Leaver, Application for Set Aside by the Secretary of State for Justice [2025] PBSA 34 (29 May 2025) [2025] PBSA 34
[1]This is an application by the Secretary of State for Justice (the Applicant) to set aside the decision to direct the release of Leaver (the Respondent). The decision was made by a panel after an oral hearing on 28 April 2025. This is an eligible decision.[2]I have considered the application on the papers. These are:(a) (A) the dossier now paginated to 319 pages;(b) (B) the oral hearing decision dated 29 April 2025; and(c) (C) the application for set aside dated 21 May 2025. Background[3]On 10 October 2023 the Respondent was sentenced, upon his guilty plea, to 27 months imprisonment for wounding/inflicting grievous bodily harm contrary to s.20 Offences against the Person Act 1861.[4]The sentencing Judge took the view that the Respondent was under the influence of monkey dust and that the victim (whom he vaguely knew) had done something to aggravate him. He followed her into a bookmaker’s shop, knocked her to the ground, grabbed her hair and repeatedly kicked and stamped on her. He then dragged her out of the bookmaker’s shop and kicked and stamped on her again. She suffered a broken shoulder and cuts to her face. The Judge described the incident as “ a wholly unjustified, sustained assault ”.[5]The Respondent has an extensive criminal record of 51 convictions for 180 offences, predominantly acquisitive although there are nine convictions for violent offences. His risk factors include a lengthy history of drug and alcohol misuse, a chaotic lifestyle and poor consequential thinking and problem-solving skills[6]The Respondent was aged 44 at the time of sentencing. He is now 45 years old.[7]His risk of reoffending falls into the Very High/High categories and, if he were to reoffend, his risk of causing serious harm to the public and known adults is assessed to be High.[8]Although he had presented as under the influence of substances on a number of occasions during his sentence, the Respondent had undertaken relapse prevention group work, there was no recent evidence that he had used NPS (New Psychoactive Substance) in custody and he was receiving an injection to assist in preventing opiate use.[9]The Respondent was automatically released on licence on 15 July 2024 to Approved Premises (AP). His licence was revoked on the next day when he left the AP and breached licence conditions, and he was returned to custody on 17 July 2024. This was his first parole review since his recall. Application for Set Aside[10]The application for set aside has been drafted and submitted by the Public Protection Casework Section on behalf of the Applicant.[11]It is submitted that there is further 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[12]The Respondent’s case was referred to the Parole Board by the Applicant to consider whether to direct his release.[13]The case proceeded to an oral hearing on 28 April 2025 before a single member panel which heard evidence from the Respondent, his Prison Offender Manager (POM) and his Community Offender Manager (COM). The Respondent was unrepresented.[14]The Panel directed the Respondent’s release. The Relevant Law[15]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.[16]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)).[17]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[18]In an e-mail dated 21 May 2025 his POM confirms that the Respondent declines to make any comment in response to this application. Discussion[19]On 30 April 2025 the POM delivered paperwork to the Respondent confirming that release had been granted. However, the Respondent presented as under the influence and was unable to open or read the letter. As a result, he was required to provide a mandatory drug test which proved positive for synthetic cannabinoids and, when subsequently informed that he would now not be released, he raised no concerns but did ask if he could move wings within the prison as he was getting himself into debt.[20]When later questioned the Respondent suggested that he had taken some vape belonging to a friend which had been laced with drugs but, when challenged, he acknowledged that he had taken “spice” as he was fearful of being released without any accommodation despite his being aware that, unless accommodation was available, he would not be released.[21]It is the COM’s view that, while the Respondent’s motivation was not of the best at the time of the oral hearing, a sufficiently robust risk management plan was proposed but she now expresses concern that taking synthetic cannabinoids (believed to be “mamba”) whilst also in receipt of an injection to assist in preventing opiate use may cause psychosis.[22]The COM concludes that the Respondent should not now be released as he will present a risk to the public in the community since substance misuse is a main risk factor for him.[23]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[24]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[25]The application for set aside is granted. Peter H F Jones 29 May 2025