Tutu, Application for Reconsideration by, [2025] PBRA 6 (13 January 2025) [2025] PBRA 6

PBRA
Tutu, Application for Reconsideration by, [2025] PBRA 6 (13 January 2025)
[2025] PBRA 6 · 2024-12-16
[1]This is an application by Tutu (the Applicant) for reconsideration of a decision of an oral hearing panel 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 dossier, the application for reconsideration drafted by the Applicant's legal adviser and the response by the Secretary of State (the Respondent) Request for Reconsideration[4]The application for reconsideration is dated 16 December 2024.[5]The grounds for seeking a reconsideration are set out below. Background[6]The index offence in this case is wounding with intent to cause grievous bodily harm (S.18 GBH). The index offence was committed outside a barbers shop in Leeds in 2015. The Applicant approached the victim outside the barbershop and thrust a knife into his neck making threats to kill. The injury was close to the carotid artery. The victim required emergency treatment. The Applicant later handed himself into the police. The judge could find no discernible reason for the offences when sentencing. The offences were committed with a background of sustained cannabis use, non-compliance with prescribed mental health medication and disengagement with community services relating to mental health. The Applicant had a background of recorded offences including robbery, battery and public order offences. He had admitted gang affiliations and drug dealing. The Applicant also had a background of mental illness. The Applicant was sentenced to a discretionary life sentence with a minimum term of three years and 175 days. The Applicant had been released and recalled on an earlier occasion. This panel were considering a second recall. Current parole review[7]The referral in this case was a request to the Parole Board to consider whether to make a direction to release, or in the alternative a recommendation to transfer the Applicant to an open prison.[8]The panel comprised of an independent Chair and a further independent member of the Board. A dossier then consisting of 316 pages was considered by the panel. The panel heard evidence from a prison offender manager and a community offender manager. The Applicant gave evidence. The Applicant was legally represented. The Relevant Law[9]The panel correctly sets out in its decision letter dated 23 November 2024 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)[10]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)).[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)).[12]A decision to recommend or not to recommend a move to open conditions is not eligible for reconsideration under rule 28. This has been confirmed by the decision on the previous reconsideration application in Barclay [2019] PBRA 6 . Irrationality[13]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.[14]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. "[15]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).[16]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.[17]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.[18]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[19]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.[20]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.[21]The overriding objective is to ensure that the Applicant's case was dealt with justly. Error of law[22]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.[23]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. Failure to give sufficient reasons[24]It is well established now, by decisions of the courts, that a failure by a panel to give adequate reasons for its decision is a basis on which its decision may be quashed, and reconsideration directed. Complaints of inadequate reasons have sometimes been made under the heading of irrationality and sometimes under the heading of procedural unfairness: whatever the label, the principle is the same.[25]The reason for requiring adequate reasons had been explained in a number of decisions including:a. R v Secretary of State for the Home Department ex parte Doody (1994) 1 WLR 242;b. R (Wells) v Parole Board (2009) EWHC 2710 (Admin);c. R (PL) v Parole Board and Secretary of State for Justice (2019) EWHC 306 ; andd. R (Stokes) v Parole Board and Secretary of State for Justice (2020) EWHC 1885 (Admin) .[26]The principal reason for the duty to give reasons is said to be the need to reveal any error which would entitle the court to intervene without knowing the panel's reasons the court would be unable to identify any such error and the prisoner's right to challenge the decision by judicial review would not be an effective one. In Wells Mr Justice Saini pointed out that the duty to give reasons is heightened when a panel of the Board is rejecting expert evidence. Other[27]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[28]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[29]The Respondent made no representations. Grounds and Discussion[30]It is submitted by the Applicant's legal adviser, that the panel failed to conduct a fair review of recall allegations (of sexual misconduct) which had been recorded in the dossier, but which had not led to any prosecutions or convictions. Discussion[31]It is necessary to briefly address the background to the Applicant's recall to address this issue.[32]The Applicant was living in probation supported accommodation, having been released from prison by a Parole Board panel. Whilst living at the hostel the Applicant made contact with a female. It appears that the female was somebody with whom he had had contact and exchanges in the past, although the detail of the nature of the relationship or connection between the Applicant and the female was unclear.[33]On the particular night in question, the Applicant contacted the female to say that he needed to charge his mobile phone and asked whether he could come to her home to do so. The female agreed to allow the Applicant to come to her home. According to evidence, later given to the police by the female complainant, she had been taking alcohol and was inebriated. The Applicant came to her home and fairly quickly, (as later reported to the police), he made advances towards her. The female complainant said that the Applicant forced himself upon her and had non consensual sexual relations with her. She reported that she had been trying to fight off the Applicant without success. The matter was later reported to the police by the complainant. A written report by the complainant, alleging rape, was recorded by the police.[34]The Applicant, when later interviewed by the police, accepted that sexual intercourse had taken place, but said it had been consensual. The Applicant had said at an early stage (when initially arrested) that the complainant was drunk, although he later said that the complainant was not entirely affected by alcohol, implying that she was able to consent.[35]The police instigated an investigation, however, the outcome was that the reporting female complainant could not be found or contacted and therefore a formal signed statement and complaint had not been taken. In those circumstances the prosecution was not pursued by the police.