Chinyanga, Application for Reconsideration by, [2025] PBRA 133 (30 June 2025) [2025] PBRA 133

PBRA
Chinyanga, Application for Reconsideration by, [2025] PBRA 133 (30 June 2025)
[2025] PBRA 133 · 2025-05-19
[1]This is an application by Chinyanga ("the Applicant") for reconsideration of a decision of a panel of the Parole Board at an oral hearing, which took place on 19 May 2025, not to direct his release.[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 dossier provided by the Secretary of State ("the Respondent") which now contains 460 numbered pages; · the panel's decision letter dated 26 May 2025 ("DL"); and · the application for reconsideration ("the application") submitted on behalf of the Applicant by his solicitor with an attached handwritten letter from the Applicant dated 30 May 2025 and running to 12 pages. Request for Reconsideration[4]The application is dated 5 June 2025.[5]Reconsideration is sought on the basis of procedural unfairness in reliance on several grounds which I will consider within the "Discussion" section of my decision. Background[6]The Applicant is now aged 54. On 16 December 2022, at the age of 52 and following a trial, he received a sentence for offenders of particular concern (SOPC) comprising a custodial element of three years and an extended licence period of one year for two offences of publishing a speech intending or being reckless as to whether members of the public would be directly or indirectly encouraged or induced by the statement to commit, prepare or instigate acts of terrorism contrary to s.1(2) Terrorism Act 2006.[7]The Parole Eligibility Date is given as 15 December 2024, the Conditional Release Date as December 2025 and the Sentence Expiry Date as December 2026.[8]The Applicant, who was born in Zimbabwe and was granted indefinite leave to remain in the UK in 2009, is strongly opposed to ZANU, the ruling party in Zimbabwe. The index offences relate to two speeches, partly in English and partly in Shona, which he published on Facebook (where he had many followers) in December 2019.[9]His only prior convictions related to a speeding matter and two offences of failure to provide a specimen for analysis. Current parole review[10]The Applicant's case was referred to the Parole Board by the Respondent in April 2024 to consider whether or not it would be appropriate to direct his release. This was the Applicant's first review .[11]The case was allocated to a two-person panel which comprised an independent member and a judicial member who chaired the panel.[12]The Applicant was represented by his solicitor who sought a direction for release.[13]At the hearing evidence was given by: a) the Prison Offender Manager (POM); b) the Community Offender Manager (COM); c) the Applicant; and d) two Prison Psychologists. The Relevant Law[14]The panel correctly sets out in the DL the test for release.[15]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)). Procedural unfairness[16]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.[17]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.[18]The overriding objective is to ensure that the Applicant's case was dealt with justly. Reconsideration as a discretionary remedy[19]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[20]By email of 18 June 2025 it was confirmed that the Respondent offers no representations in response to the application. Discussion[21]In dealing with the grounds for reconsideration, it is necessary to stress certain matters of basic importance. The first is that the Reconsideration Mechanism is not a process by which the judgement of the when assessing risk can be lightly interfered with. Nor is it a mechanism in panel which the member carrying out the reconsideration is entitled to substitute his/her view of the facts in place of those found by the panel, unless, of course, it is manifestly obvious that there was an error of fact of an egregious nature which can be shown to have directly contributed to the conclusion arrived at by the panel.[22]Secondly, where a panel arrives at a conclusion, exercising its judgement based on the evidence before it and having regard to the fact they saw and heard the witnesses, it would be inappropriate to direct that the decision be reconsidered unless it is manifestly obvious that there are compelling reasons for interfering with the decision of the panel.[23]I move now to consider the grounds put forward by the Applicant:[24](A) The Applicant submits that there was potential bias in that he was informed at the outset that the independent panel member had previously overseen the author of the Extremism Risk Guidance (ERG) which "raises concern as to whether [the panel member] would question the evidence of the professional or accept it at face value".[25]In fact, entirely properly, this previous relationship was communicated to the Applicant and his solicitor at the outset of the hearing, as is recorded in the DL as follows:
" At the start of the hearing the panel informed [the Applicant's] legal representative that one member of the panel had previously overseen the Probation Officer who prepared the [ERG] in the panel member's former role as [...], which role she left in May 2022. The panel gave the legal representative full details of the professional relationship between the two, and invited the legal representation [sic] to tell [the Applicant] the facts and take instructions. When the hearing resumed the legal representative made no representations about the composition of the panel."
