Machin, Application for Set Aside by the Secretary of State for Justice [2024] PBSA 83 (20 December 2024) [2024] PBSA 83

PBSA

Machin, Application for Set Aside by the Secretary of State for Justice [2024] PBSA 83 (20 December 2024)

[2024] PBSA 83 · 2024-09-03

[1]This is an application by the Secretary of State for Justice (the Applicant) to set aside the decision to direct the release of Machin (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 (378 pages), the decision (dated 3 September 2024), and the application for set aside (dated 12 November 2024). I have also seen a non-disclosure decision dated 15 November 2024 relating to certain information upon which the application for set aside relies. Background

[3]On 20 October 2003, the Respondent received a sentence of life imprisonment following conviction for murder. He also received a concurrent determinate sentence of five years for conspiracy to pervert the course of justice.

[4]His tariff expired in March 2019, and he was released following an oral hearing before a panel of the Parole Board. His licence was revoked in June 2023, and he was returned to custody.

[5]The Respondent was aged 34 at the time of sentencing. He is now 55 years old. 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 new information that affects the risk management assessment 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. The new information is that the Applicant "has continued to threaten and victimise his wife ... since the Parole Board issued their decision in September 2024."

[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 in June 2023 to consider whether to direct his release.

[10]The case was considered by a two member panel at an oral hearing on 10 April 2024. The panel heard evidence from the Respondent, his current and former Prison Offender Managers (POMs), 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 I have considered in making my decision. Discussion

[15]The new information upon which the Applicant seeks to rely is subject to non-disclosure. It has already been directed that the information should be withheld from the Respondent (although may be served on his legal representation subject to the usual requirement for an undertaking not to disclose the material to the Respondent). The application for non-disclosure was granted in full, although a gist of the information was evident from the application for set aside.

[16]In determining the application for set aside, I am conscious that I must not inadvertently disclose the non-disclosable information.

[17]The disclosable information is that the POM has commented that she would not have been supporting release if she had known of this information at the time of the hearing and assessed that the new information raised significant concerns of offence-paralleling behaviour.

[18]Submissions for the Respondent state that the Respondent denied threatening, or attempted to victimise his wife, that if there were any threats they would have been on the phone (while acknowledging there were arguments between them during phone calls) and considers that he is still " very much in a relationship" with his wife. He considers that the Probation Service is " doing everything they can to keep him in prison" .

[19]Further details of the withheld information are discussed in more detail in a copy of this decision letter that, in line with the decision on non-disclosure, can be supplied to the representatives subject to an undertaking, but not to the prisoner or any other person.

[20]First, I must consider whether there is new information and/or a change in circumstances relating to the Respondent. I find that the non-disclosable information constitutes new information for the purposes of rule 28A.

[21]Next, I must consider whether the panel would not have directed the Respondent's release if it had known of this new information. Having carefully reviewed the new information, and taken its content into account, I also find that to be the case.

[22]Finally, in order to grant the application for set aside, I must also be satisfied that it is in the interests of justice to do so. Having carefully reviewed the new information, and taken its content into account, I am also satisfied that it is in the interests of justice for the panel's decision to be set aside. Decision

[23]For the reasons I have given, the application is granted and the decision of the panel dated 3 September 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

. On the evidence before me, I conclude that an oral hearing is necessary. Stefan Fafinski 20 December 2024