Fraughan, Application to Set Aside, [2025] PBSA 23 (11 April 2025) [2025] PBSA 23
[1]This is an application by the Secretary of State for Justice (the Applicant) to set aside the decision to direct the release of Fraughan (the Respondent). The decision was made by a panel after an oral hearing on 5 March 2025. This is an eligible decision.[2]I have considered the application on the papers. These are the dossier consisting of 315 pages, the oral hearing decision dated 19 March 2025, and the application for set aside dated 25 March 2025. Background[3]On 19 July 2021, the Respondent received a sentence of 5 years for possession of a firearm to which he pleaded guilty.[4]The Respondent was aged 30 at the time of sentencing. He is now 34 years old.[5]He was automatically released on licence on 11 January 2024. His licence was revoked on 25 February 2024, and he was returned to custody on 29 February 2024. This is his first recall on this sentence, and his first parole review since recall. His sentence expiry date is July 2026. 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]It submits that there has been a change in circumstances which occurred after the panel made its decision. It is argued that the panel may not have reached the same decision had this new information been known.[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 to consider whether to direct his release.[10]The case proceeded to an oral hearing on 5 March 2025 before a 2-member panel. The panel heard evidence from the Respondent, his Prison Offender Manager ( POM ) and his Community Offender Manager ( COM ). The Respondent was not legally represented at 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]It is argued on behalf of the Applicant that there has been a change in circumstances. The Respondent was granted permission for release on temporary licence to attend his aunt's funeral on 21 March 2025. He was due to return to custody that day but rang to say he would be late. He later rang again to say he was attending the wake and had been drinking. He has not returned to the prison since then and his whereabouts are currently unknown. The Applicant submits that the panel would not have given the decision it gave if this circumstance had been known.[17]The Respondent was not represented at the hearing. The panel noted his evidence claiming that he was a different person. The panel records that the history of the Respondent's offending lies in his long-lasting and problematic relationship with alcohol. The panel concluded that a return to alcohol misuse will inevitably lead to concerns about the manageability of his risk in the community and may result in a recall to custody.[18]In an email dated 28 March 2025 to the Parole Board the COM states " In my opinion at this present time his risk or compliance cannot be managed in the community. The Respondent has clearly not learnt from the previous consequences of his failure to comply with licence conditions" .[19]As the COM states, by his own admission in his phone call to the prison the Respondent admitted to drinking and he failed to comply with the terms of his temporary release in not returning as directed. These actions call the question of his risk and manageability in the community into question. In the light of the reasons in the decision the panel would not have given the direction to release if this information had been known to it. The decision must therefore be set aside. Decision[20]The application for set aside is accepted. Barbara Mensah 11 April 2025