Lawton, Application for Reconsideration [2024] PBRA 60 (28 March 2024) [2024] PBRA 60

PBRA
Lawton, Application for Reconsideration [2024] PBRA 60 (28 March 2024)
[2024] PBRA 60 · 2024-02-12
[1]This is an application by Lawton (‘the Applicant’) for reconsideration of the decision of a panel of the Parole Board (‘the panel’) who on 12 February 2024, after an oral hearing on 30 January 2024, issued a decision not to direct his release on licence.[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 and history of the case[3]The Applicant is aged 56 and is serving a sentence of life imprisonment which was imposed on 17 March 1997 for the murder of his estranged partner (Ms A). He was aged 29 at the time of the murder, to which he pleaded guilty. His minimum term (‘tariff’) was set at 15 years less the time which he had served in custody on remand.[4]The Applicant and Ms A had a baby son (Mr B) who is of course now grown up. Their relationship is described as having been volatile, and the Applicant had been guilty of previous offences of domestic violence against Ms A.[5]The murder occurred on a day when the Applicant had been drinking heavily. He made contact with Ms A and they agreed to meet up in a public house. After closing time they took a taxi to the Applicant’s flat. An argument ensued, in which the Applicant carried out a prolonged attack on Ms A, stabbing her and finally strangling her with an electrical flex.[6]The Applicant’s tariff expired on 15 April 2011, and on 23 May 2015 he was released on licence by direction of the Board.[7]He was recalled to prison on 2 October 2019 as a result of his arrest by the police on allegations of affray and possession of a bladed article. He was subsequently tried on those allegations and acquitted.[8]His arrest revealed that he had been in a new intimate relationship for many months with another woman (Ms C). He had not disclosed that relationship to his supervising officer. Ms C made an allegation of domestic violence against him, but when that allegation was investigated it could not be substantiated.[9]Following his recall the Applicant’s case was referred by the Secretary of State to the Board to decide whether to direct his re-release on licence and, if not, whether to recommend that he should be transferred to an open prison.[10]His case was considered at an oral hearing in November 2021 by a panel of the Board. At that hearing neither re-release nor a transfer to an open was supported by the professional witnesses and, whilst the panel could place no reliance on the allegations which led to the recall, they had a number of other concerns about the manageability of the Applicant’s risk to the public. They decided not to direct his release on licence and not to recommend a move to an open prison. He has therefore remained in a closed prison.[11]On 4 June 2022 the Secretary of State again referred the case to the Board for further consideration. In due course the case was directed to proceed to an oral hearing. It was allocated to the present panel and the date for the hearing was fixed as 30 January 2024.[12]The hearing took place as scheduled. The Applicant was represented by counsel. The panel considered the dossier provided by the Secretary of State which at that stage contained 472 numbered pages. The panel also considered oral evidence from the following witnesses in the following[13]The COM had recently been promoted so another probation officer will need to be appointed in his place.[14]On this occasion the professional witnesses were all of the view that the Applicant had successfully reduced his risk to a level which would be manageable on licence in the community, and they all recommended his re-release on licence. The panel did not agree. They did however recommend that he should be transferred to an open prison.[15]The panel’s decision was, to a significant extent, affected by their assessment of the Applicant’s own evidence, by which they were not impressed. That is a matter which will be discussed in detail below. The Relevant Law The test for release (or re-release) on licence[16]The test for release or 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[17]Under Rule 28(1) of the Parole Board Rules 2019 (as amended in 2022) 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.[18]Reconsideration will only be directed if one of more of the following three grounds is established:(a) It contains an error of law;(b) It is irrational;(c) It is procedurally unfair.[19]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, as in this case, (Rule 25(1)); or(iii) An oral hearing panel which makes the decision on the papers (Rule 21(7)).[20]The decision of the panel in this case not to direct release on licence is thus eligible for reconsideration. As will be explained below it is made on the grounds of irrationality and procedural unfairness. No error of law is suggested. The test for irrationality[21]In R (DSD and others) v the Parole Board [2018] EWHC 694 (Admin) (the “Worboys case”), the Divisional Court set out the test for irrationality to be applied in judicial reviews of Parole Board decisions. It stated at paragraph 116 of its decision:
“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.”
