Bowen, Application for Reconsideration [2024] PBRA 98 (24 June 2024) [2024] PBRA 98

PBRA
Bowen, Application for Reconsideration [2024] PBRA 98 (24 June 2024)
[2024] PBRA 98
[1]This is an application by Bowen (‘the Applicant’) for reconsideration of a decision of a Member Case Assessment (‘MCA’) panel of the Parole Board. The panel decided on the papers that the Applicant should not be released on licence.[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 (see paragraph 22 below as to which cases are eligible). This is an eligible case, and the application was made within the stipulated time limit.[3]I am one of the members of the Board who are authorised to make decisions on applications for reconsideration. I have considered this application on the papers. As will be explained below I have made my decision in two stages. At the first stage I decided that grounds for reconsideration of the MCA panel’s decision had been established but I adjourned the case to obtain further information to enable me to decide whether it was appropriate to exercise my discretion to direct reconsideration of that decision. At the second stage, having considered the further information provided, I have decided that I should exercise my discretion to direct reconsideration.[4]The documents which I have considered are: a) The dossier provided by the Secretary of State (‘the Respondent’) for the Applicant’s case, which now runs to 192 numbered pages and includes the decisions of the MCA panel and the Duty Member; b) The detailed arguments advanced in support of the application for reconsideration; c) An e-mail from PPCS stating that the Respondent does not wish to submit any representations in response to that application; and d) The further information provided (by the Applicant’s solicitor) following the adjournment. Background[5]The Applicant is aged 59 and is serving a sentence of imprisonment for public protection (‘IPP’) for serious sexual offences against a family member (‘contact offences’) when she was very young. The sentence was imposed in March 2010 and his minimum term (‘tariff’) was set at 5 years and 6 months less the time which he had spent in custody on remand.[6]It is reported that the Applicant was a victim of abuse as a child. As he grew up he had a number of convictions for a variety of offences but none for any sexual ones. He has for many years suffered from mental health problems and is said to have been diagnosed with depression in his mid-20s, and to have had several subsequent admissions to psychiatric hospitals under the Mental Health Act following suicide attempts.[7]He pleaded guilty to the contact offences and also to making and distributing indecent images of children. As well as the IPP sentence for the contact offences he received determinate sentences for the indecent image offences: those ran concurrently with the IPP sentence and expired long ago.[8]Despite his pleas of guilty to the contact offences he has from an early stage in his sentence denied those, stating that(a) he suffered from mental health difficulties(b) he was denied the services of a responsible adult and(c) was coerced into admitting the offences. There is a reference in the dossier to an unsuccessful appeal against his convictions, and he is apparently considering applying to the Criminal Cases Review Commission to refer his case back to the Court of Appeal for further consideration. As he is no doubt aware, the Parole Board is obliged by law to approach his case on the assumption that his pleas and convictions were correct: the Board has neither the authority nor the resources to reinvestigate the case.[9]The Applicant has remained in custody throughout his sentence. He has been diagnosed as suffering from a complex personality disorder, and he spent a period in a psychiatric hospital (March 2014 to November 2015) before being returned to the prison system. Whilst at the hospital he was found to be in possession of further indecent images of children, for which he received another determinate sentence to run concurrently with his IPP sentence. His tariff for the index offences expired on 18 March 2015 so he is now 9 years ‘over tariff’ and can properly be described as ‘stuck in the system’.[10]When a prisoner is subject to an IPP sentence for a serious offence or offences it will usually not be considered safe to release him into the community unless and until he has completed appropriate work to reduce his risk to the public. That work normally involves participation in one or more of the established risk-reduction programmes designed by psychologists. The Applicant duly completed the appropriate programmes to address the indecent image offences, but a combination of his denial of the contact sex offences and his mental health difficulties has made it difficult for the prison service to identify appropriate programmes for him to undertake to address his contact offences.[11]The Applicant’s case was first reviewed by the Board in 2016. A single member MCA panel then decided that an oral hearing was appropriate, and it was duly held. The oral hearing panel to which the case was allocated decided that the Applicant did not meet the test for release on licence (he can only be released on licence if a panel conclude that his continued confinement in prison is no longer necessary for the protection of the public). The decision of the 2016 panel is not in the dossier so I have not seen it.