Hodgetts, Application for Reconsideration [2024] PBRA 29 (14 February 2024) [2024] PBRA 29

PBRA
Hodgetts, Application for Reconsideration [2024] PBRA 29 (14 February 2024)
[2024] PBRA 29 · 2023-11-24
[1]This is an application by Hodgetts (the Applicant) for reconsideration of a decision of a Member of the Parole Board dated 24 November 2023 (the Decision) not to direct an oral hearing following his recall member case assessment.[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)) 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:(a) The Decision;(b) The Applicant’s application for reconsideration contained in an email from the Applicant’s solicitors to the reconsideration team delivered on 12 January 2024;(c) The email dated 17 January 2024 from the Public Protection Casework Section (PPCS) on behalf of the Secretary of State (the Respondent) stating that no representations will be made by the Respondent in response to the application for reconsideration; and(d) The Applicant’s dossier containing 155 pages.[4]The grounds for seeking reconsideration are that the Panel acted in a procedurally unfair manner when it failed properly to consider the application made on behalf of the Applicant that his case should proceed to the oral hearing stage when it rejected that application bearing in mind that(a) there were disputes between him and a third party which ought to have been resolved by an oral hearing;(b) without proceeding to an oral hearing, there may have been information that was capable of altering the decision of the Board(c) an oral hearing would have allowed the Board to examine the credibility of the Applicant and give full consideration of all evidence in this case; and(d) the direction not to proceed to an oral hearing in all the circumstances “can be considered a breach of the Applicant’s Right to a Fair Trial under Article 6 of the ECHR”. Background[5]On 7 July 2006, the Applicant, who was then 49 years old, was sentenced to life imprisonment with a minimum term of 5 years, 9 months and 27 days for a range of sexual offences against 6 children. The sexual offences comprised 5 counts of rape against a child under the age of 16 years and incest by a male with girl under 13 years of age.[6]The Applicant said that his offending occurred when he was stressed caring for his parents, and it occurred over a period of five or six years. The victims were groomed over time “patiently and persistently” and he filmed himself offending. The Applicant had three previous convictions for theft and one previous conviction for burglary of a dwelling.[7]A panel ordered his release following an oral hearing and he was released on 10 August 2018, but he was recalled “ as an emergency ” just under 5 years later on 6 July 2023 when it was reported that he was having unsupervised contact with a child in breach of his licence conditions. It was also thought that he may have formed a relationship with the girl’s mother and that he had not disclosed it.[8]The Applicant does not dispute the validity of the decision to recall him, but he denied that he knew the child and her mother; in addition, he gave conflicting accounts of the circumstances in which the child came to be in his company . The panel considered that the recall was appropriate bearing in mind the decision in the case of Calder and the allegation that the Applicant was having unauthorized contact with a child.[9]After the Applicant was recalled, the Police made contact with the woman involved who explained that she had known the Applicant for nearly a year and that she sees him up to three times a week. Her evidence was that the Applicant gives her and her daughter gifts and that he gave her daughter pocket money. She added that the Applicant “ would ‘cuddle’ her daughter and other female children in the library”.[10]A police officer went to arrest the Applicant, who produced a USB drive from his pocket indicating that it contained indecent images. A search of the Applicant’s home address found other items which were the subject of forensic analysis as at the time of the Decision.[11]It was noted that risk factors in the Applicant’s case included “s exual interest in children, grooming behaviour, likely breach of licence conditions by having contact with children and deviousness as well as poor consequential thinking and failure to consider the impact of his behaviour on victims ”.[12]As for the future, the Panel considered that these assessments of risk may need to be revised in the light of the outcome of the current police investigations. There have been no reported concerns about the Applicant’s custodial behaviour since recall.[13]An outline risk management plan (RMP) was offered, but release would need to be to approved premises, however a referral had not been made at the time of the Decision because of the ongoing police investigation. At that time there was “ no information in the dossier that would indicate that [the Applicant] would be any more minded to comply with licence conditions if re-released, particularly noting his conflicting accounts of his contact with the woman and her daughter ”. Further, at the time of its decision, “the Panel could not conclude that any [RMP] would be effective in [the Applicant’s] case” . The Panel’s Conclusion[14]In its conclusion, the Panel noted that until the on-going investigation into the Applicant’s offence-paralleling behaviour in the community was completed and it was known whether any charges would be brought, it was necessary that the Applicant remained confined to protect the public and re-release was not directed.[15]The Panel explained that when the Applicant’s case is next reviewed, “ any panel will want to see information about the outcome of the police investigation and whether any charges are being pursued, together with current risk assessments, details of the release and [the RMP] that would be in place should the panel direct re-release, reports from [the Applicant’s] POM and COM and any representations that [the Applicant] would like to make”. The Relevant Law Parole Board Rules 2019 (as amended)[16]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)).[17]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)).[18]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[19]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.[20]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.[21]The overriding objective is to ensure that the Applicant’s case was dealt with justly. The reply on behalf of the Respondent[22]PPCS on behalf of the Respondent stated in an email dated 17 January 2023 that they will not making any representations in response to the Applicant’s reconsideration application. Discussion[23]In a section of the Decision headed “Any Other Information” it is stated that:
“The Panel has considered the principles set out in the case of Osborn, Booth & Reilly [2013] UKSC 61 concerning oral hearings. It did not find there are any reasons for an oral hearing. In addition, [the Applicant] has not submitted any reasons for an oral hearing. Therefore, an oral hearing is declined. However, if [the Applicant] believes that his case should proceed to an oral hearing he is invited to submit further representations to the parole board within 28 days of this decision.”
