The Parole Board for England and Wales

 

[2024] PBRA 174

 

 

Application for Reconsideration by Tuck

 

 

Application

 

1.     This is an application by Tuck (the Applicant) for reconsideration of a decision dated 24 July 2024 of a post member case assessment panel of the Parole Board (the Panel) following a paper review. The Panel decided 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 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:

 

·       an application for reconsideration dated 28 July 2024 submitted by the Applicant’s solicitors;

·       the Panel’s decision dated 24 July 2024; and

·       a dossier of 343 pages.

 

Request for Reconsideration

 

4.     The application for reconsideration is dated 28 July 2024. It is unfortunate that the application refers to another individual other than the Applicant twice.

 

5.     The application seeks a reconsideration of the Panel’s decision to determine the Applicant’s case on the papers pursuant to Rule 21.

 

6.     The application also raises, in very broad terms, issues of fairness. Although the drafting is poor, I am willing to treat the application as one which also seeks to submit that the Panel’s failure to direct that the case should proceed to an oral hearing amounted to procedural unfairness. The application highlights several of the principles outlined in Osborn v Parole Board [2013] UKSC 61 and submits that: (i) the Applicant and his legal representative were not able to present the Applicant’s case or test the views of the professionals supervising him and managing his risk; and (ii) the Applicant should have been given an opportunity to give evidence about his behaviour in the community, his conduct in custody following his recall, his protective factors, and his future plans.

 

Background

 

7.     The Applicant is serving his current sentence for robbery. While he was on licence and residing in approved premises, he and three others violently assaulted and robbed the victim, who was regarded as a vulnerable individual. The attack on the victim was prolonged and the violence was serious and gratuitous, resulting in significant and permanent scarring to the victim’s face. The Applicant was given an extended determinate sentence of 11 years and four months, comprising a custodial term of six years and four months and an extended licence period of five years. The Panel’s decision incorrectly describes the custodial term and the extended licence period of the Applicant’s sentence.

 

8.     The Applicant is currently serving the extended licence element of his sentence.

 

9.     The Applicant reported that he had completed a Sex Offender Treatment Programme and the Thinking Skills Programme (TSP). The community offender manager (COM) was advised that the Applicant had completed work to address his sexual offending during a previous sentence, but the COM could not confirm if he had undertaken TSP.

 

10.  The Applicant became eligible for parole in July 2021. The Parole Board’s decision not to direct the Applicant’s early release following his parole eligibility date was not in the dossier. It would have been good practice for the Panel to have directed its inclusion as it was the first review of the Applicant’s case. The Applicant was released at his conditional release date in September 2023.

 

11.  The Applicant was recalled three months later in December 2023 for breaching his licence by not residing at an address approved by his supervising officer and for failing to inform the probation service of his whereabouts. He had also not complied with one of the notification requirements of the sex offenders’ register, to which he was subject. Following his recall, it was revealed that the Applicant had breached another licence condition by not disclosing a new developing relationship.

 

12.  The Applicant has a concerning forensic history which evidences pro-criminal attitudes, threatening and violent behaviour, and weapon possession including knives, a screwdriver, and a metal pole. His victims have included strangers and members of his family. He has diagnoses of attention deficit hyperactivity disorder, and anti-social personality disorder.

 

Current parole review

 

13.  The Secretary of State (the Respondent) referred the Applicant’s case to the Parole Board in January 2024. Legal representations dated 9 February 2024 sought a direction for release or a direction for an oral hearing. The case was directed to an oral hearing in March 2024. An oral hearing by video link was due to take place in August 2024.

 

14.  In a report dated June 2024, the COM assessed that the Applicant could not be safely managed in the community. The COM referred to the Applicant’s violent, threatening, and non-compliant behaviour in custody, proven adjudications, incidents referred to the police, his recategorisation from Category C to Category B, failure to engage in assessments for interventions, and an unwillingness to engage with the probation service.

