Whitehead, Application for Reconsideration [2024] PBRA 79 (22 April 2024) [2024] PBRA 79

PBRA
Whitehead, Application for Reconsideration [2024] PBRA 79 (22 April 2024)
[2024] PBRA 79 · 2024-03-05
1. This is an application by Whitehead (the Applicant) for reconsideration of a decision of a panel of the Parole Board dated 5 March 2024 (the Decision) not to direct his release and not to recommend him for open conditions.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 dated 26 March 2024.(c) The email dated 2 April 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 422 pages.4. The grounds for seeking reconsideration are that the panel acted in a procedurally unfair manner and/or an irrational way after it decided to continue with the Applicant’s hearing without waiting for the result of an ongoing and uncompleted mental health referral of the Applicant, notwithstanding, that such a referral was required in order for the panel to make a proper assessment of the risk posed by the Applicant and his future treatment. This was potentially very important material as the Applicant is a post tariff life sentence prisoner and the Board is required to scrutinize with particular care ongoing post tariff detention of such prisoners including the Applicant. I will start by considering if the panel acted in a procedurally unfair manner.

Background

5. On 10 December 2012, the Applicant, who was then 23 years old, received an indeterminate sentence of imprisonment for public protection for an offence of rape of a male aged 16 years or over with a minimum tariff of 4 years. On the same day, he received concurrent determinate sentences of(a) 5 years’ imprisonment for an offence of false imprisonment;(b) 42 months’ imprisonment for an offence of assault occasioning actual bodily harm;(c) 4 years’ imprisonment for an offence of committing a sex act when aged more than 18 years old on a female child aged between 13 and 17 years by penetration.6. According to the PNC, the Applicant has a criminal record dating back to 2001 when he was aged 11. He has 36 convictions for 70 offences including his index offences as well as failing to surrender to custody, breached supervision, curfew, community orders, breached anti–social behaviour orders and suspended sentence orders.

The Referral of the Applicant’s case to the Parole Board

7. The Secretary of State referred the Applicant’s case to the Parole Board on 25 October 2002. An MCA member had adjourned the case on 3 May 2023 to allow a psychological assessment to be completed. On 21 August 2023, an MCA member directed his review to an oral hearing.8. A deferral request had been made on 27 February 2024 in advance of the oral hearing on the grounds that that mental health referral was still being considered with the nursing team, who were due to meet with the Applicant. The Applicant was also awaiting the outcome of a referral for a hospital placement which had been made on 4 October 2023; this placement had been done in order to identify a treatment pathway for the Applicant. The Respondent supported the deferral application, but the Panel Chair refused to grant the application on the grounds that there was sufficient information available in order to undertake a risk assessment and the hospital referral had been made in October 2023.9. At the start of the hearing on 4 March 2024, the Applicant’s legal representative again put forward a case for an adjournment stating that the outcome of the hospital assessment was required as the Applicant’s mental health was a main risk factor and there had been a number of different diagnoses and a distinct lack of clarity. His Offender Personality Disorder (OPD) treatment had effectively been stopped awaiting the outcome of the hospital assessment. It was contended that there existed a distinct lack of clarity about the Applicant’s primary risk factor and that the Applicant does not effectively have a pathway in custody given that the prison has been unable to complete his Assessment and Treatment Needs Analysis (ATNA) which provides a comprehensive review of risk and personality. The Applicant’s legal representative stressed that the Applicant had received a new diagnosis and the need for treatment was very clear. Her submission was that it was essential to understand the Applicant’s treatment pathway and she pointed out that the Respondent had not raised any objection to the request for a deferral.10. The panel were informed by the Applicant’s Prison Offender Manager (POM) that hospital medical staff had visited the Applicant two weeks earlier and that the next stage of the assessment would be for a nursing team to meet with the Applicant but a date for a further meeting had not then been arranged.11. A short adjournment had taken place to allow the panel to review the new information. It noted that the referral for a hospital placement had been made in October 2023 to determine a treatment pathway for the Applicant either in hospital or in prison with no clear or defined timescales for the completion of the assessment. It was pointed out that the hospital referral process would not form a risk assessment and as such, the panel did not consider it necessary to await their outcome in order to make their own risk assessment.12. In deciding that the oral hearing should go ahead, the panel noted that the Applicant appeared to be relatively stable in his presentation and wanted to talk to the panel and to answer questions. He would be supported at the hearing by his POM and his psychologist who were in the same room. Much information was contained in the dossier and the panel believed that they could perform the hearing with a “ light touch ” seeking the Applicant’s views and hopes for the futures and it had a duty to avoid further lengthy delays.

