Jan, Application for Reconsideration [2025] PBRA 13 (30 January 2025) [2025] PBRA 13

PBRA
Jan, Application for Reconsideration [2025] PBRA 13 (30 January 2025)
[2025] PBRA 13 · 2024-12-05
[1]This is an application by Jan (the Applicant) for reconsideration of a decision of a panel of the Parole Board dated the 5 December 2024 not to direct release following an oral hearing on 7 October 2024.[2]Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2024) (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. This is an eligible case, and the application was made in time.[3]I have considered the application on the papers. These are the decision, the application for reconsideration, the response from the Secretary of State and the dossier. Request for Reconsideration[4]The application for reconsideration is dated 28 December 2024.[5]The grounds for seeking a reconsideration are that the decision of the panel was irrational and procedurally unfair. The grounds under both headings are the same namely that the panel failed to take into account the detail of the risk management plan in deciding whether the test for release was met. While a failure to take into account relevant considerations is capable of supporting a claim that the decision was irrational, I am unable to see how it can render the procedure unfair. However, it makes little difference to the approach to this application as the ground under both headings is the same. Background[6]On 9 July 2004 the Applicant was sentenced to life imprisonment for two offences of arson with intent to endanger life and public nuisance. The trial Judge did not determine a minimum term which had to be served before the Applicant could be considered for parole but that was subsequently set by the Court of Appeal at 7 years 6 months less time served. The Court of Appeal summarised the offending in this way when dismissing the Applicant's appeal against conviction:
"as a result of an overwhelming sense of grievance, the appellant mounted a prolonged campaign against a very large number of individuals personally involved with the investigation into and assessment of his mental state, or connected with public or private bodies associated with their work. It is difficult to exaggerate the devastating impact of this campaign on many of those who were victims of it. It was conducted with great cunning, intelligence and ruthlessness, and, taken as a whole, it was unremitting and unrelenting. "
It was accepted by the Court of Appeal that considered an appeal against sentence that at the time of his offending the Applicant was suffering from an acute mental illness.[7]Following his sentence the Applicant has remained in prison under category A conditions. His tariff expired on 8 August 2010 and it follows that the Applicant is more than 14 years after tariff. The consensus from medical professional is that he continues to suffer from mental illness but there are differing opinions as to whether his condition requires in-patient treatment in hospital.[8]The Applicant had joint British and Iranian nationality until 2011 when he renounced his British nationality. His aim in doing so was to try and achieve deportation to Iran under the tariff-expired removal scheme (TERS). This gives the power to the Secretary of State (Respondent), without the approval of the Parole Board, to direct the removal of an indeterminate prisoner whose tariff has expired to the country of which he is a national.[9]A deportation order has been made which the Applicant has not appealed and Iran are prepared to accept the Applicant to reside there.[10]The Respondent has refused to deport the Applicant under the TERS scheme and would only do so if the Parole Board direct his release. If the Applicant were to be released by the Board, he would be kept in custody until such time as his transfer to Iran could be arranged. Current parole review[11]The Applicant's case was referred to the Parole Board in December 2022. There were numerous adjournments before the case was finally heard while representation for the Applicant and the numerous reports required were obtained. The Applicant is now 58 and he was 38 at the date he was sentenced.[12]The panel who conducted the oral hearing on 7 October 2024 included a psychologist and a psychiatrist. The panel heard evidence from the Applicant, the prison offender manager (POM), the community offender manager (COM), a prison psychologist, and two psychiatrists one instructed by the prison and the other by the prisoner. After the hearing there was an adjournment for further information from the Iranian authorities to be obtained and final submissions in writing to be made. The Relevant Law[13]The panel correctly sets out in its decision letter dated 5 December 2024 the test for release. Because of the deportation order the panel were not directed to consider the possibility of a recommendation for a transfer to open conditions. Parole Board Rules 2019 (as amended)[14]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)).[15]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)). Irrationality[16]The power of the courts to interfere with a decision of a competent tribunal on the ground of irrationality was defined in Associated Provincial Houses ltd -v- Wednesbury Corporation 1948 1 KB 223 by Lord Greene in these words " if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere". The same test applies to a reconsideration panel when determining an application on the basis of irrationality.[17]In R(DSD and others) -v- the Parole Board 2018 EWHC 694 (Admin) a Divisional Court applied this test to parole board hearings in these words 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. "[18]In R(on the application of Wells) -v- Parole Board 2019 EWHC 2710 (Admin) Saini J. set out what he described as a more nuanced approach in modern public law which was "to test the decision maker's ultimate conclusion against the evidence before it and to ask whether the conclusion can (with due deference and with regard to the panel's expertise) be safely justified on the basis of that evidence, particularly in a context where anxious scrutiny needs to be applied)". This test was adopted by a Divisional Court in the case of R(on the application of the Secretary of State for Justice) -v- the Parole Board 2022 EWHC 1282 (Admin).[19]As was made clear by Saini J, this is not a different test to the Wednesbury test. The interpretation of and application of the Wednesbury test in Parole hearings as explained in DSD was binding on Saini J.[20]It follows from those principles that in considering an application for reconsideration the reconsideration panel will not substitute its view of the evidence for that of the panel who heard the witnesses.