![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Administrative Court) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Dickins v Parole Board for England And Wales [2021] EWHC 1166 (Admin) (06 May 2021) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2021/1166.html Cite as: [2021] EWHC 1166 (Admin), [2021] WLR(D) 268, [2021] 1 WLR 4126, [2021] WLR 4126 |
[New search]
[Context]
[View without highlighting]
[Printable PDF version]
[View ICLR summary: [2021] WLR(D) 268]
[Buy ICLR report: [2021] 1 WLR 4126]
[Help]
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
Wesley Dickins |
Claimant |
|
- and - |
||
The Parole Board for England and Wales |
Defendant |
|
-and- |
||
The Secretary of State for Justice |
Interested Party |
____________________
Mr Nicholas Chapman (instructed by The Government Legal Department) for the Defendant
No appearance or representation by the Interested Party.
Hearing date: 15 April 2021
____________________
Crown Copyright ©
The Honourable Mrs Justice Stacey:
Background facts
"26. It is clear that fairness demands that the alleged conduct of the Respondent on 9 May 2020 required an explanation from him and, if he was prepared to give it, for that explanation to be properly tested and assessed by the Panel. Otherwise there would have been no real purpose behind the directions given by the Panel on 12 May 2020.
27. I had found it difficult to understand how the events of 9 May 2020 could have been overlooked. However, following the making of enquiries, I understand (as I have already mentioned), it was decided that the Panel's decision of 11 May 2020 was treated as final, and the Panel was obliged to regard itself as functus officio (that is, having performed its office) and therefore had no power to make any further substantive decisions on this case.
28. There can be no doubt that in discharging my independent judicial function in deciding this application I must apply what I regard to be correct principles of law. In so doing I have concluded that it is essential that I should consider the question "when should a panel of the Board regard itself as being functus officio"? In my judgment, a panel of the Board should not be regarded as being functus officio until its decision has been reduced into writing and communicated to the parties.
29. In an Annex to this decision, I have attempted to set out my view of the law in order that it can be understood.
30. Returning to the application for reconsideration itself, had the events of 9 May 2020 been placed before the Panel so that they could be properly examined and addressed, they would have at least been capable of altering their decision, or prompted to take other steps such as putting the case off for a further oral hearing where the new information and its effect on any risk assessment could be fully and fairly examined.
31. If a panel does not take into account facts which are potentially relevant to its decision, then the obligation upon them is to explain to the parties why they did not do so. The Panel in this case did not do that. In my view the interests of public protection are paramount and the events of 9 May 2020 required careful examination by a panel of the Parole Board.
Decision
32. I have therefore reached a conclusion that the Panel should have taken into account the events of 9 May 2020. The fact they did not was, in my judgment, the result of a mistake of law which renders the decision to release irrational. The application for reconsideration is therefore granted."
Legislative framework and the Rules
"49. We are therefore minded to adopt a reconsideration mechanism internal to the Parole Board which has a threshold akin to that of judicial review but with broadened parameters. We believe that using the criteria of a legal framework which is widely accepted and understood would mean that applicants will be able to engage more easily in the process." (Reconsideration of Parole Board decisions: creating a new and open system (CM 9612), April 2018)
"52. We are minded to use grounds that are comparable to those used to appeal a decision of the First-tier Tribunal to the Upper Tribunal. The grounds are that there must be a point of law arising from the decision.
53. Examples that have been established as points of law are listed below:
a. made irrational findings on matters that were material to the outcome
b. failed to give reasons for findings on material matters
c. failed to resolve conflicts of fact or opinion on material matters
d. gave weight to immaterial matters or failed to take account of relevant considerations
e. made a material misdirection of law on any material matter
f. committed a procedural irregularity capable of making a difference to the outcome or fairness of the proceedings
g. made a mistake about a material fact which could be established by objective and uncontentious evidence, where the appellant was not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.
54. We believe these grounds provide a manageable and sufficiently broad basis for the reconsideration mechanism and appropriately balance the need to challenge with the need to allow the Parole Board to continue with their core business. (para 52, 53 & 54)."
"17. There will be a high threshold for reconsideration applications to be accepted, along the lines of the judicial review grounds (illegality, irrationality and procedural unfairness).
18. Parole decisions are based on an assessment of evidence and the professional judgement of individual panel members. Decisions should not be vulnerable to challenge simply because a party disagrees with the result. To meet the threshold for reconsideration, the decision will need to be legally flawed in some way." (Reconsideration of Parole Board decisions: creating a new and open system – Government response to the public consultation (CP 30), February 2019)
Competing submissions
Analysis and conclusions
Ground 1: Scope of the reconsideration procedure
"that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it," (Council of Civil Service Unions and others v Minister for the Civil Service [1985] AC 374 per Lord Diplock at 410F).