[22]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.[23]The Administrative 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.[24]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 . Procedural unfairness[25]Procedural unfairness means that there was some procedural impropriety or unfairness resulting in the proceedings being fundamentally flawed, thereby 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 focuses on the actual decision).[26]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;(c) A failure to allow one party to put its case properly;(d) A failure properly to inform the prisoner of the case against him or her; and/or(e) Lack of impartiality.[27]Other things may also amount to procedural unfairness, and the overriding objective in any consideration of a prisoner’s case is to ensure that his case is dealt with fairly. Observation of hearings by victims (‘victim’, for the purposes of the Parole Board Rules and Guidance, and of this decision, includes not only the immediate victim of the prisoner’s crimes(s) but also any of their family members, friends or supporters who wish to observe the hearing)[28]This case raises important issues about the relatively new procedure by which a victim may be permitted to observe a parole hearing.[29]Successive versions of the Parole Board Rules have for many years contained provisions (currently Rule 14 as amended) relating to the attendance of observers at parole hearings. If either party wishes to be accompanied by an observer they must make an application to the Board and serve it on the other party, who may make representations about it, and the panel chair then makes a decision whether or not to permit the observer’s attendance. Under the current Rules any other person may also apply to be permitted to attend as an observer.[30]Until recently observers were typically professionals (probation officers, prison officers, lawyers, psychologists, psychiatrists, members of the Board or of the Board’s secretariat) who wished to obtain some experience of parole hearings.[31]Until the COVID pandemic hearings almost always took place to place face to face at the prison where the prisoner was detained, so any observers would attend there. The prisoner was always asked whether they had any objection to the presence of an observer, and if they did the panel chair would make a decision whether or not to permit it. Usually the prisoner did not object but occasionally they might do so on the basis, for example, that they would be uncomfortable if there were going to be too many people in a small hearing room. The observer(s) played no part in the proceedings.[32]In due course matters were formalised by Guidance issued by the Board. The Guidance applicable at the time of the oral hearing in this case had been issued in August 2019. In that and earlier versions of the Guidance no mention was made of victims attending hearings as observers.[33]With the permission of the panel chair one or more victims might attend the hearing room, before the hearing began, for the reading of a victim personal statement (‘VPS’) but after that was done they would withdraw and play no further part in the proceedings. The prisoner was entitled to be present for the reading of the VPS but was not obliged to do so.[34]One reason why victims were not permitted to observe the hearing itself was that it was recognised that their presence might be disconcerting to the witnesses (especially the prisoner) and prevent them from ‘giving their best evidence’.[35]The 2019 Guidance set out a number of principles which should be followed when applications are made for the attendance of observers. Those principles include the following: ‘Observers will be permitted to attend only for a professional purpose or a purpose connected to the parole process’. ‘In deciding whether to permit an observer, the panel chair will have due regard to fairness to the prisoner and the effectiveness of the hearing, including the need for the prisoner and witnesses to feel at ease’.[36]During the COVID pandemic, oral hearings took place remotely by video link and that practice has now been continued in most cases (though face to face hearings are held where there is a specific reason for that to happen, for example where the prisoner has mental health difficulties). A VPS can now be read over a video link or pre-recorded and played at the start of the hearing.[37]As a result of the Board’s developing commitment to transparency, two important changes have recently taken place in its procedures. One is that public hearings may take place (this has so far only happened in a few cases). The other is that the Parole Board and His Majesty’s Prison and Probation Service (‘HMPPS’) are piloting a scheme under which victims (but only with the permission of the panel chair) can observe the proceedings (usually remotely by live streaming).[38]New Guidance has now been issued (in March 2024) which contains provisions relating to the attendance of victims as observers. That Guidance was not in force at the time of the hearing in this case. Panel Chairs were therefore operating under the 2019 guidance, adapting it as appropriate where necessary.[39]Although the new Guidance was not in force at the time of the hearing in this case it is of some interest that it repeats the statement in the 2019 Guidance that ‘ In deciding whether to permit an observer, the panel chair will have due regard to fairness to the prisoner and the effectiveness of the hearing.' It adds this: 'This includes the need for the prisoner and witnesses to feel able to participate freely and effectively and to give best evidence.’[40]Among further matters which the new Guidance says the Panel Chair should take into account are ‘ Any particular circumstances or characteristics of the prisoner or the hearing that indicate observers should be limited or refused. For example, observers other than those requested by the prisoner may not necessarily be appropriate for hearings involving a vulnerable prisoner.’ Observation in this case by Mr B (the son both of the victim and of the murderer)[41]On 22 November 2023 the Public Protection Casework Section of the Ministry of Justice (‘PPCS’) on behalf of the Secretary of State submitted an application for Mr B to be permitted to observe the hearing. The Applicant’s solicitors responded as follows:
‘ We have taken instructions from [the Applicant] who does not object in principle to the victim observing the hearing, although concerns are raised in respect of any discussion as to the area of release. [The Applicant] is concerned about the disclosure of the area or release address if the panel direct release.’