[21]Further while the views of the professional witnesses must be properly considered by a panel deciding on release, the panel is not bound to accept their assessment. The panel must however make clear in its reasons why it is disagreeing with the assessment of the witnesses. Procedural unfairness[22]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.[23]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;(e) the panel did not properly record the reasons for any findings or conclusion; and/or(f) the panel was not impartial.[24]The overriding objective is to ensure that the Applicant's case was dealt with justly.[25]Reconsideration is a discretionary remedy. That means that, even if an error of law, irrationality, or procedural unfairness is established, the Reconsideration Member considering the case is not obliged to direct reconsideration of the panel's decision. The Reconsideration Member can decline to make such a direction having taken into account the particular circumstances of the case, the potential for a different decision to be reached by a new panel, and any delay caused by a grant of reconsideration. That discretion must of course be exercised in a way which is fair to both parties. The reply on behalf of the Secretary of State (the Respondent)[26]The Respondent has made representations supporting the decision of the panel dated 6 January 2025. Discussion[27]This was an extremely difficult case and the panel, in my judgment, examined the evidence in great detail as is clear from their decision. One important detail, however, which is absent from the decision is that the Applicant is substantially over tariff and has never been released on licence. Indeed he has remained in category A prisons throughout his sentence. It is necessary for panels considering whether to release prisoners who are over tariff to have in mind the guidance provided by the Courts as to how that fact is capable of being relevant to their considerations.[28]In the case of Osborn -v- Parole Board [2013] UKSC 61 the Supreme Court gave guidance as to how the Board should take into account that a prisoner serving an indeterminate sentence was over tariff.[29]At para 2 (6) in a summary of its findings the Court said:
"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."
At para 83 of the judgment the Court said that this was not new guidance and had been said more than once. The Supreme Court relied on two decisions of the Court of Appeal as having said the same thing . Simmler J re-affirmed this as the correct position in her judgment in Hall -v- Parole Board [2015] EWHC 252 (Admin). She said at para 38:
"The requirement of ever more anxious scrutiny as time goes on, is a requirement to look more carefully and more closely at the level of risk posed by the prisoner, the longer the detention lasts, and does not involve any lowering of the threshold for release the longer the detention lasts."
[30]Not only is this a fair approach but it is also founded in good sense. The purposes of sentences include deterrence and rehabilitation and the longer a prisoner serves in prison the more likely it is that those aims have been achieved. While some academics might doubt the effectiveness of deterrence in sentencing it is recognised by Parliament as a purpose of imprisonment. Further it is the experience of the criminal justice system that one of the principle drivers of rehabilitation is age. Many, though by no means all, offenders do stop committing offences through the process of maturation.[31]Despite what the panel says at para 4.2, the Applicant had served the part of his sentence reflecting sufficient punishment for what he had done. As he was serving a life sentence, what the panel had to consider was the risk that he presented if released on licence.[32]While it would in my view have been better if the fact that the Applicant is so long over tariff was mentioned, by implication it is clear that the panel were well aware of it and that they were looking for a way of moving on a prisoner who seems to have become stuck in the system. They were keen to explore the possibility of a move to a secure hospital but the Applicant did not want a further adjournment that that would require. The Applicant was perfectly entitled to take that view as his aim was deportation to Iran and treatment in hospital there. The panel were entitled to take the view on the evidence that the passage of time had not significantly reduced the risk that the Applicant presented.[33]The Applicant argues that in deciding whether the level of risk was unacceptable the panel should have looked at the detail of the risk management plan which involved deportation to Iran followed by in-patient treatment in a mental hospital followed by supervision in the community to ensure that he and other people remained safe.[34]The panel decided, in agreement with the previous panel, that the risk presented by the Applicant required that he should be subject to the controls provided by a life licence. If released in the UK the Applicant would be subject to supervision from the Probation Service and could be recalled to prison if his risk escalated. The panel concluded that similar controls could not be guaranteed in Iran.[35]At para 3.4 the panel said:
"since [the Applicant] would be outside the jurisdiction if deported, that power could not be exercised by the UK authorities. Further, while the proposals have been made in good faith, there are no guarantees that the Iranian authorities could (or would) act in the same way if [the Applicant] was assessed as posing a risk to people in the UK by UK police or probation. Such guarantees would, in any event, be inherently unlikely for reasons of Iranian sovereignty."
[36]Having made that decision there was no point in discussing in further detail the risk management plan as those guarantees could not be put in place. That is not an irrational decision. It is a decision that many if not all panels would have made. The panel concluded, as it was entitled to on the evidence, that there was a risk of serious harm to people in the United Kingdom from the Applicant even if he remained in Iran.[37]For the reasons I have given the decision of the panel was neither irrational or procedurally unfair. Having said that, as the panel indicated, attempts should be made to make constructive progress in the hope of the ultimate release of the Applicant. This may involve transfer to a secure hospital, if it can be arranged, or if the Government are satisfied with assurances made by the Iranian Government a transfer under TERS. Decision[38]The application for reconsideration is refused. John Saunders 30 January 2025