Khan, Application for Reconsideration [2025] PBRA 74 (22 April 2025) [2025] PBRA 74
[1]This is an application by Khan (the Applicant) for reconsideration of a decision of an oral hearing panel (the panel) dated the 20 March 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 now consisting of 545 pages, the panel's decision and the application for reconsideration from the Applicant's legal representative. Request for Reconsideration[4]The application for reconsideration is dated 25 March 2025.[5]The grounds for seeking a reconsideration are that the panel's review was procedurally unfair because a decision was issued prior to the deadline for legal representations to be submitted. Background[6]On 5 March 2020, the Applicant received an extended determinate sentence following his conviction for sexual activity with a female child under the age of 16. He also received determinate custodial sentences for breaching a sexual harm prevention order, an offence of sexual assault, an offence of battery and an offence of pursuing a course of conduct which amounted to harassment.[7]On 18 June 2021, the Applicant was released automatically under the law. He was then recalled to custody the following month due to concerns about his behaviour.[8]The Secretary of State (the Respondent) referred the Applicant's case to the Parole Board for it to decide whether his re-release could be directed. At a paper review, on 29 September 2021, the Applicant's case was considered by the Parole Board and his re-release was not directed.[9]As per the annual review process, the Respondent later re-referred the Applicant's case to the Parole Board. On 9 December 2022, the Parole Board adjourned the case for the provision of further information from the Applicant's community offender manager (COM). At around this time, the Applicant's legal representative had submitted written representations. Further representations, dated 30 January 2023, were submitted following receipt of the additional material from the COM. The Applicant at this point was asking for his case to be considered at an oral hearing.[10]The Parole Board's review on 3 February 2023 then directed that the case should proceed to an oral hearing.[11]An oral hearing was due to take place on 22 January 2024, however, that hearing was later cancelled due to the Parole Board being unable to allocate a psychologist member to the panel.[12]The case was relisted on 22 October 2024 before a three member panel. The panel heard evidence from the Applicant's prison offender manager, COM and a prison forensic psychologist. The Applicant was represented at the oral hearing by his legal representative and he asked that the panel direct his re-release.[13]Following the oral hearing, on 28 October 2024, the panel adjourned the case for the provision of further evidence. A psychiatric report was directed to be produced by 28 January 2025, a report from the custody mental health team was directed to be produced by 28 January 2025, and a report from the COM was directed to be produced by 11 February 2025. The Applicant was invited to submit any written representations by 18 February 2025, with the panel then intending to conclude the case without hearing further oral evidence.[14]The reports from the custody mental health team and COM were duly filed. The psychiatric report was delayed and the Respondent made an application on 21 February 2025 (over three weeks after the directed filing date) to revise the filing date to 12 March 2025.[15]The panel subsequently agreed to the extended filing date. It directed that the psychiatric report be filed by 12 March 2025 and that the COM report (which had already been filed) be produced by 26 March 2025. The panel revised the filing date of legal representations to 2 April 2025.[16]The psychiatric report was produced and dated 11 March 2025. Nothing further was added to the dossier.[17]On 20 March 2025, the panel issued its decision not to direct the Applicant's release. This was 13 days ahead of the anticipated filing date of legal representations and six days ahead of the revised filing date for the COMs report, albeit that the report had already been filed prior to the revised date being given. The Relevant Law[18]The panel correctly sets out in its decision letter dated 20 March 2025 the test for release. Parole Board Rules 2019 (as amended)[19]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)).[20]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[21]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.[22]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.[23]The overriding objective is to ensure that the Applicant's case was dealt with justly. The reply on behalf of the Secretary of State[24]The Respondent made no representations. Discussion[25]The Applicant argues that the panel's review was procedurally unfair because its decision of 20 March 2025 was made prior to the directed deadline for the submission of written representations.[26]In my assessment, the Applicant is right. The panel's approach was procedurally unfair because it did not afford the Applicant the opportunity to put his case across properly. In such circumstances, his review cannot be seen to be fair. Decision[27]Accordingly, the Applicant's application is granted. Robert McKeon 22 April 2025