Brown, Application for Reconsideration [2024] PBRA 81 (22 April 2024) [2024] PBRA 81
PBRA
Brown, Application for Reconsideration [2024] PBRA 81 (22 April 2024)
[2024] PBRA 81 · 2024-03-07
[1]This is an application by Brown (the Applicant) for reconsideration of a decision of a panel of the Parole Board dated 7 March 2024 (the panel decision) not to direct the Applicant's release and not to recommend the Applicant's transfer to 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 panel decision(b) The Applicant's application for reconsideration of the panel decision(c) The email dated 8 April 2024 from the Public Protection Casework Section (PPCS) on behalf of the Secretary of State (the Respondent) stating that no representations will be made by the Respondent in response to the Applicant's application for reconsideration.
(e) the Applicant's dossier containing 499 pages
[4]The ground for seeking reconsideration is that the panel decision to decline to release the Applicant and not to recommend the Applicant's transfer to open conditions should be reconsidered as the panel conducted the Applicant's hearing in a procedurally unfair manner in that the Applicant was unrepresented at the hearing on 6 March 2024 and he did not receive the assistance and the guidance to which he was entitled in the Board's Guidance on Representation (the Guidance). Background[5]The Applicant was sentenced to life imprisonment with a tariff of 7 years for an offence of rape. His tariff expired on 17 October 2017.[6]At the time of the index offence, the Applicant was on licence for the offence of wounding when he had stabbed the victim. According to the panel decision, the Applicant also had previous convictions for drugs and motoring offence as well as several convictions for violent offences. He had been moved to open conditions on several occasions, but he was always returned to closed conditions, sometimes at his own request.[7]In 2022, a panel recommended that the Applicant should move to open conditions, but the Secretary of State rejected this recommendation, and the Applicant was apparently unhappy with this outcome.[8]The panel decision noted the Applicant's refusal to fully engage and that in January 2024, he refused to engage in a meaningful way with his Community Offender Manager (COM). The panel considered that the Applicant is clearly frustrated with what he regards as his hopeless situation of not being able to progress to release. The Hearing[9]The Applicant's case of procedural unfairness relates to what happened at the hearing after the Applicant had explained, at the start of the hearing, that he had chosen not to continue with using his previous legal representative to assist him with the oral hearing and the parole process. The panel chair checked with the Applicant several times as to whether he was content to go ahead with a hearing in the absence of legal representation and he said that he wanted to proceed with his application for release.[10]The Applicant also indicated that he had refused to see the dossier related to his case when it had been offered to him. He explained that his position would not change and that he did not want to see the reports. He was again asked whether he wanted to proceed with the hearing, not having had sight of any reports written about him. The panel decision recorded that he was adamant that he was content to proceed and that he felt he could have a fair hearing and he wanted to go ahead with the hearing.[11]The Applicant indicated that he would not be changing his mind in respect of not having seen the dossier or having legal representation should the hearing go ahead. The panel considered the fairness of this situation to the Applicant, noting that he had been given a good and sufficient opportunity to obtain legal representation and to read the dossier, but that he had chosen not to and wished to proceed. Following a panel discussion, the Panel concluded that the oral hearing should proceed.[12]According to the decision, at the hearing, "[ the Applicant ] did not always focus on what was being asked of him, instead pleading with all participants to 'give him a chance' and assuring them that he had changed. He was very loud in expressing his perspective and quite persistent in doing so ". The panel proceeded to discuss the Applicant's mental health explaining that he stated that "his mental health is stable, and he is not engaging with mental health support or taking any medication" . He did not agree with the assessment that "he has unhelpful personality traits" .[13]The panel concluded in respect of the Applicant that " this absence of understanding of his own personality disorder and the difficulties he has in self-management were of concern both to the COM in her evidence and to the panel in their analysis, as these relate directly to him being able to manage his own risks" . The Compliance with the Guidance[14]The case for the Applicant is that paragraphs 6 and 7 of the Guidance set out the responsibilities of the panel chair "where it is clear or has been confirmed that a prisoner is unrepresented" and so they would apply to the Panel Chair's dealings with the Applicant.