The Decision of the Parole Board

13. The panel considered the circumstances of the Applicant’s offending and assessed his risk factors before focusing on the events since his last review including the programme that he has done. The legal representative of the Applicant pointed out that all the professionals supported a move by the Applicant to a hospital and the Applicant expressed an interest in attending the hospital. The result of the assessment at the hospital was therefore important.14. The Panel explained the importance of the result of the hospital’s assessment in paragraph 4.7 of its reasons when it concluded that:-
“ The stabilisation work [for the Applicant] commenced in July 2023 but limited progress had been made. As a result a referral to the [hospital] had been made in October 2023 in an attempt to identify a treatment pathway for him. The assessment process was ongoing at the time of the hearing. All of the professionals were of the opinion that this pathway would provide [the Applicant] with the optimal route to develop his emotional skills in a therapeutic environment ”.
15. In its conclusions, the Panel explained that it agreed with all the professionals who had concluded that the Applicant:
“ had further work to do in custody, and none of them had indicated that his risk was manageable in the community and the panel agreed [so] taking all the evidence into consideration, the panel determined that his risk cannot be managed in the community and it is necessary for the protection of the public that he continues to be confined”.
16. The Panel then declined to direct the Applicant’s release or recommend a transfer to open conditions .

The Relevant Law

Parole Board Rules 2019 (as amended)

17. Rule 28(1) of the Parole Board Rules provides the types of decision which are eligible for reconsideration. Decisions concerning whether the prisoner is or is not suitable for release on licence are eligible for reconsideration whether 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)).18. 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)).19. 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 .

Irrationality

20. 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. ”
21. 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.22. The application of this test has been confirmed in previous decisions on applications for reconsideration under rule 28: Preston [2019] PBRA 1 and others.

Procedural unfairness

23. 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.24. 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.25. The overriding objective is to ensure that the Applicant’s case was dealt with justly.

The reply on behalf of the Respondent

26. In an email dated 2 April 2024 the Respondent offered no representations in response to the application.

Request for Reconsideration and Discussion

27. The grounds for seeking reconsideration are that the panel acted in a procedurally unfair manner and/or in an irrational way after it decided to continue with the Applicant’s hearing, without waiting for the results of the ongoing and uncompleted hospital referral of the Applicant to be completed. That referral was important as it would have assisted the panel in making a proper assessment of the risk posed by the Applicant, as well as the nature and location of any treatment for him. I will start by considering the complaint that the panel acted in a procedurally unfair manner.28. It is contended that by failing to await the results from the hospital referral the panel acted in procedurally unfair manner as that assessment was ongoing at the time when the panel was considering the Applicant’s case and the results of that assessment would have identified a treatment pathway for the Applicant, especially as the professionals considered that “ this pathway would provide the Applicant with the optimal route to develop his emotional skills in a therapeutic environment. ”29. This assessment could well have assisted the Applicant’s case or at least have provided further relevant information about him. Therefore, by concluding his case without the benefit of having available the hospital assessment, the Applicant’s case was not dealt with fairly and so the panel’s decision must be reconsidered. The mere fact that there was other evidence available relating to the Applicant’s risk and conduct did not absolve the panel from considering whether it would be fair to proceed with the hearing without awaiting the results of the hospital referral. In other words, the Applicant’s case was not dealt with justly.30. A further or alternative reason why the panel’s decision should be considered as being procedurally unfair is that the Applicant as a post-tariff life sentence prisoner was in a category of prisoners particularly entitled to enhanced consideration and to have all relevant material provided to the panel.31. In the light of that conclusion, it is unnecessary to consider if the panel’s decision was irrational.

Decision

32. For the reasons set out above, the application for reconsideration is granted.

Sir Stephen Silber

22 April 2024