Duffey, Application for Set Aside [2025] PBSA 3 (15 January 2025) [2025] PBSA 3

PBSA
Duffey, Application for Set Aside [2025] PBSA 3 (15 January 2025)
[2025] PBSA 3 · 2024-12-16
[1]This is an application by a Mr Duffey (the Applicant) to set aside the decision not to direct his release. The decision was made by a panel after an oral hearing involving video link on 16 December 2024. This is an eligible decision.[2]I have considered the application on the papers. These are the dossier now consisting of 346 pages (330 at the time of the hearing), the oral hearing decision dated 18 December 2024 (the Decision), and the application for set aside dated 4 January 2025 made on the Applicant’s behalf by his legal representatives. Background[3]On 6 July 2017, the Applicant, then aged 28, received a determinate sentence of concurrent terms totalling 9 years imprisonment following convictions for offences of robbery (x 2), burglary and theft involving a residential dwelling, theft of a vehicle and having a firearm with intent to commit an indictable offence (x 2) to most (but not all) of which he pleaded not guilty. His sentence expiry date ( SED ) is September 2025.[4]The Applicant is now 35 years old.[5]He was automatically released on licence on 1 April 2021, but his licence was revoked on 14 December of that year, and he was returned to custody the following day. He was released again on licence on 21 September 2023 following a parole board hearing, but this release too was revoked on 4 April 2024 again with his being returned to custody the following day. Application for Set Aside[6]The application for set aside has, as stated, been drafted and submitted by the Applicant’s legal representatives.[7]The application submits that there has been an error of fact (which, properly viewed, amounts also to an error of law or injustice) in that the panel appear to have made a fundamental, unwarranted and erroneous assumption as to the Applicant’s presentation at the hearing as set out below.[8]Under the heading of “ Conclusion ” the panel in the Decision noted the following at paragraph 4.6:
“ Although there were no reported concerns about substance misuse in prison, the panel were concerned about [the Applicant’s ] presentation because he slurred his words at times and there were occasions when questions had to be rephrased or repeated to him. In addition, [the Applicant] appeared not to have considered and decided upon a strategy to manage his addiction if release was directed .”
[9]Whilst substance misuse was, in the Applicant’s case, of undisputed relevance to the assessed risk of serious harm (or for that matter overall), the Applicant’s legal representatives submit (in substance) that this can in the overall context of the Decision, only be read fairly as an ultimate assumption by the panel that the Applicant was under the influence of “ substances ”, i.e. illicit drugs.[10]Yet, it was submitted in effect that: a) At no point did the panel question any professional witness or the Applicant about his presentation, nor was any concern or observations expressed about it; b) The slurring of words (or, it might be said, difficulty of understanding the questions asked or asking for them to be rephrased) is not necessarily indicative of being under the influence of drugs; c) There was no evidence presented at the hearing or in the dossier that the Applicant had been involved in substance misuse whilst in prison; d) The Prison Offender Manager ( POM ) who was seated throughout the hearing beside the Applicant had no concerns at the time that the Applicant was either under the influence or that his presentation indicated as such (she has apparently addressed a complaint to the Parole Board regarding the assumption made by the panel); e) The assumption was erroneous and an important link with or integral part of the panel’s Decision. The Applicant was not under the influence of substance misuse during the hearing, the assumption that he was lay at the heart of the panel’s decision not to direct release, was unfair, perceived to be unfair, and but for this assumption the Panel would have reached a different decision; f) The Decision should accordingly be set aside. Current parole review[11]The Applicant’s case was, following his recall to custody, referred to the Parole Board by the Secretary of State (the Respondent) in the usual way.[12]The case proceeded to an oral video link hearing on 16 December 2024 before a 2-member panel, chaired by an independent member alongside an experienced judicial member. The panel heard evidence from the Applicant, his POM, and his Community Offender Manager ( COM ). The Applicant was legally represented throughout the hearing.[13]This was the Applicant’s second parole board panel hearing during his current sentence. The previous panel had recommended his release. In its Decision, the present panel expressly adopted the analysis of offending and risk factors which included a long history of offending from an early age (including robbery, burglary, offences against the person, theft of vehicles, and violence) and a long history of drug misuse. The previous panel had also noted the concerns raised regarding the Applicant having ADHD as a child and more recently, but no formal assessments had been made of this.