Wesley Dickins v The Parole Board for England and Wales
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Stacey |
| Judgment Date | 06 May 2021 |
| Neutral Citation | [2021] EWHC 1166 (Admin) |
| Docket Number | Case No: CO-4108-2020 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 May 2021 |
and
[2021] EWHC 1166 (Admin)
THE HONOURABLE Mrs Justice Stacey
Case No: CO-4108-2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Jude Bunting (instructed by Swain & Co Solicitors) for the Claimant
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
Approved Judgment
The claimant, Wesley Dickins, is a post tariff life sentence prisoner who seeks to challenge the Parole Board's decision made by HHJ Topolski QC of 11 August 2020 (“the Decision”) which directed a reconsideration of its earlier provisional decision of 11 May 2020 that had directed the Secretary of State for Justice to release the claimant. The Parole Board for England and Wales (“the Board”) is the defendant to the proceedings and the Secretary of State for Justice is the interested party. Two grounds, both of which the parties agree raise important issues, are relied on: (1) the scope of the reconsideration procedure in Board cases, specifically whether reconsideration on the basis of a “mistake of law” is ultra vires the Board's statutory power when the rules refer only to irrationality and procedural unfairness as grounds for reconsideration applications; and (2) whether the Decision was based on the legally erroneous conclusion that the Board was not functus officio.
Mr Justice Saini granted permission on both grounds observing that the claim raised an important issue of principle which has wide implications beyond the present case and that both grounds were clearly arguable. He ordered an expedited hearing. Indeed the Board had invited the Court to grant permission so that guidance upon the two procedural issues raised in the claim could be given. The defendant does not actively defend the Decision but adopts a neutral stance to assist the Court. Let me record at the outset my thanks to the very great assistance that has been provided to the Court by both counsel, including their joint agreed note on statutory construction and agreed summary of issues. Thanks too are due to all those who have worked, at speed, behind the scenes.
Background facts
On 31 July 2002 the claimant was sentenced to a term of life imprisonment for murder with a minimum term of 18 years which expired on 27 September 2019. He was transferred to an open prison on 20 December 2017. An oral hearing under rule 25 of the Board's rules of procedure (The Parole Board Rules, statutory instrument No.1038 (“the Rules”)) was conducted (over the telephone due to the pandemic) on 26 March 2020 for an assessment by a panel of the Board of the suitability of the claimant's release on license. The panel was tending towards directing Mr Dickins' release and adjourned the hearing for a period of six weeks to allow the Probation Service time to complete a risk management plan, anticipating a decision could then be made by the panel on the papers. On 5 May 2020 the risk management plan was considered by the panel. At 8:51 on 11 May 2020 the panel chair emailed the case manager with the panel's reasoned decision directing the Secretary of State to release the claimant from custody in accordance with the conditions set out in its decision.
The usual procedure after an oral hearing and receipt of any further submissions or documents requested, will be for a panel to hold a discussion to consider and formulate its decision. After the discussion, the panel chair will draft the decision which they then circulate in draft to the other panel members. Once the panel has agreed the final wording the panel chair sends it to the case manager for sending to the parties in accordance with the Rules.
At 10:24 on 11 May 2020, just an hour and a half after the case manager had received the panel's decision and reasons, the Board was informed that Mr Dickins had been returned to closed conditions. This followed an allegation that in the early evening of Saturday 9 May 2020 a prison officer had witnessed a white Range Rover pull into the chapel car park within the grounds of the open prison, HMP Hollesley Bay, and saw a large black plastic bag passed to the claimant through the car window. A search of the bag found it to contain what was believed to be alcohol and steroid tablets. Mr Dickins denies the allegation. No findings have yet been made and he has not been charged with a criminal offence nor made subject to prison discipline rules in respect of the incident.
On receipt of the new information on 12 May 2020 the panel chair decided to adjourn the case in order to receive further reports before the referral could be concluded on the papers as intended. He made a number of directions for a full report on the circumstances giving rise to Mr Dickins' return to closed conditions to be obtained, an updated risk assessment and up to date recommendation on his suitability for a return to open conditions and for release. However the directions were not actioned since Mr Michael Atkins, legal director at the Board, reviewed the matter and on 12 June 2020 concluded that the panel was functus officio and had no power to reopen the 11 May 2020 decision or take any further information into account. On 18 June 2020, the 11 May 2020 decision was issued to the parties.
On 9 July 2020 the interested party applied for a reconsideration of the 11 May 2020 release decision on two grounds, the first, a challenge to the make up of the panel 1 is no longer relevant, but the second, that the decision was irrational and/or procedurally unfair because the panel failed to consider the incident of 9 May 2020 when reaching its decision, is at the heart of this case.
The reconsideration application was considered by HHJ Topolski QC on the papers. He observed that the events of 9 May 2020 “could not be regarded as an insignificant piece of adverse intelligence” and “were potentially highly relevant to at least some of his [Mr Dickins'] risk factors.” The evidence before the panel of the prison psychologist had highlighted the need for professionals to be attentive to the smallest item of information which might give rise to concerns about Mr Dickins' openness and motivation.
HHJ Topolski QC found as follows:
“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.”
Directions were made for an expedited rehearing and he directed the panel's adjournment directions of 12 May 2020 to be reissued. In his Annex, referred to at para 29 of the Decision, HHJ Topolski QC reviewed a number of cases in other domestic jurisdictions to explain his conclusion that whether it be a Court, a tribunal, an adjudicator, or an expert, it is only when a decision is communicated, or promulgated, that the proper application of the principle of functus officio is triggered. Without any disrespect to HHJ Topolski QC both parties agreed that it is not necessary to set out the reasoning contained in the detailed Annex.
Thereafter...
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