Smith, Application for Reconsideration by, [2025] PBRA 91 (09 May 2025) [2025] PBRA 91

PBRA
Smith, Application for Reconsideration by, [2025] PBRA 91 (09 May 2025)
[2025] PBRA 91 · 2025-03-10
[1]This is an application by Smith (the Applicant ) for reconsideration of a decision, which is undated but was issued on 10 March 2025, of a panel of the Parole Board ( the Panel ) following an oral hearing held remotely by video on 25 February 2025. The Panel decided not to direct the Applicant's release but made a recommendation for his transfer to open conditions.[2]Rule 28(1) of The Parole Board Rules 2019 (as amended in 2024), ( 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 that:(a) the decision contains an error of law;(b) the decision is irrational; and/or(c) the decision 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 papers are: · a dossier of 251 pages; · the Panel's decision which was undated but was issued on 10 March 2025 ( decision ); and · an application for reconsideration dated 26 March 2025 submitted by the Applicant's legal representative ( the application ).[4]I have also listened to a recording of the hearing held on 25 February 2025 ( OH Recording ) which was approximately three hours and 33 minutes long.[5]References to paragraphs are to paragraphs of the decision. Background[6]In 2011, the Applicant was given a life sentence for murder with a minimum term of 14 years less time spent in custody on remand. He was aged 34 at the time. The Applicant and the victim were members of rival London gangs. An argument between them developed into a fight during which the victim stabbed the Applicant. The Applicant was said to have had an opportunity to leave the scene but did not, and in the ensuing struggle, the victim was fatally stabbed. The sentencing judge remarked that the Applicant had gone " completely over the top in dealing with the threat that in reality [the victim] posed" to him.[7]The Applicant has made positive progress in custody and has completed accredited programmes and other work to address his risks including CALM (Controlling Anger and Learning to Manage it) in 2011, the Thinking Skills Programme in 2012, and Sycamore Tree, a victim awareness programme, in 2013.[8]His case was first reviewed by the Parole Board in 2022 when he was a pre-tariff prisoner. A recommendation for a progressive move to open conditions was made, and the Applicant moved to the open conditions in February 2023. He was returned to the closed estate in July 2023 after failing several drug tests.[9]His minimum term expired in December 2024. Current parole review[10]The Secretary of State referred the Applicant's case to the Parole Board in February 2024. Although the Applicant was eligible for release, legal representations dated 4 July 2021 stated that he was seeking a recommendation for a move to open conditions because he considered that he needed a gradual reintegration to the community. The case was directed to an oral hearing in July 2024.[11]The hearing took place on 25 February 2025. The Panel comprised three independent members. The Applicant was seeking his release at this review. Evidence was taken from the Applicant's prison offender manager ( POM ) and his community offender manager ( COM ). The Applicant also gave evidence to the Panel.[12]At the end of the hearing, the chair of the Panel ( panel chair ) said that due to the issues that had been raised about the risk management plan, she wanted to discuss matters with her co-panellists before concluding the hearing. She indicated that an adjournment would probably be directed so that further information could be obtained about the risk management plan. The Applicant's legal representative agreed with the panel chair's proposal stating that she wanted to obtain information about work-related training courses completed by the Applicant. The panel chair made it clear to the Applicant that the Panel had not made a decision yet, and that it would do so once the Panel had received further information about the risk management plan and closing submissions from his legal representative.[13]An adjournment ( Adjournment ) was issued later that same day. The panel chair advised that the Panel had considered the evidence before it and determined that it did not require any further information about the risk management plan. The Panel invited concluding submissions from the Applicant's legal representative and said that on receipt of those submissions, the Panel would finalise its decision.[14]Closing submissions were delivered on 3 March 2025 and the decision was issued on 10 March 2025. The Panel did not direct the Applicant's release but did make a recommendation that the Applicant should be moved to open conditions. Request for Reconsideration[15]The application submits that the decision was procedurally unfair. Three arguments are advanced in support of this submission.[16]The first argument is that the Panel reached its decision that the Applicant did not meet the test for release in its post-hearing discussion on 25 February 2025 before the legal representative's closing submissions were delivered.[17]The application submits that it was clear from the decision that the Panel " felt further work was necessary on the risk management plan to be able to direct release ", and that the decision not to request further work showed that the Panel had concluded that the Applicant did not meet the test of release at the point the Adjournment was issued. In support of this submission, the application highlights two statements made by the Panel. The first is in the Adjournment:
" The panel has now considered the evidence before it and has determined that it does not require any further information on the risk management plan. "
The second is set out in paragraph 3.3:
"[The COM] stated that more work on the risk management plan would include specific work on both AP and move on area. The panel, had it accepted that some more development work would make this plan one that could manage [the Applicant's] risk and that [the Applicant] met the test for release, would have adjourned for this work to have been carried out. However they did not consider that [the Applicant] met meet [sic] the test for release."
