BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE]

The Parole Board for England and Wales


You are here: BAILII >> Databases >> The Parole Board for England and Wales >> John, Application for Reconsideration [2024] PBRA 171 (05 September 2024)
URL: https://www.bailii.org/ew/cases/PBRA/2024/171.html
Cite as: [2024] PBRA 171

[New search] [Printable PDF version] [Help]


 

[2024] PBRA 171

 

 

Application for Reconsideration by John

 

 

Application

 

1.   This is an application by John (“the Applicant”) for reconsideration of a decision made by a one-member panel on the papers on 6 June 2024 (“the Decision”) not to direct the Applicant’s release.

 

2.   Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2022) (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 Decision, the Application for Reconsideration, the Duty Member’s Decision of 30 July 2024 extending the deadline for the reconsideration period to 7 August 2024 and the email from the Public Protection Casework Section (PPCS) on behalf of the Secretary of State (the Respondent) to the Parole Board dated 21 August 2024 offering no representations in response to the Applicant’s Reconsideration Application.

 

Request for Reconsideration

 

4.   The Application for Reconsideration is dated 7 August 2024.

 

5.   The grounds for seeking a reconsideration are as follows:

 

(A) the Decision was procedurally unfair because: -

 

(i) the Applicant did not have the opportunity to meaningfully engage with his dossier because he only received pages 188 to 315 of it on 25 July 2024 which was 7 weeks after the Decision was made and he returned pages 1-187 on the day he received them because of an error in them and those papers have never been returned to him. 

 

(ii) the Decision was made before the Applicant had been required to make representations and before they had been lodged.

 

(iii) no adequate reason has been put forward for the Decision of 6 June 2024 being made without the Applicant being forewarned of the panel’s intention to make the Decision of 6 June 2024 or his right to make representations.

 

(iv) the Applicant did not receive the MCA Directions of 20 March 2024 but in any event in those directions, the panel adjourned consideration of the Applicant’s parole application with a reconvene date of 07/06/2024 “for further information along with the outcome of the non-disclosure appeal” and this did not show that the Applicant was required or warned of the need to make representations before 6 June 2024 when the panel decided to give its Decision.

 

(v) no adequate reason has been put forward for the Decision of 6 June 2024 being made without the Applicant being forewarned of the panel’s intention to make the Decision of 6 June 2024 or his right to make representations.

 

(vii) the Board did not contact the Applicant’s solicitors or the Applicant to enquire about the representation of the Applicant in 2024 and particular in the period leading up to the Decision on 6 June 2024 (Issue 1); and that:

 

(B) the Decision was irrational as there were numerous errors in the Decision and these errors have led to the MCA member reaching an irrational decision. These errors include, but were not limited to, incorrect assertions that the Applicant had stamped on the head of his partner, that he had threatened her with a knife, that his conduct included stalking and that the Applicant “thinks about sex a lot”. In addition, it is contended that the Decision is irrational as the MCA member failed in the Decision to refer to the evidence that the Applicant has been a model prisoner, and that the Decision has taken various incidents out of context (Issue 2).

 

Background

 

6.   On 9 November 2020, the Applicant, who was then 36 years old, was sentenced to an extended sentence comprising of a custodial term of 5 years and 7 months and a 4–year extended licence period for an offence of sexual assault on a female by penetration and a concurrent sentence of 16 months’ imprisonment for an offence of harassment - put in fear of violence as well as a consecutive sentence of 18 months’ imprisonment for an offence of. wounding/inflicting grievous bodily harm.

 

7.   The Applicant has a history of previous convictions starting with his first conviction when he was 19 years old for vehicle related offending. He then engaged in what was described in the Decision as a “a pattern of violent, reckless and further vehicle related offending [as well as] domestic violence [and] a conviction for drug dealing and has a poor record of compliance”.

 

Current parole review

 

8.   In June 2023, the Applicant contacted a solicitors’ firm to request the assistance of a legal representative in his attempt to obtain parole. An attendance note dated 2 June 2023 shows that the Applicant was told to return in 12 months’ time when his parole review was due to start and the Applicant relied on this advice.

 

9.   On 16 October 2023, the Respondent referred the Applicant’s case to the Parole Board (the Board) to determine whether to direct the Applicant’s release.

 

10.On 1 November 2023, the Applicant provided details of his legal representative for the purposes of his forthcoming parole review. At the end of January 2024, this legal representative left her job at the solicitors’ firm, and her email account was deactivated shortly afterwards. It is not known why the Board did not contact the solicitors’ firm to enquire about the representation of the Applicant thereafter.

 

11.On 20 March 2024, a single member MCA panel of the Board considered the Applicant’s case on paper. At that time, there was a non-disclosure application which was the subject of a possible appeal. Consideration of the application was adjourned “for further information along with the outcome of the non-disclosure appeal”. The panel stated that it would reconvene on 7 June 2024. Neither the Applicant nor the solicitors’ firm received the MCA adjournment decision of 20 March 2024.

 

12.As previously advised by the solicitors’ firm in June 2023, the Applicant in June 2024 approached that firm. Legal aid forms were then sent to the Applicant and a file was opened for the Applicant on 15 July 2024 when the Applicant’s current legal representative, returned from paternity leave.

