Michael Silva v Parole Board

• Jurisdiction: Belize
• Judge: Alexander, J.
• Judgment Date: 08 May 2024
• Docket Number: CLAIM No. CV118 of 2023
• Court: Supreme Court (Belize)

Between:

[1] Michael Silva

Claimant/Applicant

and

[1] Parole Board

Defendant/Respondent

CLAIM No. CV118 of 2023

IN THE HIGH COURT OF BELIZE

Appearances:

Ms. Sheena S Pitts for the Claimant/Applicant

Ms. Alea Gomez and Mr. Javis Lou for the Defendant/Respondent

Alexander, J.

1 The claimant applies for judicial review of the decision of the defendant (“the Parole Board”) made on 24 ^th November 2022 to deny his application for release on license without giving him any reasons for the refusal.

2 The impugned decision follows a prior decision made by the Parole Board on 21 ^st November 2021 denying his application for release on license, without providing any reasons for the denial. The claimant complains that his 2022 application for release on license (as was his previous 2021 application) was made in accordance with the Parole Act Chapter 139:01 R.E. 2020. He made representations on his own behalf, submitted new and/or additional recommendations, and supplied the Parole Board with copies of the successfully completed programs. After the hearing on 24 ^th November 2022, the claimant was informed that his application had been denied. He was yet again not given any reasons for the denial of his release on license. The present judicial review application is the consequence of his denial of parole without being given reasons. He rests his case on the duty of the Parole Board to provide reasons for its decision in circumstances where good administration and fairness dictate that reasons ought to be given.

3 The claimant filed a Fixed Date Claim Form on 1 ^st August 2023 for the following reliefs:

• 1. An order of certiorari to remove into the High Court for the purposes of being quashed the decision made by the Defendant on 24 ^th November 2022 whereby the Defendant denied the Claimant's application for release on license in accordance with the Parole Act.

• 2. An order that the decision made on the 24 ^th November 2022 by the Parole Board is unreasonable, erroneous and irrational in law and therefore void and a nullity.

• 3. A declaration that the Defendant failed to duly exercise its remit under the Parole Act when it purported to deny the Claimant's application for release on license.

• 4. Alternatively, an order of mandamus directing the Respondent (Defendant) to now properly exercise its functions and/or duties under sections 4(1) (sic) and 4(3) of the Parole Act to consider the Applicant's (Claimant's) parole case for release on parole.

• 5. Costs.

4 I dismiss the application for judicial review and order that reasons for the 2022 decision be provided to the claimant.

Background

5 The Parole Board is the statutory body vested with the responsibility to hear and determine applications by prisoners in Belize for parole under the Parole Act. In the exercise of its powers, the Parole Board is mandated under sections 4(2) and (3) to consider a specified list of factors, in addition to any other factor, when making its determination to grant or refuse any prisoner a release on license. The Parole Act also prescribes when prisoners are eligible for parole. By section 5(1)(c), the claimant became eligible for release on license in November 2021, having served half of his judge-imposed sentence.

6 The claimant was charged with murder and committed to the Supreme Court in June 2014 for trial, where he pleaded guilty to the minor offence of manslaughter and was then sentenced to a term of 16 years imprisonment. The instant application is made against the backdrop of a claimant with a relatively “good” prison record who had successfully engaged in numerous rehabilitative programs and satisfied almost all the statutory factors for parole. Pursuant to section 4(2), the claimant made representations on his own behalf, and complied with the statutory checklist of supplying letters of recommendation from stakeholders, involved in prisoner rehabilitation and reform, as well as from his prospective employer and his parents. After his application was denied with no reasons being proffered, the claimant caused a formal request for reasons to be made. The Chairman of the Parole Board, Mr. Kevin Arthurs, did not accede to this request. It was only after an order for specific disclosure was obtained at the leave stage that the claimant learnt that in addition to his representations and the several letters of recommendation from stakeholders that he had supplied, the Parole Board had at its disposal other documents, which it could have used during its determination. These included:

• 1. The Director of Prison's letter to the sentencing judge.

• 2. Six letters of recommendation on the Claimant's behalf for the 21 ^st November 2021 hearing (i.e. the prior hearing).

