McGill, Application for Set Aside by the Secretary of State for Justice [2025] PBSA 25 (22 April 2025) [2025] PBSA 25
[1]This is an application by the Secretary of State (the Applicant) to set aside the decision to direct the release of McGill (the Respondent). The decision was made by a panel after an oral hearing on 4 December 2024. This is an eligible decision.[2]I have considered the application on the papers. These are the dossier consisting of 603 pages, the oral hearing decision dated 16 December 2024 the application for set aside dated 27 February 2025 and the representations on behalf of the Respondent dated 7 March, 28 March and 14 April 2025. Background[3]On 2 July 2014 following conviction for murder, the Respondent received a sentence of detention at Her Majesty’s Pleasure with a tariff of 9 years.[4]The Respondent was aged 14 at the time of sentencing. He is now 25 years old. Application for Set Aside[5]The application for set aside has been drafted and submitted by the Public Protection Casework Section (PPCS) acting on behalf of the Applicant.[6]It submits that there has been a change in circumstances or new information not known to the panel when it made its decision. It is argued that the panel may not have reached the same decision had this new information been known at the time.[7]The new information relates to three adjudications occurring after the decision letter. Those adjudications related to a positive drug test for the use of cannabis, fighting with another prisoner and attempting to assault a prisoner. The two incidents involved the same prisoner.[8]The application submitted that the recent behaviours indicated that the Respondent’s risk of violence in the community had increased. The application submitted that “ Recent behaviour highlights poor emotional control/regulation, poor decision making and consequential thinking and increase in violence which raises concerns ” and asked for the decision to be set aside. Current parole review[9]The Respondent’s case was referred to the Parole Board by the Applicant to consider whether to direct his release. If the Board did not consider it appropriate to direct release, it was invited to advise the Applicant whether the Respondent should be transferred to open conditions.[10]The case proceeded to an oral hearing on 4 December 2024 before a 3-member panel. The panel heard evidence from the Respondent, his Prison Offender Manager ( POM ), his former POM, his Community Offender Manager ( COM ) and a Security Governor. The Respondent was legally represented throughout the hearing. The Applicant was not represented by an advocate.[11]The panel directed the Applicant’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 in initial representations requested further time as he had lodged an appeal in respect of the adjudications relating to fighting. An adjournment was granted to 14 March 2025, thereafter a further adjournment was requested as the Respondent still had not received the outcome of his adjudication appeal. A two week adjournment was granted. In correspondence dated 28 March 2025 the Respondent’s representative attached the results of the adjudication of one of the complaints and requested a further extension to 14 April 2025. The results of the Respondent’s appeals against the adjudications together with further representations were submitted on 14 April 2025.[16]The Respondent submits that the application for set aside should not be granted, or if granted should be remitted to the original panel. Discussion[17]The Applicant reports that the Respondent faced an adjudication for a positive MDT for the use of cannabis on 7 January 2025. It is further reported that the Respondent was witnessed fighting another prisoner on 16 February 2025 and attempting to assault the same prisoner on 19 February 2025 but was apprehended. The Applicant submits that these matters raise concerns that affect the Respondent’s risk.[18]The Respondent pleaded guilty to the adjudication relating to the positive drug test and put forward mitigation. I do not find that this new information would have changed the panel’s decision to release the Respondent and in any case concerns about use of illicit drugs are adequately met by licence conditions requiring the Respondent to submit to drug testing when requested to do so.[19]Following a successful appeal by the Respondent, by a letter dated 28 March 2025 on behalf of the Applicant, it was reported in respect of the allegation of fighting “ it has been decided by a Prison Group Director that the finding of guilt against your client and the punishment should be quashed” . In the light of that decision, I disregard the Applicant’s complaint regarding the allegation of fighting.[20]The adjudication regarding the attempted assault remains and is concerning in the light of the Respondent’s index offence and the risk factors identified by the panel. The Respondent did not attend the adjudication hearing, and it proceeded on the basis of body worn camera footage. The Respondent possibly had not done himself any favours by not attending the adjudication to put forward his explanations which appeared in subsequent correspondence. The conclusion of the adjudication was that the evidence supported the charge of attempting to commit an assault and prison sanctions (unspecified in the decision letter) were imposed. The Respondent through his representative appealed that finding. In a letter dated 2 April 2025 from the prison service the Respondent was informed that his appeal was rejected, and the adjudication decision remained.[21]The Respondent submitted detailed submissions regarding the attempted assault adjudication. The set aside process is not an opportunity to revisit or re-appeal prison adjudications. The Respondent has set out the history of the adjudication and submissions against the decision. He had the opportunity to appeal, the submissions in respect of the appeal were considered and the adjudication decision affirmed. I see no unfairness in that process, a complaint in respect of which would not be through the set aside procedure but through the Independent Prisoner Complaint Investigations (IPCI). I therefore proceed on the basis of the adjudication finding. The single question being whether the decision of the panel should be set aside.[22]The panel, following a very thorough, fair and detailed consideration of the evidence directed release. Even taking into account that the incident of 19 February 2025 related to an attempt, the incident calls into question the panel’s findings that there had been no signs of violence for years, that the Respondent used skills he had learnt and went to staff to speak about feelings and frustrations. The panel therefore needs to consider its decision in the light of this new information. The panel will no doubt wish to view the body worn footage and will take into account the email of 9 April 2025 from the POM providing a positive progress report of the Respondent since the incident.[23]I am satisfied that had the matters resulting in the adjudication been before the panel, together with the Respondent’s grounds of appeal which appear attached to his representations in response to the allegation, the panel would have made the fullest investigation of the witnesses and the robustness of the risk management plan before directing release. That questioning or investigation needs to take place in order for the panel to be confident as to whether or not the risk management plan is sufficiently robust. I am satisfied that a decision for release would not have been granted before that took place and I therefore grant this application. Decision[24]The application for set aside is accepted. Barbara Mensah 22 April 2025