[12]There was a further review of the Applicant’s case by the Board in 2022. Again, a single member MCA panel decided that an oral hearing was appropriate. Another panel was duly appointed to conduct the hearing but the Applicant and his legal representative requested that the review should be concluded ‘on the papers’, i.e. without a hearing. The reason for that request was that by that stage an independent psychologist commissioned by the Applicant’s solicitors had identified a possible ‘treatment pathway’ at a special prison unit designed to cater for prisoners in a similar situation to the Applicant’s. The Applicant had agreed to participate in that pathway, which did not require him to admit guilt of his contact offences. The 2022 oral hearing panel, like the 2016 panel, concluded that he did not at that stage meet the test for release on licence.[13]The 2022 panel had the benefit of a dossier provided by the Respondent which is said to have contained 644 pages and to have included copies of the independent psychologist’s report (and other psychological reports) as well as reports detailing the Applicant’s mental health difficulties and his progress in custody. By 2022 his mental health was reported to have been stable for some time and he was reported to be compliant with the medication prescribed by doctors.[14]The present review of the Applicant’s case commenced in October 2023, and the case was reviewed by a single member MCA panel on 29 February 2024. It had been expected that by then the Applicant would have been transferred to the prison where the special unit is based, but that had not happened.[15]In a report by the Applicant’s Prison Offender Manager (‘POM’) dated 17 November 2023 it had been stated that “a referral was completed by his former [POM] in June 2022 and he had an assessment interview on 17/11/2022 and case notes indicated that he was accepted at the beginning of 2023. However, the key issue was the availability of space on the unit, rather than any issue linked to [the Applicant]. There followed a significant delay given the pressure within the HMPPS estate until early October when [the prison in which the Applicant was then detained] was approached to confirm his level of motivation and start the process leading up to transfer to [the prison where the special unit is based] …. [The Applicant] is scheduled to transfer to [that prison] in late November 2023”.[16]By the date of the MCA panel’s consideration of the Applicant’s case at the end of February 2024 the Applicant had still not been transferred to the prison where the special unit is based, and there was no evidence as to when (if at all) that transfer would take place.[17]The dossier provided by the Respondent for the Board’s 2024 review contained only 181 pages. It did not include the psychological reports or many of the other documents which had been in the 2022 dossier. There was no updated psychological report because the prison psychology service were of the view that it was not needed until the Applicant had completed the recommended treatment in the special unit.[18]As on the two previous occasions the MCA panel had the option of doing one of four things:(1) adjourning the MCA review for further information to be obtained;(2) deciding there and then on the papers to direct the Applicant’s release on licence;(3) deciding on the papers that he should not be released on licence; or(4) directing that the case should proceed to an oral hearing. The panel did not adjourn the review for further information to be obtained, and decided on the papers that the Applicant should not be released on licence.[19]This was a provisional decision and it was open to the Applicant to apply to a Duty Member to request an oral hearing. The Applicant (through his solicitor) duly made such an application to a Duty Member, but it was refused.[20]The MCA panel’s decision was also susceptible to an application to a Reconsideration Member for a direction that that panel’s decision should be quashed and reconsideration of the MCA assessment directed. Such an application has been made by the Applicant (through his solicitor) and as indicated above I am the Reconsideration Member to whom this application has been allocated. The Relevant Law[21]The panel correctly sets out in its decision letter dated 29 February 2024 the test for release on licence (see paragraph 11 above) and the issues to be addressed in making a recommendation to the Secretary of State about the prisoner’s suitability for a progressive move to open conditions. Parole Board Rules 2019 (as amended)[22]Under Rule 28(1) of the Parole Board Rules 2019 (as amended in 2022) a decision is eligible for reconsideration if (but only if) it is a decision that the prisoner is or is not suitable for release on licence. Reconsideration will only be directed if one of more of the following three grounds is established:(a) It contains an error of law;(b) It is irrational;(c) It is procedurally unfair.[23]A decision that a prisoner is or is not suitable for release on licence is eligible for reconsideration whether it is made by:(i) A paper panel (Rule 19(1)(a) or (b)) as in this case; or(ii) An oral hearing panel after an oral hearing (Rule 25(1)); or(iii) An oral hearing panel which makes the decision on the papers (Rule 21(7)).[24]The decision of the MCA panel in this case that the Applicant should not be released on licence is thus eligible for reconsideration. As will be explained below the Applicant is seeking reconsideration of that decision on the ground of procedural unfairness. Procedural unfairness[25]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 from the issue of irrationality which focuses on the actual decision.