Wood, Application for Reconsideration [2024] PBRA 35 (21 February 2024) [2024] PBRA 35

PBRA

Wood, Application for Reconsideration [2024] PBRA 35 (21 February 2024)

[2024] PBRA 35 · 2023-12-05

[1]This is an application by Wood (‘the Applicant’) for reconsideration of the decision of a Member Case Assessment member of the Parole Board (‘the MCA member’) who on 5 December 2023 issued a decision not to direct the Applicant’s release on licence and not to send his case for an oral hearing.

[2]I am one of the members of the Parole Board (‘the Board’) who are authorised to make decisions on reconsideration applications, and this case has been allocated to me. Background

[3]The Applicant is aged 67 and is serving a sentence of life imprisonment which was imposed on 12 November 2013 for an offence of attempting to cause grievous bodily harm with intent (‘the index offence’). The minimum term which he was ordered to serve in prison before becoming eligible for release on licence (his ‘tariff’) was 6 years less the time which he had served in custody on remand. The Applicant also received concurrent determinate sentences for 2 counts of possession of a knife blade/sharp pointed article in a public place.

[4]In June 1991, at the age of 34, the Applicant received a sentence of 20 years imprisonment for getting another man to throw acid in his wife’s face. His wife suffered serious injuries as a result of that attack. The Applicant was released from prison after serving 14 years of the 20-year sentence.

[5]The offence for which he received his life sentence (the ‘index offence’) occurred in March 2013. The victim was a doorman at licenced premises. After an altercation outside the premises the Applicant went home. He returned later, armed with two knives, with one of which he attempted to stab the doorman in the chest, cutting him on the arm in the process. He was brought to the ground where he attempted to stab the victim in the leg.

[6]The Applicant disputes the prosecution’s versions of the two offences and maintains that his sentences were unfair. At one stage he instructed solicitors to lodge appeals to the Court of Appeal against his convictions and sentences, and he or his solicitors apparently also contacted the Criminal Cases Review Commission (‘CCRC’). He is recently reported to have considered sending a recorded delivery letter to the CCRC due to his suspicion that his mail was being intercepted.

[7]It seems that the solicitors whom he instructed are no longer acting for him, but he is still anxious to pursue an appeal. However, as a matter of law for so long as his convictions have not been overturned on appeal the Board is obliged by law to proceed on the basis of the juries’ verdicts: it has neither the authority nor the resources to re-investigate the cases.

[8]The Applicant’s tariff expired in March 2019 but he has remained in prison (in closed conditions) throughout his sentence. His case has been considered by the Board on three previous occasions but on each occasion the panel found that the test for release on licence was not met. The test is whether he needs to be confined in prison for the protection of the public.

[9]The current review of the case by the Board commenced in March 2023 when the Secretary of State (the Respondent) referred it to the Board to decide whether to direct the Applicant’s release on licence and, if it does not do so, to decide whether to recommend to the Secretary of State that he should be moved to an open prison. A direction by the Board for release on licence would be binding on the Secretary of State, but the Secretary of State is not obliged to accept a recommendation by the Board for a move to an open prison.

[10]The case was first reviewed by the MCA member on 19 October 2023. The MCA member had three options:(a) to direct the Applicant’s release on the papers

(b) to decide on the papers not to direct his release on licence or

[11]The MCA member noted that there had been a recent change of the official responsible for the management of the Applicant’s case whilst he is in prison (his Prison Offender Manager) and that the new Prison Offender Manager (POM) had not yet submitted a report to the Board. The MCA member therefore adjourned the case, issuing the following direction:

“The new POM is asked to provide a brief report to include any custodial update and details of [the Applicant’s] engagement since the change of POM. Additionally the POM is kindly requested to discuss with [the Applicant] whether he wishes to apply for an oral hearing, or whether he consents to the review being completed on the papers. A signed consent form is required.”

[12]The MCA member directed that that report should be submitted by 10 November 2023 but that direction was not complied with. It had still not been complied with by 5 December 2023 when the MCA member reviewed the case again. In the light of that situation the MCA member decided to make a decision on the available evidence.

[13]The MCA member’s decision was mistakenly dated 19 October 2023 (the date of the MCA member’s initial review of the case) but it has helpfully been confirmed by the Public Protection Casework Section of the Ministry of Justice (‘PPCS’) that the decision was issued and sent to them on 5 December 2023.

[14]The decision began by stating:

“This case was first considered at MCA on 19/10/2023 and adjourned to allow [the Applicant] to confirm he was not seeking an oral hearing. His POM was requested to discuss this matter with [the Applicant] and report back. No response has been received regarding this direction, despite chasing and escalation. This is unfortunate and not acceptable. However, the [MCA member] considers that [the Applicant] has had ample opportunity to present his views and is therefore progressing his review.”

