Dalby, Application for Reconsideration [2024] PBRA 80 (23 April 2024) [2024] PBRA 80
PBRA
Dalby, Application for Reconsideration [2024] PBRA 80 (23 April 2024)
[2024] PBRA 80 · 2024-02-16
[1]This is an application by Dalby (the Applicant) for reconsideration of a decision of a panel of the Parole Board dated the 16 February 2024 not to release the Applicant or recommend his transfer to open conditions. The decision was made on consideration of the papers and an oral hearing which was requested was not ordered. On 20 February the Applicant made a request for an oral hearing. By a decision dated 11 March 2024 made by the duty member that request was refused.[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(c) that it is procedurally unfair.[3]I have considered the application on the papers. These are the decisions refusing to release or recommend a transfer; the decision to refuse the request for an oral hearing, the dossier, and the application for reconsideration. Background[4]The Applicant was sentenced to life imprisonment for murder on 22 February 2002 with a tariff of 12 years. His tariff expired on 20 February 2014. It follows that this was a post tariff review of a life sentence. Request for Reconsideration[5]The application for reconsideration is dated 28 March 2024.[6]The grounds for seeking a reconsideration are that the decision to make a paper decision and not to direct an oral hearing was procedurally unfair and irrational. It is argued that the MCA member who made the decision failed to follow the guidance set out in Osborn -v- the Parole Board [2013] UKSC 61 as to when it is fair to direct an oral hearing. If he did follow it, he failed to set out adequate reasons why on the basis of that guidance an oral hearing was not ordered. Current parole review[7]This was a post tariff expiry review which was dealt with on the papers. The Relevant Law[8]The panel correctly sets out in its decision letter dated 16 February 2024 the test for release and the issues to be addressed in making a recommendation to the Secretary of State (the Respondent) for a progressive move to open conditions and applied them in reaching its decision. Parole Board Rules 2019 (as amended)[9]Under Rule 28(1) of the Parole Board Rules 2019 the only kind of decision which is eligible for reconsideration is a decision that 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)). This application is eligible for reconsideration. Irrationality[10]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. "[11]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. Procedural unfairness[12]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.[13]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. The overriding objective is to ensure that the Applicant's case was dealt with justly.[14]In the cases of Osborn v Parole Board [2013] UKSC 61 , the Supreme Court comprehensively reviewed the basis on which the Parole Board should consider applications for an oral hearing. Their conclusions are set out at paragraph 2 of the judgment. The Supreme Court did not decide that there should always be an oral hearing but said there should be if fairness to the prisoner requires one. The Supreme Court indicated that an oral hearing is likely to be necessary where the Board is in any doubt whether to direct one; they should be ordered where there is a dispute on the facts; where the panel needs to see and hear from the prisoner in order to properly assess risk and where it is necessary in order to allow the prisoner to properly put his case. When deciding whether to direct an oral hearing the Board should take into account the prisoner's legitimate interest in being able to participate in a decision with important implications for him. It is not necessary that there should be a realistic prospect of progression for an oral hearing to be directed. The Reply on behalf of the Respondent[15]The Respondent has made no submissions in relation to this application. Discussion[16]The Applicant relied on, as part of the application for an oral hearing after the paper decision refusing release, on an article which he says supports his reasons for refusing courses which have been offered to him. I have ignored that article in reaching my decision as it was not before the MCA member whose decision is subject to the application for reconsideration.[17]The Supreme Court made it clear in Osborn that it may be procedurally unfair to reach a decision on whether to release a prisoner on parole on the papers rather than directing an oral hearing. I have therefore considered this application on the basis of procedural unfairness as I think that is the essence of the application rather than irrationality.[18]In Osborn at para 112 of the judgment Lord Reid, in providing guidance as to when an oral hearing should be directed, said ' bearing in mind.....that the continued detention of a post tariff prisoner must be justified by his continuing dangerousness as independently assessed by the board and taking account of the importance of what is at stake, it will in most cases be necessary as a matter of fairness that he should have an opportunity to appear in person before the Board'. The Court in that case also emphasised the importance of ensuring that the prisoner was able to feel involved in the process which might result in his continued incarceration. It said, ' the Board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision-making but also to reflect the prisoner's legitimate interest in being able to participate in a decision with important implications for him where he has something useful to contribute'. In Somers -v- the Parole Board [2023] EWHC 1160 (Admin) Foster J applying the principles set out in Osborn said, ' the need for a hearing to satisfy the entitlement of a prisoner to a fair consideration of his position is the stronger in the case of a post-tariff lifer and the omission to consider this aspect properly or at all is a serious omission by the Board'.[19]It may well be that the member making this decision did consider this aspect, but he has failed to set it out in the decision if he did and has not given any reason why, for this reason, an oral hearing should not have been ordered.[20]The decision starts from the basis of the previous decision dated 2 August 2022 which followed an oral hearing. That concluded in these stark terms: '[ the Applicant] now faces a stark choice. He can take on board the recommendation that he applies for transfer to the...Pathways Unit or a therapeutic community programme and be open to the potential benefits of doing so. Or he can continue to resist what has been suggested and risk stagnating in prison, potentially for many years'.[21]The Applicant has refused to undertake the courses recommended and in this instant the panel concluded for that reason that there is core work still to be carried out and therefore the Applicant remains dangerous.[22]While the Applicant maintains that approach; on the basis of this decision, he does run the risk of stagnating in prison. In my judgment it is arguable that he should have been given the opportunity to explain to a panel at an oral hearing why he has taken this view so that there remains the possibility of progress being made.[23]It may be that the MCA member did consider this but that is not made clear in his decision. I do consider that it is not clear from the decision that the guidance set out in Osborn and Somers was followed in deciding whether to send the matter to an oral hearing. Decision[24]In my judgment, for the reasons that I have given, the decision making process was procedurally unfair in that it is not clear that the application for an oral hearing was properly considered. The application for reconsideration is therefore granted and the case should be reviewed by a fresh panel by way of a paper hearing . It is necessary to have a different panel so that justice can be seen to be done. John Saunders 23 April 2024