Benson, Application for Set Aside by the Secretary of State for Justice [2024] PBSA 87 (23 December 2024) [2024] PBSA 87
[1]This is an application by the Secretary of State for Justice (the Applicant) to set aside the decision of a Panel of the Parole Board to direct the release of Benson (the Respondent). This is an eligible decision.[2]I have considered the application on the papers. These are: a) The dossier now paginated to 191 pages; b) The decision letter dated 19 August 2024; and c) The application for set aside dated 22 November 2024 Background[3]The Respondent was first convicted in 1995 when he was 14. He has a history of violent and aggressive offences including robbery, assaults, use of weapons, motor vehicle convictions and burglary. It appears these were committed to fund his drug misuse.[4]In January 2017 he was released from custody following a lengthy prison sentence imposed for a robbery involving violence with an imitation firearm and knife together with matters of burglary and theft.[5]On 8 June 2018 the Respondent received, following his guilty plea, an extended determinate sentence of imprisonment comprising a custodial element of 10 years and an extended licence period of three years for conspiracy to commit aggravated burglary. Two burglars wearing skull masks had smashed their way into the victims’ home in May 2017 via the French windows and threatened the male victim with a climbing axe. The female victim was 23 weeks pregnant and, when she started screaming, she was put in a headlock and her mouth covered which restricted her breathing. A substantial amount of cash and a valuable watch were stolen.[6]The Respondent’s Parole Eligibility Date is given as 2 September 2024, his Conditional Release Date as January 2028 and his Sentence Expiry Date as November 2030.[7]He was aged 37 at the time of sentencing and is now 43 years old.[8]This was the first review.[9]The Respondent transferred to open prison conditions in April 2023. On 18 October 2024 a duty member of the Parole Board granted an application by the probation service to include further additional conditions in the licence proposed for the Respondent as he had returned to prison following a period of release on temporary licence having consumed an amount of alcohol which caused concern, having made what was described as this “ error of judgement” on several previous occasions. Application for Set Aside[10]The application for set aside has been drafted and submitted by the Public Protection Casework Section (PPCS) acting on behalf of the Applicant.[11]The application for set aside submits that, in the light of further developments since the Panel gave its release decision, the Panel would not have reached the same decision had this new information been known and it appears to be argued that a direction for release would not have been given if a change in circumstances relating to the Respondent after the direction was given had occurred before it was given.[12]The content of the application will be considered in the Discussion Section below. Current parole review[13]The Respondent’s case was referred to the Parole Board by the Applicant to consider whether to direct his release.[14]A single member of the Parole Board considered the case by way of Member Case Assessment and on the basis of the papers alone directed the Respondent’s release. The Relevant Law[15]Rule 28A(1)(a) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2024) (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.[16]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)).[17]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[18]I have carefully considered representations in response to the application from the Respondent’s solicitors, dated 12 December 2024 on behalf of the Respondent. Discussion[19]There was professional support for the Respondent’s release and, although the Respondent was found to present a high risk of serious harm to the public, the Panel decided that the risk of offending and harm which he presented was manageable within the plan, given his level of compliance, engagement and motivation .[20]Release was planned for Monday, 25 November 2024. However, on Monday, 18 November 2024 the Respondent, who held a trusted position in the prison as a “visits cleaner” , together with others stole from an industrial fridge. The lights in the room were extinguished and the padlocked fridge door was ripped off and cakes stolen. This was discovered on 21 November 2024.[21]Given his offending history, the Probation Service view this matter as offence- paralleling and have concerns, given the acquisitive aspect to the incident, relating to deceitful behaviour in a position of trust and ongoing deficits in the Respondent’s thinking. The Probation Service have concluded that his risk cannot be effectively managed in the community at this time.[22]The Respondent was returned to closed prison conditions on 22 November 2024, an adjudication is reported to be ongoing and the Respondent’s release has been paused.[23]In consequence of this new information and a change in circumstances the Applicant submits that the release decision should be set aside.[24]Through his solicitors, the Respondent confirms that he was employed as a cleaner and, together with two other prisoners, made themselves drinks and ate food left over from prison visits. He accepts opening a fridge and taking food out while denying that the fridge door was broken into or damaged. On his account there is CCTV footage of the incident, and he denies being adjudicated for the offence.[25]The Respondent, however, acknowledges that he should not have taken the food and that he made a “poor decision”.[26]The Respondent’s solicitors, also, rehearse the arguments for release which were before the Panel and go on to provide helpful suggestions for appropriate directions in the event of an oral hearing being necessary.[27]I have carefully considered the documentation placed before me, including the application for set aside, the new information provided, and the detailed representations made on behalf of the Respondent.[28]In the light of all the evidence, in particular, the Respondent’s admissions and the view now taken by the Probation Service that risk cannot be effectively managed in the community at this time, I am satisfied that the Panel would not have given a direction for release if this information had been before it at the relevant time and I confirm that I am satisfied that it is in the interests of justice for the Panel's decision to be set aside .[29]I also find that this is a case which must now be directed to an oral hearing. Decision[30]The application for set aside is granted. PETER H.F. JONES 23 December 2024