[42]The Applicant’s concern was a reasonable one. There have been instances of released prisoners being tracked down and subjected to threats or violence or inappropriate media attention. I have no reason to think that Mr B would be contemplating any such things but it was sensible for the Applicant and his solicitors to express their concern.[43]The Panel Chair’s ruling on the application was as follows:
‘ The victim’s request to observe the hearing is agreed by the panel provided the victim is supported by a HMPPS Victim Support Representative throughout the proceedings. The guidance allows for aspects of the hearing to be held “in camera” (in private) and this will be accommodated. Areas to be dealt with in camera will be dealt with and agreed with the witnesses before the live streaming is initiated.’
[44]On 18 January 2024 a Case Conference was held at which agreement was reached on a number of procedural points for the hearing. These were recorded by the panel chair and included the following:
‘[The POM] confirmed that a VPS from [Mr B] had been received … and would be added to the dossier. The panel agrees to the VPS to be read by [Mr B] and a separate link will be provided for 10 am dealing with this with the hearing starting at 10.30 am. [The Applicant] is to advise whether he intends to be present for this. ‘The panel clarified and agreed the following points with each witness in attendance: ‘[The Applicant] confirmed that [he] had no objections to the evidence of his custodial progress being discussed in the hearing but requests that details of the risk management plan, the addresses of the AP [a probation hostel where the Applicant would be required to reside if he was released on licence] and move-on accommodation, and the names of any former partners/family are not discussed while the victim is present. This is agreed. ‘[The Applicant’s solicitor] advised that [the Applicant] is keen to avoid any upset to the victim’s son. He also advised that he does not feel comfortable in discussing the index offence in the victim’s presence. [The solicitor] questioned the need for this, submitting that the previous hearings had taken place and the panel would have a good understanding of his risks. This may be so, however given the co-panellists were not in attendance, the panel chair will revert on this point at the hearing. ‘[The victim representative] confirmed that [Mr B] has requested that if and when [the Applicant] is asked about the index offence, he would want to remain present in order to understand the reason why the offence was committed. [The solicitor] agreed to speak to [the Applicant] and take instructions on this point. Similarly the Chair will discuss this point with the co-panellists in pre-hearing discussions on the day. ‘It is agreed by all parties that the Prison Name will not appear on screen. It is noted that [Mr B] has tried to locate [the Applicant] on the ‘Find the Prisoners’
App. Whilst this has been addressed by probation directly with [Mr B], the panel agrees that the prison identification should be removed. The name will appear on the side panel but this will not be visible to [Mr B]. ‘The introductions will take place before the streaming starts, however once the streaming begins no parties will be referred by name, only by role. ‘[The psychologist] requested that she be permitted to give her evidence by audio only. This is because she does not feel comfortable giving evidence on video. [The POM] made a similar request. [The victim representative] commented that the victim should be given the opportunity to see the parties, especially [the Applicant]. Whilst the panel understands the victim’s request, it is important that all the witnesses/parties are able to give their best evidence and without anything that may hinder this. It is common practice for hearings to be conducted by telephone and the panel assured [the victim representative] that this would not affect the quality of the evidence taken or the decision.’