Whitley, Application to Set Aside, [2025] PBSA 31 (19 May 2025) [2025] PBSA 31
[1]This is an application by the Secretary of State for Justice, (the Applicant) to set aside a direction for release made following an oral hearing of the Parole Board on 19 November 2024.[2]I have considered the application on the papers. These are the oral hearing decision (dated 5 March 2025), the dossier, the Application for Set Aside (dated 29 April 2025) and legal submissions from those representing the Respondent (dated 7 May 2025). Background[3]The Respondent was sentenced to life imprisonment for the offences of attempted robbery (with a concurrent determinate sentence for wounding with intent) on 15 April 2005. His minimum tariff was set at 4 years from the date of sentence and expired on the 15 April 2009. During sentence the Respondent has struggled to progress his sentence and has been recommended for Open Conditions four times and been released on two previous occasions. Each time being returned to Closed Conditions. During sentence the Respondent has completed significant offending behaviour work, but concerns have remained with regards to the Respondent's ability to implement learning and his ability to comply as directed.[4]The Respondent was last released on the 31 July 2023 but recalled back into custody some 9 weeks later. He remained unlawfully at large (UAL) for several weeks before being returned to prison. Prior to recall, concerns were raised about suspected substance misuse, (including positive tests for crack cocaine and Subutex) and also concerns that the Respondent had not been fully open and honest with regards to a potential developing relationship. There were also concerns that the Respondent was not being fully compliant with his GPS Tag. These matters were all closely scrutinised during the Respondent's oral hearing on 19 November 2024. Application for Set Aside[5]The application for Set Aside has been provided by the Public Protection Casework Section (PPCS) on behalf of the Secretary of State and was served on the Parole Board by email on the 29 April 2025.[6]The Applicant makes the application on the grounds that further information that affects the risk management assessment has come to light, and there has been a change in the prisoner's circumstances and therefore condition 4(b)(ii) has been met under the Parole Board rule 28A. Current Parole Review[7]The Respondent's case was referred to the Parole Board by the Applicant on the 12 December 2023 to consider whether to direct release or make a recommendation as to a progressive move to Open Conditions.[8]The case was considered by a three-member panel of the Parole Board at an oral hearing on the 19 November 2024. At that time a comprehensive risk assessment was completed by the Parole Board which included a specialist Psychologist Member. At the end of this review the panel concluded that the Respondent met the statutory test for release and directed his release subject to the proposed risk management plan. At the time of the hearing in November 2024 the Prison Offender Manager and the Psychologist (prison based) supported release. The Community Offender Manager did not recommend release, raising concerns about the Respondent's ability to communicate assertively and raising fears that he would be overwhelmed in the community.[9]For reasons unclear the decision was not provided until the 5 March 2025, some 4 months post the oral hearing date.[10]The panel held the Respondent's recall to have been appropriate. The Relevant Law 11.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. 12.The types of decisions eligible for set aside are set out in rules 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)). 13.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 made if information that had not been available to the Board had been available, or c) A direction for release would not have been made 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[14]Those instructed on behalf of the Respondent argue the updated information provided in the Set Aside application would not have affected the Parole Board's decision to release and, in the event that the set aside member is not so persuaded, they request a further hearing to review the updated information, which is disputed by the Respondent. Discussion Eligibility[15]The application concerns a panel's decision to direct the Respondent's release following an oral hearing under rule 25(1). The Applicant argues that the condition in 4(b)(ii) has been met under Prole Board rule 28A. I agree that this submission and find this to be an eligible application. The test for set aside 16.In determining the Application for Set Aside, I must consider whether the decision to release the Respondent where further information that affects the risk management assessment has come to light, or if there has been a change in the prisoner's circumstances and therefore conditions 4(b)(ii) are met under the Parole Board rule 28A.[17]The Applicant states that on the 14 April 2025 the prison informed the Applicant that the Respondent was found under the influence of an unknown substance to the 'point he was on the floor over the weekend'. The Applicant contests that this is new information that affects risk management and also represents a change of circumstances for the Respondent to those presented at the oral hearing and heard by the Panel Members.[18]In coming to this assessment, the Applicant seeks to rely on the Panel's findings in its decision of 5 March 2025, whereby the Panel cited alcohol and substance misuse as a core risk factor (1.10) and also the significance of good behaviour and stability and the Respondent's stated motivation to remain abstinent as primary protective factors in its decision (4.10).[19]The Applicant also sets out the link between the Respondent's substance misuse and past non-compliance, including his most recent recall and the fact that, based on the evidence provided, the Respondent has allegedly lapsed back into substance misuse, whilst still in the confines of the Closed Estate.[20]The Applicant further confirms that the new Community Offender Manager considers this allegation to be material to risk management and does not support release at this time. This is on the basis that the Respondent is no longer manageable in the community and also due to concerns linked to the imminence of risk if the Respondent is using illicit drugs.[21]Those instructed on behalf of the Respondent deny the Respondent being under the influence of substances. They submit that the Respondent suffers from back pain and 'routinely lies on the floor to relieve that pain '. It is also submitted that the Respondent was not drug tested following the incident and has not received any further sanction.[22]In my assessment the information provided by the Applicant does constitute relevant new information, and a valid change in circumstances for the Respondent to those presented at the oral hearing and heard by the panel. I agree with the Applicant that based on the evidence before me, including the findings in the Panel's decision, the panel considered alcohol and substance misuse to be a core risk factor and placed weight on the Respondent's stated desire to comply as directed and to remain abstinent. As such, I am also in agreement with the Applicant that consideration ought to be given to whether a direction for release would not have been made if a change in circumstances relating to the prisoner after the direction was given had occurred before it was given .[23]As such, based on the information contain in paragraph 22 above, I find that there are sufficient grounds for the decision made by the Panel on the 5 March 2025 to be set aside. I further find that it is in the interests of justice to do so. Decision[24]For the reasons I have given, the application is granted, and the decision of the panel dated 5 March 2025 should be set aside. Heidi Leavesley 19 May 2025