. ‘However, the current MCA member is not going to respond immediately in that way and taking the Supreme Court Ruling in Osborn (‘OBR’) as his guiding point the MCA member concludes it would not be fair to deal with this case on the papers alone and directs to an Oral Hearing. The OBR Supreme Court ruling noted that there should be a direction to an Oral Hearing to ensure fairness regardless or not of the likely successfulness of any application. Given all that is riding on this review in respect of his continued detention or not, [the Applicant] has a right to be able to provide oral evidence to the panel as part of his application. It appears to the MCA member that [the Applicant] has a lot that he wishes to say. ‘In so directing to an Oral Hearing and refusing the application to deal with the review on the papers, the MCA member gives no indication of the likely outcome. However, the MCA member as part of the Taskforce is very mindful of how hopeless it can get for IPP prisoners and that this lack of hope can have a bearing on the way in which they respond to the review process and to staff. The MCA member recognises that it must be hugely annoying to build up a relationship with a Community Offender Manager (COM), to have them make a positive recommendation for release in their report…and for there then to be a change in COM and for [the Applicant] to discover that just prior to his Parole Board he has to have a new Probation Officer in the community (COM). He also has a new Prison Offender Manager (POM) as he has changed prisons but with respect to [the Applicant] this is as much his responsibility. ‘The Parole Board Taskforce for IPP prisoners recognises that it can only work with prisoners that wish to help themselves and all IPP prisoners need to recognise that despite their frustrations at the things that are outside of their control, there are many things that they can control and that they have to take charge of these matters. ‘The MCA member directs this review to an Oral Hearing and if this goes ahead, he will remain as the Panel Chair (unless other Board exigencies intervene). The MCA member is mindful that [the Applicant] has indicated that he wished this case to be dealt with on the papers. If this remains the case - it is his right- then the MCA member would welcome Legal Reps on this matter as soon as these directions are received. ‘The MCA member considers that there are missing pieces of information and assessments and makes a number of directions to ensure that these can be added to the dossier.’
[20]Those directions were very detailed and helpful and included a direction for an updated psychological assessment.[21]On 29 October 2024 the Applicant’s solicitors submitted the following further representations on his behalf:
‘[The Applicant] makes an application for his case to conclude on the papers. The previous submissions are reiterated. ‘[The Applicant] also wishes to inform the Parole Board of the following: ‘[The Applicant] has been on food refusal since 2nd October 2024, and fluid refusal since 24th October 2024. ‘[The Applicant’s] enhanced status has been removed, he has been placed on basic status, he has been segregated, and he has received adjudications for various allegations. [The Applicant] advises that these adjudications include but are not limited to refusing to speak with staff. [The Applicant] asserts that the allegations that have been made against him by the prison are false, and that the disciplinary actions against him result from their dissatisfaction with his food/fluid refusal. ‘[The Applicant] is not willing to engage with the prison on this matter and wishes to make that known. ‘As noted, [the Applicant] makes an application for his review to conclude and requests that this be dealt with swiftly.’
[22]On 9 November 2024 the Panel Chair issued his decision on the papers as requested by the Applicant. It was, inevitably, a negative decision as the Panel Chair had no evidence from the Applicant.[23]On 15 November 2024 the Applicant submitted his application for reconsideration on the Panel Chair’s decision. The Relevant Law The test for re-release on licence[24]The test for re-release on licence is whether the Applicant’s continued confinement in prison is necessary for the protection of the public. The rules relating to reconsideration of decisions[25]Under Rule 28(1) of the Parole Board Rules 2019 (as amended) a panel’s decision is eligible for reconsideration if (but only if) it is a decision that the prisoner is or is not suitable for release on licence. The grounds on which an application may be made are as set out above (error of law, irrationality or procedural unfairness).[26]A decision that a prisoner is or is not suitable for release on licence is eligible for reconsideration whether it is made by:(i) A paper panel (Rule 19(1)(a) or (b)) or(ii) An oral hearing panel after an oral hearing (Rule 25(1)) or(iii) As in this case, an oral hearing panel which makes the decision on the papers (Rule 21(7)). Error of law[27]Examples of administrative decisions made by a panel of the Board which may be ruled to be unlawful under the broad heading of illegality are where 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.[28]These are not the only possible reasons for a finding of error of law but they are the ones most commonly alleged. The task of the High Court or a Reconsideration Panel in evaluating whether a panel’s decision is unlawful 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 principle. Irrationality[29]The power of the courts to interfere with a decision of a competent public authority on the ground of irrationality was defined in Associated Provincial Houses Ltd -v- Wednesbury Corporation 1948 1 KB 223 by Lord Greene as follows:
“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 Parole Board is a public authority for that purpose, and the Wednesbury test therefore applies to applications to the High Court for judicial review of a panel’s decision. It also applies to applications to Reconsideration Panels of the Board for reconsideration of a panel’s decision on the ground of irrationality.[30]In R (DSD and others) -v- the Parole Board 2018 EWHC 694 (Admin) (‘the Worboys case’) a Divisional Court applied this test to Parole Board decisions in these words:
“ 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 .”