[45]On 22 January 2024 the Applicant’s solicitors informed the panel that the Applicant did not object to being on camera himself or to any line of questioning in respect of the murder taking place in the presence of Mr B. The Applicant also confirmed that he would be present for the reading of the VPS. The request for reconsideration[46]The request for reconsideration was made on 28 February 2024. It is supported by representations from the Applicant himself and by legal submissions made by his counsel. Counsel submits that the panel’s decision was both irrational and procedurally unfair. The grounds submitted fall under the following two heads: GROUND 1 - Irrationality: the panel acted irrationally in failing to consider the impact that giving evidence in the presence of the victim observer had on the quality of [the Applicant’s] presentation. It placed insufficient weight on the evidence of the professional witnesses. GROUND 2 - Procedural unfairness: the Parole Board failed to give adequate reasons for its decision to depart from the unanimous recommendation of the professional witnesses . The Secretary of State’s position[47]The Secretary of State (‘the Respondent’) is a party to all parole proceedings, the other party being the prisoner. As a party the Respondent is entitled to submit representations in response to a request by a prisoner for reconsideration of a panel’s decision.[48]In this case PPCS on behalf of the Respondent indicated by e-mail on 5 March 2024 that he offers no representations in respect of this application. Documents considered[49]I have considered the following documents which have been provided for the purpose of this application:(a) The dossier provided by the Respondent for the Applicant’s case, which now runs to 478 numbered pages;(b) A copy of the panel’s decision letter;(c) The representations submitted by the Applicant himself in support of this application;(d) The submissions of the Applicant’s counsel in support of this application; (d) The e-mail from PPCS referred to above; and(e) The Parole Board Guidance on Observers (2019 and 2024 versions). Discussion[50]I have not found this an easy case to decide. As counsel has pointed out we are in the early stages of the new policy on observers and there are no precedents for me to follow.[51]The first question which I have to decide is, I believe, whether the presence of Mr B observing the hearing put the Applicant at an unfair disadvantage when it came to giving his own evidence (by making him ‘unable to give his best evidence’ or, to use another expression sometimes used in situations of this kind, ‘unable to do himself justice’). Both expressions have much the same meaning. If the Applicant was placed at an unfair disadvantage, that will amount to procedural unfairness (however unintended) for the purpose of Rule 28.[52]Reconsideration is a discretionary remedy and, if I decide that there was procedural unfairness, I must go on to consider whether I should exercise my discretion to direct reconsideration of the panel’s decision. In practice that means that I must decide whether that decision would have been the same if the procedural unfairness had not occurred. It is well established that reconsideration should not be directed if, although there was some procedural unfairness, it could have had no effect on the outcome of the case.[53]These issues are not easy to resolve. There are a number of areas of evidence which I have considered in order to resolve them. The Applicant’s mental health[54]The Applicant has had long-standing mental health difficulties. Many years ago he was diagnosed as suffering from Post-Traumatic Stress Disorder (‘PTSD’), and he has suffered from episodes of anxiety or depression throughout his sentence.[55]It is worth noting the following passage in the psychologist’s report which describes the Applicant’s presentation on the first two occasions when she met him:
‘During the consent meeting, [the Applicant] initially presented as quite anxious. He was open about his anxiety from the outset, which enabled us to explore how we could alleviate this. As this meeting progressed, he became increasingly less anxious and also acknowledged this. This presentation repeated during the first interview, but I considered that he presented as quite calm from the outset and throughout the second interview. ‘[The Applicant] acknowledged this and recognised that he is often anxious during the anticipation of a difficult situation but then calms down when he “gets into it”. [The Applicant] was polite and cooperative throughout. There were times when he presented with greater emotion, such as when discussing [the murder]. I considered that [he] was detailed in his responses and keen to explore and understand his difficulties. It is my opinion that [he] was able to articulate his thoughts and emotions sufficiently.’
