Knight, Application for Reconsideration [2025] PBRA 7 (13 January 2025) [2025] PBRA 7

PBRA
Knight, Application for Reconsideration [2025] PBRA 7 (13 January 2025)
[2025] PBRA 7 · 2024-12-12
[1]This is an application by Knight (the Applicant) for reconsideration of a decision of a panel of the Parole Board dated the 12 December 2024 making no direction for release following an oral hearing on 6 September 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 application for reconsideration, the decision of the panel and the dossier. Request for Reconsideration[4]The application for reconsideration is dated 17 December 2024.[5]The grounds for seeking a reconsideration are as follows that the decision was irrational in that:(i) The decision not to release was contrary to the evidence of all the professionals.(ii) The reasons given do not adequately explain why the recommendation of the professionals to release was not followed.(iii) The panel’s reliance on a report from a psychologist who gave evidence at a previous hearing rather than the evidence of the psychologist who gave evidence at the hearing before this panel was irrational.[6]The Applicant also submits that the hearing was procedurally unfair in the way the panel dealt with the evidence of the psychologist at the hearing. Background[7]On 26 July 2012 the Applicant was sentenced to imprisonment for public protection (IPP) for an offence of rape. The Applicant was then 29. He is now 41. The minimum period that the Applicant had to serve before he could be considered for release on licence was 3 years 153 days. The Applicant had no previous convictions at the time of sentence. The judge took into account when deciding that the Applicant was dangerous the fact that he had been acquitted of a previous rape of a woman with whom he had a relationship. The evidence relating to this previous allegation had been served by the prosecution as bad character evidence that they were seeking to use in a trial. In the event the Applicant pleaded guilty shortly before trial for the instant offence and the judge never ruled on the admissibility of that evidence. The judge also relied on the fact that the Applicant volunteered to the probation officer preparing the pre-sentence report that he had a “pattern of rape” with women with whom he was in a relationship although in none of the cases had there been a conviction or a prosecution except for the prosecution which I referred to above where no evidence was offered. The Applicant has never been released on licence and is about 9 and a half years over tariff. He was transferred to open conditions in March 2021 and has completed successfully many day releases and overnight leaves with no suggestion of offences being committed. Current parole review[8]This was the sixth referral of the Applicant’s case to the Parole Board and is dated August 2023. There were numerous adjournments of the hearing. It was due to be heard first on 16 May 2024 but was adjourned on the day for the preparation of a psychological risk assessment. The hearing took place on 6 September 2024 but the decision was adjourned for more information to be supplied by the police of interfamilial sexual allegations against two other members of the Applicant’s family. The reason for this was presumably related to the suitability of the Applicant’s family home as somewhere the Applicant could live after being at an approved premises. The offences are not suggested to have related to the Applicant. This led, perhaps unsurprisingly, to a non-disclosure application by the police as no charges had at the time been brought. The non-disclosure application was granted and that is not the subject of any complaint. The Applicant was provided with a gist which I have seen in the dossier but I have not seen the undisclosed information which I do not believe is relevant to this reconsideration application. The panel’s decision was promulgated on 12 December 2024.[9]On 6 September 2024 the panel heard from the Community Offender Manager (COM), the joint Prison Offender Managers (POMs) and a forensic psychologist in training. The Relevant Law 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)). 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) 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).[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 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. 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. The overriding objective is to ensure that the Applicant’s case was dealt with justly. The reply on behalf of the Secretary of State (the Respondent)[21]The Respondent has made no submissions in response to this application. Discussion[22]The panel sets out the correct test for release namely:
“ The Parole Board will direct release if it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.”
The panel also correctly records at para 1.1 of its decision that the Applicant is a significantly over-tariff prisoner who has never been released. What it does not say is how, if at all, the fact that the Applicant is significantly over tariff has affected its consideration of the statutory release test.[23]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.[24]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.”