[15]First, it is argued that in accordance with paragraph 6.2 of the Guidance, the panel chair should have at the very least, directed prison staff to support the Applicant in seeking and obtaining legal representation and ensured that he was provided with a copy of the 'easy read' Parole Board guide and other guides "if those appear not to have already been provided" . These guides were intended to assist unrepresented prisoners, especially as they were unlikely to know how to conduct themselves at the hearing and above all how to ensure they do their best to further their own interests. It was contended that these provisions had not been complied with and contrary argument has been advanced.[16]Second, it is contended that the panel chair had not complied with paragraph 6.3 of the Guidance which provides that, if a prisoner appears to be unrepresented (as was the case of the Applicant) then the directions "should set out the reasons section of the template in language that is as accessible as possible" . No contrary evidence or argument has been adduced.[17]Third, paragraph 6.4 of the Guidance proceeds to state that: " The reasons section of the panel chair directions template should highlight that the unrepresented prisoner should read the dossier and prepare for the hearing; to think about any questions they have about what they read; and bring the dossier and a note of anything they want to say to the hearing ".[18]The Applicant's case correctly states that there is nothing in the short/undetailed panel chair directions to suggest that this guidance has been followed. I am encouraged to conclude that these points of the Applicant are correct as nothing to undermine them has been put forward in the Respondent's response to undermine the Applicant's case on these points or indeed undermine any submissions of the Applicant in support of the contention that there has been procedural unfairness in the proceedings which led to the Panel Decision.[19]Fourth, paragraphs 7.1 to 7.5 of the Guidance provide details as to how the panel chair should open a hearing with an unrepresented prisoner. Paragraph 7.4 outlines a series of specific points of good practice for the panel chair to consider. The most relevant of these points in this case would be:(a) ascertaining the prisoner's readiness, the availability of their paperwork and their capacity to proceed;(b) helping prepare the prisoner by explaining the rudiments of the oral hearing process;(c) outlining the oral hearing process in sufficient detail to enable the prisoner to take a full part in proceedings; and(d) ensuring the same timetable and dossier contents have been seen by the prisoner (and, if not, allowing the prisoner adequate time to read essential copied materials).[20]The decision letter gives little, to no reassurance that these points of good practice were considered and explained in sufficient detail to the Applicant. Furthermore, the Respondent has not suggested in its email of 8 April 2024 in answer to the Applicant's application that the panel chair had complied with these requirements of good practice.[21]In all the circumstances it is argued that it was procedurally unfair to proceed with the hearing. It is noteworthy that the Applicant told the panel that he had not read the dossier and 'did not want to see the reports' . The COM outlined in her evidence that she was concerned about his ability to self-manage and focused on the Applicant's " absence of understanding of his own personality disorder ". The Relevant Law Parole Board Rules 2019 (as amended)[22]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)).[23]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)).[24]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[25]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. "[26]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.[27]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 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. 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. Conclusion[31]As has been explained, Paragraphs 6 and 7 of the Guidance set out a series of carefully drafted provisions which are aimed at ensuring that an unrepresented prisoner receives as much assistance as possible in presenting his or her case at Parole Board proceedings so as to reduce the disadvantage he or she is under in the parole hearing as a result of not being represented. These provisions are aimed at educating the unrepresented prisoner in how to present his or her case in the most effective way possible and how to prepare for the hearing.[32]In other words, these provisions of the Guidance ensure that the panel chairs and panel members provide invaluable assistance carefully described in the Guidance to the unrepresented prisoner so that he or she can present his or her case in the most effective way possible. They are important provisions that must not be disregarded.[33]It follows that if the panel chairs do not provide this important assistance specified in Paragraphs 6 and 7 of the Guidance, the Applicant's case will not be dealt with justly. That is the position in the present case and so the Applicant has been placed at a disadvantage with the consequence that I hereby order that the panel decision should be reconsidered. Decision[34]For the reasons set out above, the application for reconsideration is granted. Stephen Silber 22 April 2024