Coker, Application for Set Aside by the Secretary of State for Justice [2024] PBSA 65 (14 October 2024) [2024] PBSA 65

PBSA

Coker, Application for Set Aside by the Secretary of State for Justice [2024] PBSA 65 (14 October 2024)

[2024] PBSA 65 · 2024-06-06

[1]This is an application by the Secretary of State for Justice (the Applicant) to set aside the decision to direct the release of Coker (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 (360 pages), the decision (dated 6 June 2024), and the application for set aside (dated 2 October 2024). Background

[3]On 10 March 2017, the Respondent was convicted after trial of rape. He received a 12 year determinate sentence. His sentence end date is June 2028. He has a previous conviction for battery in the context of a domestic violence incident.

[4]The Respondent was aged 25 at the time of sentencing. He is now 32 years old.

[5]He was automatically released on licence on 13 July 2022. His licence was revoked on 19 September 2023. He was recalled after a pattern of dishonesty. He admitted a one night stand but failed to say that the female was his ex-partner who had previously been a victim of his domestic abuse. He fathered a child (this appears to be with the previous victim) but only disclosed it when the Probation Service found out through other means. He was also dishonest about the area in which he was living. There was no designated accommodation to which he could be moved. He was returned to custody the following day. Application for Set Aside

[6]The application for set aside has been drafted and submitted by the Public Protection Casework Section (PPCS) acting on behalf of the Applicant.

[7]The application for set aside submits there is further information constituting a change in circumstances 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.

[8]The content of the application will be considered in the Discussion section below. Current Parole Review

[9]The Respondent’s case was referred to the Parole Board by the Applicant to consider whether to direct his release.

[10]The case was considered by a single-member panel at an oral hearing on 5 June 2024. The panel heard evidence from the Respondent, his Prison Offender Manager (POM) and his Community Offender Manager (COM). The Respondent was legally represented throughout the proceedings. The panel directed the Respondent’s release. The Relevant Law

[11]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.

[12]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)).

[13]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

[14]The Respondent has submitted representations in response to the application which will be considered in the Discussion section below. Discussion

[15]The Applicant notes the following: a) On 18 July 2024, the Respondent was found to have a number of illicit items in his cell, including a weapon, Spice paper, a USB stick, illicit photographs, a smoking pipe and 18 boxes of vapes. b) Prison intelligence suggested that the Respondent was involved in dealing Spice and had regularly been involved with illicit substances during his time in custody. c) The Respondent had been placed on the basic regime as a result. d) On 1 August 2024, the Respondent was placed on report following a positive mandatory drug test (MDT) for synthetic cannabinoids.

[16]In consequence of this, the Respondent’s COM is of the view that his risk would no longer be manageable in the community since the Respondent has shown a lack of compliance and therefore is no longer confident that he would comply with the conditions of his licence.

[17]In directing the Respondent’s release, the panel noted that risk factors included a lack of consequential thinking skills. It also noted his “ strong propensity for concealment of relationships whilst on licence” . It further noted that there was no record of substance misuse issues but there was police intelligence relating to his suspected involvement in drug supply from 2015. The COM’s report within the dossier also notes that the Respondent “ has also made reference to being involved in low level drug dealing previously”.

[18]Representations on the Respondent’s behalf acknowledge that there is new information available, and that the Respondent accepts he has been the subject of two adjudications and a positive MDT. It is noted that the matter of the USB stick and Spice paper has been adjourned for further analysis. The Respondent submits that the issues were due to a very stressful period, and he has since sought support from the Substance Misuse Team and completed risk prevention work.

[19]It is argued that the new information does not increase the Respondent’s risk of serious harm and affirmed that the Respondent would comply with the conditions of his licence.

[20]Ultimately it is submitted that the new information would not have changed the panel’s decision to direct the Respondent’s release.

[21]Risk factors identified by the panel included poor problem-solving skills, impulsiveness and a lack of consequential thinking and self-regulation in emotionally charged situations. If the Respondent returned to substance misuse at a time which he acknowledges was stressful for him, this could indicate that the risk factors listed here were potentially active. I find that the panel would have made no direction for release had it known of the two adjudications and positive MDT.

[22]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 whose custodial conduct deteriorated significantly after having received a direction for release. Decision

[23]For the reasons I have given, the application is granted, and the decision of the panel dated 6 June 2024 is set aside.

[24]I must now consider two matters under rule 28A(8). First, whether the case should be decided by the previous panel or a new panel and second, whether it should be decided on the papers or at an oral hearing.

[25]The previous panel has the great benefit of having prepared the case, carefully considering the evidence before it at the time, reaching and documenting its decision. It is best placed to consider the case again, and I direct that it does so.

[26]Finally, I have also considered whether an oral hearing is necessary considering the principles in Osborn v Parole Board

[2013] UKSC 61

. In fairness, the Respondent should be given the opportunity to participate in his review, particularly in a situation like this where there may be discrepancies to resolve. The matter is therefore directed to oral hearing. Stefan Fafinski 14 October 2024