Henry, Application for Set Aside [2025] PBSA 36 (05 June 2025) [2025] PBSA 36
[1]This is an application by Henry (the Applicant) to set aside the decision not to direct her release. The decision was made by a panel after a paper hearing on 16 April 2025. This is an eligible decision.[2]I have considered the application on the papers. These are the dossier, the written decision dated 16 April 2025 ('the decision'), and the application for set aside. Background[3]On 30 August 2016, the Applicant received 9 years' imprisonment following conviction for aggravated burglary of a dwelling to which she pleaded not guilty.[4]The Applicant was aged 20 at the time of sentencing. She is now 29 years old.[5]She was automatically released on licence on 22 February 2021. Her licence was revoked on 20 November 2024, and she was returned to custody on 22 November 2024. This is her first recall on this sentence, and her first parole review since recall. Application for Set Aside[6]The application for set aside has been drafted and submitted by the Applicant's legal representative.[7]It submits that there has been an error of fact, and the decision dated 16 April 2025 would not have been made were it not for the error. There are two errors detailed namely:(i) That the Applicant was going to live with her stepfather when released. The Applicant submits that her stepfather passed away.(ii) That the Applicant has not completed any offending behaviour work during her sentence. Current parole review[8]The Applicant's case was referred to the Parole Board by the Secretary of State (the Respondent) to consider whether to direct her re-release.[9]The case proceeded to a paper hearing. The single member panel initially adjourned the case on 27 January 2025 in order to seek further information. The Applicant's case was then considered again on 16 April 2025, where a decision was made.[10]The panel considered a dossier of information. The dossier contained reports from the Applicant's Community Offender Manager. It also contained information from the Police due to the fact that the Applicant had been arrested for further criminal offences when out in the community. The Police confirmed that no further action had been taken on those allegations.[11]The Applicant was legally represented and provided written representations at the time of the review dated 2 April 2025.[12]The panel did not direct the Applicant'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]It is argued on behalf of the Applicant that there have been errors of fact.[18]Firstly, it is submitted that the panel erred in saying that the Applicant would be living with her stepfather on release, when her stepfather had sadly died. The Applicant highlights that there are various points in the dossier where it is made clear the Applicant would not be living with her stepfather, including the written representations which detail that she would be living with her mother and two younger brothers. It is submitted that these arrangements for the risk management plan had caused some concern on the panel's behalf, which can be seen in the decision. The panel stated at paragraph 3.5 of its decision that, ' She would reside with her mother and step father in the family home, as she had at the time of the index offence and whilst on licence. The panel was mindful that one of the males involved in the index offence allegedly referred to her as his daughter and considered that this would need to be explored before release to this address could be considered appropriate. '[19]However, it is important to note that the panel did go on to indicate that they considered the risk management plan to be ' robust '. The concern for the panel was that it was not confident that the Applicant either ' has the internal controls to manage her risk factors or that her risk is sufficiently understood to ensure there would be identifiable warning signs before her risk materialised' (paragraph 3.7 of the decision). Whilst the panel did go on to say at paragraph 4.5 of its decision that part of the lack of understanding about the index offence was whether the Applicant's stepfather was involved, the panel had made it clear the main concern was whether the Applicant's risk was understood and explained that this was around the limited understanding of her triggers for violence, her mental health and her alcohol misuse.[20]It is therefore clear to me that the mistake with regards to the Applicant's stepfather, whilst obviously upsetting to the Applicant and regrettable, did not have a significant impact on the decision such that it could be said that the decision would not have been made but for that mistake.[21]Secondly, the Applicant submits that the panel erred when stating that the Applicant had not completed any offending behaviour work. It is submitted that the panel has ignored the Applicant's representations where she refers to completing ' trauma mind group sessions' at a particular prison. The Applicant further submits that the panel contradicted itself within the decision at paragraph 2.5 where it is stated that the Applicant ' was not eligible for offending behaviour work but had been provided with a victim awareness pack'. The Applicant submits that this work is offending behaviour work, even if not accredited and completed in her cell.[22]Having reviewed the decision, the panel did take into account the Applicant's written representations including the fact she had ' engaged in regular psychotherapy sessions/ CBT in 2017 to address her past trauma, including around her experience of childhood bullying' (paragraph 4.3). The panel also took into account that the Applicant had self-referred to the trauma stabilisation group since recall (paragraph 4.3 of the decision) and had completed some sessions with the psychology team relating to her past trauma (paragraph 2.5 of the decision).[23]I am therefore satisfied that the panel took those matters fully into account when making its assessment. Often trauma based work is not referred to specifically as offending behaviour work because it cannot be insisted upon as part of a sentence plan due to its personal nature. With regards to in cell work, due to it not being accredited and not a 'programme', it is also not always described as offending behaviour work. It would appear from the decision that the panel intended offending behaviour work to mean accredited programmes. However, the overarching description of the work is not important here, what is relevant is whether there was any mistake of fact. In my view, there was no mistake here as the panel took all progress into account, including that which took place before release and also trauma work and in cell work since recall. Decision[24]For the reasons set out above, firstly I am not persuaded that there have been all of the errors submitted. Furthermore, I am not persuaded that the decision not to direct the Applicant's release would not have been made but for any remaining error of fact. The application for set aside is therefore refused. Cassie Williams 05 June 2025