Dewar, Application to Set Aside, [2024] PBSA 62 (01 October 2024) [2024] PBRA 62
PBRA
Dewar, Application to Set Aside, [2024] PBSA 62 (01 October 2024)
[2024] PBRA 62 · 2024-09-12
[74]If an allegation could, if true, affect the Board's risk assessment, the Board's task, so far as it can on the information which has been made available to it or which it is able to obtain, is to explore the nature of that allegation and its surrounding circumstances in order to make such findings of fact as it can about either or both on the balance of probabilities. By this means the Board gives due consideration in its assessment both to the public interest and to the prisoner's interests and acts with procedural fairness.38. In other words, if an allegation is potentially relevant to risk, a panel should make reasonable enquiry and make findings of fact to the civil standard of proof if it can do so.39. Of course, not all reasonable enquiries will adduce sufficient additional information for a panel to make a finding of fact. However, the Supreme Court stated (at [78]):[78]It does not, however, follow from the Board's inability to make a finding as to the truth of an allegation in a particular case that the allegation is irrelevant and must be disregarded ... th e Board may use an allegation or allegations to test the credibility of the prisoner's account of his behaviour and, as a result of his responses, reach conclusions favourable or adverse to the prisoner without reaching a concluded view on the veracity of those allegations.40. Panels, therefore, have a responsibility to make reasonable enquiries into allegations that are potentially relevant to risk and, if unable to make a finding of fact on the balance of probabilities, may still give weight to those allegations as appropriate in its evaluation of all evidence before it. In these circumstances, a prisoner must have the opportunity to state their own position (procedural fairness) and any weight attributed must be reasonable (in the public law sense of rationality).41. In this particular case, then, the first question is whether the allegation which led to the Prisoner's recall was potentially relevant to risk. I find that it was, for the following reasons: a) The index offence involved the violent murder of a man while the Prisoner was drunk. b) The Prisoner has previous convictions for violence, including an incident of assault occasioning actual bodily harm against a partner while under the influence. c) The Prisoner admitted to drinking daily in the community to deal with boredom and low mood. d) The allegations of intentional strangulation took place after the Prisoner had been to the pub with the alleged victim. e) Alcohol misuse is a well-documented risk factor.42. The next question is whether the MCA Member discharged their responsibility to make reasonable enquiries into those allegations.43. I find that they did not. There is little primary evidence within the dossier regarding the allegations, nor the reasons for which the associated charges were dismissed at court. It would have been a relatively straightforward matter to direct primary evidence (such as witness statements and police prosecution summary) as well as clarification as to why the charges were dismissed. It would have been reasonable for the MCA Member to have done so and then, on the basis of full evidence, decided how much weight (if any) to place upon those allegations, particularly given that the Prisoner has been recalled on a life sentence.44. Therefore, I find that the MCA Member did not apply Pearce correctly and this amounts to an error of law.45. Having found an error of law is not the end of the matter. In order to set the release direction aside, I must be satisfied that the decision to direct the Prisoner's release would not have been given but for that error.46. Obviously, I cannot say whether the information that should have been directed would have resulted in the MCA Member deciding on the papers that the Prisoner was unsuitable for release. To say otherwise would be mere speculation on my part as to what that information might have been.47. It is submitted on behalf of the Prisoner that any absent information would not be " of sufficient gravitas" to result in a different decision being made.48. I therefore do not find that the failure to direct further information would have resulted in the MCA Member deciding that the prisoner was unsuitable for release.49. However, when a case is considered on the papers under rule 19(1), there are three possible outcomes: release, no release or direction for oral hearing. I must also therefore consider whether any undirected information would have led to the MCA Member deciding that the case should be directed to an oral hearing.50. Turning again to the Supreme Court in Pearce (at [75]), when further information is provided: ...the Board must as a matter of procedural fairness give the prisoner the opportunity to challenge the relevant evidence or information. If the allegation is a disputed issue of fact which is likely to be material to the outcome of the risk assessment or if issues of explanation or mitigation of accepted facts are likely to arise, the Board may, if it is reasonably practicable to do so, in compliance with its duty of procedural fairness, have to hold an oral hearing to receive oral evidence and allow cross-examination and oral submissions, before reaching a conclusion as to the truth of the allegation.51. Although there is no rule which says that allegations must only be explored at an oral hearing, I find that if the relevant information had been directed, the requirement for procedural fairness would have resulted in the MCA Member directing an oral hearing (and therefore not making the direction for release).52. Finally, in order to set the decision aside I must consider whether doing so is in the interests of justice. I find that it is. The interests of justice would not be served in releasing a recalled life-sentenced prisoner for whom there are allegations involving further violence while under the influence of alcohol which have not been properly explored and examined.53. I therefore conclude that all elements required for the decision to be set aside are made out.54. In reaching this conclusion, I find myself with some considerable sympathy for the Prisoner. His release had been directed. Had his legal representative not sought to reduce the reconsideration window, it is likely (given that the PPCS did not ultimately challenge the decision to direct release) that his release would now be in train. Unfortunate though that may be, the set aside process was initiated, and having considered the unusual circumstances of this review very carefully, I have concluded that the release decision should be set aside. It does not, of course, follow that the next panel will reach a different decision to the MCA Member, but if it does, then it will have done so thoroughly. I have no doubt that the MCA Member who made the decision that I have now set aside did so carefully and with public protection principles at the forefront of their mind.55. Finally, I appreciate that the application of the set aside rule in this instance is most likely outside the range of scenarios envisaged when the rule was drafted; nonetheless I have had to apply it 'as is'. It should not give rise to a more general 'whistleblowing' use, whereby one member can act as a check on the decisions of another. The general principle that Parole Board members are independent decision makers whose decisions are subject to various routes of challenge set out by law remains intact. Decision56. For the reasons I have given, the application is granted, and direct that the decision of the panel dated 1 August 2024 is set aside.57. I must now consider two matters under rule 28A(8). First, whether the case should be decided by the previous panel or a new panel and second, whether it should be decided on the papers or at an oral hearing.58. I direct this case to a new panel.59. I have also considered whether an oral hearing is necessary considering the principles in Osborn v Parole Board [2013] UKSC 61 . For the reasons set out above, I consider that it is. Stefan Fafinski 01 October 2024