Irrationality (or Wednesbury unreasonableness)
"applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it" (CCSU per Lord Diplock 410G).
It has two limbs.
"The first limb focuses on the decision-making process – whether the right matters have been taken into account in reaching the decision. The second focuses on its outcome – whether, even though the right things have been taken into account, the result is so outrageous that no reasonable decision maker could have reached it. The latter is often used as a shorthand for the Wednesbury principle, but without necessarily excluding the former." (Braganza v BP Shipping Ltd [2015] 1 WLR 1661 para 24 per Lady Hale).
Ground 2: the meaning of functus officio
"a judicial, ministerial or administrative actor has performed a function in circumstances where there is no power to revoke or modify it"
(R (Commissioner of Police of the Metropolis) v IPCC [2015] EWCA Civ 1248 ("Demetrio")) at para 42, per Vos LJ giving his approval of the Divisional Court's definition.
"As I understand it, the Board's approach is that a panel is functus officio once it has made its decision, even if that decision has not been communicated to the parties. Again, as I understand it, that approach is taken because as a creature of statute the Board regards itself as being reliant upon its Rules for the manner in which it carries out its functions. So, for example, when Rules 19(8), 21(12) and 25(6) provide that, and I paraphrase:
"the decision… must be recorded in writing with reasons for that decision… and the written record provided to the parties within 14 days of the decision"
That, in the context of the Rules is I understand interpreted to mean that the decision is made and is final at the point at which the written reasons are agreed by the panel members and no later."
"Justice to discretionary life prisoners in the post-tariff period in my judgment requires that once a prisoner succeeds in the face of opposition in satisfying a panel that he can safely be released, that decision must be regarded as final and conclusive, subject only to the Secretary of State demonstrating that it was fundamentally flawed or pointing to a supervening material change of circumstances"
"I am satisfied that Robinson is not authority for the proposition that the Secretary of State has the power to re-refer the case of a prisoner to the Board when the Board has made a final decision to release." Para 31
"… The scheme [rule 28] provides the Secretary of State with the means to challenge a decision to release in appropriate cases. Even if a common law jurisdiction of re-referral of final decisions did exist prior to the 2019 Rules, I do not consider that it survived the implementation of the Rules." (Para 34)
"However, it is clear that a party does not in fact actively contest a claim simply because he does not concede it. In relation to the distinct issue of whether such a party should be treated as actively contesting a claim in the circumstances of this case, the Board has a power, not an obligation to review any decision it makes."
Annex
Relevant Extracts from the Parole Board Rules 2019/1038
19. Consideration on the papers
"— (1) Where a panel is appointed under rule 5(1) to consider the release of a prisoner, the panel must decide on the papers either that—
(a) the prisoner is suitable for release;
(b) the prisoner is unsuitable for release, or
(c) the case should be directed to an oral hearing.
(2) Where a panel has received a request for advice from the Secretary of State concerning whether a prisoner should move to open conditions, the panel must recommend whether—
(a) the prisoner is suitable for a move to open conditions, or
(b) the prisoner is not suitable for a move to open conditions.
(3) Where a panel makes a decision that the case should be directed to an oral hearing under this rule, the panel may at the same time make any directions relating to the oral hearing.
(4) Any decision made under paragraph (1)(a) which is eligible for reconsideration under rule 28 is provisional, and becomes final if no application for reconsideration is received within the period specified by that rule.
(5) Any decision made under paragraph (1)(a) which is not eligible for reconsideration under rule 28 is final.
(6) Any decision made under paragraph (1)(b) is provisional.
(7) Where the Board receives a request for advice with respect to any matter referred to it by the Secretary of State, the Board may advise or make a recommendation to the Secretary of State without an oral hearing.
(8) The decision or advice of the panel must be recorded in writing with reasons for that decision or advice, and the written record provided to the parties within 14 days of that decision or advice."
20. Procedure after a provisional decision on the papers
"—(1) Where a panel appointed under rule 5(1) has made a decision that a prisoner is unsuitable for release under rule 19(1)(b), the prisoner may apply in writing for a panel at an oral hearing to determine the case.
(2) A prisoner who makes an application under paragraph (1) must serve the application, together with reasons for making an application, on the Board and the Secretary of State, within 28 days of the provision of the written record under rule 19(8).