[56]One of the factors which the psychologist had to consider as part of her psychological risk assessment was the past or present presence (or absence) of any ‘major mental disorder’. She wrote:
‘Major Mental Disorder is assessed as present in the past and relevant to risk management. It is documented that [the Applicant] has been diagnosed with [PTSD] as well as anxiety and depression …. [his] difficulties with mental health have required trauma therapy to reduce symptoms …. ‘This factor is assessed as partially present recently. Although [the Applicant] continues to suffer with anxiety, he is able to describe coping strategies he uses to manage these and how they help him to tolerate and alleviate negative emotions (e.g., breathing exercises, reviewing positive quotes and focusing on positives, shifting his thinking to prevent rumination and going to the gym regularly).’
[57]For any prisoner, giving evidence at a parole hearing is always a stressful experience, even if it is not aggravated by other factors. The Applicant’s mental health difficulties are certainly relevant factors in my assessment of this case. The steps taken by the Panel Chair in preparation for the hearing[58]I am satisfied that the Panel Chair’s handling of an unfamiliar situation was impeccable. She made appropriate directions with a view to ensuring the fairness of the hearing.[59]As stated in the introductory section of the panel’s decision the Panel Chair was keen to ensure that each witness was able to give their best evidence and she ascertained the preferences of the witnesses about how they wished their evidence should be taken.[60]The POM agreed to attend in person at the prison with the Applicant to lend him some support: she was therefore content to be ‘on camera’. The psychologist and the COM both wished to attend remotely and ‘off camera’. The Panel Chair agreed to those requests.[61]As regards the Applicant, the Panel Chair and the Applicant’s solicitor both engaged sensibly and constructively in the Case Conference which she had, as described above, arranged. She dealt fairly and appropriately with the points raised by the Applicant’s solicitor and the victim representative about the sensitive issue of the questioning of the Applicant about the murder. The Applicant and the panel members were, of course, ‘on camera’ throughout the hearing.[62]The Panel Chair was not, of course, in a position to foresee what would be the effect on the Applicant of(a) seeing and hearing the VPS being read out by Mr B and then(b) being aware that Mr B was seeing and hearing most of his own evidence. That was a matter which might or might not become clear as the hearing progressed. The reading of the VPS by Mr B[63]Mr B’s VPS is an impressive document describing in great deal the impact which his mother’s murder has had on him. It also expresses his fear that on his release the Applicant would look to further his vengeance and kill him. The Applicant, as agreed, was present for the reading of the VPS, which was visible on the screen for the Applicant and everyone else to see. It must have been a most uncomfortable experience for the Applicant. The hearing[64]To gather as much evidence as possible in order to be able to make a decision in this case I obtained and listened to the recording of the hearing.[65]The first witness to give evidence was the POM. She had not supported the Applicant’s release on licence at the 2021 hearing but told the panel that since then there had been a notable shift in his behaviour and he was now much more open and honest. Her opinion was that, with the proposed risk management plan in place, his risk would be safely manageable on licence. She had not, of course, heard the Applicant’s evidence at the hearing.[66]Next to give evidence was the Applicant. He was questioned closely by the panel about various matters including the circumstances of the murder, the circumstances surrounding his recall, his understanding of his risk factors and his plans for the future. The panel stated in their decision that they found parts of his evidence ‘implausible’ and his evidence on some points to be ‘evasive and contradictory’.[67]The next witness was the psychologist. Her opinion was (and remained) that the Applicant’s risk would be safely manageable on licence. Her comments on his presentation in giving evidence were:
‘The one thing I would say is he has appeared a little bit more anxious, like when I first met him. Not elaborating on questions where I thought he would” and “in terms of that insight and formulation. I don’t think he has explained that well at this hearing. He needs a bit more prompting. But I do think that insight is there.’
