Jeffrey, Application for Set Aside [2025] PBSA 38 (20 June 2025) [2025] PBSA 38

PBSA

Jeffrey, Application for Set Aside [2025] PBSA 38 (20 June 2025)

[2025] PBSA 38 · 2025-04-29

[1]This is an application by Jeffrey (the Applicant) to set aside the decision not to direct his release. The decision was made by a panel after an oral hearing on 29 April 2025. This is an eligible decision.

[2]I have considered the application on the papers. These are: · The dossier now paginated to 661 pages; · The decision (DL) dated 12 May 2025; and · The application for set aside dated 3 June 2025. Background

[3]The Applicant was sentenced in 2008 to imprisonment for public protection for an offence of causing grievous bodily harm with intent to do grievous bodily harm committed against his two month old son. The offence occurred on 30 December 2007. He had consumed alcohol, cocaine, ketamine, and cannabis. In the early hours of the morning, he attended his son’s home and was allowed in by his former partner (SJT) despite his being on bail at the time and subject to Children’s Services conditions requiring him not to contact his son (EJ) or SJT. His basis of plea was accepted that SJT went upstairs for a bath, leaving the Applicant with EJ whom he picked up from his baby bouncer but dropped, probably on his head. EJ was unresponsive and the Applicant shook him in an attempt to wake him up. He did not inform SJT of what had happened. Medical attention was therefore not sought for a number of hours.

[4]EJ was left with substantial disabilities, described by the Trial Judge as “ classic shaking injuries,” including severe brain damage, visual impairment, and cerebral palsy.

[5]The Applicant also pleaded guilty to common assault on SJT during an argument about his property on 27 November 2007, weeks after she had given birth to EJ and, finally, he pleaded guilty to assault occasioning actual bodily harm on a female friend of an ex-partner (EM) on 29 November 2007 when the victim suffered a broken cheekbone and broken nose. Concurrent determinate sentences were imposed for these offences.

[6]All of the index offences were committed whilst he was subject to a suspended sentence for an offence of assault occasioning actual bodily harm (ABH) imposed on 30 October 2007. At the time of that offence (committed on 8 March 2007) he was subject to a community order for ABH.

[7]The Applicant was aged 26 at the time of sentencing. He is now 43 years old.

[8]The Applicant’s Tariff Expiry Date is given as 1 July 2011 and he has been released and returned to custody on three occasions during his sentence, most recently on 23 January 2024, following his being charged with further violent offences which took place on 14 October 2023 when he assaulted three people who were working as security/door staff in public houses and a female who attempted to intervene.

[9]In due course, he received 16 months imprisonment for intentional strangulation and no separate penalties were imposed for two counts of battery.

[10]T his was his first review since his most recent recall. Application for Set Aside

[11]The application for set aside has been drafted and submitted on behalf of the Applicant by his solicitors.

[12]It submits that the DL contains a number of errors of fact. I will deal with these matters in detail in the discussion section of my decision . Current parole review

[13]The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) to consider whether or not it would be appropriate to direct the Applicant’s release or to recommend his transfer to open prison conditions.

[14]The case proceeded to an oral hearing on 29 April 2025 before a three-member panel of the Parole Board comprising two independent members and a specialist psychologist Chair.

[15]The panel heard oral evidence from the Prison Offender Manager (POM), the Community Offender Manager (COM) and a Forensic Psychologist. The Applicant was legally represented throughout.

[16]The panel did not direct the Applicant’s release or recommend a transfer to open prison conditions. The latter decision is not a matter for me. The Relevant Law

[17]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.

[18]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)).

[19]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

[20]The Public Protection Casework Section on behalf of the Respondent confirmed by email dated 11 June 2025 that she offers no representations in response to this application . Discussion

[21]It is argued on behalf of the Applicant that the Panel made errors of fact as follows.

[22]The errors of fact said to have been made in the DL at paras 3.10 and 4.6 relate to the proposed trauma-focused therapy (TFT) with which the Applicant wishes to engage.

[23]The Applicant acknowledges that this work is considered to be “essential” by all the professionals but suggests that the panel was under the misapprehension that it had to be completed in custody rather than in the community whilst on licence.

[24]In fact, it is clear that the panel was aware of the evidence from both the psychologist and the COM (DL paras. 2.8-2.10 and 2.12) that this work could be facilitated in the community with a provider for which the Applicant was suitable. However, the psychologist also acknowledged that, if he chose not to engage once in the community, he would not address his outstanding risk factors.

[25]There is, in my view, no error of fact here.

