Dunne, Application for Set Aside [2025] PBSA 43 (09 July 2025) [2025] PBSA 43

PBSA
Dunne, Application for Set Aside [2025] PBSA 43 (09 July 2025)
[2025] PBSA 43 · 2025-03-18
[1]This is an application by Dunne (the Applicant) to set aside the decision not to direct his release. The decision was made by a panel after an oral hearing on 18 March 2025. This is an eligible decision.[2]I have considered the application on the papers. These are the dossier, the oral hearing decision, documents in respect of the related non-disclosure application and appeal and the application for set aside. I have also taken into account additional representations contained in a letter from the Applicant himself submitted via his legal representative on 19 June 2025 notwithstanding that this was submitted out of time. Background[3]On 23 March 2016, the Applicant received concurrent determinate sentences of imprisonment for 15 years following his conviction for three counts of possessing a firearm with intent to endanger life. Further concurrent sentences ranging from 3 years to 9 years were imposed for possessing ammunition without a certificate, two counts of possessing a prohibited weapon, namely a handgun, possession of heroin with intent to supply and possession of cocaine with intent to supply. No separate penalty was imposed for facilitating the acquisition of criminal property. The Applicant pleaded guilty to all offences.[4]The Applicant was aged 32 at the time of sentencing and had many previous convictions dating from 1999 when he was a juvenile. These include convictions for burglary, theft, driving over the prescribed alcohol limit, driving whilst disqualified, threatening behaviour, robbery, possessing and supplying controlled drugs. He is now 41 years old.[5]On 6 May 2022 the Applicant was automatically released on licence. His licence was revoked on 8 October 2023 for breaching the condition to be of good behaviour and not behave in a way which undermines the purpose of the licence period. He was returned to custody on 16 October 2023.[6]The licence breach involved assaults by the Applicant on his partner and her friend in his partner's home after a night out drinking. It is alleged that he grabbed his partner's hair and ripped it from her head, struck her friend in the head when she tried to intervene, and then wielded a knife towards his partner in a stabbing motion.[7]The Applicant had also been arrested and interviewed on suspicion of being involved in the kidnapping of an individual who was involved in County Lines drug supply.[8]The Applicant's partner and her friend both withdrew their statements and support for a prosecution and, when the Applicant appeared at court on 4 December 2023, the charges of common assault and assault occasioning actual bodily harm were dismissed. Lack of corroborating evidence resulted in no further action being taken in respect of the alleged kidnapping.[9]The Panel heard evidence that over the period of nearly 18 months on licence in the community, the Applicant managed to settle into his supervision requirements, although doubts were expressed about his openness. He had not disclosed his new relationship as he was required to do under his licence conditions.[10]This is the Applicant's first recall under the current sentence, and his first parole review since recall. Application for Set Aside[11]The application for set aside has been drafted and submitted by the Applicant's legal representative.[12]It submits that there has been an error of law and an error of fact.[13]The error of law is alleged to be the Panel Chair adopting an incorrect procedure relating to an application for non-disclosure made by the Secretary of State (the Respondent).[14]The error of fact is alleged to be the finding by the Panel that the Applicant had been involved in the criminal activity of organising the supply of drugs in the community. Current parole review[15]The Applicant's case was referred to the Parole Board by the Respondent to consider whether or not to direct his release.[16]The case proceeded to an oral hearing on 23 October 2024 before a two-member panel which agreed to an adjournment for the purposes of obtaining a psychological risk assessment.[17]The review resumed before a three-member panel (the Panel) on 18 March 2025. The Applicant was then aged 41. The case dossier ran to 436 pages and included reports by the Applicant's Community Offender Manager (COM), his Prison Offender Manager (POM), and a Psychologist commissioned by His Majesty's Prison and Probation Service (HMPPS). The Panel heard evidence from the Applicant, the POM, the COM, the Psychologist, and a Police Officer involved in the kidnap investigation. The Applicant was legally represented throughout the hearing.[18]The Applicant denied the assaults, stating that both his partner and her friend were drunk. He also denied being involved in any kidnapping. After hearing his evidence, the Panel concluded on the balance of probabilities that the Applicant had assaulted his partner and her friend. Both had appeared to investigating officers to be distraught and they had made clear statements at the time. His partner later said she wanted to continue the relationship, and they have continued to be in contact with each other.[19]The Panel was unable to make a finding of fact in respect of the alleged kidnapping which had been associated with drug supply. However, it noted that the police considered there to have been a connection between the Applicant's vehicle and the vehicle involved in the kidnapping. There was also intelligence, categorised as medium, which suggested a drug connection between the Applicant and the kidnap victim.