The Parole Board for England and Wales

 

[2024] PBRA 141

 

 

 

Application for Reconsideration by O’Halloran

 

 

Application

 

1.   This is an application by O’Halloran (the Applicant) for reconsideration of a decision of the Parole Board of 13 June 2024 not to terminate his IPP licence.

 

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:

 

(i)         the application dated 3 July 2024;

(ii)        the Decision Letter dated 13 June 2024;

(iii)       the dossier containing 30 pages; and

(iv)       the representations of the Secretary of State (the Respondent) dated 11 July 2024 which included a copy of the oral hearing decision letter dated 4 December 2023.

Request for Reconsideration

 

4.   The application for reconsideration is dated 3 July 2024.

 

5.   The grounds for seeking a reconsideration are on the basis of procedural unfairness and irrationality. In summary, the procedural unfairness is said to arise because the panel:

 

(i)                failed to set out the law regarding termination of the licence;

(ii)               did not have sight of the decision to release;

(iii)              failed to adequately analyse the recall;

(iv)              were considering a dossier of limited and outdated information, the probation report pre-dating release;

(v)               decided not to hold an oral hearing; and

(vi)              failed to give the dossier for the application to the Applicant or his legal representatives, and failed to request representations.

 

 

6.   The irrationality head is said in the application to be intertwined with the procedural unfairness. It is claimed to arise from the panel not having sight of the December 2023 release decision, such decision having determined that the recall in January 2023 was unjustified, with the evidence pointing to risk reduction and consequentially the public protection test being met. The determination that recall was unjustified was further said to inexorably lead to the refusal to terminating the licence being unjustifiable.

 

Background

 

7.   The Applicant received a sentence of imprisonment for public protection on 23 March 2006 for an offence of s20 wounding, receiving concurrent sentences of imprisonment for public protection in respect of 4 offences of robbery. Whilst the legal representations made in the application referred interchangeably to a sentence of detention for public protection and imprisonment for public protection, the Applicant was aged 18 at the time of his index offences. He was aged 19 at the time of sentence. His minimum tariff of 2 years 2 months and 20 days expired on 9 June 2008.

 

8.   The s20 wounding took place during an evening out with his pregnant girlfriend where he stabbed a man with a piece of broken glass. The robbery offences took place whilst on bail for the s20 wounding, when he was intoxicated through alcohol consumption and he and another man robbed four younger men of their mobile telephones.

 

9.   The dossier indicates that the Applicant was released from custody on 14 September 2012. There was no copy of the release decision in the dossier. He was recalled to custody in January 2023 and re-released in February 2024. There was no copy of the current (second) release decision in the dossier.

 

Current parole review

 

10.The case was referred to the Parole Board on 2 April 2024 by the Respondent under section 31A of the Crime (Sentences) Act 1997 to consider whether or not it would be appropriate to terminate the IPP licence of the Applicant. Should the Board not agree to termination of the licence then they were also asked under sections 31 and 32 of the Crime (Sentences) Act 1997 to consider whether or not it would be appropriate to suspend the supervisory elements of the licence or add/amend/vary any additional conditions contained within the licence.

 

11.The Applicant was aged 37 at the time of the review. He was in the community on licence, having been released on licence on 1 February 2024 following an oral hearing decision dated 4 December 2023.

 

12.The review took place on paper on 13 June 2024 by a single member of the Parole Board. The dossier included a termination report dated 31 January 2024, and a Parole Board decision letter dated 1 April 2011 which made a recommendation for open conditions.

 

The Relevant Law

 

13.The panel correctly sets out in its decision letter dated 13 June 2024 the test for termination of an IPP licence.

 

Parole Board Rules 2019 (as amended)

 

14.Rule 28(2) of the Parole Board Rules provides the sentence types which are eligible for reconsideration. These include indeterminate sentences (rule 28(2)(a). Rules 31(6) and 31(6A) of the Parole Board Rules provide that decisions concerning the termination, amendment, or dismissal of an IPP licence are eligible for reconsideration.

Procedural unfairness

 

15. 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.

 

16. 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.

 

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

 

Irrationality

 

18.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.

 

19.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.”

 

20.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).

 

21.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.

 

22.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.

 

23.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.

Other

 

24.In the cases of Osborn v Parole Board [2013] UKSC 61, the Supreme Court comprehensively reviewed the basis on which the Parole Board should consider applications for an oral hearing. Their conclusions are set out at paragraph 2 of the judgment. The Supreme Court did not decide that there should always be an oral hearing but said there should be if fairness to the prisoner requires one. The Supreme Court indicated that an oral hearing is likely to be necessary where the Board is in any doubt whether to direct one; they should be ordered where there is a dispute on the facts; where the panel needs to see and hear from the prisoner in order to properly assess risk and where it is necessary in order to allow the prisoner to properly put his case. When deciding whether to direct an oral hearing the Board should take into account the prisoner’s legitimate interest in being able to participate in a decision with important implications for him. It is not necessary that there should be a realistic prospect of progression for an oral hearing to be directed.

 

25.Omitting to put information before a panel is not a ground for procedural unfairness, as has been confirmed in the decision on the previous reconsideration application in Williams [2019] PBRA 7. This is the case even where the information, had it been before the panel, would have been capable of altering its decision, or prompting the panel to take other steps such as putting the case off for an oral hearing where the new information and its effect on any risk assessment could be examined. This is because procedural unfairness under the Rules relates to the making of the decision by the Parole Board, and when making the decision the panel considered all the evidence that was before them. There was nothing to indicate that further evidence was available or necessary, and so there was nothing to indicate that there was any procedural unfairness.