[14]Following his first release, the Applicant had consistently tested positive for cocaine, he had failed to engage with offending behaviour work and there were a number of “ unacceptable absences ”. His conduct since the first recall had been good and the panel noted “ he [had] presented as motivated to continue abstinence from substances ”.[15]Following his second release he had again tested positive for cocaine, had continued to seek out substances requiring contact with dealers and failed to engage fully with supervision.[16]He was recalled only when his mother had complained she was under pressure to provide money, and the Applicant was threatening to rob a shop otherwise (the inference is to maintain his supply of drugs). The Applicant had not challenged his recall.[17]Otherwise there appear to have been no violence or allegations of reoffending. Indeed, the panel noted that “ it was positive that [the Applicant] had not been suspected of further violent offending ”.[18]There were also no reports of substance misuse in prison. The Applicant told the panel that apart from the prescription of 15ml of methadone, he was not using other substances in custody.[19]The POM’s evidence noted that the Applicant had been “ up and down ” about completing the necessary core risk reduction work in the Thinking Skills Programme ( TSP ), or its substitute, Building Better Futures ( BBF ), the latter being able to be completed in the community with alternative programmes being available before the SED (which the panel accepted) though the panel did add that had the Applicant “ completed TSP in advance of the oral hearing the panel would have required additional evidence to find him safe for release ”. What kind of evidence would have been required was not stated.[20]The panel recorded that the COM “ confirmed in evidence that they did not support release ”. Who “ they ” refers to is unclear; the POM had indicated that the work the Applicant needed to do to address substance misuse, and the TSP could be completed in the community and that his risk of serious harm would reduce to medium after completion of TSP. Otherwise the recommendation of the POM (as stated to the panel at the hearing) is not recorded in the Decision, though to be fair the reports in the dossier indicated against recommending release.[21]The panel found the risks of general and violent reoffending to be medium and a high risk of non-violent offending and of serious harm to public. The risk management plan was accepted as robust and with no additional licence conditions required to satisfy the panel that a direction for release would be safe.[22]Nevertheless, the risks of substance misuse, antisocial peers (dealers) and lack of motivation remained. During his previous release the Applicant had spent most of his time at home with his mother. The panel concluded that there was no indication that there had been any change since the previous release and the likelihood was that the Applicant would relapse again if release was directed.[23]There was, the panel found, a direct link between substance misuse and risk. There then followed the quoted passage above about the Applicant’s presentation at the hearing followed by the conclusion that he had outstanding risk factors which the panel concluded could not be managed in the community. (Again, why not is not stated despite the conclusion that the Risk Management Plan ( RMP ) was thought to be robust, and the previous panel had directed release.)[24]The panel did not direct the Applicant’s release. The Relevant Law[25]Rule 28A(1)(a) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2022 (the Parole Board Rules ) provides that a prisoner or the Secretary of State may apply to the Parole Board to set aside certain final decisions. Similarly, under rule 28A(1)(b), the Parole Board may seek to set aside certain final decisions on its own initiative.[26]The types of decisions eligible for set aside are set out in rule 28A(1) . Decisions concerning whether the prisoner is or is not suitable for release on licence are eligible for set aside 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)).[27]A final decision may be set aside if it is in the interests of justice to do so (rule 28A(3)(a)) and either (rule 28A(4)): a) a direction for release (or a decision not to direct release) would not have been given or made but for an error of law or fact, or b) a direction for release would not have been given if information that had not been available to the Board had been available, or c) a direction for release would not have been given if a change in circumstances relating to the prisoner after the direction was given had occurred before it was given. The reply on behalf of the Respondent[28]The Respondent has offered no representations in response to this application being content to leave it to the decision of the Board . Discussion[29]It is a trite but significant legal principle that justice must not only be done but be seen to be done.