[20]Following recall, and after an initial period of instability, the Applicant's conduct and compliance in custody has been for the most part positive. There have been no proven adjudications, and he has maintained Enhanced Status under the Incentives and Earned Privileges (IEP) Scheme since June 2024. No accredited offending behaviour programmes have been undertaken.[21]The Risk Management Plan (RMP) proposed by the COM involved release in the first instance to the controlled and closely monitored environment of Probation Approved Premises (A/P). Extensive licence conditions would be imposed including requirements to disclose intimate relationships and details of motor vehicles, restrictions on possession and use of mobile phones, bank accounts, storage and courier facilities and for drug testing. He would also be required to undertake further programmes or other work in the community to address his offending behaviour issues.[22]The Security Report dated 7 March 2025 in the dossier referred to intelligence graded as "high" which suggested the Applicant may have a mobile phone which he uses to conduct drug activities and that he makes calls from prison to source a large number of drugs to be supplied in the community. At the hearing, the Applicant denied this.[23]The Psychologist assessed the Applicant as posing a moderate level of future violence, although in view of the Applicant's denial of the assault on his partner, he had not taken intimate partner violence into account. He considered there would be warning signs of any return by the Applicant to his previous offending and that the risks could be managed in the community.[24]In the light of their absence in the past, the COM was not confident that warning signs would become apparent. She considered that core risk reduction work in the form of the Building Choices (BC) Programme needed to be completed in custody to address the two areas of risk in the community, namely violence associated with commercial drug supply and intimate partner violence. She did not support release.[25]The POM did not support release. The security information had shaken his confidence, and the risks related to drugs which had lain dormant had been revived. In his opinion, external controls would be weaker once the Applicant left the A/P.[26]The Panel noted that the previous RMP had not picked up any warning signs. It concluded that the Applicant was unlikely to be honest about his relationships and other matters he is involved in. Given his high risk of serious harm, the Panel was unable to assess the RMP as being sufficient to safely manage his risks in the community. It concluded that it was necessary for the protection of the public for the Applicant to be confined and made no direction for release. The Relevant Law[27]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.[28]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)).[29]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. Error of Law[30]An administrative decision is unlawful under the broad heading of illegality if the Panel: a) misinterprets a legal instrument relevant to the function being performed; b) has no legal authority to make the decision; c) to fulfil a legal duty; d) exercises discretionary power for an extraneous purpose; e) takes into account irrelevant considerations or fails to take account of relevant considerations; and/or f) improperly delegates decision making power.[31]The task in evaluating whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring the duty or power upon the panel. The instrument will normally be the Parole Board Rules, but it may also be an enunciated policy, or some other common law power. The reply on behalf of the Respondent[32]The Respondent has offered no representations in response to this application . Discussion[33]It is argued on behalf of the Applicant that there has been both an error of fact and an error of law on the part of the Panel. Error of Law[34]In her written representations for the set aside application, the Applicant's legal representative refers to the evidence the Applicant gave at the hearing in respect of the intelligence referred to in the 7 March 2025 Security Report. The black phone book found in the Applicant's cell was never confiscated and no mobile phone was ever found. The book contained phone numbers which the Applicant stated at the hearing contained only numbers and information relating to his family and friends or people he had met in custody.[35]Following the hearing, the POM scanned the contents of the black book and sent these to all parties, the Applicant's legal representative points out that in her subsequent written submissions dated 25 March 2025 she provided the Applicant's comments on each entry in the book. She reminded the Panel that he had been honest about this in the evidence he gave at the hearing and that it was he who had volunteered it.[36]The Panel Chair then issued directions on 28 March 2025 stating that she required further time to complete the Panel's decision letter and adjourned this until 18 April 2025.