Davis, Application for Set Aside by the Secretary of State for Justice [2025] PBSA 19 (27 March 2025) [2025] PBSA 19
[1]This is an application by the Secretary of State for Justice (the Applicant) to set aside the decision to direct the release of Davis (the Respondent). The decision was made by a panel after an oral hearing on 5 February 2025. This is an eligible decision.[2]I have considered the application on the papers. These are: a) the dossier now paginated to 271 pages; b) the oral hearing decision dated 10 February 2025; and c) the amended application for set aside dated 14 March 2025. Background[3]On 20 September 2019 the Respondent was sentenced, following a trial, to a total of nine years imprisonment for three counts of robbery. Over the period 26/27 September 2017 the Respondent together with his co-defendant carried out robberies of two service stations and a betting shop whilst armed with an extendable baton and a knife, obtaining in all a considerable sum in cash.[4]The Respondent has convictions for s.20 GBH, possession of a knife, battery, public order, burglary, theft, possession of drugs and escape from lawful custody. He has also breached a court order and has a considerable history of drug misuse.[5]The Respondent was aged 25 at the time of sentencing. He is now 30 years old.[6]He was automatically released on licence on 30 May 2023. His licence was revoked on 19 April 2024 and he was returned to custody on 27 April 2024. This is his 1st recall on this sentence and his 1st parole review since recall. Application for Set Aside[7]The application for set aside has been drafted and submitted by the Public Protection Casework Section on behalf of the Applicant.[8]It submits that there is f urther information, constituting a significant change in circumstances, which impacts the risk management assessment and which has come to light since the panel directed the Respondent’s release. 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 proceeded to an oral hearing on 5 February 2025 before a single member panel which heard evidence from the Respondent, his Prison Offender Manager (POM) and his Community Offender Manager (COM). The Respondent was legally represented throughout the hearing.[11]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. The reply on behalf of the Respondent[15]The Respondent has offered no representations in response to this application . Discussion[16]The Respondent was released automatically on licence in May 2023. He was recalled on 19 April 2024 having tested positively for drug misuse and failed to attend appointments. Following action to recall him to custody, police attempted to arrest him but he ran away and hid. He was thereafter unlawfully at large (UAL) for seven days. On 28 April 2024 he was sentenced at the Crown Court to six months imprisonment for escaping from lawful custody.[17]The panel described his custodial behaviour following recall as mixed and the Respondent acknowledged spice use in prison. The panel gave detailed consideration to a proven adjudication for damage to a door, to the Respondent’s acceptance that he had used violence in custody, to security entries relating to violence and to the threat of violence which it considered relevant to risk. It concluded that, overall, there was evidence that the Respondent struggled to manage his emotions and behaviour in custody when either derogatory remarks were made regarding his partner or when in a conflict situation from which he felt unable to walk away.[18]There was professional support for release from both the COM and the POM and the panel concluded on balance that the Respondent had further developed his internal risk management skills since recall and that, given the robust external controls provided for in the risk management plan (RMP), he met the relevant test for release.[19]However on 5 March 2025 the Respondent was involved in a drunken fight with his cellmate and broke through, and destroyed, the cell door. The incident involved significant disorder with the Respondent being heavily intoxicated. In addition to the extensive damage in the cell, he assaulted his cellmate, attempting to strangle him and leaving him with visible injuries to his neck. Both men were removed to the segregation unit.[20]The Respondent received a proven adjudication on 11 March 2025 for fighting and was sentenced accordingly.[21]Additionally, during the incident the Respondent is said to have grabbed a female officer by the hair, resulting in a “ substantial amount of hair being ripped ” from her head. This matter has been referred to the police.[22]Subsequently, following his release from the segregation unit, the Respondent is said to have committed a further assault against another prisoner by a “single punch to the head” . This matter has not yet been resolved.[23]The COM now reports “… I can no longer support [the Respondent’s] release due to the seriousness of the incident. I feel that a side [sic] aside application needs to be completed and his direction for release needs to be re considered” and t he Probation Service is now concerned that, in light of the new information, the current RMP is not sufficient to manage risk in the community.[24]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 Applicant.[25]In the light of all the evidence 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 . Decision[26]The application for set aside is granted. Peter H F Jones 27 March 2025