“THIS WAS A DECISION TAKEN ON FACTS UNSUPPORTED BY EVIDENCE”: MASSIVE INCOMPETENCE BY THE PAROLE BOARD: WHERE TWO CASES GET CONFUSED – HOW CAN WE SLEEP AT NIGHT?
It is unusual for this blog to look at decisions relating to Parole Board. However the careful gathering and analysis of evidence is central to every litigator’s role. A remarkable set of facts is outlined in the judgment of HHJ Kramer (sitting as a High Court Judge) in MacKay, R (on the application of) v Secretary of State for Justice [2019] EWHC 1178. Findings of “fact” were made upon which there was no evidence, the applicant’s case may been confused with another case. There was no attempt by either the Secretary of State or the Parole Board to explain a blatant, obvious and incompetent error.
THE CASE
The Parole Board made a decision to refuse to release the applicant from prison. The applicant sought judicial review. Neither the Secretary of State nor the Parole Board defended the application. The applicant’s ground was that the Parole Board made findings which were unsupported by the evidence.
THE WRITTEN REASONS
The written reasons mentioned the applicant’s conduct at the hearing itself.
‘The Panel found you dogmatic and vehemently antagonistic and accusatory towards the surviving victim…
‘The Panel consider that, in view of the evidence, and particularly your testimony before it (my emphasis) your continued confinement is necessary for the protection of the public and so declines to release you.’
THE PRIMARY DIFFICULT: THIS DID NOT, IN FACT, HAPPEN
Neither the Parole Board of the Secretary of State adduced any evidence. There was evidence on behalf of the applicant that this did not happen.
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There are statements from Mr Purdon, who was the solicitor representative of Mr Mackay, and Mr Matthews, a psychologist who had been instructed by Mr Purdon, to the effect that what is said as to the claimant’s behaviour, in the passage which I have just read, did not happen. Neither the Parole Board nor the Secretary of State have sought to contradict what is said by Mr Purdon and Mr Matthews, or to supplement the note to evidence that something of that nature was said.
THE JUDGE’S OBSERVATIONS
The judge reviewed the evidence and then the decision letter.
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Where the decision letter goes on to say, later in this passage, and after referring to the dogmatic vehemence and antagonism, ‘This was a flash of the old anger which you admit to’, There is no note of there being any flash of anger, but possibly more importantly, there is no record of any admission to there being the old flash of anger or that he is capable of maintaining the old flash of anger. Then the sentence goes on, ‘and the moment when he threatened the Panel, quite openly, which was chilling to behold.’. Again, there is no record of there being any threat to the Panel.
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Apart from these observations in the decision letter not being reflected in the notes, there is evidence from witnesses to the event, Mr Purdon and Mr Matthews, who say that this did not happen.Therefore, the finding that the claimant was dogmatic and vehemently antagonistic and accusatory towards the victim, and that he displayed a flash of anger which he admitted to, and that he made a chilling threat, or, indeed, any threat to the Panel, is not supported by the evidence.
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Were these findings material to the decision? They clearly were because, when we look at the decision, the very last paragraph under ‘conclusion and decision’, records the Panel considered that, in view of the evidence and particularly your testimony before it, your continued confinement is necessary.
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On any analysis of the notes of evidence, and, indeed, the summary of such notes, as contained in the decision, that part of the alleged testimony, and, indeed, the only part which is included in the ‘conclusions and decisions’ section, is highly relevant to risk and yet, the court is faced with a situation where there is no evidence that this actually has happened.
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The Secretary of State, who has taken no part in these proceedings or sought to contradict Mr Purdon’s and Mr Matthews’s statements, and the Parole Board, have not sought to explain how these words came to be included in the decision, notwithstanding that they are not reflected in the notes of evidence.
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Therefore, all the evidence on this has been one way and the Parole Board have clearly relied upon these as facts material to its decision. That is apparent both because these behaviours are the only factual behaviours said to be taken from his testimony, which identify this risk, and because although there clearly was other evidence of risk to be found in the evidence produced by the Prison Service, the Board said it relied in particular on his testimony.
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I recognised that one has to be careful about reaching a conclusion as to what was material, based upon the way that the decision is laid out. The fact, however, is that under ‘conclusions and decisions’, the Board identifies the difference of views between the two psychologists, it calls them psychiatrists, which needs to be resolved. That is by the reference to these behaviours on the part of the claimant to which it has particular regard. In the next paragraph they resolve the dispute between the Mr Matthews and Ms Wordie in favour of the latter. It looks as if they have paid particular account to what they claim the claimant said, in resolving that particular dispute and, therefore, I am sure that this was a highly material consideration in their decision that the level of risk was such that it was not consistent with public safety that the claimant be released or even moved to open conditions.
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In those circumstances, this was a decision which was taken on facts unsupported by evidence. It is not, therefore, logically justifiable and it must be quashed and an order made for the Parole Board to reconsider the reference which they dealt with on 23 April 2018.
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I will add this as a post script to the judgment. In a digital age, one would hope that recording equipment would be available. It would be extremely helpful if these hearings were recorded, not only because a court and the parties could be more confident as to the accuracy of what was said, which has an importance which is wider that in relation to the subsequent decision because records of what is said at one parole hearing carries forward to further parole hearings. It would also be helpful in capturing the way in which something was said and, therefore, how it should be received.
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If, for example, an assertion is made about a victim which is coupled with an agitated or raised voice, that does give some insight in to what the prisoner is actually thinking. The danger of simply relying upon the handwritten note is that it only reflects the notetaker’s impression as to what was said. It is in a form which is one familiar to judges and counsel, which combines the question and answer, but often the way in which the answer is given to a particular question can be important. Further, the attention of the notetaker, and thus the note, can be influenced by what they are doing at the time. For example, it is much more difficult to take an accurate note if you are the person asking the questions.
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I only add that as a post script. The question as to whether, in the absence of a system of producing necessarily accurate notes, the ability to challenge decisions of the Parole Board is sufficiently undermined to potentially render challenges ineffective, seems to me one for consideration at a higher level. It is fairly obvious, particularly from this case, that difficulties can arise when you do not have either a verbatim transcript or a recording to work from.
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The second post script is that it is clear that there was a gap of seven days between the hearing and the decision. A worrying feature of this case is that it may be that the author of the decision confused two different cases and that there was another prisoner who displayed the behaviours which have been ascribed to Mr Mackay.
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That is not only worrying, because Mr Mackay may have suffered as a result of such confusion, but it may be that, if there is some other individual who behaved in this way, those behaviours were not ascribed to them when a decision was taken as to the risk which they posed. This again, it is just a post script, but it is worrying because it is so curious that something which is not in the notes appears in the decision.
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Whether the Parole Board think this is of sufficient concern to investigate how this error arose and as to what steps it takes to allay such concern are matters for the Parole Board and I say no more about that.
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Finally the order. The order will be that the decision of the Parole Board dated 30 April 2018 be quashed.
THERE IS SO MUCH TO BE WORRIED ABOUT HERE
We have significant findings of fact upon the basis of no evidence at all. Neither the Secretary of State nor the Parole Board appeared or attempted to explain the errors that had been made. Equally worryingly there is the risk that the person who did in fact display the characteristics attributed to the applicant did not have this properly recorded and is now walking the streets…