Baker, Application to Set Aside, [2025] PBSA 17 (12 March 2025) [2025] PBSA 17
[1]This is an application made on the 28 February 2025 (the Application) by the Public Protection Casework Section (PPCS) on behalf of the Secretary of State (the Applicant) to set aside the decision to direct the release of the above-named, Baker (the Respondent). The decision was made by a panel after an oral hearing held on 7 November 2024 and issued on 18 November 2024 (the Decision). This is an eligible decision.[2]I have considered the application on the papers. These are the dossier (consisting of 461 pages at the date of the hearing and now 489 pages), the Decision, and the Application. In addition, I have considered representations received from the Respondent's legal representatives dated 6 March 2025 (the Representations). Background[3]On 26 September 2011, following a history of convictions for a number of offences invariably involving threats of violence and violent acquisitive conduct, and furthermore whilst on licence in respect of an earlier offence, the Applicant received an indeterminate sentence of imprisonment for public protection (IPP) for an offence of robbery, again involving violence to an elderly man. The tariff was set at two years and 171 days which expired on 15 March 2014.[4]That was not, however, the end of the matter. Following a previous Parole Board hearing the Respondent was released on licence on 15 August 2016. He was recalled to custody three months later following a further offence of robbery committed on 27 November 2016 for which he was sentenced to an extended sentence of 10 years and 4 months, comprising 5 years and 4 months' custody and 5 years extended licence. His appeal against this sentence was refused.[5]The Respondent was aged 32 at the time of sentencing for the index offence in 2011. He is now 46 years old.[6]The recall in 2016 was the Respondent's first recall. This was his fifth review since recall. Application for Set Aside[7]The basis of the Application is that there has been a change in circumstances.[8]First, it was reported to the PPCS in February that there were concerns about the Respondent being involved in live risk factors, specifically substance misuse and indebtedness to other prisoners recently released which might follow the Respondent into the community.[9]Further investigations revealed and reported four alleged documented occasions when the Respondent had been found to be under the influence of substances between November 2024 and February 2025 but in respect of which he had not sought any support for substance misuse, raising doubts about his ability to desist from substance misuse in the community or to seek assistance from support services, in turn leading to concerns about the risk management plan and whether this issue could, given the Respondent's history of offending and drug dependency, effectively be managed in the community.[10]Second, also in late February it was then discovered that part of the care package developed to deal with the Respondent's release into the community had been withdrawn by Adult Social Care resulting in the withdrawal of his bedspace at the designated Approved Premises which could not otherwise provide the services from Adult Social Care.[11]Third, these developments have in turn led to the Probation Services no longer supporting release into the community.[12]Accordingly, in light of these factors set against the noted risk factors, the Respondent's own circumstances and the risk management plan in its present form being unable to meet or support these risks, the Applicant requests the Decision to be set aside with the obvious result that the matter should be reconsidered. Current parole review[13]The Respondent's case was referred to the Parole Board by the Applicant to consider his release or transfer to open conditions.[14]The panel consisted of a two-member panel comprising an independent chair and a psychologist member. The panel heard evidence from the Respondent, his Prison Offender Manager, his Community Offender Manager, an HMPPS psychologist, and a Social Worker. The Applicant was legally represented throughout the hearing.[15]The panel noted a lengthy history involving drugs (including numerous drug-related adjudications and concerns including allegations of trading medication following recall), alcohol, violence and threats of violence, and a high demand or need for money for substance misuse. It was also noted that the Respondent, a diabetic, had undergone amputation of both legs, rendering tagging impossible. The Respondent had expressed a desire not to misuse drugs or alcohol or harm anyone else. Despite these concerns the panel felt the risk management plan should be adequate to monitor and manage the level of risk posed by the Respondent and directed his release. The Relevant Law[16]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.[17]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)).[18]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 i. information that had not been available to the Board had been available, or ii. a change in circumstances relating to the prisoner after the direction was given had occurred before it was given[19]Obviously, this application is made under Rule 28A(4)(b). The reply on behalf of the Respondent[20]I have referred to the Representations received on behalf of the Respondent above. The gist of these is that the application for set aside should be rejected and that the new allegations against the Respondent are in large measure simply wrong, inaccurate, unfair, or a misinterpretation of the effects of his physical disabilities. The Respondent's positive qualities and experience are put forward (as might be expected) and the context emphasised. It is, for example, pointed out that as well as being diabetic, the Respondent suffers from epilepsy and that suffering a hypoglycaemic episode in the one case and recovery from an epileptic seizure in the other have been misinterpreted as being under the influence of substance misuse. It was helpfully accepted that Adult Social Care had withdrawn the support package. This was, so the legal representatives were informed, because the proposed care provider, having viewed the risk assessment, felt unable to take on the Respondent's support package although efforts to find an alternative provider continue. Discussion[21]It is unnecessary to elaborate in any further detail. Notwithstanding the helpful and cogent submissions made on behalf of the Respondent it is abundantly clear that the revelations subsequent to the panel hearing and Decision call for further investigation and evaluation of both the risks appertaining to the Respondent and their manageability. I note and understand the disappointment of the Respondent at the Application, but given the detail and level of dispute between the Respondent and prison authorities it is not one I can resolve but should be resolved before the panel after further investigations, reports and evidence on both sides and a further hearing. Decision[22]I thus accept that the grounds on which the Application is made establish a case for setting aside the Decision and accordingly the application for set aside is granted. HH Roger Kaye KC 12 March 2025