[36]The panel at the oral hearing addressed the allegation. Guidance in relation to the approach to allegations by Parole Board panels was set out in the case of Pearce [2023] UKSC 13 on appeal from [2022] EWCA Civ 4 . The Parole Board have also published a guidance document entitled " Guidance on Allegations v2.0".[37]The principles, as set out by the Supreme Court in the case of Pearce, are that panels must address allegations and make objective decisions based upon the information and evidence available to them at the oral hearing, detailed requirements are set out in the Parole Board guidance.[38]The guidance on allegations will frequently be engaged where allegations have been recorded by the police, but no formal prosecution has ensued or where the prosecution has resulted in an acquittal.[39]Parole Board panel's assess risk and are therefore not bound by the existence or otherwise of criminal convictions. Risk and evidence supporting risk must be assessed on a holistic basis. Importantly, the standard of proof required to be applied to evidence in relation to allegations is the civil standard.[40]In any particular case there may be sufficient evidence to allow a panel to reach a firm conclusion, on the balance of probabilities, as to allegations or surrounding circumstances which may be relevant to risk. In those circumstances, the panel will be entitled to take those findings into account and give the findings such weight as they think appropriate.[41]However, there will also be cases where having investigated an allegation (or the surrounding circumstances) a panel may find that, although some evidence may exist, they cannot make a definitive finding of fact regarding the central allegation. In these circumstances, the panel is entitled to consider whether (using the formula in the case of Pearce) there is a " serious possibility that the allegations may be true" . Clearly, the panel must act fairly towards the Applicant as well as in the public interest when reaching a conclusion that there is a serious possibility of truth, however, the panel are entitled to take account of such a finding and to give it such weight as they think is appropriate.[42]Finally, there will also be circumstances where there is insufficient evidence to reach any conclusion, on a fair basis, and in those circumstances the evidence must be disregarded.[43]In this case the panel had evidence from police reports and from the Applicant about the alleged rape. The panel incorrectly asserted at the outset that it was " not in a position to make a formal finding of fact in this case, in the absence of any conviction for a sexual offence ." As noted above the panel would have been entitled to make a finding of fact, despite the absence of a formal conviction. The essence of the case of Pearce is that Parole Board panels are so entitled, subject to the cautious requirements of that case.[44]However, the panel did comment further upon the issue of the allegations. The panel, in the decision letter, stated as follows. " After carefully considering the information in the dossier from the police and the alleged victims reports. The panel was left with a number of significant concerns about [the Applicant's] account of events." The panel then expressed a number of concerns that they had about the Applicant's explanation of what had happened when the report of rape had taken place.[45]While the panel used the terms " a number of concerns " it was not clear in the panel's decision letter whether it had specifically considered and found that there was either evidence sufficient to make a finding of fact or that there was evidence sufficient to find a " serious possibility that the allegations may be true" . Or, alternatively, whether the panel had concluded that (as set out in paragraph 7.4 of the Parole Board guidance) " due to the inadequacy of the information available, or the likelihood of the allegation. The panel may decide that they should not place weight on or take account of the allegation at all."[46]The panel clearly noted that they found the Applicant to be a person who lacked credibility, and who had not been entirely honest with the panel. However, the panel did not engage directly upon the question of whether they had concluded that there was sufficient evidence to reach at least a determination about a " serious possibility " of non consensual sexual misconduct.[47]The panel's decision in this case turned heavily upon the fact that the Applicant had not addressed issues of relationships with women and the management of those relationships.[48]The panel may well, in this case, have concluded that reliance could be placed upon the evidence of the female complainant, and upon the fact that she had taken alcohol and had no pre-existing or continuing relationship with the Applicant. Those factors of themselves, given the acceptance by the Applicant that sexual intercourse had taken place within a short while of him attending the home of the complainant, (ostensibly to charge his mobile phone) were matters of concern in terms of risk to women. These may have led a panel to find that a " serious possibility " of non consensual sexual misconduct had occurred. The panel, however, offered no findings or conclusions in respect of this aspect of the evidence. Without a clear finding and reference to the decision in Pearce and the Parole Board guidance the decision in my determination does not appropriately deal with the topic of allegations and therefore explains the basis for the conclusions in relation to denying release.[49]When dealing with allegations, it is important for the decision to make clear reference to the guidance in relation to allegations and to make it clear what findings if any have been reached. If no finding has been reached that also should have been recorded.[50]The panel's primary concern and conclusion was that the Applicant " did not demonstrate the expected degree of openness which would be necessary to convince the panel of the needed level of compliance and to have taken on board the lessons from the work he had done previously ."[51]It was unclear whether the panel in reaching this conclusion had found that there was a serious possibility that the allegations of sexual misconduct had occurred (and therefore the Applicant's account lacked credibility and elevated risk) or whether the panel reached no conclusion on the question of sexual misconduct, but were relying upon the aspect of lack of credibility in relation to reporting relationships (which was another theme of the hearing). The basis for the decision was not therefore clear and understandable.[52]In this case I have concluded therefore that the decision is irrational in that the decision is not clearly and fully explained with sufficient reasons. A clear explanation was necessary, particularly as this was a case where the views of the professionals were that the Applicant's risk could be managed in the community. In those circumstances it was incumbent upon the panel to explain clearly, and in detail, the basis upon which it reached its conclusion.[53]In the light of the fact that I have concluded that this matter should be reconsidered I have not addressed other grounds cited on behalf of the Applicant. Decision[54]Accordingly, whilst I do not find there to have been a procedural irregularity, I do consider, applying the test as defined in case law, the decision to be irrational. 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 an oral hearing. HH Stephen Dawson 13 January 2025