(3) If no application has been served by the prisoner under paragraph (2) after the expiry of the period specified by that paragraph, a provisional decision made under rule 19(1)(b)—
(a)remains provisional if it is eligible for reconsideration under rule 28, and becomes final if no application for reconsideration is received within the period specified by that rule, or
(b)becomes final if it is not eligible for reconsideration under rule 28.
(4) Where no application is served by a prisoner under paragraph (2), the decision must be provided to the parties by the Board within 35 days of the written record under rule 19(8).
(5) If an application is served in accordance with paragraph (2), the decision about whether the case should be determined at an oral hearing must be taken by a member of the Board who—
(a)is a duty member, and
(b)was not part of the constituted panel appointed under rule 5(1) who made the provisional decision.
(6) If the decision taken under paragraph (5) is that the case should not be determined at an oral hearing, a provisional decision under rule 19(1)(b)—
(a)remains provisional if it is eligible for reconsideration under rule 28 and becomes final if no application for reconsideration is received within the period specified by that rule, or
(b)becomes final if it is not eligible for reconsideration under rule 28.
(7) Where the decision taken under paragraph (5) is that the case should not be determined at an oral hearing, that decision must be provided to the parties by the Board within 35 days of the written record under rule 19(8).
(8) A decision under paragraph (5) cannot be deferred or adjourned by a panel chair or duty member under rule 6 and the time limit in paragraph (7) cannot be extended under rule 9."
25. Decision by a panel at an oral hearing
"—(1) Where a panel has considered a prisoner's case at an oral hearing, the panel must decide either that—
(a) the prisoner is suitable for release, or
(b) the prisoner is unsuitable for release.
(2) Any decision made by the panel under paragraph (1) which is eligible for reconsideration under rule 28 is provisional, and becomes final if no application for reconsideration is received within the period specified by that rule.
(3) Any decision made by the panel under paragraph (1) which is not eligible for reconsideration under rule 28 is final.
….
(6) The decision under paragraph (1) and/or recommendation under paragraph (4) must be recorded in writing with reasons, and that record must be provided to the parties not more than 14 days after the end of the hearing.
(7) The recorded decision and/or recommendation must refer only to the matter which the Secretary of State referred to the Board."
28. Reconsideration of decisions
"—(1) Subject to paragraph (2), where a decision has been made under rule 19(1)(a) or (b), 21(7) or 25(1), a party may apply to the Board for the case to be reconsidered on the grounds that the decision is—
(a) irrational, or
(b) procedurally unfair.
(2) Decisions are eligible for reconsideration only where the prisoner is serving—
(a) an indeterminate sentence;
(b) an extended sentence;
(c) a determinate sentence subject to initial release by the Board under Chapter 6 of Part 12 of the 2003 Act.
(3) An application for a provisional decision to be reconsidered under paragraph (1) must be made and served on the other party no later than 21 days after the written decision recorded under rules 19(8), 21(12) or 25(6) is provided to the parties.
(4) Where a party makes an application under paragraph (3), the other party may make representations, and those representations must be provided to the Board and the party who made the application within 7 days of service of the application.
(5) Where an application made under paragraph (3) is received by the Board, the application must be considered on the papers by an assessment panel.
(6) After assessing the application under paragraph (5), the assessment panel must
(a)direct that the provisional decision should be reconsidered, or
(b)dismiss the application.
(7) The assessment panel may direct that the provisional decision should be reconsidered under paragraph (6)(a) only if it has identified a ground for reconsideration under paragraph (1).
(8) Where the assessment panel dismiss the application under paragraph (6)(b), the provisional decision becomes final.
(9) Where the assessment panel directs that the provisional decision should be reconsidered under paragraph (6)(a), the assessment panel must direct that the case should be—
(a) reconsidered on the papers by the previous panel or a new panel appointed under rule 5(1), or
b) reconsidered at an oral hearing by the previous panel or a new panel appointed under rule 5(2).
(10) The decision of the assessment panel must be recorded in writing with reasons, and that record must be provided to the parties not more than 14 days after the decision."
29. Error of Procedure
"Where there has been an error of procedure by either party or by the Board, including a failure to comply with a rule—
(a)the error does not invalidate any step taken in the proceedings unless the member appointed by the Board for this purpose, being either a panel chair or duty member, directs otherwise, either on the application of a party or in the course of conducting the proceedings, and
(b)the panel chair or duty member may make a direction or take any other step that it considers appropriate."
30. Slip Rule
"—(1) The Board may at any time correct an accidental slip or omission in a decision.
(2) A party may apply for a correction without notice."
Note 1 That the make up of the panel with 2, rather than 3, members was procedurally unfair. It was not a point that had been raised earlier. [Back]