Cunningham, Application for Reconsideration by, [2025] PBRA 36 (20 February 2025) [2025] PBRA 36

PBRA
Cunningham, Application for Reconsideration by, [2025] PBRA 36 (20 February 2025)
[2025] PBRA 36 · 2024-12-27
[1]This is an application by Cunningham (the Applicant) for reconsideration of a decision of a single panel member dated the 27 December 2024 not to direct termination of an imprisonment for public protection (IPP) licence.[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 now consisting of 118 pages, the panel decision, the application for reconsideration drafted by the Applicant's legal adviser and the representations by the Secretary of State (the Respondent). Request for Reconsideration[4]The application for reconsideration is dated 27 January 2025.[5]The grounds for seeking a reconsideration are as set out below. Background[6]The Applicant was sentenced to an IPP sentence in March of 2008. His tariff expired in September of 2013. He has been recalled twice since his initial release in January of 2014. The index offence was wounding with intent (S20) of the Offences Against the Person Act 1861. He and another attacked and seriously and permanently injured the victims in a dispute which was drugs related. The Applicant was aged 26 at the date of committing the offence, he is now aged 43. Current parole review[7]The referral by the Respondent requested that the Parole Board consider whether it would be appropriate to terminate the Applicant's licence. If not, whether any licence conditions should be amended.[8]The referral was considered by a single member in a paper hearing. The member considered the dossier which included representations on behalf of the Applicant. The Relevant Law[9]The panel correctly sets out in its decision letter dated 27 December 2024 the test for termination. Parole Board Rules 2019 (as amended)[10]Rule 28(1) of the Parole Board Rules provides the types of decision which are eligible for reconsideration. Decisions concerning the termination, amendment, or dismissal of an IPP licence are eligible for reconsideration (rule 31(6) or rule 31(6A)).[11]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[12]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.[13]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. "[14]In R(on the application of Wells) -v- Parole Board 2019 EWHC 2710 (Admin) 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).[15]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.[16]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.[17]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[18]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.[19]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.[20]The overriding objective is to ensure that the Applicant's case was dealt with justly. Error of law[21]An administrative decision is unlawful under the broad heading of illegality if the panel: a) misinterprets a legal instrument relevant to the function being performed; b) has no legal authority to make the decision; c) fails to fulfil a legal duty; d) exercises discretionary power for an extraneous purpose; e) takes into account irrelevant considerations or fails to take account of relevant considerations; and/or f) improperly delegates decision-making power.[22]The task in evaluating whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring the duty or power upon the panel. The instrument will normally be the Parole Board Rules, but it may also be an enunciated policy, or some other common law power. Other[23]In the cases of Osborn v Parole Board [2013] UKSC 61 , the Supreme Court comprehensively reviewed the basis on which the Parole Board should consider applications for an oral hearing. Their conclusions are set out at paragraph 2 of the judgment. The Supreme Court did not decide that there should always be an oral hearing but said there should be if fairness to the prisoner requires one. The Supreme Court indicated that an oral hearing is likely to be necessary where the Board is in any doubt whether to direct one; they should be ordered where there is a dispute on the facts; where the panel needs to see and hear from the prisoner in order to properly assess risk and where it is necessary in order to allow the prisoner to properly put his case. When deciding whether to direct an oral hearing the Board should take into account the prisoner's legitimate interest in being able to participate in a decision with important implications for him. It is not necessary that there should be a realistic prospect of progression for an oral hearing to be directed.[24]In Oyston [2000] PLR 45 , at paragraph 47 Lord Bingham said:
" It seems to me generally desirable that the Board should identify in broad terms the matters judged by the Board as pointing towards and against a continuing risk of offending and the Board's reasons for striking the balance that it does. Needless to say, the letter should summarise the considerations which have in fact led to the final decision. It would be wrong to prescribe any standard form of Decision Letter and it would be wrong to require elaborate or impeccable standards of draftsmanship. "
Reconsideration as a discretionary remedy[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[26]The respondent offered no representations. Grounds and Discussion Ground 1[27]It is argued that the "Osborn principles" were not followed in this case. Namely that the principles in the case of Osborn v Parole Board [2013] UKSC 61 should have been applied when considering whether to conclude this matter with or without an oral hearing. Discussion[28]I am not persuaded that the case of Osborn is applicable to applications for termination. At the outset of the Osborn case the Supreme Court indicated as follows:
" 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 ."
[29]The requirements set out in that case are clearly directed towards release and transfer to open conditions. Ground 2[30]The panel member failed to apply the test for termination. It is argued on behalf of the Applicant that the presumption element of the test for termination of IPP licences was not demonstrated in the decision of the single member. Discussion[31]Parole Board guidance relating to termination of IPP licences is published and records as follows. " The VAP Act (Victim and Prisoners Act 2024) requires that the starting point for panels is a presumption of termination. This does not impact on applying the codified public protection test as risk to the public is still the primary concern. However, in practice, where panels do not terminate the licence, full justification on public protection grounds will need to be set out in the decision. "[32]The panel in this case set out its reasons for declining to terminate the licence. It is noted that the Applicant had been recalled and had only been living back in the community for a matter of months (since May 2024), and accordingly that there was insufficient evidence to support termination of the licence.[33]I am satisfied that the rationale of the panel was sound. In the sense that there had been an unlawful incident which caused alarm and concern (the use of a golf club to damage a vehicle in an argument and abusive behaviour towards police officers). This was an incident raising the issue of continuing lack of emotional control and lack of control of physical responses to problems. I therefore do not find that the decision was irrational in the sense set out above.[34]However as noted above, the panel were obliged to consider the decision in the context of a presumption in favour of termination. Whilst there is no specific obligation to cite the presumption, panels considering cases where a presumption is engaged must demonstrate that the presumption has been applied and should indicate why, despite the presumption, the application to direct termination has been declined. In this case there is insufficient evidence that the panel member had considered the presumption. The presumption is not, as noted by the Applicant's legal adviser, mentioned or referred to in the decision. In the circumstances therefore, I have concluded that the matter should be reconsidered. Additional Note[35]I also note that there is no reference to the second element of the Respondents' reference, namely whether there should be a variation of licence conditions. It is doubtful that any variation is relevant in this case, however the matter should have been addressed in the decision. Oral or paper hearing[36]The Applicant's legal adviser argues that this matter should be directed to an oral hearing on the basis that a panel could hear evidence from the Applicant and hear of his progress. I am not persuaded that this is a case requiring an oral hearing. Any evidence required to be considered by a panel member could be fairly and comprehensively dealt with by paper submissions. For that reason, I direct a paper hearing. Decision[37]Accordingly, whilst I do not find there to have been an irrational conclusion, I do consider, applying the test as defined in case law, that the decision was procedurally unfair. I do so, solely for the reasons set out above. The application for reconsideration is therefore granted and the case should be reviewed by a fresh panel by way of a paper hearing. HHS Dawson 20 February 2025