 

15.  In June 2024, the Panel (a post member case assessment panel comprising a panel chair) adjourned the case before the hearing and notified the parties that it was considering making a direction that an oral hearing was no longer necessary and that the Applicant’s case should be decided on the papers pursuant to Rule 21.

 

16.  The Panel invited representations from the parties. The Respondent stated that they did not wish to make any representations. Surprisingly, neither the Applicant nor his legal representative submitted any representations.

 

17.  Following the expiry of the 14 days for providing representations, the Panel did not make a specific direction that the case would be decided on the papers pursuant to Rule 21(4)(a), but did proceed to make a decision on the papers on 24 July 2024.

 

The Relevant Law

 

18.  The Panel has set out the correct test for release in its decision dated 24 July 2024. However, the Panel does not state that, in accordance with R (Sim) v Parole Board [2004] QB 1288, a presumption in favour of release applies in the Applicant’s case. This is discussed in more detail below.

 

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)).

 

Error of law

 

20.  An administrative decision is unlawful under the broad heading of illegality if the panel:

a)     misinterprets a legal instrument relevant to the function being performed;

b)     has no legal authority to make the decision;

c)     fails to fulfil a legal duty;

d)     exercises discretionary power for an extraneous purpose;

e)     takes into account irrelevant considerations or fails to take account of relevant considerations; and/or

f)      improperly delegates decision-making power.

 

21.  The task in evaluating whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring the duty or power upon the panel. The instrument will normally be the Parole Board Rules, but it may also be an enunciated policy, or some other common law power.

 

 

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 the Applicant’s case was dealt with justly.

 

Other

 

25.  In 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.

 

The reply on behalf of the Respondent

 

26.  The Respondent did not make any submissions in response to the application.

 

Discussion

 

27.  Before addressing the submissions made in the application, I will address the issue of the test for release. The Applicant is currently being detained during the extended licence period of his sentence. When considering the release of a prisoner serving the extended licence period of his sentence, there is a presumption in favour of release. In other words, the Panel must be positively satisfied that a prisoner’s continued detention is necessary for the protection of the public.

 

28.  Although the Panel refers to R (Sim) v Parole Board [2004] QB 1288 in its decision, it does not explain the implications this has for the application of the test for release. There is no indication anywhere in the decision that the Panel recognises that a presumption in favour of the Applicant’s release must be applied or that such a presumption has been applied by the Panel. This amounts to an error of law by the Panel making its decision unlawful.

 

29.  The application principally seeks a reconsideration of the Panel’s decision to determine the Applicant’s case on the papers, which was made pursuant to Rule 21. Rule 28 sets out the types of decision which are eligible for reconsideration. Although the Panel’s decision not to direct release pursuant to Rule 21(7) is eligible for reconsideration, the Panel’s decision to determine the case on the papers is not. Therefore, this element of the application is misconceived and must fail.

 

30.  As noted earlier, I am prepared to accept that the application also seeks to submit that the Panel’s failure to direct that the Applicant’s case should proceed to an oral hearing was procedurally unfair.

 

31.  When the Applicant’s case was considered by a member case assessment panel, lengthy legal representations dated 9 February 2024 were made on the Applicant’s behalf seeking a direction for release on the papers or a direction for an oral hearing. The legal representations highlighted the following: (i) he did not commit any new offences while on licence; (ii) his [non-compliant] behaviour in the community was the result of him not having access to his mental health medication; and (iii) a hearing would permit numerous areas in the dossier to be clarified including the circumstances leading to the Applicant’s recall, and would permit the panel to assess his internal protective factors and future plans. The legal representations describe the Applicant as having “matured considerably” and “taken ownership of his life and does not want to spend any more time in prison”. The Applicant is reported to have completed many vocational and educational courses “in order to start a new life” and to intend to utilise these new skills to secure employment in the community. Reference is also made to his engagement with the offender personality disorder pathway while in the community, which he is said to have found positive. The legal representations appear to have been written without knowledge of the Applicant’s reported custodial behaviour from January 2024 onwards however, the Panel should have carefully considered them.

