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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> McKilligan v Parole Board for England and Wales [2024] EWHC 336 (Admin) (20 February 2024) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2024/336.html Cite as: [2024] EWHC 336 (Admin) |
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KING'S BENCH DIVISION
ADMINISTRATIVE COURT
B e f o r e :
____________________
DOMINIC McKILLIGAN (now known as Dominic Ngqobe-Kunuk) |
Claimant |
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- and – |
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PAROLE BOARD FOR ENGLAND AND WALES |
Defendant |
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-and- |
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SECRETARY OF STATE FOR JUSTICE |
Interested Party |
____________________
The other parties did not appear and were not represented.
Hearing date: 13 February 2024
____________________
Crown Copyright ©
Her Honour Judge Belcher :
The Facts
"……We confirm that you have requested an oral hearing. The basis for this request is that you are not suitable for KAIZEN, 1:1 work recommended has not commenced and you have stagnated in the system.
In making the decision, the duty member took into account the legal representations, personal representations from Mr McKilligan, a report from Dr Nicoll from 2019, and a report from Dr Richardson from 1997. The panel also had sight of a dossier of 274 pages.
The panel notes that Mr McKilligan was not found suitable for KAIZEN. It may be that the 1:1 work has not commenced, but this is the current treatment plan. The duty member could see no merit in an oral hearing at this stage, as once the 1:1 work has been concluded an updated psychological risk assessment will be required to determine if further interventions are required, or if there is support for progression. It was therefore concluded that directing an oral hearing at the current time would be premature.
The representations submitted have been considered and the request has been refused for the reasons stated."
The reports of Dr Nicholl and Dr Richardson referred to in the Decision were documents provided by the Claimant's solicitors when they requested an oral hearing and which had, therefore, not been considered in the MCA.
The Law
"(i) In order to comply with common law standards of procedural fairness the board should hold an oral hearing before determining an application for release, or for transfer to open conditions whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and the importance of what is at stake. By doing so the board will also fulfil its duty under section 6(1) of the Human Rights Act 1998 to act compatibly with article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in circumstances where that article is engaged.
(ii) It is impossible to define exhaustively the circumstances in which an oral hearing will be necessary, but such circumstances will often include the following:
(a) Where facts which appear to the board to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility. The board should guard against any tendency to underestimate the importance of issues of fact which may be disputed or open to explanation or mitigation.
(b) Where the board cannot otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed and addressed. That is likely to be the position in cases where such an assessment may depend upon the view formed by the board (including its members with expertise in psychology or psychiatry) of characteristics of the prisoner which can best be judged by seeing or questioning him in person, or where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds, or where the board may be materially assisted by hearing evidence, for example from a psychologist or psychiatrist. Cases concerning prisoners who have spent many years in custody are likely to fall into the first of these categories.
(c) 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 in order to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him.
(d) Where, in the light of the representations made by or on behalf of the prisoner, it would be unfair for a "paper" decision made by a single member panel of the board to become final without allowing an oral hearing: for example, if the representations raise issues which place in serious question anything in the paper decision which may in practice have a significant impact on the prisoner's future management in prison or on future reviews.
(iii) In order to act fairly, the board should consider whether its independent assessment of risk, and of the means by which it should be managed and addressed, may benefit from the closer examination which an oral hearing can provide.
(iv) The Board should also bear in mind that the purpose of holding an oral hearing is not only to assist 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.
(v) The question whether fairness requires a prisoner to be given an oral hearing is different from the question whether he has a particular likelihood of being released or transferred to open conditions and cannot be answered by assessing that likelihood.
(vi)… When dealing with cases concerning post-tariff indeterminate sentence prisoners, it should scrutinise ever more anxiously whether the level of risk is unacceptable, the longer the time the prisoner has spent in prison following the expiry of his tariff.
(vii) The Board must be, and appear to be, independent and impartial. It should not be predisposed to favour the official account of events, or official assessments of risk, over the case advanced by the prisoner.
……
(ix)The board's decision, for the purposes of this guidance, is not confined to its determination of whether or not to recommend the prisoner's release or transfer to open conditions, but includes any other aspects of its decision (such as comments or advice in relation to the prisoner's treatment needs or the offending behaviour work which is required) which will in practice have a significant impact on his management in prison or on future reviews.
(x) "Paper" decisions made by single member panels of the board are provisional. The right of the prisoner to request an oral hearing is not correctly characterised as a right of appeal. In order to justify the holding of an oral hearing, the prisoner does not have to demonstrate that the paper decision was wrong, or even that it may have been wrong: what he has to persuade the board is that an oral hearing is appropriate.
(xi) In applying this guidance, it will be prudent for the board to allow an oral hearing if it is in doubt whether to do so or not.
(xii) The common law duty to act fairly, as it applies in this context, is influenced by the requirements of article 5(4) as interpreted by the European Court of Human Rights. Compliance with the common law duty should result in compliance also with the requirements of article 5(4) in relation to procedural fairness".
"54. The need for a hearing to satisfy the entitlement of a prisoner to a fair consideration of his position is the stronger in the case of a post-tariff lifer and the omission to consider this aspect properly or at all is a serious omission by the board.
55… in my judgement the reasoning in Osborn, which adverts particularly to the position of the post-tariff lifer, is tantamount to articulating a presumption in favour of a hearing in such cases. Put otherwise, a good reason for not holding a hearing should be present when refusal is made in the case of a post tariff life, for whom the issues of insight, behaviour and risk (at least) are central to progress, and are almost certainly best examined and understood in the open forum of an oral hearing. The obligation to consider the prisoner's position falls upon the Board, it is not dependent upon the prisoner, and it does, as the court in Osborn recognised, engage article 5(4)."
"The July Guidance and October Guidance were bound to, and did, cause report writers to breach their legal obligations in large numbers of cases. It is not possible to say with certainty what effects this guidance has had in the cases determined while it was in force. But its promulgation may well have resulted in prisoners being released who would not otherwise have been released and in prisoners not being released who would otherwise have been released."
That judgment was handed down in March 2023. That passage serves to highlight the potential importance of the opinions of Prison and Probation staff who often know the prisoner well and have regular contact with him.
The Challenge
i) that the Defendant has not properly considered the principles set out in Osborn.
ii) that fairness in the Claimant's case required an oral hearing.
iii) an oral hearing was required to address questions about the appropriate next steps and a proper review of risk to include evidence from professionals and the prison psychologist, and a paper assessment was inadequate.
iv) the dossier compiled for the Defendant is based on reports written by the POM and the COM in circumstances where they were unable to make recommendations, something found to be unlawful in Bailey and Morris.
I shall address each of these in turn, although there is some inevitable overlap between them.
Failure to properly consider the principles set out in Osborn
i) the stagnation experienced by the Claimant in category A conditions which has been the case for several years;
ii) that he has not been offered any other PD pathway options despite being found not suitable for Kaisen or the Westgate Unit Personality Disorder Treatment Unit;
iii) that he has taken part in the options available to him in the form of "Getting Going" sessions;
iv) that he has a legitimate interest in being able to participate in a decision where he is significantly post tariff, still in category A and where there is no clear treatment pathway (See per Lord Reed in Osborn at [2(iv)] set out in paragraph 11 above)
Fairness requires an oral hearing
Complex psychological and risk considerations
Dossier is unlawful as per Bailey and Morris