Horan, Application for Reconsideration [2024] PBRA 67 (28 March 2024) [2024] PBRA 67

PBRA

Horan, Application for Reconsideration [2024] PBRA 67 (28 March 2024)

[2024] PBRA 67 · 2024-02-14

[1]This is an application by Horan (the Applicant) for reconsideration of a decision of a panel of the Parole Board dated the 14 February 2024 not to release the Applicant following an oral hearing on 24 January 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 application for reconsideration, the response from the Secretary of State (the Respondent), the dossier and the decision dated 14 February 2024. Background

[4]The Applicant is serving a sentence of imprisonment for public protection imposed on 28 July 2010 for the offence of kidnapping. The minimum term (tariff) which was ordered to be served before the Applicant could be considered for parole was 5 years (less time served on remand) . The tariff expired in February 2014.

[5]Mr Horan was 21 years old when sentenced and is now 34. Request for Reconsideration

[6]The application for reconsideration is dated 1 March 2024 and has been made by solicitors acting on the Applicant’s behalf. Th e application states that it is made out of time and that the reason for this is that instructions have only recently been received.

[7]Under Rule 28 of the Parole Board Rules 2019 (as amended) the time allowed for a reconsideration application is 21 days from the date the decision is provided to the parties. I have not been advised of the date that the decision was provided to the parties, but it would have been on or after 14 February 2024. The application was made on 1 March 2024 which is 16 days from the date the decision was made, accordingly it is not outside the time limit given in the rules. I do not therefore need to determine this issue.

[8]The grounds for seeking a reconsideration are that there has been procedural unfairness. This is said to have arisen by incorrect information being relied upon by the panel. The procedural unfairness is said to have occurred as follows:(i) The panel concluded that there was an unresolved inconsistency in the evidence given about a death in custody. The Applicant had provided evidence that he had entered the cell of the prisoner who died prior to his death in order to recover his own medication for an injury. The inconsistency was over which part of his body had been injured, necessitating the medication, whether it was a foot metatarsal or hand metatarsal.

(ii) A mobile telephone had been recovered from the prison which was disposed of prior to police being able to interrogate it in relation to a drug conspiracy. The panel described this telephone as being seized from him, when there was evidence that it had been found in a common area.

(iii) Security information has been given exceptional weight when there have been no adjudications arising from it.

[9]As well as the reconsideration representations, an unsigned and undated letter from the Applicant’s mother has been submitted by the Applicant’s solicitors, with reference to it being made in the representations in the following way “ Whilst we appreciate this is not the forum for personal statements - [the Applicant’s] mother has requested we submit a letter on her behalf. ” As this unsigned letter has been submitted as part of the reconsideration application I have considered it. In so far as it directly relates to the application it reiterates in more general terms the submissions made by the solicitors:

“ At his parole hearing, certain matters were brought to light written by prison officers which [the Applicant] maintains were not only untrue and did not contain evidence-based material to justify comments made.”

Current parole review

[10]The case was referred to the Parole Board by the Secretary of State on 23 March 2022. This was the fifth parole board review after the Applicant had served his minimum term. The referral was considered by a Member Case Assessment panel on 11 August 2022 when the case was referred to an oral hearing. The oral hearing was scheduled for 13 April 2023.

[11]Panel Chair Directions were issued on 14 March 2023 which directed information to be provided in respect of two enquiries into large scale drug supply into the prison and an inquest in respect of the death of a prisoner. Although some information was provided, it was both insufficient and part of it provided on the day of the scheduled oral hearing. The oral hearing of 13 April 2023 was adjourned on the day with further directions for information and updated reports from the witnesses in the light of the disclosed information. A directions hearing was scheduled for 8 August 2023.

[12]On 15 June 2023 having been notified that the Applicant had moved prisons due to security concerns, further Panel Chair Directions were made, seeking information about this. A directions hearing took place on 8 August 2023 in order to ensure the case would be ready to be heard, further directions were made in relation to security updates, a medical report, updated reports and other directions which had not yet been complied with were reiterated.

[13]On 30 October 2023 a direction which related to the disclosure of a coroner’s summing up was rescinded. On 21 December 2023 Panel Chair Directions were made which confirmed the case was ready for oral hearing, scheduled for 24 January 2024.

[14]The oral hearing took place on 24 January 2024. The hearing took place via remote video-link, before a three member panel with a judicial chair, a psychologist member and an independent member. The dossier comprised 571 pages. Evidence was heard from a police officer, head of prison security, the previous and current Prison Offender Managers, a prison psychologist, a prisoner commissioned psychologist and the Community Offender Manager. The Applicant was legally represented.