[25]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.[26]While the statements of the Supreme Court were made in relation to prisoners serving sentences of life imprisonment, similar considerations apply to prisoners serving sentences of imprisonment for public protection as is made clear by the case of Hall. It is arguable that they apply to an even greater degree for IPP prisoners as HMPPS are making extra efforts to ensure that IPP prisoners are ready for release when they come up for parole by having had the necessary training and by providing them with the necessary support when they are released.[27]It would be helpful to reconsideration panels and, in the event of an appeal, the High Court, if panels were to record whether and how they have applied the Supreme Court guidance in making their decision. It is not however essential. It may be clear from the decision of the panel that they have taken into consideration the fact that the prisoner is over tariff at the time of the hearing even if it is not specifically referred to. Or it may be apparent from the decision of the panel that there was no way in which the fact of post tariff detention could make any difference to the decision.[28]The Applicant was sentenced on 26 July 2012, the year that IPPs were abolished because they were recognised as unjust sentences. No defendant could be sentenced to an IPP after 3 December 2012. The judge commented in his sentencing remarks that the index offence would not have justified a sentence of life imprisonment. Had the Applicant been sentenced five months later he would have been sentenced to a term of imprisonment which would have come to an end some time ago.[29]Taking a very broad brush approach to the Applicant’s progress through the prison estate based on the contents of the dossier: he has been generally compliant to prison discipline. He has attended all the courses that he has been asked to attend. He has favourable reports from his attendance on the courses and those who have interviewed him subsequently are satisfied that he has understood the lessons that he has been taught.[30]Since his transfer to open conditions in March 2021, the Applicant has had many day releases and overnight temporary licences and again, on the whole, those have been successful. There has been very little conduct which has caused concern for those monitoring his performance. There is no suggestion from any of the professionals that he has not been putting into practice the lessons that he has learnt relating to his attitude to women and the need for genuine consent.[31]The contents of the dossier in general speak highly of the progress that the Applicant has made.[32]At the hearing, the COM and the POMs recommended release and the psychologist concluded that the Applicant’s risk could be safely managed in the community.[33]Taking that broad brush approach, it is surprising that no direction for release was made, particularly if the approach directed by the Supreme Court was followed. However I accept that it is not possible to decide this application by taking a broad brush approach. It is necessary to look in more detail at the reasons of the panel for disagreeing with the recommendations.[34]While the panel mentioned that the Applicant was significantly over tariff, they do not say how that was factored into their decision or if it was taken into account at all. In my judgment, on the facts of this case, it should have been and it is necessary to look at the detail of the decision in order to see whether it was.[35]In the analysis of offending behaviour the panel adopts the description of the index offence given by a previous panel in November 2022. Part of the description they repeated is that “[The Applicant’s] account of his involvement with the victim has varied over time. He has contended he had been for a time in a sexual relationship with her, something she denied, she has stated he was a casual acquaintance.”[36]Having read the dossier in detail, I am not convinced that this is accurate. The judge did not deal with the facts in any detail in his sentencing remarks and the pre-sentence report which is based in part on the victim’s statement is ambiguous. Certainly the victim says she had never told the Applicant that she was pregnant with his baby but she doesn’t say that they had never had intercourse.[37]Further in the decision the panel reports that apart from the victim of the index offence, two females have reported such offences to the police, one of which lies on the file. One female certainly reported a rape to the police and the Applicant was found not guilty of that when the complainant decided not to give evidence. I have found no indication in the dossier that another offence was ordered to lie on the file. There is reference to another of the Applicant’s partners and the mother of his child reporting to social services that he had raped her but there is no evidence that it was investigated by the police; any reference to it in the dossier suggests it was not investigated and it did not go to court which is the only place that an order could be made that it remain on the file.[38]Neither of these matters might have been of much significance in the light of the Applicant’s admission to the author of the pre-sentence report that he had committed rapes on women with whom he was in a relationship but both the two matters are referred to in 4.2.3 of their conclusion by the panel as being of note. So the panel thought it was relevant to their decision that the victim of the index offence described their relationship as casual and that another alleged rape had been investigated by the police and that the allegation had been ordered to lie on the file. Both of which facts may be inaccurate.