Creegan, Application for Set Aside [2025] PBSA 39 (24 June 2025) [2025] PBSA 39
[1]This is an application by Creegan (the Applicant) to set aside a decision not to direct his release. The decision was made by a panel after a Member Case Assessment (MCA) single member hearing, on 22 April 2025. This is an eligible decision.[2]I have considered the application on the papers. These are the dossier (312 pages), the paper hearing decision dated 22 April 2025, and the application for set aside dated 12 June 2025. Background[3]On 21 April 2023, the Applicant received a custodial sentence in relation to offences of robbery and possession of a bladed article. With a co-accused, the Applicant approached a member of the public, produced a knife and demanded money. The victim was escorted to a cash machine and forced to withdraw cash. He was also forced to go to a casino to withdraw further cash. The Applicant had also committed a burglary offence one month before the robbery for which he was sentenced to 12 months custody. The total custodial sentence was 3 years and 10 months. His sentence expires in September 2026.[4]The Applicant was aged 21 at the time of sentencing. He was 23 years old at the time of the MCA decision.[5]He was automatically released on licence on 10 September 2024. His licence was revoked, and he was returned to custody on 10 December 2024. He had lost contact with his probation officer and was unlawfully at large for a period of three months. This was his first recall on this sentence, and his first parole review since recall. Application for Set Aside[6]The application for set aside was drafted and submitted by his legal adviser.[7]It submits that there has been an error of fact or law. The details of that error are addressed below. The Applicant’s legal adviser argues that consequent upon the error of law or fact the decision not to direct release, should be set aside. 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 release.[9]The case was considered on 22 April 2025 before a single MCA panel member. The panel considered a dossier which contained reports by his Community Offender Manager ( COM ) and reports from the prison. The Applicant had been invited to make representations, but none had been submitted.[10]The panel member did not direct the Applicant’s release. The Relevant Law[11]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.[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 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[14]The Respondent has offered no representations in response to this application . Discussion[15]As indicated above the Applicant in this case was automatically released on licence. The recall occurred in circumstances where he was found not be present at his allocated home address during a planned home visit. He did not respond to messages from the probation service and his mobile phone was switched off. Staff at the accommodation indicated that the Applicant had left the accommodation some two days before with a large bag. The Applicant remained unlawfully at large between October to December 2024.[16]Whilst unlawfully at large, the Applicant was arrested in relation to a suspicion of having committed two robbery offences, an assault offence, an offence of taking a motor vehicle and for shoplifting offences. He admitted the shoplifting offences. He denied assault or robbery. The allegation relating to the robbery allegedly involved an assault upon a female in circumstances where there was an altercation between the female and another female. The Applicant denied committing a robbery.[17]As noted above at the time of the decision by the single member the Applicant was under investigation in relation to one robbery offence and was awaiting trial in relation to a second robbery offence.[18]In custody, following recall, the Applicant had, positively, completed a course entitled Forward Thinking. However, there had been a number of instances of poor compliance with the prison regime which evidenced risky and harmful behaviour. On one occasion in prison, he was reportedly seen leaving a cell where another prisoner had later been seen to have facial injuries. Later he was moved to the segregation unit of the prison, having allegedly assaulted a prison officer and made a ligature. He had also received adjudications for endangering health and safety and not being in a permitted location in the prison.[19]He was assessed by his probation officer as being a high risk of serious harm to the public, known adults and staff were he in the community. This assessment was based on the Applicant’s previous criminal record as well as his more recent behaviour in prison.[20]The single member considered the Applicant’s risk in connection with the referral. The single member considered the risk management plan which included residence at approved premises, regular meetings with his probation officer, and a number of licence conditions regarding relationships and drug testing. Despite the elements within the risk management plan the single member considered that the Applicant’s lack of engagement with the probation service while in the community, coupled with his time spent unlawfully at large, his lack of openness and honesty with probation whilst in the community, the committing of some offences while in the community and his custodial behaviour, since recall, all led the single member to conclude that the risk management plan would be unlikely to manage risk in the community. In essence the single member agreed with the probation officer that the Applicant had limited internal management skills and would be unlikely to comply if in the community. In those circumstances it was concluded that it will be impossible to monitor and manage his risk.[21]The panel member set out the considerations which led to the decision not to direct release which were: · That the Applicant presented a further risk of offending in the community by way of violence. · That he was recalled a very short time after being in the community. · That he had absconded and was unlawfully at large and suspected of serious violent offending during his time at large. · That there were historic risk factors which remain live following his release and since recall. · That there was no support for release from his probation officer. · That there was limited evidence that the Applicant possessed internal controls and could manage his risk in the community. · That the Applicant had a history of poor compliance and would be unlikely to comply in the future with a further period on licence. The grounds for the application[22]In a letter to the Parole Board the Applicant’s legal adviser indicates that the application to set aside is based upon the fact that it is argued that the decision by the single member relied upon “factually incorrect information -namely that [the Applicant] was facing active charges for serious offences which have since been dropped”.[23]It is further submitted that there had been an error of law or fact, and that the decision by the single member would not have been made were it not for the error. It is submitted, that the decision relied heavily upon the existence of pending charges for robbery and other offences. The application (for set aside) was accompanied by a letter from a legal adviser who is acting for the Applicant in his criminal proceedings. That letter indicated that the allegations of robbery and actual bodily harm had been withdrawn by the prosecution and that the Applicant therefore was no longer subject to prosecution in relation to those matters. It is argued therefore that reliance on those allegations was a material error of fact.[24]As indicated above, a direction to set aside is applicable, in this case, where there has been a decision not to direct release and that the decision would not have been given or made but for an error of law or fact.[25]The first question therefore is whether there has been an error of law or fact. The Applicant’s legal adviser is not entirely clear as to whether the argument is based upon law or fact or both. I am not persuaded that there is evidence in this case of an error of law. The arguments relate to factual issues.[26]I therefore must consider whether there has been an error of fact in this case. I have considered the single member’s decision. The single member’s reference to the outstanding charges was described as follows “ he is suspected of further serious violent offending during his time at large ”. The position at the time of the panel members decision was accurately recorded in the decision by the panel member. The panel member was entitled to take account of the fact that charges had been laid and therefore there had been some consideration of the evidence. I am therefore not persuaded that there is evidence of an error of fact. There was clearly a change in the position relating to outstanding charges, however at the time of the decision the single member accurately recorded the fact that there were suspicions of violent offending.[27]In the absence of an error of fact or law this application fails. However, I have considered whether, in the absence of suspicion or allegations the decision might not have been made. As set out above there were a number of issues addressed by the single member relating to the reason why the decision to decline release was made. There had been poor behaviour in the community, an absence of cooperation with the probation service, allegations of low-level criminality in the sense of shoplifting, and a serious breach of licence by way of remaining unlawfully at large. I am therefore not persuaded that even in the absence of the allegations and suspicions relating to robbery the decision of the single member would have been different. Decision[28]For these reasons I decline to direct that the decision be set aside. HH S Dawson 24 June 2025