[26]It would appear that the matter was properly dealt with, the Applicant being provided with the information and given the opportunity of speaking privately with his legal representative so that he could have the benefit of advice and give instructions.[27]It is to say the least disappointing that this point should have been raised again in the context of a reconsideration application.[28](B) It is also submitted that there was potential bias in that, apparently, the panel Chair commented to the COM that he had met her previously.[29]It is unclear from the application what is said to be the nature of this previous meeting. It is not uncommon for experienced Parole Board panel members to have encountered experienced probation officers in the context of earlier hearings and that this should be openly acknowledged with a greeting or otherwise.[30]However, upon reading the handwritten letter from the Applicant, when alleging (at p.11) that the rejection of his application for release was a "fabrication" and a "set-up", the Applicant suggests that he heard the panel chair say that he and the COM had missed an appointment with each other three days previously and that he also apologised that he did not " come back to you last Friday."[31]If the Applicant has accurately recorded what the panel chair said in the hearing, then, one would have expected his legal representative to explore the matter further with the panel to ascertain whether these comments related to the Applicant's case and, if they did, what was the nature of these exchanges and whether they related, for instance, merely to procedural or case management matters.[32]In any event, it appears that whatever was said, took place openly in the presence of the Applicant and his solicitor who would have had the opportunity to pursue any matter which, in her professional judgement, raised an issue of potential bias, to seek further information and to take instructions.[33]It seems that she did not do so and, in my view, it is inherently unlikely that this panel, which so punctiliously disclosed the independent member's previous professional relationship with a witness, should not have made a point of formally drawing to the Applicant's attention, and thereafter recording in the DL, any other relevant previous contact between a panel member and a witness.[34]I do not find any evidence here of bias, whether actual or potential, or of a lack of impartiality.[35](C) The Applicant submits that he " was unable to expand on issues, and when given an opportunity to do so, he was prevented from continuing by the panel. On multiple occasions, he was cut off when expanding on a point he was making, and was unable to add further evidence to his points ."[36]The panel records in the DL that the Applicant continued to maintain that he was convicted by a nobbled jury and went on to find that in his evidence the Applicant " put everything in terms of a conspiracy of which he perceives himself a victim and against which he needs to protest."[37]Further , when the panel asked the Applicant whether he was capable of discussing relevant topics without feeling a pressing sense of injustice, he did not give an answer and the panel considered that, at present, he was incapable of doing so.[38]The panel found that it became clear during the course of the hearing that the Applicant saw being a protestor as being central to his identity and he demonstrated that he had not learned to pause and think about the effect of his emotional reactions on what he says and does.[39]The panel was also concerned that the Applicant failed to answer a number of relevant questions, using, as professionals had reported, diversion tactics to avoid dealing with issues he did not wish to face.[40]From a careful reading of the DL, I find that the panel made efforts to ensure that the Applicant focused in his evidence upon matters of relevance to the panel and to assist him in putting his case to best and most persuasive effect.[41]The Application does not state what issues the Applicant was prevented from expanding upon and what further evidence he was prevented from giving. However, he had the benefit of legal representation throughout and, if at any point it was felt that he was being prevented unfairly from putting his case, the representative would have been under a duty to raise this with the panel. The application does not indicate that this happened nor is any reference made to this alleged unfairness in the written closing submissions provided by the legal representative.[42](D) Finally, it is submitted that the panel did not fully consider the closing written submissions in relation to the Applicant's positive custodial behaviour and his previous compliance whilst on bail.[43]I find that the panel was well aware of these points and indeed acknowledged them in the DL.[44]At DL 1.9 the panel noted that, as the jury at the Applicant's first trial were unable to agree, he spent a total of over two years and nine months on bail during which he did not reoffend.[45]Further at DL 2.1 the Panel records that the Applicant maintained enhanced status on the Incentives and Enhanced Privileges (IEP) scheme without adjudications and there were positive entries on his record for engagement and working well in custody.[46]It also accepted that his withdrawal from the Healthy Identity Intervention (HII) programme was understandable given the stress occasioned by his justifiable fears to which the panel gave considerable attention.[47]There is no indication that these points were "rejected" but, rather, they were, it seems, outweighed by the lack of professional support for the Applicant's release and the weight to be attributed to the totality of the evidence which is pre-eminently a matter for the panel in arriving at its conclusion that the Applicant did not meet the test for release. Decision[48]I find that the Application is without merit and, for the reasons I have given and applying the appropriate tests, I do not consider that the decision was procedurally unfair and, accordingly, the application for reconsideration is refused. Peter H F Jones 30 June 2025