 

13.The Applicant is unsure of the exact date when he first received his dossier totalling 187 pages. He noticed that the entry on page 27 of the Dossier had erroneously stated that the Applicant’s index offence was an assault of a child under the age of 13 years by penetration when the true position was that the Applicant has no previous convictions against children. The Applicant returned his dossier totalling 187 pages on the day he received it stating that this information needed to be corrected.

 

14.The Applicant contends that has never received pages 1-187 of the Dossier back after he returned them, but that he eventually received pages 188-315 of the Dossier on 25 July 2024, which was more than 6 weeks after the date of the Decision.

 

15.The panel comprising one member conducted a Member Case Assessment on paper on 6 June 2024. The panel had adjourned the original review on 20 March 2024 in order to seek further information including clarification as to whether the Applicant had legal representation.

 

16.In its Decision, the panel noted that that since the March review, a memorandum of 27 October 2023 had been added to the Dossier and in it the Applicant identified a legal representative, but no representations were added either prior to, or following the adjournment.

 

17.The panel concluded on or before 6 June 2024, when it made the Decision, that “Given the amount of time that has now passed since this memorandum [dated 27 October 2023], the panel did not consider it necessary to further adjourn to allow [the Applicant] time to further engage his representative. He has had ample opportunity to do so”.

 

18.The panel proceeded to consider what decision it should reach having concluded that it did not consider an oral hearing was necessary for a fair and effective review in the light of the principles set out in the case of Osborn, Booth and Reilly v Parole Board [2013] UKSC 61.

 

19.The panel noted that Probation assessed that the Applicant needed to complete the Kaizen programme, a training course addressing the use of violence as core risk reduction work which needed to be completed in custody and they do not consider that the Applicant’s risk “can yet be managed in the community”. The Community Offender Manager (COM) noted that the Applicant had made positive progress in custody, but remained concerned about the Applicant’s thinking and attitude particularly around the index offences and so the COM did not support release.

 

20.It was noted by the panel that the Applicant had demonstrated positive custodial behaviour and good work ethic as well as being “motivated to engage with programme work and professionals”. The panel agreed with professionals that “core risk reduction work is outstanding”, and it repeated the assessment that the Applicant presents a high risk of future domestic offending and a medium risk of future violent offending with a high risk of thereby causing serious harm.

 

21.The panel concluded that the Applicant’s risk could not be managed by external controls alone and that there would not be identifiable warning signs before his risk increased in the community. Consequently, the panel was not satisfied that it was no longer necessary for the protection of the public for the Applicant to be confined and it did not direct the Applicant’s release.

 

The Relevant Law

 

22.The panel correctly sets out in its decision letter dated 6 June 2024 the test for release.

 

Parole Board Rules 2019 (as amended)

 

23.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)).

 

24.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

 

25.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.

 

26.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.”

 

27.In R (on the application of Wells) -v- Parole Board 2019 EWHC 2710 (Admin) 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).

 

28.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.

 

29.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 without good reason.

 

30.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

 

31.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.

 

32.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.

 

33.The overriding objective is to ensure that the Applicant’s case was dealt with justly.

 

The reply on behalf of the Respondent

 

34.In an email from PPCS on behalf of the Respondent to the Parole Board dated 21 August 2024, it was stated that no representations were being offered in response to the Applicant’s Reconsideration Application.

 

Discussion

 

Issue 1

 

(i) The Decision made before the Applicant had received the full Dossier and was able to comment on it.

 

35.This Ground is that the Decision was procedurally unfair as the Applicant had the basic right to receive and comment on all the relevant material before the panel made its decision, but the Applicant had not received the complete Dossier, which was relevant material before the panel made its decision on 6 June 2024.

 

36.The position was that at the time when the Decision of 6 June 2024 was made, the Applicant was not and had never been in possession of the Dossier because:

 

(a)the Applicant is unsure of when he first received the Dossier, but he returned it to the OMU on the day he received it as there was an error stating that the Applicant’s index offence was an assault of a child under 13 by penetration and he stated that the information in the dossier needed to be corrected, but;

 

(b) he has never received the dossier back and he was not aware that he had 28 days from the date of its disclosure to submit representations as the Applicant did not have the benefit of legal representations and nobody from the prison had informed the Applicant of this or what the next step would be;

 

(c) there was no record of pages 188 to 315 of the dossier ever having been given to the Applicant until 25 July 2024 following the request of his legal representative. It has not been proved by PPCS that the Applicant received pages 1-187 of the Dossier or precisely when he received those pages, and I conclude that he had not received them before the Decision was made on 6 June 2024.

 

37.I therefore conclude that the Decision was procedurally unfair as the Decision was made by the panel before the Applicant had received pages 188 to 315 of the Dossier and/or the corrected versions of pages 1-187 of the Dossier. It follows that the Applicant had therefore been unable to comment on the whole of the Dossier with the consequence that he had not been dealt with justly and therefore reconsideration has to be ordered as either he did not have the entire Dossier before the Decision was made or that in any event, he did not have a large part of the Dossier (pages 188 to 315) before the Decision was made.

