McGrath, Application for Set Aside by the Secretary of State for Justice [2024] PBSA 69 (31 October 2024) [2024] PBSA 69
[1]This is an application by the Public Protection Casework Section (PPCS) on behalf of the Secretary of State for Justice (the Applicant) to set aside the decision to direct the release of the above-named prisoner, McGrath (the Respondent). The decision was made by a panel of two members after an oral hearing conducted via video link on 27 June 2024. This is an eligible decision.[2]I have considered the application on the papers. These are the dossier now consisting of 462 pages (and 428 pages at the commencement of the panel hearing increased to 447 by the end), the oral hearing decision dated 13 August 2024 (the Decision), and the application for set aside dated 26 September 2024 (the Application). The Application was made in time but an extension of time for a response was requested on behalf of the Respondent owing to the non-availability of his legal representative and granted. Representations on behalf of the Respondent were received on 28 October 2024 (out of time) from the Probation Service and forwarded to me which I have considered. Background[3]On 28 October 2016, the Respondent received an extended custodial sentence of 12 years and 6 months with a 5-year extension period for offences of false imprisonment (of a female), blackmail, actual bodily harm and possession of cannabis following conviction to which he pleaded guilty. His parole eligibility date was 6 May 2024, his conditional release date is in July 2028, and his sentence expiry date will be in June 2033.[4]The Respondent was aged 27 at the time of sentencing. He is now 35 years old.[5]On 16 August 2023 the Applicant referred the Respondent’s case to the Parole Board to consider his eligibility for release. Application for Set Aside[6]The basis of the application for set aside is that there has been a change in circumstances since the Decision.[7]It is submitted that since the panel hearing on 27 June 2024 there have been a number of incidents of concerning behaviour on the part of the Respondent all of which justify the setting aside of the Decision, and a reassessment of the Respondent’s risk and risk management plan (RMP) in light of these alleged incidents. As to these, in particular, it is alleged, in summary, that: a) he received an adjudication from 25 August 2024 for flooding his cell; b) he has a pending adjudication following an incident involving extreme verbal abuse to staff; c) despite having completed a number of programmes in custody including the Thinking Skills Programme (TSP) and, despite having said that he had changed his thinking, he has (since the panel hearing) also accumulated a number of negative entries involving threats to, shouting at, and verbal and insulting abuse to staff, poor or unacceptable behaviour, demonstrating and displaying gross, degrading, and unacceptable thinking and attitudes towards women, and threats of violence, all in order to obtain his desired outcome.[8]The context in which the concerns about this alleged behaviour of the Respondent erupted was the Decision (as noted) of the panel to direct his release. This was set for the 31 October 2024 when a place at an Approved Premises (AP) would become available.[9]Despite, as mentioned, the completion of a number of programmes in custody, the concerns are submitted to be highly relevant to a previous identified history of, or risks associated with or including, drug misuse (including a long list of convictions for possession or supply of controlled drugs), threats, possession of a disguised firearm, violence, pro-criminal attitudes and associations and intimidation towards women, plus previous concerns about his conduct and behaviour in custody (including 13 adjudications during his current sentence) and previous demonstrations of abuse and poor attitudes to staff and non-cooperation. Neither the Prisoner Offender Manager (POM) nor the Community Offender Manager (COM) had recommended release but recommended a period of stability in a Cat C establishment before they could recommend release. Current parole review[10]The panel heard evidence from the Respondent, the COM and POM. The Respondent was legally represented throughout the hearing.[11]The panel noted the history and context (briefly summarised above), and the concerns of the POM and COM. It was also noted that the last adjudication (known to the panel) was in 2003 and that there had been a number of positive entries at an early stage of his sentence. The panel’s assessment of risk was of a high risk of harm to the public. The panel accepted the RMP proposed as robust. Whilst the index offences “ were serious and concerning ”, there had been a lack of violence for some 10 years, no (adverse) security information, and no recent adjudications. The panel directed the Respondent’s release. The Relevant Law[12]Rule 28A(1)(a) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2022) (the Parole Board Rules ) 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.[13]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)).[14]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.[15]It is plainly rule 28A(4)(c) which is relied upon here. The reply on behalf of the Respondent[16]In representations forwarded on his behalf by the Probation Service referred to above, the Respondent accepts responsibility for making derogatory comments towards staff. These he maintains were in response to the conditions in which he finds himself. He gives an example of a shower which was postponed owing to his undergoing a medical procedure and then later refused. He vehemently denies making any kind of threats to staff. He is eager to return to the community. If the application is granted this may result in a lengthy wait for another vacancy at an AP. Discussion[17]As set out above it is argued on behalf of the Applicant that there has been a change in circumstances following the Decision.[18]The adjudication referred to above following the flooding of the cell would, in the absence of an accepted cogent explanation, be sufficient of itself in my judgment to cause the Decision to be set aside. The other allegations (the full details of which I do not need to set out but are summarised above), if established, are also indeed concerning and potentially evidence a lack of cooperation towards staff (to say the least) and, more importantly, disclosing a worrying lack of respect for, and lack of insight as regards his conduct towards, women and the risk thereby posed despite completion of programmes. In light of the implicit acceptance by the Respondent that his behaviour is caused by or a result of frustration at his circumstances and conditions the inevitable question is what, if anything, has he learned from his programmes? It is also right to bear in mind the opposition to release from the COM and POM. In these circumstances, these alleged incidents indeed, in my judgment call for investigation and reassessment of the risks posed to the protection of the public and justify the setting aside of the Decision. Decision[19]The application for set aside is accordingly for these reasons accepted. HH Roger Kaye KC 31 October 2024