The same test of course applies to ‘ no release’ decisions.[31]In R (on the application of Wells) -v- Parole Board 2019 EWHC 2710 (Admin) Mr Justice Saini set out what he described as a more nuanced approach in modern public law. This approach is:
“ 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 formulation of the 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) .[32]As was made clear by Mr Justice Saini, this is not a different test from the Wednesbury test. The interpretation of (and application of) the Wednesbury test in parole hearings (as explained in the Wednesbury and DSD cases) was of course binding on Mr Justice Saini. It is similarly binding on Reconsideration Panels.[33]It follows from these principles that in considering an application for reconsideration a Reconsideration Panel cannot substitute its own view of the evidence for that of the panel who heard the witnesses. It will only direct reconsideration on the ground of irrationality if the Wednesbury test is satisfied. Procedural unfairness[34]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 from the issue of irrationality which focusses on the actual decision.[35]Examples of procedural unfairness which may be a ground for quashing a panel’s decision on this ground are where:(a) express procedures laid down by law were not followed in the making of the relevant decision; or(b) the party was not given a fair hearing;(c) the party was not properly informed of the case against them;(d) the party was 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.[36]These are not the only possible grounds for a finding of procedural unfairness but they are the ones most commonly alleged. The overriding objective is to ensure that the Applicant’s case was dealt with justly. The request for reconsideration in this case[37]As noted above this application was submitted on 15 November 2024 by the Applicant in person through his POM. The grounds advanced by the Applicant will be discussed below. The reply on behalf of the Respondent[38]As noted above, as a party to any parole proceedings the Respondent is entitled to submit representations to the Board in response to an application by a prisoner for reconsideration of a panel’s decision. PPCS have indicated that the Respondent does not wish to submit any representations in this case. Discussion[39]The Applicant makes a number of representations in support of his application for reconsideration of the Panel Chair’s decision. His primary submission is that the correct process was not carried out by the Panel Chair. There is a set procedure laid down by the Parole Board Rules where there has been a direction for an oral hearing but it is thought that the review should be concluded on the papers.[40]The relevant rule is Rule 21 which provides as follows:(1) Subject to the provisions of this Rule, where a panel have directed that a case should be determined at an oral hearing, a panel chair or duty member may direct that the case should be decided on the papers if an oral hearing is no longer necessary (a) in the interests of justice; (b) to effectively manage the case; or (c) for such other reason as the panel chair or duty member considers appropriate, including where further evidence is received by the Board.(2) The Board must notify the parties where it is considering making a direction in accordance with paragraph (1) and its reasons for doing so as soon as practicable.(3) Within 14 days of notification under paragraph (2), the parties may make representations on (a) the reasons provided by the Board for the proposed direction; (b) the contents of any further evidence; and (c) whether they agree to the case being decided by a panel on the papers.(4) After the 14-day period for the parties to make representations under paragraph (3), the panel chair or duty member will consider the case, including any further evidence and any representations made, and make a direction that the case should (a) be decided by a panel on the papers, or (b) continue to be determined by a panel at an oral hearing under Rule 25.[41]In this case, unusually, the request for a decision on the papers came from the Applicant but the above procedure still needed to be followed. There should have been a direction under Rule 21(1) and a notification under Rule 21(2) followed by a period of 14 days during which either party could make representations to the Board. In fact there was no direction and no notification.[42]There are two reasons why the 14 day period was important in this unusual case. The first reason is that the Applicant might have changed his mind again, in which case he would have been entitled to make further representations asking that there should be an oral hearing after all.[43]In fact it appears to have been on 9 November (the day on which the Panel Chair issued the decision on the papers) that the Applicant did indeed prepare further representations which he gave to his POM to be sent to PPCS on behalf of the Respondent. His further representations made it clear that he wanted to have an oral hearing after all. It appears that there was a slight delay before his representations were actually sent to PPCS, by which time of course the decision had been issued. The Applicant then issued his application for reconsideration of the Panel Chair’s decision.[44]The other reason why there should have been a direction and a notification is that the Respondent would have been entitled to make any representations to the Board. In ordinary circumstances it would have been unlikely that the Respondent would have wished to do so but if the POM (one of the Respondent’s officials) became aware of the Applicant’s change of mind it would have been appropriate for her to notify the Respondent of the position and it would then have been appropriate for the Respondent to notify the Board of that position so that the Panel Chair could consider what best to do. That would have been especially appropriate given the Applicant’s mental health difficulties.[45]I have every sympathy for all concerned in this highly unusual situation but I am satisfied that the failure of the Panel Chair to take the steps required by Rule 21 amounted to a significant error of law.[46]Reconsideration is a discretionary remedy and in other circumstances it might have been appropriate to treat an error of law of this kind, which might be regarded as a rather technical one, as insufficient to justify a direction for reconsideration. However, in this particular case it is clear that justice requires that there should be a reconsideration. The Applicant is long over tariff and the very experienced MCA member was satisfied that he should be given the opportunity to present his case at an oral hearing; the (now replaced) COM was of the opinion that his risk of serious harm to the public could be managed safely in the community; and it would be unfair for the Applicant’s hasty and unwise decision to request a decision on the papers to result in an inevitable further delay in his progress.[47]The Applicant makes a number of other points in his representations. I would have difficulty in accepting any of them but as I am directing reconsideration on his principal ground I do not need to go into them all.[48]The Applicant has done a good job of succeeding on his principal ground but I think he would be well advised to be legally represented at his oral hearing if there is to be one. The case is a complex one and will need very careful presentation.[49]The effect of my decision is simply to quash the Panel Chair’s decision on the papers. In ordinary circumstances I would direct that the case should be reconsidered by another Panel Chair. However in this very unusual case I think it would be best for it to return to the MCA member who directed that the case should proceed to an oral hearing and who, other things being equal, would have been expected to chair that hearing.[50]As the Applicant has observed, the decision on the papers does not show who the Panel Chair who made the decision was. There is nothing unusual about that. The template for decisions of that kind does not provide for the Panel Chair to be named. I do not know therefore whether it was the MCA member or someone else. I do not think that matters. Decision[51]For the reasons explained above I agree that this decision should be reconsidered and the Panel Chair’s decision quashed. This is on the ground of error of law: I do not find that there was any procedural unfairness or any irrationality in the Panel Chair’s decision. Jeremy Roberts 23 December 2024