[37]However, on 1 April 2025, the Ministry of Justice Public Protection Casework Section (PPCS), on behalf of the Respondent, submitted a non-disclosure application (NDA) relating to information which they had received from the probation service following the hearing. Based on the evidence given by the Applicant, probation had conducted an extensive search of their records, and this revealed that several of the individuals whose names and telephone numbers were in the black book scans were " known or currently active within the Criminal Justice System". There were said to be concerns regarding the nature of their convictions and behaviour. These concerns involved links to organised crime, firearms and drug supply and it was thought likely that the individuals were "active members within a criminal organisation".[38]PPCS submitted that disclosure to the Applicant of the above information (the ND material) would have an adverse effect on the prevention of disorder or crime and/or on the health or welfare of the Applicant or other individuals and that withholding the information from the Applicant would be a necessary and proportionate measure in the circumstances of the case. The gist provided simply stated that "Probation have been made aware of further information evidencing [the Applicant's] links to organised crime" .[39]PPCS argued that the individuals could be placed at risk if the Applicant had knowledge of the information as he might use it to manipulate them. Should the information be disclosed it would confirm that they had links to organised crime and would support the Applicant in the commission of further offences.[40]The NDA was dealt with by the Panel Chair. In her decision dated 4 April 2025, she agreed that withholding the material itself but disclosing a gist of it in the form proposed by PPCS would be a necessary and proportionate measure in the circumstances of the case and would not affect the fairness of the proceedings. The Chair accordingly directed that the material should be disclosed to the Applicant but only in the form of the proposed gist.[41]The Chair went on to direct that the material should be served by the Respondent on the Applicant's representative provided that the representative had first given an undertaking to the Board that they would not, without the consent of the oral hearing Panel Chair, disclose it to the applicant or any other person.[42]The Applicant's legal representative lodged an appeal against the Panel Chair's decision, and this was considered by a judicial member of the Board (the Judicial Member) on behalf of the Board Chair under delegated powers. In Directions dated 22 April 2025, the Judicial Member adjourned the appeal. He expressed the view that the gist did not contain sufficient information to enable the Applicant to respond effectively to allegations made against him. He said that if the material were withheld the Panel would be unable to question him about it and this would create a real difficulty in placing any proper reliance on it.[43]In the absence of knowing whether or not the Panel had yet reached its decision (and if it had what that decision was), the Judicial Member concluded that it was not possible for him to make a decision about non-disclosure at that stage. He invited further representations from PPCS and the Applicant's legal representative.[44]On 24 April 2025, the Panel Chair provided further information as follows:
" The panel having reviewed all the documents in the dossier and the evidence that it had heard had come to the view that [the Applicant's] risk could not be managed and had agreed for a no release decision to be drafted. This was primarily based on his conduct in the community and the serious allegations relating to IPV and the kidnap. In dealing with these allegations the [sic] placed weight on the officer's evidence in relation to the kidnap matter and the evidence provided from the police. In relation to the IPV matter the panel placed weight on the friend's witness statement and entries in the police book-pages 289-201. The panel were aware of the latest security information, they placed more weight on [the following entries]: 'Over 2024 intelligence suggests [the Applicant] may have a mobile phone (High). Intelligence suggests [the Applicant] makes calls from prison to source large number of drugs, to supply in the community (High) which would indicate a pattern of behaviour when he was in the community in the past (prior to his index offence) and when he had been recalled. The panel placed on [sic] weight and did not and did not [sic] consider the black book of any significance in making their decision."
[45]On 28 April 2025 PPCS submitted representations in which they maintained their position and also provided further information. They added that PPCS " do not object to the panel's decision being issued without any reference to the ND material provided that it remains subject to Rule 17 under the identified criteria of it having resulted in no unfairness."[46]On 2 May 2025 the Applicant's legal representative submitted the following:
" I have now spoken with [the Applicant] and I can confirm that our appeal still stands. The panel may well have stated that they have not placed any weight on the black book when reaching its decision but this does not make sense with them placing so much weight on the security entries which relate to the numbers within the black book. In any event, the mere fact that the panel have seen the information subject to the non-disclosure appeal means that the review for [the Applicant] could be perceived to be unfair. As such we would ask that a fresh hearing with a fresh dossier is directed as a matter of urgency."
