Churchley, Application for Set Aside [2025] PBSA 41 (02 July 2025) [2025] PBSA 41
[1]This is an application by Churchley (the Applicant) to set aside the decision to direct her release. 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, the oral hearing decision, the application for set aside in the form of a Stakeholder Response Form (SHRF) dated 16 June 2025 and a further email from the Applicant’s legal adviser. Background[3]On 14 April 2009, the Applicant was sentenced to life imprisonment for an offence of murder and associated offences. Her tariff expired on the 7 June 2024.[4]The Applicant was aged 50 at the time of sentencing. She is now 66 years old.[5]This is an unusual application in that it is an application by a prisoner to set aside a decision directing release.[6]The application was submitted on two grounds, new information constituting a change in circumstances and error of law. The decision was issued on 18 March 2025 and the 21 day period to apply on the grounds of error of law expired on the 8 April 2025. The Applicant’s legal adviser applies for an extension of the time limit for the ground of error of law. An extension can only be made in exceptional circumstances. I do not find that there are exceptional circumstances in this case. Accordingly, the application on the ground of error of law fails as being out of time in addition to the fact that, as noted above, the criteria for such an application is not met. Application for Set Aside[7]The application for set aside has been drafted and submitted by the Applicant’s legal adviser. It submits that there has been new information since the panel’s decision, namely that the Applicant has been allocated a different Approved Premises place (in Location A rather than Location B) and that the change was approved by the Parole Board panel without the knowledge that the Applicant who had a number of medical issues associated with hospital treatment in Location B. The Applicant has indicated that she does not wish to be released to Approved Premises in Location A.[8]A further set of representations were received by the Parole Board during the course of this application. The representations from the Applicant’s legal adviser set out the details of the medical interventions which were likely to be required by the Applicant. I have considered the further representations. They do not in my view change the basis of my decision namely that the application does not meet the test for set aside. Current parole review[9]The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) to consider whether to direct release or if not to recommend a transfer to open prison.[10]The case proceeded to an oral hearing on 11 March 2025 before a 3 member panel, which included a psychologist specialist member. The panel heard evidence from the Applicant, her Prison Offender Manager ( POM ), her Community Offender Manager ( COM ), an HMPPS psychologist, and a psychologist commissioned on behalf of the Applicant. The Applicant was legally represented throughout the hearing.[11]The panel directed the Applicant’s release. The Relevant Law[12]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.[13]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)).[14]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[15]The Respondent has submitted representations in this case. The Respondent explains the background to the need to change the venue of the Approved Premises. The Respondent also argues that this application does not meet the criteria for set aside on the basis that the decision of the panel rests upon the question of the Applicant’s future risk rather than locating the Applicant conveniently for medical interventions. Discussion[16]As noted above the Applicant is serving a sentence of life imprisonment for the offence of murder. A Parole Board panel considered the referral noted above and the evidence at the hearing. A risk management plan had been drafted which included, initially, residence at Approved Premises provided by the probation service. In the initial decision the panel’s direction in a licence condition was that the Applicant should reside at a PIPE Approved Premises (a psychologically informed probation hostel). The panel were told by the COM that the PIPE Approved Premises would accommodate the Applicant for a period of at least 26 weeks and possibly 52 weeks. The panel specifically explored the question of Approved Premises and indicated, in their decision, that the provision of PIPE Approved Premises will provide further work and enable the Applicant to consolidate her learning and manage risk factors. The panel indicated that PIPE Approved Premises was a critical aspect of the risk management plan.[17]Subsequent to the decision the Parole Board were contacted by the respondent and were informed that the Applicant would not be eligible for residence in a PIPE Approved Premises as none were available which would be able to accommodate the Applicant’s physical difficulties. An Approved Premises place in the Location A area was offered. The panel chair subsequently agreed to amend the licence conditions lifting the requirement for a PIPE Approved Premises and approving release with residence at the Location A Approved Premises.[18]The Applicant’s legal advisers then report that the Applicant was not prepared to consent to release to the Approved Premises in Location A. This reluctance was apparently based upon the fact that the Applicant had a number of medical conditions which she felt could only be treated in the Location B area where she was hoping to be accommodated following the initial release decision.[19]The Applicant’s legal adviser has therefore drafted an application asking for the decision to be set aside on the basis of a change in circumstances. That change in circumstances being the fact that the panel were not aware of the medical requirements of the Applicant when they approved the change in Approved Premises.[20]It is necessary to consider the basis upon which an application to set aside can succeed. Rule (28A) (4) b (ii) indicates that a decision may be set aside if the direction for the release of the prisoner would not have been made if “ a change in circumstances relating to the prisoner that occurred after the direction was given, had occurred before it was given ”.[21]The criteria are therefore: · A change in circumstances. · A change which occurred after the direction for release was given. · And the direction for release would not have been made if the change in circumstances were known by the panel in advance of the decision to release.[22]In this case it is clear that a change in circumstances did occur, namely the unavailability of the Approved Premises which were originally suggested to the oral hearing panel. That change occurred after the direction for release was given as noted above. However, it is also clear that the direction for release would have been made despite the change in circumstances. As indicated above the panel chair approved the change in Approved Premises and therefore it is clear that the panel decision to direct release would have been maintained even if the original offer of Approved Premises was not available.[23]Accordingly, this application must fail on the basis that it does not meet the criteria as set out above.[24]The application for set aside is therefore refused. HH Stephen Dawson 02 July 2025