Church, Application for Reconsideration [2024] PBRA 66 (03 April 2024) [2024] PBRA 66

PBRA
Church, Application for Reconsideration [2024] PBRA 66 (03 April 2024)
[2024] PBRA 66 · 2024-02-28
[1]This is an application by Church (the Applicant) for reconsideration of a decision of a MCA Member of the Parole Board dated 28 February 2024 (the Decision) not to terminate his IPP case licence and to refuse to hold an oral hearing on the grounds that these decisions were procedurally unfair and/or irrational.[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 18 March 2024; .(c) The email dated 21 March 2024 from the Public Protection Casework Section (PPCS) on behalf of the Secretary of State (the Respondent) stating that no representations will be offered by the Respondent in response to the application for reconsideration; and .(d) The Applicant's dossier containing 191 pages.[4]The grounds for seeking reconsideration are that the MCA member acted:(a) in a procedurally unfair manner when it failed to hold an oral hearing as was required in accordance with the decision of the Supreme Court in Osborn, Booth & Reilly v Parole Board [2013] UKSC 61 ,[2014]1 AC 1115 bearing in mind that (i) there were important facts in disputes which ought to have been resolved by an oral hearing; (ii) without proceeding to an oral hearing, there may have been information that was capable of altering the decision of the Board; (iii) an oral hearing would have allowed the Board to examine the credibility of the Applicant and give full consideration to all evidence in this case and the risk he poses; (iv) "even more anxious" scrutiny of the manageability of the risk posed by the Applicant is required in this case in the light of the fact that the Applicant's tariff expired almost 14 years ago and this scrutiny can only be applied by holding an oral hearing; and/or (v) if the MCA member was in doubt as to whether to allow an oral hearing, it ought to have directed an oral hearing.(b) irrationally in failing to take account of the relevant legal principles in decision making. Background[5]On 8 April 2008, the Applicant who was then 23 years old, received an indeterminate sentence for public protection (IPP) with a minimum specified term of two years and 31 days for an offence of robbery and possession of an imitation firearm. The term expired on 10 May 2010.[6]This offence was committed on 8 May 2007 when the Applicant together with a co-accused and disguised with balaclavas, entered a betting shop and demanded that the assistant behind the counter hand over money. The assistant was threatened with a knife held by the co-defendant and an imitation firearm held by the Applicant. Both offenders shouted and swore at the assistant before leaving with £520.[7]The Applicant explained that he owed £1200 to the person who supplied him with drugs and who was repeatedly putting pressure on the Applicant to repay the debt which he had no means of repaying.[8]He was released on IPP license on 6 February 2013 and he has not been recalled and he has remained continuously in the community since then, but he has committed 2 offences while on licence.[9]First, on 2 September 2017, a female was upstairs at her home when she heard a loud smashing noise followed by her car alarm sounding. When she looked out of her front window, she saw the Applicant throw a brick towards her red Audi A3 and the brick hit the spoiler area. The Applicant then picked up the brick again and threw it into the street before walking away. On 20 September 2017 he was fined £80 for causing criminal damage. The Applicant said that he committed this offence as retribution because the victim in this case was responsible for causing damage to the Applicant's car the previous week.[10]Second, on 8 February 2019, he was sentenced to a 12 month suspended sentence order and 3 month Drug Rehabilitation Requirement (DRR) and 10 days Rehabilitation Activity Requirement (RAR) for a burglary of a dwelling house. The police were called to a house and saw a man in a neighbouring house behaving strangely. After a short chase, a man was detained and was found to have two watches in his possession. The Applicant explained that he had been walking to the job centre when two of his friends pulled up in their vehicle and according to the Applicant, he was offered a lift which he accepted. The driver then pulled up outside the house in question and the driver explained that cannabis was being grown there and that they should break in. A window in the house had been left open and because the Applicant was the tallest, he was sent into the property. On entering the property, the Applicant realised that it was an ordinary residence, and he took the 2 watches.[11]Since his release, there are various aspects of the Applicant's lifestyle which might be relevant to his engagement with probation, especially as it was noted in the Decision that the Applicant's "engagement with Probation appears to be poor and is influenced by his views of his IPP sentence" and "the impact on supervision is relevant because it makes it difficult for probation to be aware of all that is happening in [the Applicant's] life".[12]The Decision also mentions another matter which has a relevant impact on the Applicant's supervision and that relates to the Applicant's "extreme right wing views" which "makes it difficult for Probation to be aware of all that is happening in [the Applicant's] life".[13]The Decision also explains that "probation consider [the Applicant's cannabis use] to be a relevant consideration in terms of [the Applicant's] mental health [and] there is little to show that [the Applicant] has considered a life without cannabis and, in my view, it is an area of his life he should review." The MCA Member's Conclusion on Whether an Oral Hearing was Required[14]In its conclusion, the MCA member noted that the Applicant " accepts that his views regarding a number of matters are outside the mainstream [and] his difficulties in engaging with Probation make it difficult for those supervising to assess and review what he says" . This is a disturbing matter as "he is entitled to his opinions so long as they don't evidence criminal actions. However, he is subject to an IPP licence and Probation are entitled to monitor and review what he says" .