[24]There is no evidence or allegation that the Applicant exercised his right to make further representations to the Board that his case should proceed to an oral hearing within 28 days of the Decision or at all. Ground of Challenge[25]The ground of challenge is that the Panel acted in a procedurally unfair manner when it failed properly to consider the application made on behalf of the Applicant that his case should proceed to the oral hearing stage when it rejected that application bearing in mind in particular that(a) there were disputes between the Applicant and a third party which ought to have been resolved by an oral hearing;(b) without proceeding to an oral hearing, there may have been information that was capable of altering the decision of the Board(c) an oral hearing would have allowed the Board to examine the credibility of the Applicant and give full consideration of all the evidence in this case;(d) without an oral hearing, the Board was “effectively making a decision without considering all the relevant evidence pertaining to this case”; and(e) the direction not to proceed to an oral hearing can be considered a breach of the Applicant’s Right to a Fair Trial under Article 6 of the European Convention on Human Rights (ECHR).[26]As the Applicant did not make submissions at the previous hearing explaining why the matter should be determined at an oral hearing I do not have the advantage of reading and considering why it was apparently concluded that there should not be an oral hearing.[27]At the forefront of the Applicant’s case is the contention that Article 6 of the ECHR establishes that an oral hearing plays an integral part in ensuring that those accused of criminal offence have a fair trial. The reason for that is that an oral hearing allows a full investigation of all the facts and to ensures that all the relevant factual evidence can be given and subject to effective scrutiny.[28]It is not every case which will benefit from having an oral hearing, and Lord Reed has explained in the case of Osborn, Booth & Reilly v Parole Board [2013] UKSC 61 , [2014] 1 AC 1115 some of the circumstances in which an oral hearing will be necessary and those circumstances include some factors found in the Applicant’s case such as that:(a) “ where facts which appear to the Board to be important are in dispute …the Board should guard against any tendency to underestimate the importance of issues of fact which may be disputed or open to explanation or mitigation ”;(b) “ when it is maintained on tenable grounds that a face to face encounter with the board, or the questioning of those who have dealt with the prisoner, is necessary in order to enable the prisoner or his representatives to put their case effectively or to test those who have dealt with him”;(c) “when dealing with cases concerning post-tariff indeterminate sentence prisoners, [the Board] should scrutinize ever more anxiously whether the level of risk is unacceptable, the longer the time the prisoner has spent in prison following the expiry of his tariff”;(d) “the Board’s decision…is not confined to its determination of whether or not to recommend the prisoner’s release or transfer to open conditions, but includes any aspect of its decision (such as comments or advice in relation to the prisoner’s treatment needs or the offending behaviour work which is required) which will in practice have a significant impact on his management in prison or on future reviews”;(e) “the Board should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense”;(f) “in order to justify the holding of an oral hearing, the prisoner does not have to demonstrate that the paper decision was wrong, or even that it may have been wrong; what he has to persuade the Board is that an oral hearing is appropriate”; and(g) “in applying the guidance, it will be prudent for the Board to allow an oral hearing if it is in doubt whether to do so or not ”. Decision[29]Having taken into account all the principles set out by the Supreme Court in the case of Osborn, Booth & Reilly , I have concluded that the panel below (who did not have the benefit of receiving the detailed submissions which I received) acted in a procedurally unfair manner when it did not hold that there should have been an oral hearing directed. I have reached that conclusion for the following four reasons.[30]First, there are a number of issues on this parole application in relation to which a panel would find it necessary to hear evidence so as to enable the prisoner or his representative to put their case effectively and/or to test the evidence of those who have given evidence on such issues. Such issues include whether the Applicant had a relationship with the mother of the child in relation to whom he was alleged to have had unsupervised contact and if so, what was the nature of the Applicant’s relationship with the mother and the child.[31]Other issues which required an oral hearing would include consideration of whether the Applicant cuddled the daughter, what risk the Applicant would pose to the daughter and other young girls if released and whether there were any conditions which could be imposed in a RMP to ensure that the Applicant’s risks to young girls could be eliminated or effectively reduced. Further, it is likely that matters might emerge from the police investigation which would need to be subject to oral evidence and questioning to ensure that they were properly appraised.[32]Second, an oral hearing would have allowed the panel to reach conclusions on any further work which the Applicant should be required to complete before release or after release.[33]Third, the Applicant’s tariff expiry date was almost 12 years ago on 2 May 2012 and he was sentenced more than 17 ½ years ago and this means that the risk posed by the Applicant should be scrutinized more anxiously and the appropriate way of doing it would be by an oral hearing in which all the evidence can be more carefully scrutinized than if the decision on release had to be taken on the papers.[34]Fourth, that there is not a clear case for not having an oral hearing and, as explained in the Osborn, Booth & Reilly case, this means that it is “ prudent” to allow an oral hearing.[35]For all these reasons, whether considered individually or cumulatively and after taking account of all the guidance in the Supreme Court’s judgment in t he case of Osborn, Booth & Reilly , I have concluded for the reasons set out above that the application for reconsideration must be granted. Sir Stephen Silber 14 February 2024