Cahill, Application for Set Aside [2025] PBSA 2 (13 January 2025) [2025] PBSA 2
[1]This is an application by the Parole Board (the Applicant) to set aside its own decision made by an oral hearing panel (the panel) dated 24 October 2024 to direct the release of Cahill (the Respondent). This is an eligible decision.[2]I have considered the application on the papers. These are the dossier of 348 pages, the oral hearing decision letter dated 24 October 2024, the application for set aside, email correspondence the most important of which is an email dated 11 December 2024 in which the panel states that set aside is necessary in this case. The issue was placed before the Chair of the Parole Board who in an email dated 17 December 2024 decided to initiate the set aside application. Background[3]On 1 April 2019, the Respondent received an extended sentence for offences of aggravated burglary, stalking and possession of a bladed article. The sentence comprised four years six months in custody extended by four years six months on licence. The Respondent was 41 years old when sentenced and is now 47 years old.[4]The Respondent was automatically released on licence on 17 April 2023. Her licence was revoked on 21 October 2023, and she was returned to custody on 23 October 2023. This is her first recall on this sentence, and her first parole review since recall. Application for Set Aside[5]The Chair of the Parole Board agreed to initiate this set aside process following a discussion between the panel and the Parole Board Legal and Practice Team. I have referred to the email chain which contains some of these discussions.[6]The panel received information on 20 November 2024 that the Psychologically Informed Planned Environment Approved Premise (PIPE AP) at which the Respondent had been accepted was no longer available and no other PIPE AP was being offered. The panel noted that the PIPE AP had been a key factor in the Community Offender Manager’s (COM’s) risk management plan. In further correspondence the COM confirmed that a standard Approved Premise (AP) placement had been found which could offer sufficient support for the Respondent. The panel considered that this was a change of circumstances occurring after the decision which had been a finely balanced one dependent on the provision of a PIPE AP for at least 12 weeks and therefore the set aside process should be initiated. Clearly the Chair of the Parole Board agreed.[7]The Parole Board relies on the grounds that a direction for release would not have been given if information that had not been available to the Board had been available or a change in circumstances relating to the prisoner after the direction was given had occurred before it was given. The Relevant Law[8]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.[9]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)). 10.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 from the Secretary of State[11]The Secretary of State has not provided any representations in response to the application. However, in response to a Stake Holder Response Form (SHRF) dated 11 December 2024, pre-dating the application, the Secretary of State stated that whilst a PIPE AP was preferred, “it was not felt that [the Respondent] will lose out on any support or risk management due to this change. The monitoring and controls available such as curfews and sign in times will not be impacted by the change in placement.” The reply from the Respondent[12]The Respondent offered representations disagreeing with the need for the decision to be set aside. The Respondent submits the alternative standard AP being offered has “extensive experience” working with female offenders with complex needs, that there will still be support for the Respondent and that the Respondent can be referred to additional services if required. The Respondent submits that in addition further emotional management work has been undertaken and development of internal controls. It is submitted that the change in circumstance does not undermine the decision to release and the risk management plan provides sufficient safeguards. Discussion[13]In the SHRF of 20 November 2024, the COM reported that an issue had arisen resulting in the original placement being assessed as unsuitable and the only other PIPE in the country had declined to accept the Respondent. The COM notes that “ The PIPE placement was a key factor in the risk management plan ”. Nevertheless, a standard AP was subsequently sourced and following further investigation the COM was able to recommend the proposed standard AP as a suitable alternative.[14]The panel states that its decision to release was finely balanced. The panel arrived at its conclusion, exercising its judgement based on the evidence before it having seen and heard the professional witnesses and the Respondent. The panel has not questioned the professional witnesses or Respondent about the alternative AP. It would be inappropriate to direct that the decision should not be set aside in these circumstances and in effect to substitute my judgement on the papers for that of the panel who heard from the witnesses.[15]The Respondent further submits that all the professionals have fully explored the alternative option and are satisfied that it provides sufficient support and therefore the change in circumstance is not sufficient to undermine the decision to release and does not justify a further review. This view fundamentally misunderstands the panel’s purpose. Panels of the Parole Board are not obliged to adopt the opinions and recommendations of professional witnesses. It is their responsibility to make their own risk assessments and to evaluate the likely effectiveness of any risk management plan proposed. They must make up their own minds on the totality of the evidence that they hear, including any evidence from the Respondent. It may be that the same decision will be reached, but that conclusion must be made on the basis of evidence carefully considered by the panel. They would be failing in their duty to protect the public from serious harm if they failed to do just that. It is necessary therefore and in the interests of justice for this decision to be set aside to be considered again. Decision[16]The application for set aside is accepted. Barbara Mensah 13 January 2025