[68]The last witness was the COM. Although he acknowledged a number of points put to him by the panel he remained of the opinion that the Applicant’s risk could be safely managed on licence. His comment on the Applicant’s presentation was that he thought that his nerves had got the better of him, he had not been as fluent as usual.[69]When I listened to the recording of the hearing the Applicant’s lack of fluency and inability to elaborate on questions were very noticeable.[70]The Applicant himself says in his personal representations:
‘ I do not think I gave my best evidence at the hearing and did not realise how much impact seeing [Mr B] would have upon me. I was not prepared for seeing him face to face and had been prepared only for him to be present at the hearing but not being on the screen. My head went and my thinking was all confused. His victim impact statement also was so difficult for me to hear - the horror of what I have done to him and others is something I struggle with every day but it was overwhelming for me on the day of the hearing. I don’t think I was able to recover following this.’
Naturally a statement of this kind by a prisoner seeking reconsideration must be viewed with caution. Counsel’s dilemma and his closing submissions[71]Counsel, who was clearly well aware of the shortcomings in the Applicant’s evidence and believed that they were likely to have been due to Mr B’s presence as an observer, would have had two options open to him. One would have been to submit to the panel that the hearing had clearly become an unfair one and that it should be discontinued, with a fresh hearing taking place with a different panel and without Mr B observing. The other was to submit that, when assessing the Applicant’s evidence and making their decision, the panel should take account the impact of Mr B’s presence on him.[72]I do not know, of course, whether counsel considered the first course. If he did, I am not surprised that he did not go down that road. He would not have known what views the panel had already formed, and they might have been favourable to his client given that all three professional witnesses were still supporting the Applicant’s release on licence. Asking for a rehearing is an unusual and extreme course which involves an undesirable delay, and it carries with it its own difficulties and risks. At all events counsel decided to go for the second option and cannot be criticised for that.[73]As is not uncommon in complex cases, it was agreed that counsel would submit his closing submissions in writing. They are in the dossier. His submissions included the following:
‘This hearing took place under new measures which permit the victim to observe proceedings. As a preliminary point, [the Applicant] has asked that the panel take into account the impact that the observation had on him. I, and the panel, checked in on [the Applicant] at intervals to assess whether the quality of his evidence was affected by the observation. [The Applicant] was also given the opportunity to speak briefly in the absence of the victim. [The Applicant] agreed to the victim observing the hearing What he asks is that the panel take into account, in considering his presentation, that he was under the additional strain of having the victim present. In particular, the panel is invited to be cautious about drawing any adverse conclusions solely from his presentation at the hearing.’ ‘Notwithstanding all of the above, [the Applicant], on reflection, has identified that the involvement of the victim had a significant impact on him. He had not appreciated the fact that he would see the victim on camera and the impact that this would have on him emotionally. He felt extremely anxious and nervous before the hearing and, as he said to the panel in evidence, was not fully able to put it out of his mind that the victim was watching. This is supported by the evidence of the POM and the Prison Psychologist, who both noted that [the Applicant] did not present in as relaxed and open a way as they might expect. ‘This is a new procedure, and it is likely that it will develop in future in response to the evidence of future hearings. It is inevitable that victim involvement in proceedings will have some impact on the prisoner, and we are still in relatively unknown procedural waters in this regard. What he asks is that the panel take into account, in considering his presentation, that he was under the additional strain of having the victim present. In particular, the panel is invited to be cautious about drawing any adverse conclusions solely from his presentation at the hearing.’