[26]The panel was, however, concerned that, as yet, no confirmed TFT was in place in the community and that the Applicant would be on a waiting list for some months, thus potentially leaving him without an essential intervention in the community for some time and the panel reminded itself that, whilst on licence previously, the Applicant had been unable to access necessary work as he was on a waiting list and the service provider was inaccessible for him.

[27]The panel was aware (DL para.3.16) that all professional witnesses assessed that the Applicant’s level of risk could be managed in the community with the proposed risk management plan and intervention plan, even if there was a waiting list to access the work and that they did not assess the risk of further offending to be imminent, particularly if the Applicant refrained from alcohol or drug use.

[28]Accordingly, I am satisfied that the panel was seized of all relevant evidence on this issue about which it remained particularly concerned and that it found, given that the Applicant would be on a waiting list, probably for some months, during which he would be without the necessary intervention to address his outstanding areas of risk, that he could commit further offences whilst on a waiting list to access this essential intervention.

[29]Whilst the Applicant then proceeds to make further submissions on this point, I find that this was a finding which was a matter for the panel's judgement in the light of all the evidence and, in my view, it does not constitute an error of fact but for which the decision not to direct release would not have been made.

[30]As, in relation to DL 4.7, the Applicant submits that this is a paragraph “of particular concern”, I set it out here:

“The panel also considered that professionals had misinterpreted communication from the PIPE as suggesting the intervention was not needed, when clearly the notice in the dossier referred to needing to identify the correct intervention pathway.”

[31]I find that this paragraph does no more than set out the panel's view of a letter contained in the dossier at p.441 considered in the light of the other evidence on this point which was before the panel at the hearing.

[32]Once again, the Applicant now seeks to put further evidence before me which has been obtained since the DL was issued and which was, of course, not before the panel at the time of the hearing and, therefore, is of no assistance to me in deciding whether or not the panel made an error of fact in the DL.

[33]Put shortly, the panel makes no finding that it is necessary for the Applicant to spend time on a PIPE unit before he is released nor did it rely on any such need to justify its finding that the Applicant did not meet the public protection test for release.

[34]I am unable to discern any error of fact here but for which the decision not to direct release would not have been made.

[35]Next, having given careful consideration to the Applicant’s reference to para. 3.14, I have found it difficult to identify an error of fact but for which the decision not to release would not have been made amongst the several, further submissions made by the Applicant in relation to findings of the panel with which the Applicant does not agree.

[36]At DL para.4.9 the panel states that it was not persuaded that protective factors were sufficiently established to support desistance from offending given the further offending that occurred whilst on licence and when the Applicant was in a stable relationship and had stable accommodation as well as professional and personal support.

[37]At DL para.1.25 the panel records that the Applicant had maintained a stable intimate relationship with no reports of violence. Later it referred to the positive factors which were in place including that the Applicant was in a relationship which had been ongoing for two years.

[38]In his application the Applicant confirms that he had been in a relationship in the community for eight months prior to the recall.

[39]Accordingly, it is common ground that the Applicant had been in a relationship for some months prior to, and was still in that relationship at the time of, the commission of the offences of violence which led to his recall. In my view it was open to the panel to find that, while it was positive that he had established a stable, intimate relationship, nevertheless this had not proved protective in preventing the Applicant from committing further offences.

[40]This was a judgement which it was pre-eminently for the panel to make on the basis of the evidence before it and I can find no justification for describing that view as either “ misleading ” or “false” or for the suggestion that shared accommodation cannot be “ stable ”.

[41]Finally, the Applicant raises a short point in relation to DL para. 4.12.

[42]On page 2 of the DL, it is recorded that the Applicant’s most recent release was on 2 August 2021 and that he was recalled on his licence on 23 January 2024.

[43]At DL para.1.17 the panel notes that the Applicant remained in the community for approximately two and a half years prior to recall.

[44]The panel was clearly aware of the period of time the Applicant was in the community and indeed in two places (1.14 and 2.1) it notes that this was the longest period of time he had been in the community following release on licence since receiving his IPP sentence.

[45]In the light of those references I find that the submission, in reliance upon an isolated subsequent reference, that “ the mistaken impression of the panel appears to have been that [the Applicant] was only in the community for a relatively short period of time” is unsustainable. Decision

[46]I have carefully considered this application. The panel exercised its judgement in this case, and I can find no errors of fact but for which the decision not to direct release would not have been made and, for the reasons I have given, I find that the application to set aside is without merit and it is refused. PETER H. F. JONES 20 June 2025