[15]Panel Chair Directions were made on 8 February 2024 adjourning the date of issuing of the decision letter due to unspecified technical difficulties. The Relevant Law

[16]The panel correctly sets out in its decision letter dated 14 February 2024 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.

[17]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)

[18]Under 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). Decisions concerning the termination, amendment, or dismissal of an IPP licence are also eligible for reconsideration (rule 31(6) or rule 31(6A).

[19]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)).

[20]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

. Procedural unfairness

[21]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.

[22]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.

[23]The overriding objective is to ensure that the Applicant’s case was dealt with justly. Irrationality

[24]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. ”

[25]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. Other

[26]It is possible to argue that mistakes in findings of fact made by a decision maker result in the final decision being irrational, but the mistake of fact must be fundamental. The case of E v Secretary of State for the Home Department

[2004] QB 1044

sets out the preconditions for such a conclusion:

“there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter; the fact or evidence must have been " established", in the sense that it was uncontentious and objectively verifiable; the appellant (or his advisors) must not have been responsible for the mistake; and the mistake must have played a material (though not necessarily decisive) part in the tribunal's reasoning.”

[27]In considering the last of those requirements, in R (on the application of Judith Watt) v London Borough of Hackney

[2016] EWHC 1978 (Admin)

, Gilbart J expressed the view (at [52]) that:

“... one must apply this criterion by asking if it is possible to say that it did not [play a material (not necessarily decisive) part in the reasoning] (in other words the test in Simplex GE (Holdings) Ltd v Secretary of State for the Environment (1989) 57 P&CR 306, albeit not in the passage cited by Carnwath LJ at [59] in E v Home Secretary). It is also the effect of the new statutory test in section 31(2A) of the Senior Courts Act 1981 as amended by Criminal Justice and Courts Act 2015.”

[28]In R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions

[2003] AC 295

, which said that in order to establish that there was a demonstrable mistake of fact in the decision of the panel, an Applicant will have to provide “objectively verifiable evidence” of what is asserted to be the true picture. The reply on behalf of the Respondent

[29]The Respondent has offered no representations. Discussion

[30]There are three different grounds for the application for reconsideration, each based on procedural unfairness. Ground 1 - Evidence of procedural unfairness - The panel stated that there was an unresolved inconsistency about whether the Applicant had injured his foot or hand.

[31]This ground relates to the evidence given by the Applicant to an inquest about a death in custody. The Applicant had entered the cell of the prisoner who died which he said was in order to recover medication for an injury. The inconsistency was over which part of his body had been injured, whether it was a foot metatarsal or hand metatarsal.

[32]The panel concluded on the balance of probabilities that the Applicant was “probably involved in some way or another in the contributory factors” to the death of a man in custody who had taken spice in circumstances where prisoners were giving increasing amounts of spice to other prisoners for testing purposes in furtherance of supplying spice on the prison wings. The Applicant had been named throughout the inquest as one of those prisoners and there was extensive intelligence that he was involved in bullying and drug dealing within the prison. The Applicant had entered the deceased’s cell three times immediately before his death, which he claimed was to obtain medication for his injury. The evidence concerning whether it was the Applicant’s foot or hand which had been injured was peripheral to the evidence which concerned the death. Whether it was his foot or hand and whether there had truly been an inconsistency in the evidence given to the inquest and at police interview did not render the hearing to be procedurally unfair. This ground is not made out. Ground 2 - Evidence of procedural unfairness - the panel stated incorrectly that a mobile telephone had been recovered from the Applicant when it had been found in a communal area.

[33]The factual matrix concerning the telephone was that the Applicant’s surname was recorded against a telephone number which had been messaged by a corrupt prison officer who was conveying drugs into prison. There was also evidence that his mother had paid money to another corrupt officer involved in the drugs conspiracy. The Applicant’s version of events, that he had no contact with the officer, had no idea why his name was on her phone, and that he had no knowledge of his mother’s actions was set out in the decision letter.

[34]The issue arises because the panel recorded in the decision letter that a mobile telephone had been “seized from him [the Applicant]” , and that any link between the Applicant via the telephone and the drug conspiracy could not be made as the phone had been destroyed by prison staff.

[35]In the dossier there is a police report that the telephone was recovered from the Applicant, however there is also a police report which bears a later date that sets out that review of the disclosure logs revealed that the mobile telephone had in fact been recovered from the association area. Many prisoners would have had access to this area. There are also representations within the dossier from the Applicant’s solicitors that the element of police evidence which states that the telephone was recovered from the Applicant should be removed from the dossier now that the police have confirmed the true position so it was plainly a live issue.

[36]In addressing this ground, I have considered the four questions identified in E . The first two considerations are that there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter and the fact or evidence must have been "established" , in the sense that it was uncontentious and objectively verifiable.