[15]Having reviewed the available evidence the MCA member decided on the papers not to direct the Applicant’s release on licence: this was the decision which is the subject of this application for reconsideration. The MCA member also decided not to recommend the Applicant’s transfer to an open prison: that decision is not eligible for reconsideration (see paragraphs 22-25 below).

[16]On the day after the MCA member’s decision was issued the POM submitted a report from which it became clear that there had been a failure of communications between PPCS, the Board and the Offender Management Unit (‘OMU’) at the prison where the Applicant was detained.

[17]It is unclear how that failure of communications came about, but that is immaterial for present purposes. What matters is that the MCA member had not seen the POM’s report when she made her decision, nor had she seen the ‘Consent Form’ which accompanied it. That form made it clear that the Applicant did not consent to the review being concluded on the papers but wished to have an oral hearing.

[18]The POM wrote in her report (under the heading ‘Address issues requested in the decision or decision letter’ ) the following explanation for the delay in the OMU submitting her report and the consent form :

“None received. We noted that a report was due when looking at progress of parole on [PPCS’s computerised system]. We have not received an official request for a report or any response to emails sent to PPCS. Thus I have completed this report based on [information in the computerised system] stating that a report was due in November 2023.”

[19]The report went on to provide details of the Applicant’s progress.

[20]This application for reconsideration of the MCA member’s decision was made on 1 February 2024 The Relevant Law The test for release on licence

[21]As indicated above the test for release on licence is whether the Applicant’s continued confinement in prison is necessary for the protection of the public. The Parole Board Rules 2019 (as amended)

[22]Under Rule 28(1) a 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.

[23]Reconsideration will only be directed if one of more of the following three grounds is established:(a) It contains an error of law; or

(b) It is irrational; or

[24]A decision that a prisoner is or is not suitable for release on licence is eligible for reconsideration whether it is made by:(a) A paper panel, as in this case (Rule 19(1)(a) or (b)) or

(b) An oral hearing panel after an oral hearing (Rule 25(1)) or

[25]It follows that the MCA member’s decision in this case not to direct release on licence is eligible for reconsideration, but her decision not to recommend a move to an open prison is not. Procedural unfairness

[26]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.

[27]The kind of things which might amount to procedural unfairness include:(a) A failure to follow established procedures;

(b) A failure to conduct the hearing fairly;

(d) A failure properly to inform the prisoner of the case against him or her; and/or

(e) Lack of impartiality.

[28]The overriding objective is to ensure that the case was dealt with fairly. Irrationality

[29]In R (DSD and others) v the Parole Board

[2018] EWHC 694 (Admin)

, the Divisional Court set out as follows the test for irrationality to be applied in judicial reviews of Parole Board decisions. It said 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.”

[30]This was the test which had been set out by Lord Diplock in CCSU v Minister for the Civil Service

[1985] AC 374

and applies to all applications for judicial review. The Divisional Court in DSD went on to indicate that, in deciding whether a decision of the Parole Board was irrational, due deference had to be given to the expertise of the Board in making decisions relating to parole.

[31]The Parole Board, when deciding whether or not to direct a reconsideration, adopts the same high standard as the Divisional Court for establishing ‘irrationality’. The fact that Rule 28 uses the same adjective as is used in judicial review cases in the courts shows that the same test is to be applied. The application of this test to reconsideration applications has been confirmed in previous decisions under Rule 28: see, for example, Preston

[2019] PBRA 1

. The application for reconsideration in this case

[32]The Applicant presented his application on the appropriate form in his own words, which were admirably clear and concise. He makes two points in support of his application:(1) the POM’s report was not submitted as directed and

(2) he would have liked to have his case considered at an oral hearing. The Respondent’s position

[33]The Respondent is a party to all parole proceedings (the other party in each case being the prisoner), he is the Respondent to any reconsideration application made by or on behalf of the prisoner and is entitled to submit his own representations in response to those submitted by or on behalf of the prisoner.

[34]By e- mail, dated 6 February 2024, PPCS on behalf of the Respondent confirmed that the oral hearing Consent Form and the POM’s report were submitted on the day after the MCA member’s decision was issued. PPCS make no further representations on behalf of the Secretary of State. Documents considered

[35]I have considered the following documents for the purpose of this application:(a) The dossier provided by the Respondent for the review of the Applicant’s case, which now runs to 260 numbered pages and includes a copy of the MCA member’s decision;

(b) The representations submitted by the Applicant in support of his application for reconsideration; and

[36]There was clearly a serious procedural irregularity in this case. Through no fault of the Applicant the consent form and the POM’s report were not submitted when they should have been and were therefore not seen or considered by the MCA member.

