Brooks, Application for Reconsideration [2024] PBRA 72 (23 April 2024) [2024] PBRA 72

PBRA

Brooks, Application for Reconsideration [2024] PBRA 72 (23 April 2024)

[2024] PBRA 72 · 2024-01-23

[1]This is an application by Brooks (the Applicant) for reconsideration of a decision of a MCA Member (the MCA Member) of the Parole Board dated 23 January 2024 (the Decision) not to direct his release.

[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 that(a) the decision contains an error of law,

(b) it is irrational and/or

[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 14 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 438 pages.

[4]The grounds for seeking reconsideration are that the MCA Member acted in a procedurally unfair manner:a. by failing to apply the principles explained by the Supreme Court in Osborn, Booth & Reilly v Parole Board

[2013] UKSC 61

,[2014]1 AC 1115 which would have shown that the Applicant's claim should have been resolved by an oral hearing and not by a paper hearing bearing in mind that

(i) there were important facts in dispute which ought to have been resolved by an oral hearing;

(ii) without proceeding to an oral hearing, there might 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 would pose;

(iv) even more anxious "scrutiny of the manageability of the risk posed by the Applicant is required in the light of the fact that the Applicant's tariff expired more than 35 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 (Ground 1); and

b. that although the decision stated that " the dossier did not contain any evidence of the progress made by the Applicant in the Progressive Regime/PIPE since [his arrival there 5 months earlier] in October 2023, [the member] dismissed the need for it by saying that the Panel is aware that a lengthier period would be required for this intervention" (Ground 2). Background

[5]On 19 December 1977, the Applicant, who was then 22 years old, received a sentence of life imprisonment for an offence of rape with a tariff fixed at 8 years. On that occasion, he received concurrent sentences of 7 years' imprisonment, 5 years' imprisonment, 5 years' imprisonment and 1 year's imprisonment respectively for offences of abducting a woman for unlawful sexual intercourse (2 counts), attempted rape, and common assault. These index offences were all committed in four incidents in July 1977.

[6]The rape offence occurred when the Applicant forced his way into the back seat of a car driven by a 19 year old girl as she was leaving a public car park. He told her that he had a knife (which was not true) and he forced her to drive to a block of multi-storey garages where he raped her in the back of the car. He then made her drive to a place where he left the car.

[7]The second incident occurred on another occasion in July 1977, the Applicant forced his way into a car about to be driven by a young woman whereupon he threatened the driver with a non-existent knife. The driver began to drive away but she jumped out and started to scream after the Applicant had asked her for 10 pence for his bus fare.

[8]The third incident in July 1977 occurred when the Applicant accosted a young woman who was about to drive away telling her that he had a knife as he tried to force his way into the car. When the car jerked forwards, the Applicant fell over and he ran away.

[9]The fourth incident happened on another occasion in July 1977 when the Applicant approached a young woman as she was about to drive away from a car park. He grabbed her from behind before threatening her with a knife and demanding from her 10 pence for his bus fare. When he received that money, the Applicant ran off.

[10]During the sentences, the Applicant had been released and recalled three times. The first release took place in December 1993 but he was recalled in September 1997 after probation received reports that the Applicant had raped and assaulted his partner and ransacked her flat.

[11]The second release took place in July 2000, but the Applicant was recalled in August 2002 after probation had received reports that the Applicant had raped and assaulted his partner and had ransacked her flat.

[12]The third release occurred on 12 July 2011 and the Applicant was recalled in September 2012 after he had been charged with robbery and with a sexual assault for which he was later convicted and received a further sentence of 5 years' imprisonment.

[13]The Applicant spent a year in open conditions but he was returned to closed conditions on 14 December 2021. His most recent parole review before the present took place in September 2022 when a transfer to open conditions was not recommended.

[14]In October 2023, the Applicant was transferred to a prison with a progression regime. When the MCA Member made the decision which I am now considering, it was explained that " there was no detail [available] about [the Applicant's] progress [under the progressive regime] in the three months since his transfer ". The Risk Posed by the Applicant

[15]The MCA Member noted the Applicant's risk factors and a comprehensive risk management plan prepared by the Applicant's Community Offender Manager (COM) comprising a set of licence conditions which are designed to manage the Applicant's risk.