[39]The reason for the lengthy adjournment of the hearing was to obtain a report from the police into allegations of familial sexual offences, certainly in one case historic, alleged to have been committed by a brother of the Applicant and his son. There had at the time of the hearing been no convictions and no clear indication that I have seen that there had been charges. I have not seen the police information only the gist.[40]The panel at 4.2.5 and 4.2.6 placed weight on the allegations in refusing a direction to release in several ways. They were concerned that the Applicant apparently does not discuss his sexual offending with his family. They were concerned about the difficulties that might be caused if either his brother or son were convicted. They were concerned that the family home should be considered suitable follow-on accommodation whether or not there is a conviction. They criticised the COM for recommending it and they go on to say that placement at a standard approved premises or CAS3 accommodation would not be sufficiently robust to manage the Applicant’s risks.[41]There was no evidence from any of the professionals to support this conclusion and while in open conditions the Applicant has behaved perfectly well with no difficulties, which tends to support the professionals’ view. He has stayed at the family home on a number of occasions. On the basis of the reasons given, in my judgment, many, if not all panels, would have reached a different conclusion. They might not have found it so surprising that a 41-year-old man didn’t discuss his offences with his parents nor might they consider that until and unless either his brother or son were convicted that the parents’ home was unsuitable as follow on accommodation. They might have accepted the evidence of the COM who has met the people concerned. Further if there were a conviction and that made using the parents’ home as follow on accommodation unsuitable, many panels might have taken the view it was a matter for probation to find suitable accommodation where the Applicant’s risks could be managed and that this was a decision to be made in the light of the Applicant’s behaviour at the approved premises.[42]The grounds for reconsideration rely particularly on the treatment of the evidence of the psychologist in training by the panel. The report was intended to detail progress made since the last psychologist’s report. One of the important matters set out by the previous psychologist was for the Applicant to be tested by temporary releases and that needed to be assessed.[43]At 4.2.7 of the conclusion the panel says:
“ The previous PRA [psychological risk assessment] was clear that [the Applicant] needed to undertake further core risk reduction work, particularly concerning the issue of consent. The panel accepts that it is not possible to know what the previous author’s recommendation would be now, but nonetheless notes the significant differences between the most recent PRA, and the 2022 assessment which was undertaken by a fully qualified psychologist.”
While a panel is entitled to take into account previous reports, I do not think it is fair to prefer an old report to a new one on the basis that the author of the new report is “in training”. The author of the new report is a qualified psychologist. She is in training as a forensic psychologist and her work is supervised and signed off by a qualified psychologist. As the panel rightly said it is impossible to say what the opinion of the author of the 2022 report would be now.[44]At para 2.25 the panel further said: ”The psychologist was not able to say if [the Applicant’s] risk of intimate partner violence would increase if he was in a relationship. She confirmed she had only taken his convictions into consideration, and had not considered any patten of sexual violence for which he had not been convicted to be relevant to her assessment. ”[45]While the psychologist may have said that in evidence, I have not seen or asked for a transcript of the hearing, reading her report gives a completely different picture. She refers to the pattern of behaviour at paras 4.10, 4.27, 4.39 and 4.89 of her report. Reading her report it is quite clear that she did take it into account. She was building on the work of previous psychologists, all of whom referred to it and relied on it.[46]It is not for me to substitute my views for those of the panel. They heard the witnesses which I have not done. They are entitled to disagree with the professionals provided they give adequate reasons for doing so.[47]Nevertheless the weight of evidence was in favour of release and I do not consider that the reasons given for going against that weight of evidence are convincing. They do not meet the test set out by Saini J referred to earlier. In particular I do not consider that the panel has given the sort of anxious consideration that the Supreme Court says that it should in considering whether the level of risk presented by the Applicant is unacceptable. It doesn’t say that it has and in my view it hasn’t. Decision[48]For the reasons that I have given I consider the decision of the panel to have been irrational. I do not believe that other panels would have come to the same conclusion on the evidence that was given. In the light of that decision, I do not consider it is necessary to go on to consider whether the hearing was unfair. John Saunders 13 January 2025