Hanmore, Application for Reconsideration [2024] PBRA 86 (26 April 2024) [2024] PBRA 86

PBRA
Hanmore, Application for Reconsideration [2024] PBRA 86 (26 April 2024)
[2024] PBRA 86 · 2024-03-31
[1]This is an application by Hanmore (the Applicant) for reconsideration of a decision of an oral hearing panel dated 31 March 2024 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)) 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 oral hearing decision, the dossier (consisting of 521 pages), and the application for reconsideration (dated 10 April 2024). Background[4]The Applicant received a sentence of imprisonment for public protection on 24 July 2008 following conviction for wounding with intent to do grievous bodily harm to which he pleaded guilty.[5]His tariff was set at seven years and three months and expired in October 2015.[6]The Applicant was 31 years old at the time of sentencing and is now 47 years old.[7]He was released on licence on 16 September 2022 following an oral hearing but recalled to custody on 1 October 2022. This is his third recall on this sentence. Request for Reconsideration[8]The application for reconsideration has been submitted by solicitors acting for the Applicant.[9]It argues that the decision not to release the Applicant was irrational and/or procedurally unfair.[10]These grounds are supplemented by written arguments to which reference will be made in the Discussion section below. Current Parole Review[11]The Applicant's case was referred to the Parole Board by the Secretary of State (the Respondent) in October 2022 to consider whether to direct his release. If the Parole Board did not direct release, it was invited to advice the Respondent whether he should be transferred to open conditions. This is the Applicant's first parole review since his third recall to custody.[12]The case proceeded to an oral hearing on 1 November 2023. At the start of the hearing the Applicant sought an adjournment to allow him to engage with the Midlands Integrated Therapy Service ( MITS ) to work on his substance misuse issues and for the Probation Service to seek to obtain a residential rehabilitation plan. The adjournment application was granted, and directions were set for updated reports.[13]The hearing reconvened on 25 March 2024. The panel consisted of three members, including a psychologist specialist member and a judicial member. It heard oral evidence from the Applicant, together with his Prison Offender Manager ( POM ), Community Offender Manager ( COM ) and a Recovery Worker. The Applicant was legally represented throughout the hearing. The Respondent was not represented by an advocate.[14]The panel did not direct the Applicant's release. It also made no recommendation for open conditions. It is only the decision not to direct release that is subject to reconsideration. The Relevant Law[15]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)[16]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)).[17]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)).[18]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[19]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.[20]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.[21]The overriding objective is to ensure that the Applicant's case was dealt with justly. Irrationality[22]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. "[23]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.[24]The application of this test has been confirmed in previous decisions on applications for reconsideration under rule 28: Preston [2019] PBRA 1 and others. The reply on behalf of the Respondent[25]The Respondent has submitted no representations in response to this application. Discussion[26]In making no direction for release, the panel identified " two significant areas of concern" (para. 4.4). The first was that the proposed risk management plan was " embryonic and very much 'up in the air'" (para. 4.6). The second related to the Applicant's engagement with MITS (para. 4.10).[27]The application focusses first on the situation with MITS.[28]There are two short memos from MITS in the dossier. A memo dated 8 March 2024 from MITS (to whom it may concern) records that the Applicant was seen on 16 November 2023, 30 November 2023 and 7 December 2023. It states that the Applicant was:
"made aware that MITS works with individuals who feel that our service would be helpful in reducing their psychological distress, and not core risk reduction work. [The Applicant] stated he was willing to engage in work to progress, bud did not need support with his wellbeing and reported that he was satisfied with his current plans for resettlement, without MITS support."
[29]The decision records (at para. 2.14) that the Applicant was offered an assessment at MITS on 14 December 2023. He is said to have attended the appointment but stated that he did not need the support of MITS and the referral was closed.[30]It is submitted that in the hearing the reasoning as to why work with MITS was not undertaken was far from clear and this led to the witnesses making assumptions.[31]The decision notes the following: a) The Recovery Worker said she had spoken to the MITS assessor after his meeting with the Applicant, but it was unclear whether he had carried out a full assessment of the Applicant and concluded there was no work needed, or that the Applicant had said this himself. b) The POM said her understanding was that the Applicant had engaged with MITS and was willing to do work but did not see that there was any need to do this. In the light of that, MITS could not offer him support.[32]The application notes that, having heard from witnesses, a further memo from MITS to the Applicant dated 20 December 2023 was provided to the panel. This states:
"You said you were motivated to engage with services to assist your progression. However, when we discussed your referral, we were unable to identify treatment areas that would require MITS sessions to address them...if you were to change your mind, you would need to be re-referred by your POM."
[33]It was submitted at the time that the use of the word ' we ' in the December memo suggested that the assessor did not believe the work was required. The decision acknowledges (at para. 2.51) that the use of ' we ' could imply a collaborative process. It also acknowledges the Applicant's statement that he was motivated to engage with services to assist his progression.[34]It is now submitted that the December memo is ambiguous, as acknowledged by the panel. At para. 2.52, the decision states that " the letter is short and gives no real indication as to what discussions had actually taken place, what [the Applicant] actually said and what was explored...It also does not state what material is reviewed".[35]The decision goes on to make a number of statements based on the content of the memo(s): a) Reference to the Applicant ' changing his mind ' indicates that he was the driver behind the decision not to take the referral further (para. 2.53) b) If the Applicant had wished to explore his anxiety issues, MITS would have been amenable to this (para. 2.54) c) The Applicant appears to have shown a less than full level of enthusiasm for a process that he himself put in train (para. 2.54). d) The Applicant did not disclose his panic attacks to the assessor or the emotional impact they have on him (para. 2.55) e) This lack of disclosure suggests a reluctance to fully engage with MITS in a way that could be beneficial to the Applicant (para. 2.55) f) Doubts are therefore raised about the Applicant's motivation to change (para. 2.55).[36]In my view, statements (a) and (b) are reasonable. However, as is submitted, at the time of the adjournment, the Applicant had yet to engage with MITS, but was motivated to explore what could be offered to him. The December memo shows that no treatment needs were identified. Turning to statement (c), while it is equally possible that the Applicant was disappointed by the services that MITS has to offer insofar as he felt they related to his needs, the conclusion that the panel has drawn is within the range of reasonable inferences.[37]However, there is no evidential basis for statement (d) on the papers before me. There is no account of what the Applicant did, or did not say, at the meeting with MITS, and, as such, statements (e) and (f), which are predicated on statement (d), are unsubstantiated.[38]It is clear from the decision, that the panel's conclusions regarding MITS were highly relevant to its decision not to direct release.[39]Following R (Wells) v Parole Board [2019] EWHC 2710 (Admin) , I must consider whether there is an unexplained evidential gap or leap in reasoning which fails to justify the conclusion. I find that there is. The decision infers, without substantive evidence, the content of the Applicant's discussion with MITS and then builds on that to conclude that he is not motivated to change.[40]Of course, it may be that the panel's inferences are correct. But it is impossible for me to say that they are on the evidence before me, and therefore, I must find that the decision not to release the Applicant meets the high legal threshold set for irrationality. In consequence, the application is granted.[41]There is therefore no need for me to consider the submissions made on the ground of procedural unfairness. Decision[42]For the reasons I have given, I do find the decision not to release the Applicant was irrational and accordingly the application for reconsideration is granted. Stefan Fafinski 26 April 2024