[16]The conclusion of the MCA Member was that " at present the [COM's] plan would be unlikely to be effective in managing [the Applicant's] risk, until his risks have been addressed and reduced ". The panel thought that the Applicant " is still in the very early days of participation ". The panel concluded that " it remains necessary for the protection of the public that [the Applicant] remains confined to custody, and does not direct his release ". The MCA Member's Conclusion on the need for an Oral Hearing

[17]It was noted in the Decision without giving any further reasons or explanation that:

" The panel has considered the principles set out in the case of Osborn, Booth & Reilly [2013] UKSC 61 concerning oral hearings. The panel does not find that there are any reasons for an oral hearing. Therefore, an oral hearing is declined. "

The Relevant Legal Principles 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 establish 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 MCA Member 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]In an email dated 21 March 2024 PPCS stated that no representations would be offered by the Respondent in response to the application for reconsideration. Discussion Ground 1

[22]The Applicant's case is that the Decision was reached in a procedurally unfair way by failing to apply the principles explained by Lord Reed giving the decision of the Supreme Court in Osborn, Booth & Reilly v Parole Board

[2013] UKSC 61

,[2014]1 AC 1115 which showed that the Applicant's claim should have been resolved by an oral hearing and not by a paper hearing bearing in mind that(i) there were important facts in dispute which ought to have been resolved by an oral hearing;

(ii) without proceeding to an oral hearing, there might 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 would pose;

(v) if the MCA member was in doubt as to whether to allow an oral hearing, it ought to have directed an oral hearing.

[23]Not every case will benefit from having an oral hearing and as I have explained, Lord Reed pointed out in the Osborn, Booth & Reilly case some of the circumstances in which an oral hearing would be necessary. 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 ".

[24]The Osborn, Booth & Reilly principles have to be applied in all parole review in order to decide whether the dispute should be determined by an oral hearing even if neither party specifically requested such a hearing. As Lord Reed explained in that case, the issue of whether an oral hearing should be held is closely connected to " the common law standards of procedural fairness ". So the MCA Member had to consider the issue of whether an oral hearing should be held even if the neither party had requested it. Decision

[25]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 and impressive submissions which I have received from the Applicant's representative on this Reconsideration application) acted in a procedurally unfair manner by failing to require that there should be an oral hearing when that MCA member was " able to conclude this application on the written evidence ". I have reached my conclusion for the following five reasons which individually or cumulatively show why it was procedurally unfair not to do so.

[26]First, there are a number of issues raised on this parole application in relation to which a MCA member ought to have found it necessary to hear oral evidence so as to enable the prisoner or his representative to put his case effectively and/or to test the evidence of those who have given evidence on those issues. Such issues in this case include ascertaining the risks which would be posed by the Applicant on release and that requires consideration of the extent to which " his risks have been addressed and reduced ", especially as " there was no detail [available] about the Applicant' s progress under the progressive regime] in the three months since his transfe r". These matters could only be resolved adequately and fairly by the MCA member after seeing how the Applicant and the Respondent put their contentions and how those contentions emerge after cross examination.

[27]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. It is noteworthy that the Applicant had been released and recalled three times and the panel would need to ascertain how likely it was that he would behave in a similar way and get recalled if he was to be released at the end of the hearing.

[28]Third, as was pointed out in the Osborn, Booth & Reilly case, the MCA member is obliged to give " comments or advice in relation to the prisoner's treatment needs or the offending behaviour work which is required ". To comply with this duty, the MCA member would need to hear and question those who could give evidence about the Applicant's conduct and risk so that they could comply with this obligation to give the requisite " comments or advice " specified by Lord Reed.

[29]Fourth, the Applicant's licence expired almost 39 years ago and he was sentenced in 1977 almost 47 years ago. This means that he requires ever more anxious scrutiny of the manageability of his risk; the appropriate way of doing this would be by an oral hearing in which all the evidence can be carefully scrutinized in a way that would not have been possible if the decision on release were to be taken on paper without the MCA member having the advantage of hearing the evidence.

[30]Finally, even if there is not a clear case for not having an oral hearing in this case, and this means, as explained in the Osborn, Booth & Reilly case, that in consequence, it is " prudent " to allow an oral hearing. So this supports the conclusion that this matter should be resolved by 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 that the application for reconsideration must be granted. Ground 2

[32]As I have decided to order reconsideration on Ground 1, it is unnecessary to deal with Ground 2, which is set out in paragraph 4(b) above. Stephen Silber 23 April 2024