Barthelmy, Application for Set Aside [2025] PBSA 42 (01 July 2025) [2025] PBSA 42
[1]This is an application by Barthelmy (the Applicant) to set aside the decision not to direct his release. The decision was made by a panel after an oral hearing on 13 May 2025. This is an eligible decision.[2]I have considered the application on the papers. These are the dossier consisting of 613 pages, the oral hearing decision dated 16 May 2025 and the application for set aside dated 12 June 2025. Background[3]On 14 May 2008, the Applicant received a sentence of imprisonment for public protection following conviction for wounding with intent to cause grievous bodily harm. The tariff was set at 3 years and 330 days.[4]The Applicant was aged 22 at the time of sentencing. He is now 40 years old.[5]In September 2012 whilst on day release from open conditions the Applicant absconded and committed further offences of assault and damaging property for which he received a determinate sentence of 2 years imprisonment on 17 May 2013. Application for Set Aside[6]The application for set aside has been drafted and submitted by legal representatives on behalf of the Applicant.[7]It submits that there has been error of fact and also challenges the fairness of the hearing and weight placed on adjudications. 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 his release.[9]The case proceeded to an oral hearing on 13 May 2025 before a 3-member panel, which included a psychologist specialist member. The panel heard evidence from the Applicant, his Prison Offender Manager ( POM ), his Community Offender Manager ( COM ) and an HMPPS forensic psychologist in training. The Applicant was legally represented throughout the hearing.[10]The panel 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]It is argued on behalf of the Applicant that there have been errors of fact which may have affected the outcome of the decision.[16]The panel stated that the Applicant had “threatened and used violence and weapons against strangers and those known to him”. The Applicant submits that the panel is in error as the victims had never been known to him. I have carefully considered the dossier and it is clear that the panel were not incorrect in their statement. An example is in respect of the offence of September 2012 where the Applicant was banging on the doors of residents where he believed his former girlfriend may have been, he has also threatened violence against professionals known to him, for example threats, including threats to kill, against his POM in February 2025. There was no error in the panel’s statement.[17]The panel stated that the Applicant had “absconded on 01/9/2012 whilst on day release and was recaptured on 3/9/2012.” The Applicant submits that the panel was in error as he did not abscond but was held in police custody for further offences and so was not unlawfully at large. Having carefully considered the dossier, all the reports state that the Applicant was on day release, absconded and committed further offences. The Applicant was legally represented and that challenge was either not raised or not raised successfully before the panel. The panel has reported the factual dates of release and recapture, there is no conclusion that the Applicant was unlawfully at large, it is a matter of fact that there was a delay before return. Even if the panel had drawn that conclusion of being unlawfully at large, it would not have made any difference to the panel’s conclusion which was based on other factors.[18]The panel noted that when asked about the use of weapons the Applicant said he had used a weapon once, the panel noted two convictions for using a knife and the index offence involved the use of a bottle as a weapon. The Applicant submits that the panel was wrong as his s.20 conviction was on the basis that no knife had been used. I am unable to determine this from the dossier. This submission was raised before the panel who clearly did not accept it. However, even if the panel were wrong about the number of times a knife was used in his offending history (whether only once or twice), they also noted his use of a bottle as a weapon. Whether a knife was used only once or twice in his offending history, in the light of the nature and circumstances of his antecedent history and behaviour that would not have affected the panel’s final conclusion.[19]The panel noted that the Applicant’s behaviour had worsened with threats of harm being made to staff and others, the panel noted that the threats were made whilst demanding a release date. The Applicant submits that he has never threatened anyone whilst asking for a release date. Looking through the dossier the closest reference I can find is in a security report of 4 March 2025 where the entry records “ [the Applicant] is going to disrupt the prison in any way possible even if that includes staff getting injured as he is waiting for an official release date. The OMU aren't assisting him .” The panel were clearly concerned about the Applicant’s worsening behaviour and the threats made to staff which are fully documented. Whether the Applicant at the same time demanded a release date makes no difference to the panel’s final conclusion which was concerned with the threatening and disruptive behaviour rather than the words uttered on that occasion.[20]The panel recorded the details of the meeting between the psychologist and the Applicant on 7 October 2024 where she reports that he had sworn, slammed a table and thrown a paper at her. The Applicant states that he did not throw papers at the psychologist. He submits that that error is a “mischaracterisation [which] contributed to an inaccurate and unfair portrayal of his behaviour”. I note that the Applicant does not dispute that his behaviour led to a behavioural warning being issued, does not dispute that he swore and slammed a table, and that he subsequently called her a liar. There was no mischaracterisation of his behaviour by the panel which noted many other examples of poor and aggressive behaviour towards other staff.[21]The panel noted that all the professionals were of the opinion that the Applicant should remain in closed conditions. The Applicant submits that since he had been deemed unsuitable for PIPE in 2021 it was unfair for it to have been recommended by the professionals. There is no error of fact in that report. The panel was simply recording the views of the professionals. The panel’s own final conclusion was that the Applicant did not meet the test for release.[22]This was a very carefully considered and thorough decision. The panel fairly considered the positives in the Applicant’s favour and the evidence he presented. None of the matters raised by the Applicant would affect the panel’s reasoned conclusion not directing release and I am satisfied that it is not in the interests of justice for the panel’s decision to be set aside. Decision[23]The application for set aside is refused. Barbara Mensah 01 July 2025