Williams, Application for Set Aside by the Secretary of State for Justice [2024] PBSA 32 (01 July 2024) [2024] PBSA 32
[1]This is an application by the Secretary of State for Justice (the Applicant) to set aside the decision to direct the release of Williams (the Respondent). The decision was made by a panel after an oral hearing . This is an eligible decision.[2]I have considered the application on the papers. These are the dossier (416 pages), the paper decision (dated 31 December 2023), and the application for set aside (dated 17 May 2024). Background[3]On 13 February 2008, the Respondent received two concurrent sentences of imprisonment for public protection following conviction for sexual activity with a male child under 13 (no penetration) and two counts of sexual assault of a male child under 13. The tariff was set at two years less time spent on remand and expired in October 2009. He also received an extended determinate sentence of 18 months (comprising a custodial period of 12 months with a six month period on extended licence) for possessing an indecent photograph or pseudo photograph of a child.[4]The Respondent was aged 44 at the time of sentencing. He is now 61 years old. Application for Set Aside[5]The application for set aside has been drafted and submitted by the Public Protection Casework Section ( PPCS ) acting on behalf of the Applicant.[6]The application for set aside submits there is further information which came to light after the panel made its decision. It is argued that the panel would not have reached the same decision had this new information been known.[7]The content of the application will be considered in the Discussion section below. Current Parole Review[8]The Respondent's case was referred to the Parole Board by the Applicant to consider whether or not it would be appropriate to direct his release. This is the Respondent's seventh parole review.[9]The case proceeded to an oral hearing on 21 December 2023 before a three member panel including a psychologist specialist member. The panel heard evidence from the Respondent's Prison Offender Manager ( POM ), his Community Offender Manager ( COM ), a psychologist instructed by HMPPS, and a psychologist instructed by the Respondent. The Respondent was legally represented throughout proceedings. The Applicant was not represented by an advocate. The panel directed the Respondent's release. The Relevant Law[10]Rule 28A(1)(a) of the Parole Board Rules 2019 (as amended) provides that a prisoner or the Secretary of State may apply to the Parole Board to set aside certain final decisions. Similarly, under rule 28A(1)(b), the Parole Board may seek to set aside certain final decisions on its own initiative.[11]The types of decisions eligible for set aside are set out in rule 28A(1) . Decisions concerning whether the prisoner is or is not suitable for release on licence are eligible for set aside whether made by a paper panel (rule 19(1)(a) or (b)) or by an oral hearing panel after an oral hearing (rule 25(1)) or by an oral hearing panel which makes the decision on the papers (rule 21(7)).[12]A final decision may be set aside if it is in the interests of justice to do so (rule 28A(3)(a)) and either (rule 28A(4)): a) a direction for release (or a decision not to direct release) would not have been given or made but for an error of law or fact, or b) a direction for release would not have been given if information that had not been available to the Board had been available, or c) a direction for release would not have been given if a change in circumstances relating to the prisoner after the direction was given had occurred before it was given. The reply on behalf of the Respondent[13]The Respondent has submitted representations in response to the application which will be referenced in the Discussion section below. Discussion[14]The Applicant submits that the COM raised a number of points of new information on 10 May 2024. The new information relates to a number of items that had been found in the Respondent's possession. As a result of this, the COM considered that the Respondent's risk was no longer manageable in the community.[15]The items are reported as follows: a) DVDs (rated 18), depicting themes of drug use, underage sex and rape; b) £33.94 in cash (possession of which is against prison rules); c) A large stack of handwritten paperwork containing what appeared to be approximately seven or eight sexually explicit fantasy stories relating to children (one of which was entitled 'A walk in the park with a boy'); d) Hand drawn pictures depicting child sexual activity; e) A list of DVDs with graphic title names; and f) A personal written profile of the Respondent.[16]The Applicant goes on to provide further detail.[17]The Respondent is said to have handed the DVDs to searching staff, describing them as 'pornography'.[18]The COM was of the view that some of the material was directly offence-paralleling. She said that if the Respondent had disclosed active sexual fantasies or the items in question had been discovered before the hearing, not only would release not have been supported, but it would have been likely for the Respondent to have been backstaged from open prison conditions to the closed estate.[19]The POM stated that she would also not have supported release if the items had been discovered prior to the hearing. She gave further detail around some of the content, noting that the DVDs involved stories linked to actors portraying underage characters having sex, rape, and murder and that the fantasy material included hand drawn pictures of a girl engaging in oral sex with two boys. She concluded that the new information materially changed the risk assessment and demonstrated an increase in active risk factors.[20]The Respondent was (as the COM suspected) considered to be unmanageable in the open estate and was returned to closed conditions.[21]The Respondent has since said that he simply forgot that he had those items and had brought them with him from his previous establishment.[22]Unusually, legal representations on behalf of the Respondent make no argument as to why I should not grant the application to set aside. Instead they strongly argue in favour of a further oral hearing (which could only happen if I set aside the original release decision).[23]In considering the nature of the items found (particularly the sexually explicit content relating to male children which the Respondent is said to have written) and the fact that the Respondent has not disclosed any unhealthy sexual thinking in supervision, I am satisfied that the panel would not have made a direction for release had it been aware of this new information relating to the prisoner (regardless of whether the respondent had or had not forgotten that he had such items in his possession). I am also satisfied that it is in the interests of justice for the decision to be set aside, since those interests would not be served by releasing a prisoner for whom there is evidence of live sexual risk factors. Decision[24]For the reasons I have given, the application is granted, and the decision of the panel dated 31 December 2023 is set aside. Stefan Fafinski 01 July 2024