[18]The second argument is that there is no evidence that closing submissions were properly considered. It is submitted that although the decision refers to closing submissions, there is no reference to the content of " the detailed 9 page representations. " The application submits that failure to consider closing submissions is a well established basis for a finding of procedural unfairness and cites the reconsideration decision of Rhodes [2023] PBRA 196 .[19]The third argument is that the Panel should have invited submissions from the legal representative before making a decision about whether to adjourn for further information on the risk management plan. It is argued in the application that there was no indication in the hearing that an adjournment would not be directed. The reply on behalf of the Secretary of State[20]The Secretary of State did not make any submissions in response to the application. The Relevant Law[21]The Panel correctly sets out in its decision 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. 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 . Procedural unfairness[22]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.[23]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.[24]The overriding objective is to ensure that an applicant's case was dealt with justly. Discussion[25]As noted above , three arguments are advanced in support of the submission that the decision was procedurally unfair.[26]The main argument is that the Panel reached its decision in its post-hearing discussion on 25 February 2025 and did not consider the legal representative's closing submissions which were delivered on 3 March 2025.[27]The panel chair stated at the end of the hearing that she wanted to discuss the issues that had been raised about the risk management plan with her co-panellists, and that the Panel would need to determine whether more information was required about the risk management plan. The Panel concluded during its post-hearing discussion that it did not require any further information about the risk management plan. The Adjournment states, " The panel has now considered the evidence before it and has determined that it does not require any further information on the risk management plan. "[28]The application submits that the decision not to request further work on the risk management plan showed that the Panel had determined during its post-hearing discussion that the Applicant did not meet the test for release. In other words, it is argued that the Panel saw no point in directing the COM to develop a comprehensive risk management plan because it had already decided not to release the Applicant.[29]Where a prisoner is seeking release, after a panel has identified a prisoner's risks and assessed to what extent those risks have been addressed, it must consider the manageability of those risks in the community. Evaluating the proposed risk management plan is an essential part of assessing the manageability of risk.[30]The risk management plan presented to the Panel at the hearing was not fully developed. The COM proposed that release should be to approved premises ( AP ) but had not yet applied for an AP placement. The COM said that he was confident that the Applicant would be allocated an AP placement because he was assessed as presenting a high risk of serious harm to the public. Although the Applicant had agreed with the COM that he would not be able to return to his home area after leaving the AP, no alternative resettlement areas had been proposed or discussed with the Applicant. As a consequence, there was no information about what services might be available to support his resettlement, which the Panel recognised in paragraph 3.1, "... without any information on possible areas the panel was unable to have specificity about the availability of support services and agencies for [the Applicant] ." Additional licence conditions had been proposed by the COM to manage the Applicant's risk. The Panel discussed these, and raised others for the COM to consider.[31]Risk management plans are often not as detailed or as certain as panels would like, and it is a matter for each panel, taking account of the nature of a prisoner's risks and his sentence, to determine how specific and definitive the risk management plan needs to be to enable them to make a sound assessment of risk. Having heard the evidence, the Panel would have used its expertise and exercised its judgement in reaching the decision that it did not require any further information about the risk management plan. In isolation, the Panel's decision not to seek further information about the risk management plan does not indicate that it had already made a decision about whether the Applicant met the test for release.[32]The Panel endeavoured to set out its decision-making process in paragraph 4.7, " The panel makes it clear that it does not make this decision because of the need for further work on the risk management plan. This decision is based on all the information before it including the evidence of everyone at the hearing as well as the concluding legal submissions from [the Applicant's] legal representatives. "[33]However, the Panel must ensure not only that it actually deals with the Applicant's case justly but also that it is seen to deal with his case justly.[34]There are several statements in the decision which raise the possibility that the Panel may have made its decision during its post-hearing discussion. In paragraph 3.1 the Panel states, " as mentioned above, the COM accepted that more work would need to be carried out on the Risk Management Plan prior to a realistic release. " This implies that release might be a realistic prospect if further work was undertaken. The decision records in paragraph 2.23 that the COM stated that, " the risk management plan could be 'tweaked' in a few days. " "Paragraph 3.3 states, " The panel, had it accepted that some more development work would make this plan one that could manage [the Applicant's] risk and that [the Applicant] met the test for release, would have adjourned for this work to have been carried out. However, they did not consider that [the Applicant] met meet [sic] the test for release." The Panel's decision not to ask the COM to undertake further work could, in light of these statements, be perceived as an indication that the Panel did not ask the COM to develop the risk management plan because it had already decided that the Applicant did not meet the test for release.[35]The second argument advanced by the application is that there is no evidence that closing submissions were properly considered. Rule 24(9) provides that the prisoner and/or their representative must be given an opportunity to address the Panel after all the evidence has been given. The Panel refers to its consideration of the legal representative's concluding submissions at least twice in the decision but does not summarise them, discuss them, or indicate which submissions they disagreed with and why. The Parole Board's Decision Writing Guidance suggests that submissions from a prisoner's legal representative should be summarised either in the conclusion section of the decision or other suitable place. In my view, it would have been particularly important to do so in this case because the legal representative's closing submissions were not accepted by the Panel. This omission adds to the perception that the Panel made its final decision before giving the Applicant an opportunity to address the Panel in the form of the legal representative's closing submissions.[36]The third argument is that the Panel should have invited submissions before making a decision about whether to adjourn for further information on the risk management plan. It is argued that that there was no indication in the hearing that an adjournment would not be directed. The panel chair said that the Panel would " probably " adjourn to obtain more information about the risk management plan and that may have raised an expectation that this would occur. It would have been good practice for the panel chair to have indicated that the Panel was not minded to direct further information and to seek the legal representative's views. Equally, since the Adjournment sets out the Panel's stance, the legal representative had an opportunity to seek an adjournment and explain why she believed further information about the risk management plan was necessary. On balance, therefore I do not accept that this created any procedural unfairness.[37]The Applicant felt that he had not been given an opportunity to address the Panel after all the evidence was heard and before a decision about his application for release was made. Having considered the matter carefully, sufficient doubt has been raised by the approach taken, and the process followed, by the Panel to suggest that the Applicant's case was not dealt with justly or fairly, and that there was procedural unfairness. Decision[38]Accordingly, I consider that the decision of the Panel 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 an oral hearing. Hedd Emrys 9 May 2025