The panel’s decision[74]The panel’s decision is comprehensive and covers the evidence and the panel’s conclusions in detail. What is noticeable is that, although the panel state that they have been assisted by counsel’s submissions, they make no reference at all in their decision to counsel’s request (at the outset of those submissions) that the panel should take into account, in considering the Applicant’s presentation, that ‘h e was under the additional strain of having the victim present. In particular, the panel is invited to be cautious about drawing any adverse conclusions solely from his presentation at the hearing. ’ It is therefore unclear whether the panel took account of the points made by counsel, and if so how much weight they attached to them. Conclusions on the effect of Mr B’s presence on the Applicant[75]I have carefully considered all the evidence available to me on this issue, including the recording of the hearing.[76]The direct evidence on the issue is the statement by the Appellant himself in his representations in support of his application for reconsideration of the panel’s decision. Viewed on its own that statement might not carry much weight, but it is supported by the observations of the psychologist and the COM, who had the advantage of having known the Applicant over a significant length of time and who certainly noticed a significant difference between his presentation in his conversations with them and his presentation at the hearing. The panel members, of course, did not know the Applicant and were therefore not able to compare his presentation at the hearing with his normal one.[77]The Applicant’s susceptibility to stresses of one kind or another is a significant factor which needs to be taken into account. He had agreed to being present for the reading of the VPS by Mr B but clearly did not anticipate that that would be such a traumatic experience. He had also agreed to Mr B’s presence observing the hearing itself but again clearly did not anticipate the impact which that would have on him.[78]The Applicant’s counsel was sufficiently concerned by the effect which he could see Mr B’s presence was having on the Applicant to put in the forefront of his closing submissions the request to which I have referred above.[79]In all these circumstances I am persuaded that, without anybody being at fault in any way, Mr B’s presence as an observer - coming as it did after his reading of the VPS - did result in the Applicant being unable to do himself justice in giving evidence and he was therefore placed at an unfair disadvantage. Would the panel’s decision have been the same if Mr B had not been observing the Appellant giving his evidence?[80]Most if not all of the aspects of the Applicant’s evidence on which the panel made adverse comments in their decision are consistent with having been the result of the Applicant having been placed in a position where he was unable to do himself justice and give his best evidence. I cannot therefore be satisfied that the panel’s decision would have been the same if Mr B had not been present observing. Other matters[81]I should comment on two other matters in counsel’s submissions.[82]Counsel treats the unfair impact of Mr B’s presence on the Appellant as providing a ground for reconsideration on the basis of irrationality: he submits that the panel attached insufficient weight to the evidence of the professional witnesses about the Applicant’s presentation. I prefer to treat it as a ground for reconsideration on the ground of procedural unfairness but, whichever route to reconsideration applies, the end result is the same: the case must be reconsidered.[83]The other ground advanced by counsel is that the panel’s decision was procedurally unfair because the panel failed to give adequate reasons for departing from the unanimous recommendations of the professional witnesses. A complaint of this kind is usually presented as one of irrationality but again, if the complaint is substantiated, the end result would be the same whichever ground applies.[84]In fact I do not think that this particular complaint is substantiated. The panel’s various criticisms of the Appellant’s evidence do, I think, amount to adequate reasons for not directing his release on licence. The difficulty with them is that they are undermined by what I have found to be procedural unfairness. Decision[85]For the reasons which I have set out above, my decision is that(a) there was procedural unfairness within the meaning of Rule 28 and(b) the panel’s decision might have been different if that unfairness had not occurred. I must therefore exercise my discretion to direct reconsideration of this case.[86]I should stress that there was no unfairness on the part of anyone involved in the case. The unfairness was the result of a combination of circumstances beyond the control of any of the participants.[87]The new system which is being piloted, and which enables the victim to learn more about the prisoner’s crime and his progress in prison, is valuable and important but there will occasionally be cases (like this one) where the presence of a victim observer will prevent the prisoner from giving his best evidence and thus prevent him from having a fair hearing. In these rare cases the only way of achieving justice is to give the prisoner the chance to have his case considered afresh without the victim observer being present. The system will then have achieved its purpose of enabling the victim observer to learn more about the case whilst enabling the prisoner to have a fair hearing and justice to be done.[88]I am sure this will be explained to Mr B and he will be assured that the fact that he will not be observing the new hearing is no reflection on him. He will, I am sure, want the Applicant to have a fair hearing and to be re-released on licence if, but only if, the new panel is satisfied that his continued confinement in prison is no longer necessary for the protection of the public.[89]There is no reason why, if he wishes, Mr B should not read his VPS to the new panel but not in such a way that he and the Applicant can see each other. Jeremy Roberts 28 March 2024

order

(a) the probation officer responsible for supervising the Applicant in prison [‘the POM’];(b) the Applicant himself;(c) a prison psychologist who had carried out a structured assessment of the Applicant’s risks [‘the psychologist’]; and(d) the probation officer prospectively responsible for supervising the Applicant in the community if he was re-released on licence [‘the COM’].