Tubb, Application for Set Aside by the Secretary of State for Justice [2025] PBSA 30 (09 May 2025) [2025] PBSA 30
[1]This is an application by the Secretary of State for Justice (the Applicant) to set aside the decision to direct the release of Tubb (the Respondent). The decision was made by a panel after an oral hearing on 25 February 2025. This is an eligible decision.[2]I have considered the application on the papers. These are: a) the dossier now paginated to 289 pages; b) the oral hearing decision dated 27 February 2025; and c) the application for set aside dated 15 April 2025. Background[3]On 15 June 2023 the Respondent was sentenced to a total of 36 months imprisonment for assaulting a prison officer (by biting), two offences of affray and two offences of possession of a bladed article (a machete) in a public place.[4]The Respondent has an extensive criminal record of convictions for 64 offences many of which are for violence and include, on occasion, the possession of a weapon.[5]He has a history of substance misuse, mental health vulnerabilities and poor compliance both in custody and in the community.[6]The Respondent was aged 22 at the time of sentencing. He is now 24 years old.[7]He was automatically released on licence on 2 May 2024. He was the subject of a fixed-term recall on 14 May 2024 and was again released on 11 June 2024 before being returned to custody on 18 June 2024. This was his first parole review since his second recall. Application for Set Aside[8]The application for set aside has been drafted and submitted by the Public Protection Casework Section on behalf of the Applicant.[9]It is submitted 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[10]The Respondent’s case was referred to the Parole Board by the Applicant to consider whether to direct his release.[11]The case proceeded to an oral hearing on 25 February 2025 before a single member panel which heard evidence from the Respondent, his Prison Offender Manager and his Community Offender Manager (COM). The Respondent was legally represented throughout the hearing.[12]The Panel directed the Respondent’s release. The Relevant Law[13]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.[14]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)).[15]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[16]The Respondent has offered no representations in response to this application . Discussion[17]During previous periods in custody the Respondent had attacked other prisoners and received adjudications for setting fires in cells. Both recalls on this sentence had resulted from the Respondent failing to comply with his sign-in times at his Approved Premises (AP) and breaching his licence condition to be of good behaviour, leading to his AP bedspace being withdrawn .[18]The Respondent’s behaviour following his return to custody was described as mixed. Initially, there were a large number of adjudications and negative reports and he spent periods of time in the segregation wing. However, there was an improvement which professionals partly attributed to him receiving appropriate medication.[19]T he proven adjudications related to fighting and assaults x5, destroying property x3, recklessly setting fires x4, and intentionally endangering the health of himself or others x5. On one occasion the fire brigade was called to deal with the fire.[20]Nevertheless, the professional view was that his risk of causing serious harm could be managed in the community and that this risk was not imminent. There was unanimous professional support for release which was directed by the panel.[21]Since the release decision the Respondent has accrued 9 proven adjudications.[22]These include on 9 March 2025 being placed in segregation for a full search after being suspected of concealing drugs. A search of his cell revealed improvised weapons, razor blades and damage to prison property. On the same day he flooded his cell in segregation.[23]On 23 March 2025 (as he accepts) he fought with another prisoner in the showers receiving a black eye.[24]On 28 March 2025 he smashed the observation panel in his cell.[25]On 1 April 2025 he headbutted a prison officer to the face causing injury to the nose and lip and bit another officer on the leg. Both victims required hospital treatment. These matters have been referred to the police.[26]On 11 April 2025 he set a fire, made threats to assault members of the prison staff and spat at an officer. When efforts were made to remove him to special accommodation, he fought with the officers. All these matters have also been referred to the police.[27]In discussions with the COM the Respondent is said to acknowledge that he should not fight with prison staff but that some of them deliberately try to antagonise him and the prison do not want him released.[28]It is submitted that his recent behaviours evidence that he still struggles with appropriate conflict resolution, emotional regulation, anger management and consequential thinking and it is assessed that his coping mechanisms may not be sufficient to manage his emotions at present and that, if he is not able to manage his behaviour in a controlled environment, this could be repeated in the community.[29]Given the Respondent’s behaviour towards other prisoners and members of staff the proposed bedspace at an AP, which was an integral part of the robust risk management plan, has been withdrawn and the professional view now is that his risks cannot be safely managed in the community.[30]I have carefully considered the application for set aside and all the new information provided, noting that no representations have been received from or on behalf of the Respondent.[31]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[32]The application for set aside is granted. Peter H F Jones 09 May 2025