[26]The kind of things which may amount to procedural unfairness include:(a) A failure to follow established procedures;(b) A failure to conduct the hearing fairly;(c) A failure to allow one party to put its case properly;(d) A failure properly to inform the prisoner of the case against him or her; and/or(e) Lack of impartiality.[27]Other things may amount to procedural unfairness: the overriding objective in any consideration of a prisoner’s case is to ensure that the case is dealt with fairly. Reconsideration is a discretionary remedy[28]It is well established that r econsideration is a discretionary remedy and that there may be circumstances in which, although some procedural unfairness or irrationality or error of law has occurred, the Reconsideration Member can and should decline to direct reconsideration of a panel’s decision. For example, reconsideration should be refused if it is clear to the Reconsideration Member that the panel’s decision would inevitably have been the same if the procedural unfairness or irrationality or error of law unfairness had not occurred. Request for Reconsideration[29]This request for reconsideration was made by the Applicant’s solicitor on his behalf. The detailed arguments advanced by the solicitor will be explained and discussed below. The reply on behalf of the Respondent[30]The Secretary of State is the Respondent to any application by a prisoner for reconsideration of a panel’s decision. He is therefore entitled to submit representations in response to the application. The Public Protection Casework Section of the Ministry of Justice (‘PPCS’) have indicated on behalf of the Respondent that he does not wish to submit any representations in this case. Discussion[31]As indicated above I have considered this case in two stages. I will therefore discuss the issues in those stages. Stage 1[32]I will start by discussing the solicitor’s submissions. They are as follows:(1) The basis of this application is that the decision of the MCA, which was a failure to release or send to an oral hearing, was procedurally flawed.(2) We submit that this was procedurally flawed as a case this complex, for a post tariff IPP Prisoner, could not fairly be determined on the papers: to do so did not adequately consider or apply the necessary and relevant case law in this area of Osborn and Booth and Somers.(3) In addition to this we say the dossier did not contain adequate information to make such a decision and key pieces of information were missing to allow for a full and forensic risk assessment to take place. Were the MCA member not minded to send this case to Oral Hearing on first review, this should have been adjourned and directions made for adequate reports to be provided to inform a future decision in this area.”[33]The solicitor expanded on this summary at some length, relying in particular on(a) the decisions of the Supreme Court in R (Osborn, Booth and Reilly) v The Parole Board [2014 AC 61] and the recent decision of Mrs Justice Foster in the Administrative Court in R (Somers) v The Parole Board [2023 EWHC 1160 ] and(b) the Parole Board’s Guidance on MCA assessments.[34]The solicitor did not suggest that the MCA panel should have directed the Applicant’s release on the papers: her submission was that the case should have been sent for an oral hearing.[35]The solicitor correctly submitted that a decision by a MCA panel needs to be based on a careful examination and analysis of the evidence provided by the Respondent in the dossier for the prisoner’s review. The Parole Board’s Guidance states that, whether the case is concluded on the papers or is sent to an oral hearing, the MCA panel will need to understand, analyse, and reflect on the following matters: i. the manageability of the prisoner’s risk; ii. any changes in his risk factors and risk assessment scores; iii. risk management/release plans; iv. licence conditions and other controls; v. individual plans and characteristics; vi. openness and honesty; vii. likelihood of compliance; viii. supportive relationships; and ix. outlook and self-identity.[36]If there is a need for further information to enable that exercise to be carried out, the MCA review should be deferred or (preferably) adjourned with a direction for that information to be provided. The Guidance states that directions for further information should be proportionate, reflecting their relevance to the decision to be made and the need to follow a fair process. If the existing dossier is adequate to allow a fair, effective and timely decision to be made, there is no need for further information to be directed; but if fairness requires further information it should be directed.[37]The solicitor pointed out in her representations that there were a number of significant gaps in the evidence contained in the dossier. An important gap, she submitted, was that at the time of the MCA panel’s decision no steps appeared to have been taken by the prison service to enable the Applicant to access the suggested treatment in the special unit; he had not been transferred to the prison where that unit is based; and there was no evidence to indicate whether (and if so when) he might be able to access the treatment there. There had been a lengthy delay in providing the Applicant with the treatment which had been considered necessary as long ago as 2016 panel; and in her representations seeking an oral hearing the Applicant’s solicitor had made the reasonable point that, if by the time his case was considered he had not started the treatment or even been moved to the prison where he could be provided with it, the necessity for that work would have to be considered. As she put it, the Applicant “ cannot be detained review after review to complete work that is accepted but not would be provided ”.