Murphy, Application to Set Aside, [2025] PBSA 24 (16 April 2025) [2025] PBSA 24
[1]This is an application by the Secretary of State for Justice (the Applicant) to set aside the decision to direct the release of Murphy (the Respondent). The decision was made by a panel after an oral hearing . This is an eligible decision.[2]I have considered the application on the papers. These are the dossier, consisting of 478 numbered pages, the decision, dated 23 January 2025, and the application for set aside, dated 3 April 2025. Background[3]On 14 May 2001, the Respondent received a sentence of life imprisonment following conviction for wounding with intent to do grievous bodily harm to which he pleaded guilty. His tariff expired in August 2004.[4]The Respondent was aged 33 at the time of sentencing. He is now 57 years old.[5]He has been released and recalled twice on this sentence. He was most recently released in June 2023 following an oral hearing. His licence was revoked in March 2024, and he was returned to custody. This is his first review since his second recall. 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]The application for set aside submits there has been a change in circumstances. It is argued that the panel would not have directed release if the change in circumstances had occurred before the decision was taken.[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 was considered by a two member panel (including a psychologist specialist member) at an oral hearing on 21 January 2025. The panel heard evidence from the Respondent, his Prison Offender Manager (POM), and his Community Offender Manager (COM). The Respondent was legally represented throughout the proceedings. The Applicant was not legally represented.[11]The panel directed the Respondent's release. The Relevant Law[12]Rule 28A(1)(a) of the Parole Board Rules 2019 (as amended) 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 submitted representations in response to the application which will also be considered in the Discussion section below. Discussion[16]On 31 March 2025, the Respondent was alleged to have been involved in the aftermath of a serious assault on a vulnerable prisoner. CCTV reportedly shows him cleaning up blood from outside the crime scene, and intelligence suggests a possible link between the Respondent and the perpetrator of the assault, a close associate. The victim sustained life-changing injuries. The matter has been referred to the police, and the Respondent has been subject to adjudication and a downgrade to basic regime status.[17]The application argues that this incident calls into question the assessment of the Respondent's risk, particularly his capacity for pro-social behaviour, impulse control, and attitude to offending, which had underpinned the panel's conclusion that risk could be managed in the community.[18]Representations on the Respondent's behalf argue that there is no evidence he participated in, witnessed, or had knowledge of the incident. The representations argue that cleaning blood in a prison context does not necessarily indicate wrongdoing, given that blood may result from various non-criminal events and that prisoners often clean outside their cells as part of routine maintenance. No measures had been taken by prison authorities to designate the area as a crime scene at the time, and there was no lockdown or staff presence to indicate a serious event had occurred.[19]It is also denied that the Respondent " goaded " the attacker, and the representations note that no evidence, such as CCTV, witness statements, or communications has been disclosed to support that claim. Any such accusation, they argue, should be withdrawn in the absence of clear and specific evidence. The use of the term " goading " is described as speculative and insufficient to establish culpability.[20]The representations stress that the Respondent, currently serving a life sentence, would have no rational reason to jeopardise his prospects of release, especially given his consistent positive behaviour over many years. The claim that he was blindly loyal to the attacker or would knowingly clean up a crime scene out of allegiance is portrayed as illogical and unsupported.[21]It is submitted that risk to the public must be based on objective, tested evidence, not speculation or unresolved allegations and argued that the Respondent's behaviour, engagement with rehabilitation, and release planning remain unchanged. Accordingly, it is submitted that the application to set aside the release direction should be dismissed, with any necessary investigation to continue while the Respondent is on licence.[22]The representations rightly emphasise the importance of fairness and due process, and I acknowledge that there is no disciplinary finding or criminal conviction. However, the legal test under rule 28A(4)(b) does not require proof of misconduct to a criminal or disciplinary standard. It requires an assessment of whether the direction for release would not have been given had the new information been before the panel.[23]It is not for me to determine the weight to be attributed to these allegations. However, the matters raised by the Applicant, including the CCTV footage said to show the Respondent cleaning up blood in the vicinity of a serious assault, and intelligence suggesting association with the perpetrator may reasonably have raised material concerns for the original panel. These would include renewed questions about the Respondent's judgement, his association with negative peers, his decision making and consequential thinking skills, and whether his risk in an Approved Premises could be managed as originally concluded.[24]While the Respondent denies knowledge or intent, and no finding has yet been made, the incident is potentially of such relevance to risk that a responsible panel, apprised of the same facts, may reasonably have adjourned its decision pending further investigation or clarification.[25]It is in the interests of justice to ensure that release directions are made on the basis of the most complete and up-to-date understanding of risk. Where potentially credible and significant new information emerges shortly before release, public protection requires that the decision be reviewed.[26]I am therefore satisfied that there is new information available such that the direction for release would not have been given if that information had been available at the time. While I am very mindful of the fact that the Respondent is a life-sentenced prisoner significantly over-tariff, I am nonetheless also satisfied that it is in the interests of justice for the decision to be set aside. Decision[27]For the reasons I have given, the application is granted and the decision of the panel dated 23 January 2025 is set aside. Stefan Fafinski 16 April 2025