 

The reply on behalf of the Respondent

 

26.The Respondent has made written representations dated 11 July 2024, which included the provision of a copy of the oral hearing decision letter dated 4 December 2023. The Respondent accepts that “there was an error within [the Applicant’s] IPP Termination Dossier. The dossier contained a copy of a historic release decision, dated April 2011. [The Applicant] received a release decision from the Parole Board on 6 December 2023, dated 4 December. This decision should have formed part of [the Applicant’s] IPP Termination dossier…”.

 

27.The Respondent has stated that the dossier was provided directly to the Applicant on 29 January 2024. They also set out that as the Applicant’s legal representatives have access to PPUD (the Public Protection Unit Database) a notification that the case was to be considered would have been sent to them. Representations were sought from the Applicant’s legal representatives on 28 March 2024 with no response being given.

 

Discussion

 

28.It is a matter for me to decide whether a fair procedure was followed. In doing so I have considered the member guidance available to panels considering IPP licence termination at the time. The guidance was included in the Duty Member Activities Guidance v2.0 (August 2022). Guidance for panels has subsequently been produced as Imprisonment for Public Protection Licence Termination Interim Member Guidance v1.1, published on 17 June 2024. 

 

29.The guidance available to the panel at the time of the decision on 14 June 2024 provided at 5.16.20 that the information provided to the panel by PPCS should include the “Request for Termination of IPP licence” form, and should contain the following information:

(i)                Notification of initial release (date)

(ii)               Previous release decisions (if recalled)

(iii)              Release licence

(iv)              Any post-release licence variation requests and outcomes

(v)               Licence termination application form

(vi)              Reports from probation/police on up-to-date position

(vii)            Current location (if back in custody) and any other sentences being served

 

30.At 5.16.21 the guidance requires duty members to “check they have all the required information to make a fair and swift determination”.

 

31.It is plain that the 30 page dossier provided to the panel did not contain the information mandated under the guidance. The previous release decisions, of 14 September 2012 and of 4 December 2023 were not in the dossier, nor was the current release licence. The panel was only given a recommendation for open conditions decision from 2011 (pre-dating any release) and licence conditions from the 2012 release.  Additionally the report provided by probation was clearly not up to date as it pre-dated the release of the Applicant in February 2024. 

 

32.Clearly there were errors in the dossier provided by PPCS to the Parole Board. PPCS accept the error in not including the release decision of 4 December 2023. There was a failure to identify this at an early stage before it reached a panel to consider. This is a failure of process within both PPCS and the casework section of the Parole Board. The panel themselves considered all of the evidence that was put before them by the Respondent in making their decision. It is the panel’s decision which falls for reconsideration.

 

33.In determining this application I have had regard to Williams [2019] PBRA 7, a previous reconsideration application by the Respondent who had failed to put relevant information before the Board. However, in so far as it might be considered necessary to do so, I consider the Applicant’s particular case can be distinguished from Williams on its facts.

 

34.In my judgment, in failing to check that the panel had all of the mandated information required, and/or in failing to make any attempt to obtain the mandated information the panel did not follow a fair procedure. The information was available, with the February 2024 decision letter having been provided to me as an annexe by the Respondent with their submissions in response to this application. It was apparent from a reading of the dossier that there was mandated information which had not been provided at all. This mandated information was required to make a fair decision.

 

35.I consider therefore that the procedure by which the decision was made was not fair. It would be unjust to allow it to stand.

 

36.The Applicant has also claimed that procedural unfairness arises from the decision not to hold an oral hearing to consider the termination of the licence, referring to it as a breach of the principles set out in Osborn and Article 5.4 of the European Convention for the Protection of Human Rights. The decision letter does not make any reference to the decision not to hold an oral hearing under Rule 31(5). 

 

37.In my judgment this failure by the panel to make any record of the reasons for its decision not to hold an oral hearing amounts to a further procedural unfairness. It would also be unjust to allow it to stand.

 

38.I do not find the ground that there was a failure to give the Applicant the dossier or to seek representations to be made out. In my judgment the Applicant was given both the dossier and an opportunity to make representations about the application but failed to do so. 

 

39.The decision on the evidence the panel had before it was not irrational. The Community Offender Manager (COM) whose termination report was in the dossier did not support release in circumstances where the Applicant had committed further offending on licence in 2017 (driving with excess alcohol and associated driving without insurance) and had been recalled in circumstances also involving heavy alcohol consumption.  A finding by the oral hearing panel that recall was not justified does not inexorably lead to a simultaneous finding of irrationality. In all the circumstances this was a not a decision which was Wednesbury unreasonable.

Decision

 

40.Accordingly, I have found there to have been procedural irregularities, and I do consider, applying the test as defined in case law, that the decision dated 13 June 2024 is 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. It is for that panel to determine under rule 31(5) whether to make a decision on the papers or to direct that the referral should be decided by a panel at a hearing.

 

Directions

 

41.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.

 

42.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.

 

43.The following further directions are now made:

 

(a) The re-hearing should be expedited. It should be heard on the first available date after 20 August 2024 as the dossier will be complete by that point.

 

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

 

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

 

(d) 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.

 

(e) The dossier should include the following:

 

(i)                The release decision letter of 4 December 2023;

(ii)               The release decision letter of 14 September 2012;

(iii)              The current licence conditions;

(iv)              The most recent OASys; and

(v)               An updated report from Probation, with a recommendation for suitability for licence termination.

 

(f)  When the dossier is fully compiled the Applicant must have the opportunity to make representations.

 

Angharad Davies

29 July 2024