[47]In his decision dated 6 May 2025, the Judicial Member rejected the submissions made by PPCS. He concluded that the provisions of Rule 17(1)(b) had not been satisfied. He referred to the fact that the Security Report contained references both to the December 2024 entries on which the Panel placed some weight and to the January 2025 entry which confirmed the finding of the black book with various details in it.[48]The Judicial Member stated that the Security entries were quite distinct from the black book and saw no reason to disbelieve the Panel Chair's statement that the Panel's focus was on the security entries and not on the details written in the book.[49]In dealing with the submission that there will have been a perception of unfairness, the Judicial Member stated that he did " not for one moment think that the Panel Chair's explanation for the decision not to direct [the Applicant's] release was anything other than completely accurate and genuine" and that "there was no unfairness there".[50]The Judicial Member concluded that probation had mistakenly but genuinely thought that it would be possible for the new information gathered after the hearing to be considered by the Panel but withheld from the Applicant on the basis of the proposed gist. He further concluded that PPCS mistakenly but genuinely thought that the proposed gist was sufficient, and an NDA was therefore appropriate. He also concluded that the Panel Chair mistakenly but genuinely thought that the gist was sufficiently detailed.[51]Significantly in my view the Judicial Member expressed the view that "Whoever mistakenly but genuinely decided that the NDA should be considered by the panel chair rather than by another member of the board produced a situation where information was revealed to the panel chair when it should not have been".[52]The Judicial Member stated that he did not think the Applicant or anyone else could justifiably feel that there had been any unfairness in the events described. His decision on the appeal was as follows:
" 1) that the gist was inadequate and therefore the ND material cannot lawfully be withheld from the Applicant, but 2) the Panel's decision (which contains no reference to the ND material) can now be issued, and 3) PPCS will not need to disclose the ND material to [the Applicant] if (as I assume they will) they withdraw it under Rule 17(1)(15)."
[53]The Panel subsequently issued its Decision dated 29 May 2025 not to direct the Applicant's release without reconvening the hearing.[54]The fact remains that the Panel's decision not to release the Applicant was made after the Panel Chair had seen the material which had been withheld from the Applicant and without the Applicant having the opportunity to challenge it and explain the surrounding circumstances. The Panel expressly stated in its decision reasons that it did not take the material into account and relied on the other evidence before it. Whilst the Panel's integrity is not in question, an objective observer would be concerned that the withheld material which suggested continuing links with serious organised criminal activity might well have had an effect on the decision making process either consciously or sub-consciously.[55]Inevitably the Panel Chair was drawn by the Judicial Member's directions into the process of making submissions alongside submissions by the parties. This would have contaminated the independence of the Panel in the making of a decision affecting the Applicant's liberty.[56]The material should have been fully disclosed to the Applicant and the hearing resumed in order for it to be dealt with completely by all the witnesses and the Applicant.[57]In all the circumstances I have concluded that there has been an error of law in the failure by both the Judicial Member and the Panel to ensure procedural fairness. Error of fact[58]The Applicant's legal representative submits that the Panel placed significant weight on the conclusion that the Applicant is involved in criminal activity, specifically the organisation of drugs in the community. She points out that he has never been seen or heard on a mobile phone, that the professional witnesses gave evidence that it was extremely unlikely, and it would be unrealistic to place weight on the security entry. Staff searching the Applicant's person and his cell found no evidence that he had a mobile phone.[59]It is further argued that it would be unrealistic to suggest that the Applicant would be involved in the supply of drugs in the community only. It did not make sense that if a prisoner were supplying drugs, they would do so in the community only in view of the "enormously more money" to be made within the prison estate.[60]In its decision, the Panel stated that it placed some weight on the intelligence that suggested the victim of the alleged kidnapping may have been running a drugs line for the Applicant or there was a drugs connection between the two and the fact that the Applicant did not present himself to the police when he knew he was wanted by them. The Panel also placed some weight on the recent security report which it said suggested that the Applicant was sourcing drugs to supply in the community.[61]The Panel's conclusions were to some extent based on inferences drawn from evidence that had not been sufficiently tested. I am unable to find that a specific error of fact had been made. However, that conclusion is of limited significance in the light of the conclusion I have reached in respect of the error of law. Decision[62]In my judgment it is in the interests of justice for the Applicant to receive a fair hearing which the original procedure failed to ensure and the application for set aside is accepted. HH Judge Graham White 09 July 2025