Farrell, Application for Set Aside by the Secretary of State for Justice [2025] PBSA 33 (16 May 2025) [2025] PBSA 33
[1]This is an application by the Secretary of State for Justice (the Applicant) to set aside the decision to direct Mr Farrell's (the Respondent's) release. The decision was made by a panel after an oral hearing on 16 December 2024. This is an eligible decision.[2]I have considered the application on the papers. These are the dossier (327 pages), the oral hearing decision (dated 16 December 2024 and issued to the parties on 18 December 2024), the application for set aside (received on 13 March 2025), and legal submissions dated 16 April 2025 but only provided to me on 24 April 2025. Background[3]On 20 March 1996, the Respondent received a life sentence with a minimum tariff of 15 years 1 day following conviction for murder to which he pleaded not guilty.[4]The Respondent was aged 26 at the time of sentencing. He is now 55 years old.[5]He was first released on licence by the Parole Board on 20 February 2013 and recalled on 14 January 2016. Since then, he has been released and recalled three further times. The Respondent was most recently released on licence on 31 August 2021. His licence was revoked on 15 December 2021, and he was returned to custody on 5 January 2022. This is his fourth recall on this sentence, and his second parole review since 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]It submits that there has been new information or a change in circumstances which is relevant to the Respondent's risk.[8]Following the Parole Board's decision directing his release, arrangements were made for the Respondent's release to a PIPE Approved Premises on 5 March 2025. On 26 February 2025, the Applicant was informed by the prison that the Respondent had tested positive for opiates, and had disclosed using heroin. On 27 February 2025, the COM indicated that they were no longer supporting the Respondent's release; during a video meeting between the Respondent, the POM, and the COM on 26 February 2025, the Respondent disclosed using heroin due to hearing information which triggered related traumatic memories of his own similar experiences. The Respondent also disclosed that he had tested positive for synthetic drugs, and said he had used these as they were available. The Respondent did not disclose daily heroin use to his COM, but disclosed such daily heroin use to his POM after the video meeting ended. As a result of the Respondent's disclosure of daily heroin use, he was transferred from open conditions to closed conditions on 26 February 2025.[9]The Applicant expresses concern that the Respondent has been recalled at least three times due to his substance misuse (drugs and alcohol). The Applicant also expresses significant concerns at the Respondent's apparent concealment of his substance misuse whilst in custody from the relevant authorities, including those working closely with him from the substance misuse service Change Grow Live (CGL), and about the risks should the Respondent return to offending in order to fund his substance misuse in the community. In the Applicant's view, it would not be possible to manage the Respondent's risks in the community due to his continued drug misuse in custody whilst working with CGL and other agencies (presumably the community organisation New Connections which supports prisoners and offenders with substance misuse and mental health problems), where he is currently in a more controlled environment than he would be if released. The Applicant considers that it would not be possible to monitor the Respondent as closely if released in the community, and states that it would not be possible to mitigate those risks with frequent drug testing due to related financial limitations. The Applicant submits that the Respondent requires further treatment in custody to address his substance misuse problems, given the role that drugs and alcohol played in the index offence, and the significance of alcohol in his instability and contact with police when on licence. Current parole review[10]The Respondent's case was referred to the Parole Board by the Applicant to consider whether to direct his release or recommend a transfer to open conditions.[11]The case proceeded to an oral hearing on 16 December 2024 before a two-member panel. The panel heard evidence from the Respondent, his Prison Offender Manager ( POM ), his Community Offender Manager ( COM ), and a key worker from New Connections. The Respondent was legally represented throughout the hearing. There was a psychological risk assessment ( PRA ) in the dossier dated September 2022, provided for the Respondent's previous oral hearing in December 2022 (where the PRA's author gave evidence) which led to a recommendation for the Respondent's transfer to open conditions.