[38]The solicitor had made other submissions in her representations seeking an oral hearing. It was clear that, although the Applicant had been willing to engage in treatment at the special unit, his preference was to be released on licence without completion of that treatment. He was entitled to apply to the MCA panel for a direction for release on licence, or at least for the case to be sent for an oral hearing so that the possibility of such a direction could be considered at a hearing at which(a) he could give his own evidence and(b) the evidence of any professional witnesses who did not support release on licence could be tested.[39]If release on licence was to be considered, a great deal of further information would be needed. That would include copies of all previous psychological assessments, an updated psychological assessment, an updated psychiatric assessment and an updated risk management plan. The existing risk management plan was inadequate and further enquiries would be needed to establish what support would be needed for the Applicant if he were to be released on licence.[40]The solicitor pointed out that, as someone who has been detained in a psychiatric hospital under the Mental Health Act, the Applicant is entitled to free after-care under section 117 of that Act. That care c an be provided for a broad range of needs. It does not just include immediate health and social care, but can also include, for example, employment support, a service to meet cultural or spiritual needs, or a service to assist the individual in learning, ex-patient in gaining or enhancing skills to assist with living in the community.[41]The possibility of the Applicant being released on licence without having completed the suggested work in the special unit was not wholly unrealistic. The authorities show that when a prisoner has been ‘stuck in the system’ (as the Applicant had certainly been) consideration should be given to any route which might be found to enable him to progress.[42]The solicitor cited the following passages from what was said by Lord Reed in the leading case of Osborn, Booth and Reilly :
“In order to comply with common law standards of procedural fairness, the board should hold an oral hearing before determining an application for release, or for a transfer to open conditions whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and the importance of what is at stake …. ‘It is impossible to define exhaustively the circumstances in which an oral hearing will be necessary, but such circumstances will often include the following: Where the board cannot otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed and addressed. That is likely to be the position in cases where such an assessment may depend upon the view formed by the board (including its members with expertise in psychology or psychiatry) of characteristics of the prisoner which can best be judged by seeing or questioning him in person, or where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds, or where the board may be materially assisted by hearing evidence, for example from a psychologist or psychiatrist. Cases concerning prisoners who have spent many years in custody are likely to fall into the first of these categories. Where 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 him or his representatives to put their case effectively or to test the views of those who have dealt with him. Where, in the light of the representations made by or on behalf of the prisoner, it would be unfair for a "paper" decision made by a single member panel of the board to become final without allowing an oral hearing: for example, if the representations raise issues which place in serious question anything in the paper decision which may in practice have a significant impact on the prisoner's future management in prison or on future reviews. In order to act fairly, the board should consider whether its independent assessment of risk, and of the means by which it should be managed and addressed, may benefit from the closer examination which an oral hearing can provide. 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 order to act fairly, the board should consider whether its independent assessment of risk, and of the means by which it should be managed and addressed, may benefit from the closer examination which an oral hearing can provide. 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. The question whether fairness requires a prisoner to be given an oral hearing is different from the question whether he has a particular likelihood of being released or transferred to open conditions, and cannot be answered by assessing that likelihood. When dealing with cases concerning post-tariff indeterminate sentence prisoners, it should scrutinise 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.”
[43]The solicitor submitted that much of this exposition of the law applied to the Applicant’s case. She also submitted that the MCA panel failed in its decision to acknowledge or engage with the points made by the solicitor herself in her representations seeking an oral hearing.[44]I carefully examined the MCA panel’s decision which contained an admirable summary of the history of the case. When it came to its conclusion the panel merely stated:
“In making this decision the panel has considered [the Applicant’s] case against the principles set out in the case of Osborn, Booth & Reilly [2013] UKSC 61 concerning oral hearings. For the avoidance of doubt, the panel did not find that important facts are in dispute, that an oral hearing is needed to properly make an assessment of risk, or so that [the Applicant] can put his views across effectively.”