 

(ii) Decision of panel made before the Applicant required to make representations and/or before representations of the Applicant were lodged.

 

38.This further or alternative Ground for holding that the Decision was procedurally unfair was because the Decision was made before the Applicant had been required to make representations and/or before they had been lodged. A basic right of any party to litigation, including a parole hearing is the right to make representations to the decision-maker before the Decision is made. That right is dependent on that party being notified expressly or impliedly of the date by which representations were required from the parties by the decision maker.

 

39.In this case, there is no evidence that the Applicant had been notified of the date by which representations had to be lodged and/or when the Decision would be made by the panel which was the decision maker. It is true that the adjournment directions of 20 March 2024 stated that the reconvening date would be 7 June 2024, but the Applicant has contended in the Grounds for Reconsideration that he did not receive the adjournment directions of 20 March 2024 and PPCS has not made any representations showing that this contention was incorrect.

 

40.In any event, even if the Applicant had received these directions of 20 March 2024, I consider that they do not assist in showing that the Applicant was required to submit representations on 6 June 2024 the day of the Decision for three reasons. First, in those directions, the panel adjourned consideration of the Applicant’s parole application with a reconvene date of 07/06/2024 “for further information along with the outcome of the non-disclosure appeal”. Crucially, the 20 March 2024 Directions do not show that the adjournment was because the Applicant was required or warned of the need to make representations before 6 June 2024 when the panel gave the Decision. Second, there is nothing in the post-20 March 2024 material which shows that the parties considered or were notified that the parole decision would be taken on 6 June 2024 and/or that the Applicant was required to submit submissions on or before 6 June 2024. Third, the March 2024 Directions do not refer to anything occurring on 6 June 2024 only that the “reconvene date” was 7 June 2024.

 

41.The stark fact is that PPCS and the Respondent have not been able to prove that the Applicant had been notified of a date by which representations had to be considered before the Decision date of 6 June 2024 and/or the Applicant was under any obligation to have tendered representations before 6 June 2024. No document or other evidence has been produced to show that 6 June 2024 would be the day on which the panel would make its decision.

 

42.In those circumstances, the Decision was procedurally unfair as it was made before the Applicant was required to make representations and/or before representations were lodged.

 

43.In coming to that conclusion, I have taken into account the statement in the Decision that the panel adjourned the review on 20 March 2024 to seek further information as to whether the Applicant had legal representation and a legal representative had been identified in a memorandum dated 27 October 2023, but no representations had been received. The Decision records (as explained in paragraph 17 above) that the panel did not consider it necessary to further adjourn to allow the Applicant time to further engage his representative. Unfortunately, this meant that it was not possible to consider whether there were reasons why the Applicant could not have a fair hearing such as the fact that he had not received the entire Dossier or been required to produce his representations by 6 June 2024.

 

44.I therefore conclude that the Decision was procedurally unfair as the Decision was made by the panel before the Applicant had received the full Dossier and had been able to comment on it. A further or alternative reason why the Decision was procedurally unfair was that the panel’s decision was, as has been explained, that its decision was made before the Applicant was required to make representations and/or before representations of the Applicant were lodged.

 

45.In those circumstances, reconsideration has to be ordered for each or for both of these reasons as the Applicant’s case was not dealt with justly. So, it is unnecessary to consider the remaining matters raised under Issue 1 or the matters raised under Issue 2.

 

Decision

 

46. Accordingly, whilst I have found there to have been a procedural irregularity. I do consider, applying the test as defined in case law, that the Decision of 6 June 2024 to be procedurally unfair. I do so solely for the reasons set out above. The application for reconsideration is therefore granted.

 

Directions

 

47.I have given careful consideration to whether this case should be reconsidered by the original panel or whether it should be considered afresh by another panel.

 

48.I have no doubt that the original panel would be fully capable of approaching the matter conscientiously and fairly. However, the question of justice being seen to be done arises again. If the original panel were to adhere to its previous decision, there would inevitably be room for suspicion that it had simply been reluctant to admit that its original decision was wrong. However inaccurate or unfair that suspicion might be, it would be preferable to avoid it by directing (as I now do) that the case should be reheard by a fresh panel.

 

49.The following further directions are now made:

 

(a)        The re-hearing is directed to an oral hearing.

(b)        The re-hearing should be expedited and should be heard by a fresh panel of 2 members.

(c)        The original decision and this decision must be removed from the dossier and must not be seen by the new panel.

(d)        The new panel should be told that this is a reconsideration but not made aware of the reasons why it was ordered.

(e)        The new panel should also be advised that the fact that this is a reconsideration should not in any way affect their decision. It is a complete re-hearing.

(f)         The Applicant’s COM and his Prisoner Offender Manager (POM) should each produce reports 14 days before the hearing giving updated reports on the Applicant’s conduct and making updated recommendations.

 

 

 

                                                                     Sir Stephen Silber

                                                                    05 September 2024

 

 


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: https://www.bailii.org/ew/cases/PBRA/2024/171.html