[37]It is not conceded by the Parole Board that there is a factual mistake in the decision letter as to where the mobile telephone was recovered from. I have read the documents in the dossier and also listened to the official recording of the hearing. The most recent written evidence of the police in the dossier was that the telephone was recovered from a communal area. This evidence superceded the initial report that it had been recovered from the Applicant which did not appear to be evidence based. The evidence was produced after the disclosure logs were reviewed by the police. During the oral hearing the police officer who attended was not asked about the mobile telephone nor where it was recovered from. The Applicant gave evidence that he did not have a telephone. On the basis of this evidence, I accept that the Applicant has established on the balance of probabilities both that there was a mistake as to a material fact and that the fact was established at the time that the decision letter was issued.

[38]As for the third consideration there is no evidence that the applicant (or his advisors) were responsible for the mistake.

[39]In addressing the fourth consideration, the question that I have to answer is whether the mistake played a material (not necessarily decisive) part in the reasoning of the panel.

[40]Given the extensive list of other incidents that the panel found to be of concern, including the Applicant being immediately outside a cell where a prisoner was badly beaten, him writing to a prison officer after she was remanded in custody for conspiracy to convey drugs into prison, his involvement in the death of the prisoner who consumed spice, and finally his involvement in the second conspiracy to convey drugs into prison I have considered whether it might be possible to conclude that the mistaken fact that was considered was “neither decisive nor really material” see R (Mitchell) v Secretary of State for the Home Department

[2008] EWHC 1370 (Admin)

. See also R (Judith Watt) v London Borough of Hackney

[2016] EWHC 1978 (Admin)

, at para 52 in which Gilbart J emphasised the relatively low hurdle this fourth requirement represents by holding that it should be applied “by asking if it is possible to say that it did not” play a material part (drawing a parallel with the new statutory test in s 31(2A) of the Senior Courts Act 1981). The Administrative Court has recently applied this low hurdle in R (Application of Shepherd) v Parole Board of England and Wales v Secretary of State for Justice

[2019] EWHC 3256 (Admin)

[41]The panel did not make any finding of fact that the Applicant had been a part of the conspiracy to convey drugs into prison, recording it instead as “suspicions of involvement ” . However, it is plain from the decision letter that the panel’s conclusions on risk included the recovery of the telephone from the Applicant (the mistaken fact) as part of a group of incidents which “caused the panel sufficient concern to decide to take them into account when assessing his risk as there is a serious possibility that some or all of the suspicions are warranted.” . Whilst it is a multi−faceted decision letter, the linking of the mistaken fact directly to risk in the decision letter is clear evidence that it has played a material (though not necessarily decisive) part in the panel’s reasoning.

[42]Applying the approach suggested in Judith Watt , as also applied in Shepherd , I am unable to say that the panel’s reliance upon a mistaken fact did not play a material part in the reasoning. That is not to say that it might not have been open to the Parole Board to find that the other incidents in which the Applicant was involved or linked to were sufficient for its conclusion. My task, however, is to review the decision reached on the basis of the reasoning provided and not some other possible reasoning. Undertaking that task, I am satisfied that the conditions set out in E are satisfied in this case, and therefore the decision in question must be quashed and the matter remitted to a freshly constituted panel. Ground 3 - Evidence of procedural unfairness - security information has been given exceptional weight when there have been no adjudications arising from it.

[43]It is well established that the weight to be applied to evidence is a matter entirely for the Parole Board who are uniquely placed and qualified to evaluate it. The fact that security information has not given rise to an adjudication can be for a number of reasons. Security information linking the Applicant to the drugs culture in prison has been carefully balanced by the panel in its decision, there is no evidence that the panel’s assessment of such intelligence has been procedurally unfair. This ground is not made out. Decision

[44]Accordingly, as I am satisfied that the conditions set out in E are satisfied in this case, I consider the decision of 14 February 2024 to be irrational. This decision must be quashed and the matter remitted to a freshly constituted panel by way of an oral hearing.

[45]I have given careful consideration to whether this case should be reconsidered by the original panel or whether it should be considered afresh by another panel.

[46]I have no doubt that the original panel would be fully capable of approaching the matter conscientiously and fairly. However, the question of justice being seen to be done arises again. If the original panel were to adhere to its previous decision, there would inevitably be room for suspicion that it had simply been reluctant to admit that its 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 panel.

[47]The following further directions are now made:(a) The re-hearing should be expedited.

(b) The original decision must be removed from the dossier and must not be seen by the new panel.

(d) The new panel should also be advised that the fact that this is a reconsideration should not in any way affect their decision. It is a complete re-hearing.

[48]A directions notice has been issued for the rehearing, including directions for updated reports. Angharad Davies 28 March 2024