[37]Procedural irregularities are not uncommon, but not all of them amount to (or lead to) ‘procedural unfairness’. It is only if the irregularity might have affected the decision made by the decision maker (whether an MCA member or an oral hearing panel) that the ground of procedural unfairness will be made out. Minor irregularities which could not have affected the decision will not amount to ‘procedural unfairness’.

[38]As I have pointed out above the MCA member had three options available to her:(a) to direct the Applicant’s release on the papers

(b) to decide on the papers not to direct his release on licence or

[39]I do not think that there is any realistic possibility that the MCA member would have directed the Applicant’s release on licence on the papers if she had seen the POM’s report and the Applicant’s request for an oral hearing. The Applicant had committed two very serious offences of violence. He clearly posed a risk of causing serious harm to other people at the start of his life sentence and there was little evidence of any reduction in that risk of the kind which the Board needs to see if it is to direct the prisoner’s release on licence. Successive panels of the Board had found in this case that before the test for release could be met further core risk reduction work was needed. That remains the position today. Nothing had happened since the last of the previous reviews to justify a different decision on this one.

[40]I am satisfied, however, that there is a real possibility that if the MCA member had seen the consent form and the POM’s report she might have decided to send the case for an oral hearing. The case of Osborn, Booth and Reilly

(2013) UKSC 61

established the principle that, even where there is no realistic possibility that an oral hearing will result in a direction for release on licence, there are some cases where fairness requires that such a hearing should be directed.

[41]This case might possibly be regarded as falling into that category. The Applicant is nearly 5 years ‘over tariff’ and has been unable to progress, and a discussion with a Parole Board member or members at an oral hearing might possibly assist in finding a way forward.

[42]I am satisfied, therefore, that the procedural irregularity in this case might have affected the MCA member’s decision. Furthermore the failure of the system resulted in an unrepresented offender being deprived of the opportunity to be heard, which is in itself an unacceptable situation. Irrationality

[43]I do not think there was any irrationality in the MCA member’s decision. On the facts as known to her it was clearly reasonable for her to make a decision on the papers, and her decision cannot be said to have been an irrational one. Decision

[44]For the reasons which I have explained above I am satisfied that the test for reconsideration of the MCA member’s decision (on the ground of procedural unfairness) is met, and I must therefore accede to the Applicant’s application and direct that this case should be reconsidered.

[45]I have given careful consideration to whether this case should be reconsidered by the original MCA member or whether it should be considered afresh by another MCA member. I have no doubt that the original MCA member would be fully capable of approaching the matter conscientiously and fairly. However, the question of justice being seen to be done arises. If the original MCA member were to adhere to her previous decision, there would inevitably be room for suspicion that she had simply been reluctant to admit that her original decision was wrong. However inaccurate or unfair that suspicion might be, it would be preferable to avoid it by directing (as I now do) that the case should be reheard by a fresh MCA member.

[46]Given that the Applicant is not legally represented, I do not think that I should leave this case without some further comments which may be of assistance to him.

[47]He will probably appreciate from the explanation which I have given that, although I am directing reconsideration of the MCA member’s decision on the papers that he should not be released on licence, and the case will therefore have to be considered by another MCA member, I would not wish to encourage him to believe that the outcome of that reconsideration would be a direction on the papers that he should be released on licence. Equally I would not wish to encourage him to believe that, if an oral hearing is directed by the next MCA member, that hearing would be likely to result in a direction for his release on licence.

[48]I would also not wish to encourage him to believe that there is any real prospect of his convictions being overturned on appeal. The juries accepted the prosecution evidence and without any clear evidence (which there does not appear to be) neither the CCRC nor the Court of Appeal is likely to interfere with their decisions, especially after such a long time. That is, I am afraid, a fact of life, and as I have explained the Board is obliged by law (unless the convictions are overturned on appeal) to proceed on the basis of the juries’ verdicts: it is not within its remit to reinvestigate the case. Equally the professionals involved in the case must proceed on the same basis: this is probably the root of the difficulties which there have been between them and the Applicant.

[49]If the Applicant wishes to be released on licence, he would therefore be well advised to accept the reality that he will need to complete the core risk reduction work recommended by the professionals so that he can prove to a future panel that his risk of serious harm to the public has been reduced to a level which will be manageable on licence in the community.

[50]He may also be well advised to agree to the present review being concluded on the papers, and to tell the POM and the prison psychologist that he is willing to undertake the necessary work as soon as possible. That way he may be able to speed up the process of putting himself in a position to demonstrate that he is ready for release on licence.

[51]I am sorry if these suggestions are unpalatable to the Applicant but they do offer his best chance of being released sooner than later. It is of course a matter for him to decide how best to proceed. Jeremy Roberts 21 February 2024