• 3. Five letters of recommendation on the Claimant's behalf for the 24 ^th November 2022 hearing.

• 4. A psychiatric evaluation dated 12 ^th November 2021.

• 5. A letter from the victim's mother.

• 6. Parole application checklist.

• 7. The minutes of both hearings.

• 8. The Claimant's prison occurrences.

7 Of the list of 14 recommendations before the Parole Board, only 3 matters might be considered as unfavourable of the claimant – the letter from the victim's mother; the psychiatric report and the 9 infractions noted against the claimant. The hearing on 24 ^th November 2022 was conducted virtually. The Minutes (redacted) of that hearing disclosed the statements: (i) premature application; (ii) the claimant is not fully rehabilitated and (iii) “inmate says he is still looking for answers.” The claimant says that the redacted Minutes were absent reasons and/or placed him in no position to discern the reasons. He was left without any understanding of why he was not being considered favourably for release.

8 The parole application checklist (“the checklist”) contained no reasonably adverse statement save for noting nine (9) prison infractions. The Minutes contained no facts, explanation, discussion, or statement of what the infractions were. Also, the checklist had no markings about the infractions. The checklist stated that:

• a. community response is favourable;

• b. family response is favourable;

• c. police response is favourable;

• d. full admission of guilt;

• e. good as opposed to fair or poor employment prospects;

• f. good as opposed to fair and bad conduct; and

• g. completion of prison programs and particularly recognized rehabilitation programs.

9 In making its determination on parole, the Parole Board is mandated by the Parole Act to consider a clear list of factors, in addition to any other factor it deems relevant to making its decision. However, the claimant states that the heavily redacted Minutes together with the absence of reasons did not enable him to discern whether the representations made pursuant to section 4(2) were considered and in what way, and how and what weight was applied by the Parole Board to the section 4(3) factors singularly or cumulatively.

Grounds for Judicial Review

10 In short, the claimant grounds his application on the allegation that the Parole Board acted unreasonably, irrationally, and erroneously in law when it: (i) failed to consider and take account of the section 4(2)&(3) factors in determining the claimant's application; (ii) decided to and did deny the claimant release on license against the weight of information before it for its consideration; and (iii) failed to provide reasons for its decision, showing how it arrived at its conclusion.

Submissions

11 Ms. Pitts submitted that the Parole Board failed to exercise its statutory remit to consider and take account of the materials the claimant put before it during the 24 ^th November 2022 hearing. It was required to act in a manner consistent with the provision of the statute and its failure to provide reasons shows that it did not. To date, the Parole Board has not provided reasons for its decision. This failure means that the decision was made devoid of constitutional norms of rule of law and fairness. Its decision is contrary to the principles of natural justice, by failing to afford the claimant a procedure, which appreciates what is at stake for the claimant and society. The procedure used by the Parole Board was to erroneously rely on old information and not on the representations or materials supplied by the claimant. This procedure is unreasonable, irrational, and erroneous in law and is, therefore, a nullity. The refusal to provide reasons breaches the principles of natural justice and equal protection of the law.

12 Ms. Gomez argued on behalf of the Parole Board that it acted within its statutory remit. It considered the relevant factors in denying parole to the claimant. The documents considered were detailed in the affidavit of Mr. Kevin Arthurs at paragraph 12. The Parole Board had before it materials in favour of and against parole to enable it to weigh all factors against the centralized issue of public safety. The materials against parole included the victim impact statement, 9 infractions and the psychologist report by Dr Matus Torres. The doctor's report stated that the claimant's probability of recidivism is 48% at 10 years and that the claimant's risk category is medium, not low. Ms. Gomez stated that the doctor's report is predictive and can be relied on for at least five to ten years. The Parole Board denied him parole because his application was premature, and it was not satisfied that the claimant was fully rehabilitated. These were its reasons, and they were enough. The Parole Board's decision and reasons, albeit concise, were communicated to the claimant on the same day. The claimant does not deny the fact that the decision was communicated to him, as he stated in his first affidavit at paragraph 24 as follows:

24. I again appeared before the Parole Board in the week of 21 November 2022 virtually. I recall that there were six persons who were on the panel of the Parole Board...