The panel then set out its own assessment of the Applicant’s risks.[45]Although the panel stated that it had considered the case against the principles set out in the Osborn case, it made no reference to the specific points referred to above. Nor did it address any of the points made by the solicitor in her representations. I agree with the panel, on the evidence that I have seen, that there were no important facts in dispute. However, I do not agree that on the limited evidence available to the panel a proper assessment of risk could be made. I am also doubtful whether it was fair to deprive the Applicant of the opportunity to put across his views: he had very sensibly not given evidence at the 2022 review, and a long time had elapsed since he had done so at the 2016 review.[46]Quite a lot had changed since the 2016 review, and the previous risk assessments by psychologists were well out of date. Since I have not seen those assessments I do not know whether any consideration was given to the question of whether the Applicant’s denial might actually be a protective factor to be taken into account in any assessment of the risk of his committing future contact sexual offences. It is certainly now recognised by psychologists that it is sometimes possible in a case of this kind to say that an offender is not only(a) unlikely to have the opportunity to commit similar sexual offences but also(b) unlikely to want to do so and thereby, if any new offences were discovered, to destroy his protestations of innocence of the offences of which he was convicted.[47]For the reasons set out above I concluded without any difficulty that it was procedurally unfair for the MCA panel in this case to refuse an oral hearing and to decide on the papers that the Applicant should not be released on licence. At the very least the panel should have adjourned the case for further information to be obtained.[48]As noted above reconsideration is a discretionary remedy and I have needed to consider whether in this case I should exercise my discretion in favour of or against a direction for reconsideration. In that connection I noted that there had been a potentially significant development since the MCA panel’s decision had been made. The Applicant had been transferred to the prison where the special unit is based. It seemed therefore that, albeit belatedly, the Applicant was likely (though not certain) to be able to engage in the treatment provided at that unit.[49]Did that mean that I should exercise my discretion to decline to direct reconsideration of the MCA panel’s decision? I did not find that to be an easy decision to make. There was certainly a reasonable argument that I should direct reconsideration so that the Applicant would have the opportunity to request another MCA panel to direct an oral hearing and, if that request was granted, to apply to the oral hearing panel for a direction that he should be released on licence.[50]On the other hand I was not sure that for me to direct reconsideration would be in the Applicant’s best interests. I wondered whether, once it appeared that he would finally be able to access the recommended work, he might prefer this review to be concluded at that stage so that he could complete the work as soon as possible and then be in a better position by the time of his next review by the Board to argue for release on licence (or failing that a move to open conditions).[51]I was also concerned that to extend this review by reconsideration of the MCA member’s decision would involve a significant delay for further evidence to be obtained before a fresh MCA panel could make its decision. Then, unless there was some really positive fresh evidence, the professional witnesses would be unlikely to change their recommendations and the fresh MCA review (or any oral hearing which was directed) would be quite likely to result in a decision that the Applicant should remain in prison to complete the treatment in the special unit. It also seemed quite likely that, if that were to be the case, the Applicant would have lost a great deal of time before the treatment could be completed: my understanding was that it would be unusual for risk reduction work to be undertaken or completed during a prisoner’s ‘parole window’.[52]In these circumstances I thought that the Applicant would be well advised to discuss the situation with his very experienced solicitor so that he could decide whether at that stage, and having regards to the current situation, he wished to pursue the request for reconsideration and, if that was granted and an oral hearing directed by the new MCA panel, an application for release on licence.[53]Therefore, having decided that there was procedural unfairness in this case, I adjourned my decision about the exercise of my discretion. That is, of course, a separate issue on which I needed to make a decision. The adjournment would enable the Applicant’s solicitor to make any further representations in the light of the changed circumstances. The solicitor would obviously need to take the Applicant’s instructions about the matter. I directed that any further representations should be made within 14 days from the date of the adjournment (13 May 2024) but I indicated that I would be sympathetic to any request for an extension of that time limit.[54]I also indicated that it would be helpful if PPCS could kindly find out what was the current situation concerning the recommended work and keep the Applicant’s solicitor and myself informed about that. Had he started the work? If not, when was he scheduled to start it? Was it possible to say how long it would take to complete it? Would he be able to start or continue the work during the ‘parole window’? Additionally I indicated that any representations which PPCS might wish to make about the present situation would be gratefully received, and should be provided by the same time limit as above. Stage 2[55]No further representations were made by PPCS but on 7 June 2024 I received the following information and representations from the Applicant’s solicitor:
“Further to the decision I have the further comments to provide…. [The Applicant] has requested that his reconsideration application is granted and is able to have a fresh review. I have been able to take instructions today from [the Applicant] who states that he has now completed 6 months of work [at the special unit]. He feels that he has achieved a huge amount of valuable core risk reduction work during this period…. He is aware that he can start to work with OPD services now as transitional period for release planning and hopes that this could be done before any listed oral hearing. [The Applicant] is confident that by the time of a review he will have completed all that is needed and recommendations may well have changed. He would like the opportunity to progress and have this evidence considered by a parole board panel. [The Applicant] feels that time is now right and he is ready to make a full and reasoned request for release.”
[56]I have, as fairness required, extended the time limit for the provision of this information. My concern that the Applicant might not be able to complete the recommended treatment during his parole window has been alleviated, and there is clearly a reasonable prospect of the Applicant being able to present a reasonable case for release on licence once the treatment has been completed. Decision[57]That being so, I am now satisfied not only (a) that there was procedural unfairness in this case (as I decided at Stage 1) but also (a) that my discretion must be exercised in favour of directing reconsideration of the MCA panel’s decision. That is therefore my decision in this case. Jeremy Roberts 24 June 2024