[12]The December 2024 panel directed the Respondent's release. It noted that the Respondent has been released and recalled four times, and on each recall, there were issues with alcohol and drugs. In directing release, the panel noted the Respondent's engagement with substance misuse services, an OPD service, and the community substance misuse service New Connections. The panel noted that the Respondent "appears motivated to abstain from substances and alcohol". It further noted his engagement with ROTL since his transfer to open conditions, and attributed instances of non-compliance to what it found to be the Respondent's "inadequate coping skills" ; I assume that this is a reference to the Respondent's failing a breath test for alcohol in April 2024, as well as instances of not complying fully with the terms of his ROTL by going to a different town to the one specified in his licence, and being with another prisoner whilst on ROTL. The panel in its conclusion attached no weight to concerns about the Respondent's possible misuse of synthetic cannabinoids whilst on ROTL, which it found to be ambiguous, and considered the positive drug test at the Approved Premises was undermined by a subsequent negative drug test in custody; the Respondent had denied using any substances on ROTL. The panel heard evidence from the New Connections key worker about the Respondent's engagement with their organisation over the last six months, and from the POM, including her belief that the Respondent was open and honest with her. The COM's evidence was that she believed the Respondent would admit any substance misuse, and that he was now more open and honest with professionals. Professional witnesses recommended 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's legal representative has offered representations in response to this application . These representations do not seek to elaborate upon or specifically challenge the Applicant's account of events including the Respondent's substance misuse leading to the cancellation of the Respondent's release. They do not challenge the application to set aside the December 2024 decision to direct the Respondent's release. The reply does not dispute the factual basis for the application. Instead, it seeks to justify an oral hearing on the basis of future procedural fairness, not to contest the application itself. The reply submits that an oral hearing is needed so that the Respondent can explain why he used drugs so close to his release date, and refers to his previous requests for a Subutex prescription. They refer to his engagement with New Connections prior to release, and suggest that there are "clearly underlying issues" in relation to which they intend to instruct an independent psychologist to conduct a risk assessment, and also an assessment of whether the Respondent has autistic spectrum disorder. They note that the Respondent is serving a life sentence, and submit that the case is too complex to be considered on the papers. They do not address the matter of whether a new panel is needed. Discussion[17]It is argued on behalf of the Applicant that there has been a change in circumstances/new information. There is no challenge to this in the legal representations, which refer to the Respondent's use of drugs close to his release date. I find that there has clearly been a change of circumstances and new information of which the panel was unaware when it directed the Respondent's release. Whilst the role of his drug misuse in his offending and its link to his risk of violence is mentioned in the decision, the focus of the hearing appears to have been more on the risks related to the Respondent's use of alcohol. The main discussion of substance misuse is focused on the possible use of synthetic cannabinoids, denied at the time and at the hearing by the Respondent. Clearly, it has now been discovered that the Respondent has used substances in custody, and has reportedly admitted to using Class A substances on a daily basis whilst in custody along with misuse of synthetic drugs because they were available. This substance misuse by the Respondent in custody appears only to have been discovered following a positive drug test. There is no evidence that he had previously disclosed any such misuse, he had certainly not done so at the time of his oral hearing, and indeed he was not fully open with professionals during a meeting after the positive drug test. It was only after that meeting that the Respondent disclosed the extent of his substance misuse to the POM, who then informed the COM.[18]I find that the Respondent's evidence and presentation of himself to professionals involved in his supervision, and also at the oral hearing and subsequently, is clearly at odds with the reality. The Respondent presented himself as now more open and honest with professionals, and such openness and honesty was a factor in the professional evidence before the panel and the recommendations for the Respondent's release, albeit a cautious recommendation on behalf of the COM. I also find that the nature of his lack of openness and honesty, given that he did not disclose his substance misuse until it was discovered by the drug test, despite apparently working well with his POM, his COM, CGL and New Connections, goes directly to his risk of serious harm, given the role of his substance misuse in his offending and his related violence. This pattern of concealment and minimisation, combined with the seriousness of the substances involved and the context of a life sentence for violent offending significantly alters the risk landscape. Decision 19.Given the clear divergence between the Respondent's presentation and evidence at the hearing and subsequent events, including undisclosed daily heroin use and concealment from professionals, I am satisfied that it is in the interests of justice to set aside the decision. The application for set aside is accepted. Carol Swaffer 16 May 2025