Haddon, Application for Reconsideration [2024] PBRA 58 (14 March 2024) [2024] PBRA 58

PBRA

Haddon, Application for Reconsideration [2024] PBRA 58 (14 March 2024)

[2024] PBRA 58 · 2024-02-15

[1]This is an application by Haddon (the Applicant) for reconsideration of a decision of an oral hearing panel not to direct release. The hearing took place on the 15 February 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

[3]I have considered the application on the papers. These are the dossier of 429 pages, the application by the Applicant’s solicitor dated 4 March 2024 and the Secretary of State’s (the Respondent) response. Background

[4]The Applicant was sentenced on 20 April 2012 to a determinate prison sentence of 20 years for the rape of a child. There were further convictions in relation to other children. In total, the convictions were in relation to 3 incidents of rape 10 incidents of indecent assault and an incident of indecency with a child. This was the second review by the Parole Board. Because of the nature of the Applicant’s offending the decision to release is initially one for the Parole Board. The Applicant became eligible for parole in February 2022. Request for Reconsideration

[5]The application for reconsideration is dated 4 March 2024. The grounds for seeking reconsideration are set out below. Current parole review

[6]The panel convened to hear this matter at an oral hearing (OH) in February 2024. A psychological risk assessment had been prepared. The view of the prison instructed psychologist was that it would be essential for the Applicant to spend some time in the community on temporary licence prior to release. The Applicant was eligible for release on temporary licence, however, there had been delays in the prison and, through no fault of his own, the Applicant had been unable to undertake periods of temporary leave on licence. At the hearing there was a debate about how much testing should take place by way of temporary release to assess risk. There was a difference of opinion between the professionals. The panel, having heard evidence from the professionals and submissions on behalf of the Applicant, concluded that a period of at least six months would be required to complete the temporary release arrangements. There would then be a requirement for a psychological risk assessment to reflect upon the outcome of the testing on temporary release.

[7]The Applicant’s solicitor was consulted. Representations were made by the Applicant’s solicitor that the OH should be adjourned or deferred to allow for the testing as set out above. The panel determined that an adjournment would be excessively lengthy. The panel determined that the OH should be concluded on the papers. The matter would then be reinstated for review by the Respondent in the next cycle.

[8]Although panels have no constraints in relation to the power to adjourn, the Parole Board have issued guidance in relation to decisions to adjourn. That guidance references the duty of the Parole Board pursuant to article 5 (4) of the European Convention on Human rights, to provide a speedy review of the prisoner’s detention. The guidance specifically indicates that panels should not normally consider adjournment appropriate in circumstances where a prisoner is in open conditions and is yet to be assessed for temporary leave. The guidance also cautions against adjourning hearings for periods in excess of 3 months. The panel were therefore under a duty to act fairly, however, they were also obliged to consider the duty to provide a speedy review. The Relevant Law

[9]The panel correctly sets out in its decision letter 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.

[10]The Parole Board will direct release if it is no longer necessary for the protection of the public that the prisoner should be confined. The test is automatically set out within the Parole Board’s template for oral hearing decisions. Parole Board Rules 2019 (as amended)

[11]Rule 21 sets out procedures that must be followed before a decision can be made on the papers after a direction for an oral hearing. Rule 21(1) provides the panel chair with a power to direct that the case be determined on the papers. That power can only be used after new evidence has been received. Provision is made under Rule 21(3) to allow the parties to make representations as to whether the case should or should not be considered on the papers before any direction to do so has been made.

[12]Pursuant to Rule 28(1) of the Parole Board Rules 2019 the only types of decisions which are eligible for reconsideration are those concerning whether the prisoner is or is not suitable for release on licence. Such a decision is eligible for reconsideration whether it is 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)).

[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)).

[14]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

. Irrationality

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

[2018] EWHC 694 (Admin)

, the Divisional Court set out 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. ”

[16]This test was set out by Lord Diplock in CCSU v Minister for the Civil Service

[1985] AC 374

. 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 Parole Board in making decisions relating to parole. The Board, when considering whether or not to direct a reconsideration, will adopt the same high standard for establishing ‘irrationality’. The fact that Rule 28 contains the same adjective as is used in judicial review shows that the same test is to be applied.

[17]The application of this test has been confirmed in previous decisions on applications for reconsideration under rule 28: Preston

[2019] PBRA 1

and others. Procedural unfairness 18.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.

[19]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; and/or

(e) the panel was not impartial.

[20]The overriding objective is to ensure that the Applicant’s case was dealt with justly. The reply on behalf of the Respondent

[21]The Respondent offered no representations. Grounds

[22]The Applicant’s solicitors argue that the panel in this case acted unfairly and made a procedural error in deciding to proceed with the case by way of concluding with a paper decision rather than adjourn the matter to a date in the future. Discussion

[23]As noted above the rules relating to a decision made on the papers (after a direction for an oral hearing) are governed by rule 21 of the Parole Board Rules 2019 (as amended). I summarise the rule below, the exact wording of the Rule is found and published on the Parole Board website.

[24]The rules confirm that, if an oral hearing is deemed to be no longer necessary, the panel chair or a duty member may direct that the case should be decided on the papers. The rules also indicate the matters a panel should consider when deciding whether the hearing is no longer necessary. They are: · It is in the interest of justice; · It is appropriate to effectively manage the case; or. · It is appropriate for such other reason as the panel chair or duty member considers appropriate, including where further evidence is received by the board.

[25]By paragraph 21 (2) the board must notify the parties, where it is considering making a direction (to decide the case on the papers). The notification must be made as soon as practicable and should include the reasons for doing so.

[26]Within 14 days of the notification, the parties may make representations. Pursuant to paragraph 21 (4).

[27]After the 14-day period for the parties to make representations, the panel chair or duty member will consider the case, including any further evidence, and representations made and make a direction.

[28]The direction can be to conclude the case on the papers or that the matter should continue to be determined by a panel at a future OH.

[29]The rules therefore direct that before concluding a hearing, which has previously been directed to an OH, representations must be invited from the parties. The parties to the proceedings are the Applicant and the Respondent.

[30]In this case representations were sought from the Applicant at the hearing. However, they were not sought from the Respondent.

[31]Although it would be highly likely that the Respondent would choose not to make representations, in a case of this sort the Respondent may have made representations relating to the timing of temporary leave in the community and possibly the timing of any updated psychological risk assessment. Both of these matters were in issue in relation to the decision to conclude the case or to adjourn it.

[32]Although this point is not argued by the Applicant, as indicated above, procedural unfairness includes circumstances where “ express procedures laid down by law were not followed in the making of the relevant decision ”.

[33]In the circumstances therefore I determined that the procedure set down in paragraph 21 of the rules was not followed, because no notice was given to the Respondent and no period of time given to the Respondent to respond. Accordingly, the matter must be reconsidered. Other ground

[34]I have expressly not considered the fairness or otherwise of the decision to adjourn. However, as the panel noted, the Parole Board have published detailed guidance in relation to the decision to adjourn. Panels are not bound by the guidance, however, that guidance provides a pathway to a balanced decision as to whether it is fair both to the prisoner and in the interests of justice (keeping in mind the fact that an adjourned hearing means that other prisoners may not have the opportunity to be listed for hearing and thus impacting on the overriding interests of justice). Guidance also ensures fairness by way of consistency in decision making. Decision

[35]Whilst I do not find there to have been irrationality, I do consider, applying the law and rules, the decision was procedurally unfair in the sense set out above. 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 by way of an oral hearing. HH S Dawson 14 March 2024