 

32.  The Panel had a considerable amount of information in the dossier to indicate that following his recall the Applicant’s custodial behaviour was extremely poor and concerning. However, no explanations are provided for his custodial behaviour. The dossier does not include any accounts from the Applicant to explain his custodial behaviour and there is no report from the Applicant’s prison offender manager which might provide further background information and a context for some of the more serious incidents reported by the COM.

 

33.  The question is was the Panel’s decision not to proceed to an oral hearing and instead to determine the Applicant’s case on the papers procedurally fair? Osborn v Parole Board [2013] UKSC 61 makes it clear that the Parole Board should hold an oral hearing whenever fairness to the prisoner requires a hearing in the light of the facts of the case and the importance of what is at stake. The principles outlined by the court in Osborn which I consider most relevant to the Applicant’s case include:

 

(a)     “… the purpose of holding an oral hearing is not only to assist the Parole Board in its decision-making but also to reflect the prisoner’s legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute. An oral hearing should be therefore be allowed where it is maintained on tenable grounds that a face to face encounter with the board, or the questioning of those who have  dealt with the prisoner, is necessary to enable the prisoner or his representatives to put their case effectively and/or to test the views of those who have dealt with him.” The Applicant expressed a desire to outline his protective factors and his plans for resettlement which included employment. He also wanted to highlight his work in the community with the offender personality disorder pathway. The COM was not supporting his release on the basis that his risk could not be managed. The Applicant and his legal representative should have been given an opportunity to question the COM and challenge her view, and to explore the proposed risk management plan and how it might be strengthened.

 

(b)     An oral hearing is required when facts which are important are in dispute or where a significant explanation or mitigation is advanced which needs to be heard orally if it is to be accepted. The Applicant wanted to provide his account of his time in the community and the circumstances leading to his recall. He had given differing accounts to the COM but should have been given an opportunity to give his account to the Panel and to be questioned about it.

 

(c)      The Parole Board must be and must appear to be independent and impartial. The Parole Board has to evaluate the material before it and reach its own objective judicial decision; the Parole Board should have no predisposition to favour the official version of events, or the official risk assessment, over the case advanced by the prisoner. As I have mentioned, there are no accounts or explanations in the dossier from the Applicant about his reported violence and threatening behaviour in custody, and the specific reasons for his recategorisation from a Category C to a Category B prisoner are not provided. It is not known if he is disputing any of the adjudications and the Applicant should be given an opportunity to explain his behaviour to enable the Panel to make an objective and sound assessment of his risk and determine whether his risk can be managed in the community.

 

(d)     When dealing with cases concerning recalled prisoners, the Parole Board should bear in mind that the prisoner has been deprived of his freedom, albeit conditionally. In the Applicant’s case, the issue is starker because he is serving the extended licence period of his sentence. In the Sim case, it is made clear that the prisoner “is not on licence as an alternative to prison; rather he is on licence as an alternative to liberty.”

 

(e)     Whether a prisoner’s right to a fair hearing requires the holding of an oral hearing does not depend on his establishing that his application for release stands any particular chance of success.

 

34.  Having considered these matters, my view is that the Panel’s failure to proceed to an oral hearing was procedurally unfair.

 

35.  I make no comment about the Panel’s decision not to direct release or whether the same decision would have been made by a panel after an oral hearing. The issue I must decide is whether the Applicant’s case has been dealt with fairly and justly and in my view, it has not.

 

Decision

 

36.  Accordingly, I consider, applying the test as defined in case law, that the decision dated 24 July 2024 to be unlawful and procedurally unfair. I do so solely for the reasons set out above. The application for reconsideration is therefore granted.

 

 

 

Hedd Emrys

16 September 2024