Collins, Application for Set Aside by the Secretary of State for Justice [2025] PBSA 37 (10 June 2025) [2025] PBSA 37
[1]This is an application by the Secretary of State for Justice (the Applicant) to set aside the decision to direct the release of Collins (the Respondent). The decision was made by a panel after an oral hearing . This is an eligible decision.[2]I have considered the application on the papers. These are the dossier (consisting of 547 numbered pages), the decision (dated 31 March 2025), and the application for set aside (dated 23 May 2025). I have also seen an updated security intelligence report (dated 28 May 2025). Background[3]On 8 December 2005, the Respondent received a mandatory life sentence following conviction after trial for murder. He also received a 12 month determinate sentence for burglary of a dwelling. His tariff was set at 14 years and three months and expired in March 2020.[4]The Applicant was 22 years old at the time of sentencing and is now 41 years old. Application for Set Aside[5]The application for set aside has been drafted and submitted by the Public Protection Casework Section (PPCS) acting on behalf of the Applicant.[6]The application for set aside submits there is further information which came to light after the panel made its decision. It is argued that the panel would not have reached the same decision had this new information been available at the time.[7]The content of the application will be considered in the Discussion section below. Current Parole Review[8]The Respondent’s case was referred to the Parole Board by the Applicant in June 2023 to consider whether or not it would be appropriate to direct his release.[9]The case proceeded to an oral hearing on 31 March 2025, before a two-member panel, including a psychologist specialist member. Oral evidence was taken from the Respondent, the Prison Offender Manager (POM), the Community Offender Manager (COM), and an HMPPS forensic psychologist. The Respondent was legally represented throughout the hearing. The panel directed his release.[10]As the Respondent is serving a life sentence, the panel’s decision was provisional for 21 days to allow an application from reconsideration from either party. The reconsideration window closed on 23 April 2025 at which point the release decision became final. The Relevant Law[11]Rule 28A(1)(a) of 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 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)).[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 given if information that had not been available to 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[14]The Respondent has submitted written representations (dated 4 June 2025) in response to the application which will also be considered in the Discussion section below. Discussion[15]The Applicant applies to set aside the decision on the ground that there has been a change in the Respondent’s circumstances since the direction was made, specifically, the refusal of a Mandatory Drug Test (MDT) on 10 April 2025, resulting in a proven adjudication. The COM, having previously opposed release and favoured progression through open conditions, has now reiterated their opposition to release and reasserts that the Respondent’s risks can no longer be safely managed in the community.[16]At the time of the hearing, the panel concluded that the Respondent’s substance misuse issues were under control and that he had demonstrated resilience to stressors within custody without relapsing into drug use. These findings were underpinned by evidence of his abstinence, his role as a drug mentor, and the absence of positive drug tests. While the panel acknowledged that substance misuse remained a key risk factor, it found that such risks could be adequately managed in the community through a combination of drug testing, curfew, placement in designated accommodation, and multi-agency oversight.[17]Since the hearing, the Respondent has refused to undertake an MDT. Although he has denied relapsing, his subsequent appearance and guilty pleas before the Governor (who oversees drug recovery work) resulted in a proven adjudication. According to Probation, the Respondent would have needed to admit drug use to receive the outcome imposed, which was a “ chance to change” response rather than an immediate punishment. Probation now considers this development to cast significant doubt on the Respondent’s compliance, insight, and honesty regarding substance use.[18]Furthermore, additional security intelligence dated 25 May 2025 raises concern about the Respondent’s conduct in custody, including allegations surrounding the use of Spice, bullying behaviour, and possession of items including a debt list, pornography, and social media details. While this intelligence was not the basis of the present application (indeed it post-dated it), it nonetheless contributes to suspicion of a deteriorating picture of custodial behaviour which may further undermine the manageability of risk on licence. Via his written representations, the Respondent disputes the accuracy of these entries and asserts alternative explanations.[19]The Respondent accepts that he refused the MDT on 10 April 2025 but denies that this was due to drug use. He asserts that he was under escalating threat at his current establishment, following his previous disclosure of illicit substances to staff in March 2025. He claims the MDT refusal was a deliberate act to secure a Governor’s attention in the absence of other staff support and that he attempted to reverse this decision within minutes by requesting to take the test. A serious incident on the wing allegedly prevented staff from returning. The Respondent further states that he subsequently took an MDT at his own request, which returned a negative result.[20]The Respondent’s representations provide important context and are consistent with his account of internal threats previously explored at the hearing. However, the issue before me is not whether the Respondent has resumed drug use, but whether the refusal and adjudication amount to a material change in the evidential basis for the original decision. On balance, I find that they do. The adjudication, even if motivated by concerns for personal safety, represents a breakdown in behavioural compliance shortly after a hearing in which compliance and insight were key to the decision to direct release.[21]I am therefore satisfied that the refusal of the MDT and the resulting adjudication together amount to a change in circumstances within the meaning of rule 28A(4)(b)(ii). These developments are material. Had they occurred prior to the hearing, the original panel would have been presented with a significantly different evidential landscape, and it is likely the panel would have reached a different view as to the Respondent’s suitability for release.[22]I therefore find that the panel would not have directed release had it known of the change in circumstances. The balance of risk has changed materially in a manner that could not have been properly assessed at the time of the original decision.[23]I must also consider whether it is in the interests of justice to set aside the decision. The index offence was one of extreme brutality. The panel directing release acknowledged that the Respondent had the capacity to cause very serious harm and that substance misuse was a known precursor to elevated risk. There is now evidence to suggest that the Respondent’s relationship with substances may have been potentially more problematic than was presented at the time of the hearing. Accordingly, I am satisfied that it is in the interests of justice to set aside the decision. Decision[24]For the reasons set out above, the application for set aside is granted. Stefan Fafinski 10 June 2025