[30]Perception is everything; nowhere more so than in the necessity for the losing party, supplicant, or litigant in any dispute to feel that they have had a fair hearing, an opportunity to present his or her case, and have been listened to. Again, no more so is this apposite than in the case of a vulnerable witness or party who may be struggling with a range of fears or emotions when faced with the machinery of justice, from unfamiliarity to downright inability to speak, express himself or herself fully, or even to marshal or organise their thoughts and wishes coherently. Such a witness may have physical or mental issues, have speech or language difficulties, have difficulty with understanding complex questions or narratives, or organising or managing their own thoughts and emotions in challenging scenarios. All of this and more is potentially a problem for any prisoner and thereby presents a potential problem for any panel hearing. Almost all members of the parole board have undergone specific training in recognising and questioning vulnerable witnesses including, for example, watching out for signs of distress. It is of course of vital importance that all panel members are on the lookout to see if there are, or might be, any issues of understanding and presentation as regards any witness or prisoner appearing before them.[31]This case clearly flagged such potential issues in the Applicant’s case. The previous panel had noted the concern about the Applicant having ADHD both as a child and more recently even though no formal assessment had been made, a factor expressly accepted by the present panel.[32]The issue was also flagged up in the OASys reports before the present panel contained in the dossier. Thus, for example: a) The report for October 2024 noted: “ There were symptoms of ADHD present during his time in the community which appeared to impact upon his ability to maintain motivation, achieve goals and manage his thoughts. [The Applicant’s] character appears to be that if he wants something he wants it yesterday and struggles with patiences [sic] ….. An obvious example of concern surrounding possible ADHD is when talking [the Applicant] struggles to articulate himself fully as he talks so quickly in order to get everything out that is going on in his head and on some occasions he can't even remember why he has said what he has said .” b) An earlier report for April 2024 (also containing the above comments) had recommended as part of ongoing supervision that work should be done with the Applicant in addressing his ADHD diagnosis and consideration given as to what support or medication might be offered to help manage this and whether additional mental health support might also be helpful. (This was watered down in the later report to a recommendation for providing support for any mental or physical health issues.)[33]These important observations in the context of the Applicant’s recorded presentation appear to have been overlooked by the panel or put to one side. Given that presentation it is surprising that the panel do not appear to have sought an explanation for his presentation either from the Applicant himself or the professionals present. Instead, the panel simply appear (at least as I read it that, indeed, seems a fair implied assumption) to have viewed him as under the influence of substances even though no concerns in this regard whilst in custody had been put to the panel at the hearing. Quite the contrary.[34]In failing to pursue the issue of the Applicant’s presentation and considering whether indeed he might well need to be approached as a vulnerable witness the panel in my judgment fell into grave error. As the Applicant’s legal representatives in my judgment rightly submit, the presentation posed by the Applicant did not necessarily of itself, without further investigation, indicate he was under the influence of illicit drugs. This assumption, which I agree from a fair reading of the Decision the panel appears to have made, was indeed an important link to their conclusion not to direct release. Justice was thus not done and not seen to be done. The error of fact (making the assumption) led itself to an error of law (unfairness in the hearing in failing to investigate the false assumption). The first limb of Rule 28A (the interests of justice) is thus, in my judgment, fulfilled.[35]More difficult is whether, but for these errors, the decision of the panel not to direct release would have been given or made as it was (the second limb of Rule 28A). Sometimes it is obvious from the facts of a case that a panel, even allowing for the error in question, would clearly and plainly have reached the same conclusion. There was certainly material in this case before the panel to justify their decision, for example, the long history of drug dependency and risk factors, his conduct on previous release, the “ up and down ” attitude to completing core reduction work. On the other hand, had they investigated his presentation further they might well not have reached the decision not to release given they expressly accepted the link between substance misuse and risk (above).[36]The Applicant’s presentation clearly influenced their decision and reasoning. The panel might instead, at the very least have ordered an adjournment to consider an assessment for ADHD or decided in light of what the further investigation revealed to have decided that the RMP was indeed robust enough to give the Applicant another chance (particularly given he was only 9 months off his SED). This is, to some extent, a matter of speculation.[37]At the end of the day, however, I am persuaded by the submissions made on behalf of the Applicant (which I accept). In my judgment the overwhelming justice of the case plus the fact that I am by no means satisfied the panel would have come to the decision it did but for the assumption it seems to have made with regard the Applicant’s presentation (the error), requires the Decision to be set aside. Decision[38]The application for set aside is accordingly accepted. HH Roger Kaye KC 15 January 2025