Kamara, Application for Reconsideration [2024] PBRA 251 (30 December 2024) [2024] PBRA 251

PBRA

Kamara, Application for Reconsideration [2024] PBRA 251 (30 December 2024)

[2024] PBRA 251 · 2024-11-12

[1]This is an application by Kamara (the Applicant) for reconsideration of a decision of an oral hearing panel (OHP) member dated the 12 November 2024. The decision was not to direct 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

[3]I have considered the application on the papers. These are the dossier now consisting of 512 pages, the application for reconsideration drafted by the Applicant’s solicitor dated the 28 November 2024, the OHP decision and the representations from the Secretary of State (the Respondent). Request for Reconsideration

[4]The application for reconsideration is dated 28 November 2024.

[5]The grounds for seeking a reconsideration are set out below. Background

[6]The Applicant is serving an extended sentence, comprising of a fourteen year custodial term, and a five year extended licence period for offences of robbery. The Applicant was described as a central member of a gang, who were involved in cash in transit robberies over a period of four years (2006-2010). The offences were well-planned and professional in execution and involved weapons, masks and the threat of violence. The sentencing judge noted that over a quarter of a million pounds was stolen.

[7]The Applicant was aged 30 when sentenced. He was aged 44 at the date of the oral hearing decision. The Applicant was released automatically in 2017 and recalled in 2020. Current parole review

[8]The hearing was conducted in September of 2024 by an independent member of the Parole Board. Evidence was received from a Prison Offender Manager (POM), a previous and a current Community Offender Manager (COM). The Applicant gave evidence and was legally represented. A dossier of 464 pages was considered.

[9]The Applicant’s first recall was in 2020. He was detected driving a vehicle while disqualified. He then failed to provide a specimen and resisted arrest. He was sentenced to 16 weeks imprisonment for these offences.

[10]He was released again on licence by a Parole Board panel later in 2020 and recalled most recently in August of 2023. The Relevant Law

[11]The panel correctly sets out in its decision letter dated 12 November 2024 the test for release. However as noted below, this case engages the decision in Sim (see below). As the decision fell within the extension period of the Applicant’s sentence, the test is qualified by the fact that a presumption to release must be considered by a panel before considering whether the statutory test applies. 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)). Irrationality

[14]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.

[15]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. ”

[16]In R(on the application of 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 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).

[17]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.

[18]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.

[19]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. 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;

(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 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. 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. Extended Sentences

[25]When reviewing a recalled extended sentence prisoner in the “ extension period ” part of their sentence, panels are required to reverse the test, applying a presumption in favour of release. In such cases, the panel should direct release unless positively satisfied that continued detention is necessary for the protection of the public. Panels will need to apply the presumption of release as a starting point. Following this, the statutory test will need to be applied. In doing so, the presumption could be disproved by the risk posed to the public up to and beyond sentence end date (SED) see R (Sim) v Parole Board

[2004] QB 1288

. Other

[26]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. " 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 Secretary of State

[28]The Respondent offered no representations. Grounds and discussion Ground 1

[29]In the Decision Letter, the panel failed to demonstrate that it had applied the test in Sim (above). Discussion

[30]As noted above, the qualification to the statutory test for release, which is to be applied in cases where a prisoner is within the extension period of his licence is set out above. The decision in Sim indicates that the test for release remains the statutory test. However, in any case where a panel is considering release, following a recall during the extension period of an extended licence, (or where the decision is being made within the extension period), the panel must, prior to applying the statutory test, apply a presumption in favour of release. There is no requirement to formally cite the case of Sim when reaching a decision in extension period cases. However, where a decision is issued without reference to either the principles of Sim or the case itself it is not possible to ascertain whether the panel member considered the presumption and applied the presumption when reaching the decision.

[31]In this case, the matter was slightly confusing because the sentence for the index offence was imposed some months after the Applicant had been remanded into custody and therefore nominally began to serve the (index offence) sentence. The judge, in his sentencing remarks, noted the number of days which the Applicant was assessed as having served at the time of sentence. In essence therefore the custodial element of the sentence in this case began in January 2010 and therefore ended in January 2024. The extension period therefore began in January 2024. This was a case where all professionals were recommending release, the panel member was entitled to reach a different conclusion to the professionals, however, it was important, in my determination, for the panel member to explain not only the reasoning behind the decision (not to direct release), but also the reason why the presumption in favour of release did not apply. In my determination the application of both the test for release and the considerations in Sim were fundamental to this decision. The decision makes no reference to the principles or the case.

[32]I also note that the panel member in the concluding remarks, when addressing its conclusion, indicated the following “ the panel has concluded that currently his risk is not manageable, and accordingly does not direct re-release .” While it may be a fine point, the panel makes no reference, in this concluding sentence, to the necessity to protect the public from serious harm. As is well recognised, the test for release is entirely focused upon whether it remains necessary in order to protect the public from serious harm that the prisoner remain confined. The wording used by the panel member could have been interpreted as a decision that the Applicant was not being released because he could not be adequately managed by the probation service, rather than because it was necessary in order to protect the public from serious harm. Again in this case this issue was of importance because the circumstances of the recall did not in themselves lead to direct evidence of potential or actual serious harm to the public, but did amount to a very serious breach of licence conditions. It was therefore incumbent on the panel member to explain in detail. Firstly, the reason for disapplying the presumption in favour of release, and secondly, the basis upon which the panel had concluded that there remained a necessity to detain in order to protect the public from serious harm. These matters were not adequately addressed in this decision and for these reasons I determined that this matter must be reconsidered. Ground 2

[33]The overall decision was irrational. Discussion

[34]In the light of the fact that I have concluded that the matter should be reconsidered on the basis of the first ground I have not considered the second ground set out by the Applicant’s legal adviser. Decision

[35]Accordingly, I find that the decision was procedurally unfair in the sense set out above because of a failure to demonstrate that the test required in this case was applied appropriately. 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 in an oral hearing. HH Stephen Dawson 30 December 2024