[15]The MCA member explained that he was "not minded to direct an oral hearing and [is] satisfied that I can fairly consider the application on the papers [as the Applicant] identifies matters in dispute and I am able to understand the issues that he raises [and] I am able to conclude this application on the written evidence" . I will hereinafter refer to this reason as 'the reasons for not having an oral hearing '. The MCA member's Conclusion on Whether to Terminate the IPP Licence[16]The MCA member stated that they were conscious of "the time spent on licence since release [which] is an extensive period [but] it has not been without issue." Having explained that the Applicant has committed further offences on licence and continued to use cannabis which the MCA member considered "is a matter he should review."[17]The MCA member concluded that "regardless of [the Applicant's] attitude towards Probation, he needs to evidence an ability to work openly with professionals so that there can be evidence of sustained, problem free supervision on licence [and] in the absence of this I am not prepared to terminate the licence. For the reasons I have given, in my view, it remains necessary for the protection of the public for the IPP licence to be in place" .[18]So, the MCA member decided that "the IPP licence is not terminated [and the Applicant] needs to improve his engagement with professionals and so supervision should continue" . I will hereinafter refer to this reason as 'the reason for not terminating the licence'. The Relevant Legal Principles 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. Irrationality[22]I agree with the submission of the Applicant's legal representative that in respect of irrationality, Saini J in R(Wells) v Parole Board [2019] EWHC 2710 (Admin) explained in his decision from paragraph 31 onwards that:
" 31. A modern approach to the Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 (CA) test is not to simply ask the crude and unhelpful question: was the decision irrational? 32. A more nuanced approach in modern public law is to test the decision-maker's ultimate conclusion against the evidence before it and to ask whether the conclusion can (with due deference and with regard to the Panel's expertise) be safely justified on the basis of that evidence, particularly in a context where anxious scrutiny needs to be applied. 33. I emphasize that this approach is simply another way of applying Lord Greene MR's famous dictum in Wednesbury (at 230: "no reasonable body could have come to [the decision]") but it is preferable in my view to approach the test in more practical and structured terms on the following lines: does the conclusion follow from the evidence or is there an unexplained evidential gap or leap in reasoning which fails to justify the conclusion? "
The Reply behalf of PPCS[23]In an email dated 21 March 2024 PPCS stated that no representations were being offered by the Respondent in response to the application for reconsideration. Grounds of Challenge[24]The Applicant's case is that the MCA member acted in a procedurally unfair manner and failed to comply with the directions in Osborn, Booth & Reilly when it failed to reject the application to terminate the Applicant's IPP licence without first having an oral hearing, notwithstanding, that(a) there were important facts in dispute which should have been resolved by an oral hearing;(b) an oral hearing would have enabled the MCA member to test the evidence of the Applicant and other witnesses;(c) the Applicant's licence expired almost 14 years ago and the Applicant was sentenced for the index offence almost 16 years ago and this meant that the risk posed by the Applicant should be scrutinized more anxiously and an oral hearing would satisfy that requirement.[25]Not every case will benefit from having an oral hearing and as I have explained, Lord Reed has pointed out in the Osborn, Booth & Reilly case some on the circumstances in which an oral hearing will be necessary and those factors include some of the 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[26]Having considered all the principles set out by the Supreme Court in the case of Osborn, Booth & Reilly , I have concluded that the MCA member below (who did not have the benefit of receiving the detailed submissions which I received) acted in a procedurally unfair manner when he did not require that there should be an oral hearing when he explained that he was "able to conclude this application on the written evidence" . I have reached that conclusion for the following four reasons which individually or cumulatively show why it was procedurally unfair to do so.[27]First, there are a number of issues on this parole application in relation to which a MCA member should have found 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 those issues. Such issues include consideration of the Applicant's cannabis use in determining whether it would be manageable as well as whether and how cannabis use impacts on the Applicant's mental health. Other issues which would have required the MCA member to hear oral evidence were whether the Applicant's mental health and his right wing views would adversely affect the level of serious harm he poses. These matters could only be resolved by the MCA member after seeing how the Applicant puts his case and how he emerges from cross examination.[28]Second, the Applicant's risk could not be properly appraised without an oral hearing which would enable the MCA member to ascertain the Applicant's positive and negative characteristics which can best be judged by seeing or questioning the Applicant.[29]Third, the Applicant's licence expired almost 14 years ago and he has been in the community for over 11 years. This means that he requires ever more anxious scrutiny of the manageability of his risk and the appropriate way of doing this would be by an oral hearing in which all the evidence can be more carefully scrutinized than if the decision on release was taken on the papers.[30]Fourth, this 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.[31]For all these reasons, whether considered individually or cumulatively and after taking account of all the guidance in the Supreme Court's judgment in the 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 03 April 2024

Cited in 2 later judgments