Smith, Application for Reconsideration [2025] PBRA 30 (10 February 2025) [2025] PBRA 30
[1]This is an application by Smith (the Applicant) for reconsideration of a Post Member Case Assessment (MCA) paper decision dated 6 January 2025 not to direct 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 Decision Letter (DL); · The Request for Reconsideration dated 15 January 2025, submitted by the Applicant’s legal representative; · The dossier, now containing 437 numbered pages, ending with the DL. Request for Reconsideration[4]The grounds for seeking a reconsideration are as follows: Procedural unfairness The panel chair reached his decision without considering any representations on behalf of the Applicant. The Applicant’s representative had asked for an extension of time in which to make representations, but the request had not reached the panel chair.[5]I find that that is the case. I will discuss the details of how this came about below. No fault attaches to the panel chair. I grant reconsideration. Background[6]The Applicant was 38 in 2009, when he received a sentence of imprisonment for public protection for an offence of robbery and possession of a shotgun with intent to commit an indictable offence. The Tariff Expiry Date for the sentence was 2015. The Applicant is now 54 years old.[7]In 2020 a Parole Board panel recommended a move to open conditions. For reasons set out in the DL, that did not take place. At an oral hearing in March 2021 the panel directed release. The Applicant was recalled two weeks after he was released. In July 2022 a panel recommended the Applicant’s transfer to open conditions. The Secretary of State (the Respondent) approved his transfer in June 2023. However, for reasons set out in the DL, the Respondent rescinded the decision to transfer the Applicant in a letter dated 17 October 2023. Current parole review[8]The Respondent referred the Applicant to the Parole Board for review on 14 December 2023. On 24 May 2024 a MCA directed an oral hearing. On 18 December 2024 the panel chair issued Panel Chair Directions (PCDs) expressing his view that the review could be concluded on the papers under Rule 21 of the Parole Board Rules 2019 as amended. He sought representations, which he directed should be served with a deadline of 3 January 2025. The Respondent provided representations dated January 2025, which the panel chair considered. The panel chair saw no representations on behalf of the Applicant.[9]The panel chair considered a dossier containing 423 numbered pages. There were representations on the Applicant’s behalf in the dossier, but they pre-dated the MCA and amounted to an application for an oral hearing to consider an application for release, though they do contain a significant amount of information (and evidence from the representative) as to the Applicant’s current circumstances and behaviour. The Relevant Law[10]The panel correctly sets out in its decision letter the test for release and the issues to be addressed in making a recommendation to the Secretary of State for a progressive move to open conditions. Parole Board Rules 2019 (as amended)[11]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)).[12]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)). Procedural unfairness[13]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 focuses on the actual decision.[14]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.[15]The overriding objective is to ensure that the Applicant’s case was dealt with justly. The reply on behalf of the Secretary of State[16]The Respondent has indicated that she does not wish to offer any reply to this application. Discussion[17]I have not seen the request for an extension of time which the Applicant’s representative says she made. However, of course I accept her account of what happened, which is as follows.[18]The representative was on annual leave when the PCDs were received. She submitted representations by way of a Stakeholder Response Form (SHRF) dated 31 December, asking for an extension of time for her response to the PCDs to 8 January 2025. She had already, on 11 December 2024, booked an appointment to have a video conference with the Applicant on 8 January 2025.[19]I have no doubt that, had the panel chair received such a request, he would have granted it. In the event, he decided the Applicant’s case on the papers without the benefit of representations on the Applicant’s behalf. I am satisfied that that amounts to procedural unfairness, and direct reconsideration accordingly.[20]There can be no criticism of the panel chair for acting as he did. Whether the Applicant’s representative should be criticised for not making arrangements for her absence on leave to be covered in some way so as to avoid this problem (she belongs to a large firm of solicitors well-versed in prison law), or for not acting more urgently when she became aware of the problem than via an SHRF, which inevitably involves delays as an SHRF is designed to be placed before the other party before it reaches the panel chair, and which was sent out on New Year’s Eve, is not, in either case, for me to say. But the fault, if any, was certainly not the Applicant’s.[21]I have considered whether this is a case where, even though I have found procedural unfairness, I should exercise my discretion not to grant reconsideration. It is not. Decision[22]I have found there to have been a procedural irregularity, and I do consider, applying the test as defined in case law, that the decision not to direct release was procedurally unfair. I do so solely for the reason set out above. The application for reconsideration is therefore granted and the case should be reviewed by a fresh panel by way of an oral hearing, or a paper hearing, as the new panel chair may direct. HH Patrick Thomas KC 10 February 2025