Highton, Application for Set Aside by the Secretary of State for Justice [2025] PBSA 47 (15 July 2025) [2025] PBSA 47
[1]This is an application by the Secretary of State for Justice (the Applicant) to set aside the decision to direct the release of Highton (the Respondent). The decision was made by a panel after a paper hearing on 2 June 2025.[2]I have considered the application on the papers. These are the dossier, the panel’s written decision dated 2 June 2025, and the application for set aside received on 20 June 2025. Background[3]On 23 August 2023, the Respondent received a sentence of 876 days imprisonment following conviction for dwelling house Burglary to which he pleaded guilty.[4]The Respondent was aged 44 at the time of sentencing. He is now 46 years old.[5]He was initially automatically released on licence on 10 September 2024, but his licence was then revoked a week later on 17 September 2024.[6]The Respondent was then re-released on 6 February 2025 following a Parole Board paper review held on 18 December 2024. His licence was revoked on 2 April 2025, and he was returned to custody on 4 April 2025.[7]Therefore, this is his second recall on this sentence, and his first parole review since the most recent recall.[8]The Respondent’s sentence ends in December 2025. Application for Set Aside[9]The application for set aside has been drafted and submitted by the Public Protection Casework Section (PPCS) acting on behalf of the Applicant.[10]It submits that there has been new information, which was not available to the panel, namely information about the Respondent’s alleged behaviour on licence. The Applicant submits that this information constitutes a significant change of circumstances which impacts on the risk management assessment.[11]Following notification by the Setting Aside Member that the information relied upon was contained within an OASys document in the dossier, the Applicant stated that this was now accepted, but the application was still pursued as the panel had not referenced the information in its decision and therefore possibly not considered it as part of its decision making. Current parole review[12]The Respondent’s case was referred to the Parole Board by the Applicant to consider whether to re-release him.[13]The case proceeded to a paper hearing on 2 June 2025 before a single member panel. A dossier of 154 pages was available to the panel. The panel received reports from the Respondent’s Community Offender Manager ( COM ), along with other information including the Trial Judge’s sentencing remarks and the decision of the Parole Board panel which released the Respondent following his first recall.[14]The Respondent had legal representation for the review and written representations were provided to the panel dated 20 May 2025.[15]The panel directed the Respondent’s release. The Relevant Law[16]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.[17]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)).[18]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[19]The Respondent offered representations in response to this application. In the first set of representations dated 27 June 2025, the Respondent’s legal team expressed concern that this information was not provided to the panel at the time given it was available. The Respondent submitted that, in any event, the information would not have changed the panel’s decision .[20]Following notification by the Setting Aside Member that the information said to be new information could be seen in the dossier, the Respondent provided further representations dated 7 July 2025. The Respondent submitted that this cannot be said to be new information and the fact that the panel failed to mention it in the decision was not grounds for setting it aside. Discussion[21]It is argued on behalf of the Applicant that a direction for release would not have been given if information that had not been available to the Board had been available.[22]In the application, the Applicant explains that the information came to light after the decision and came from the COM. This information had not been included in the COM’s reports as the COM feared it may put the Respondent’s then partner at greater risk.[23]By way of background, the reason for recall was provided to the panel at the time of the review. This was that the Respondent’s relationship with his terminally ill partner had broken down and he was therefore homeless. The COM explained in their reports that the Respondent had not disclosed the difficulties within the relationship and had not been open about abusive messages he had sent to his then partner. However, there were details which the COM had not included in their reports.[24]The COM reported to the Applicant that they had not included the following information in their reports, that ‘checks were made with [the Respondent] partner’s nurses regarding [the Respondent’s] administration of methadone for pain relief to his partner. [The Respondent] was fully aware that the administered dose should have been 1ml a day but he was found to be giving 5 times that amount. He initially denied this but then stated that on the bottle it said that she could have 5 times per day hence his decision to increase her dose, however this made her drowsy and incapacitated, causing family concern.’[25]The COM has reported to the Applicant that they did not offer this information in their reports in order to protect the Respondent’s ex-partner but, in light of the direction for release, along with the fact the relationship has now broken down and the Respondent reportedly blames his ex-partner amongst others for his recall, the COM now considered the risk of not revealing the information to be higher than the risk to the victim should the Respondent be made aware of it.[26]Whilst it is accepted this information is not within the COM’s reports, it is within the OASys which is contained in the dossier. It was therefore available to the panel at the time of the decision. The panel noted that they had considered a dossier of 154 pages. It has been confirmed that the information was contained at page 126 of that same dossier.[27]It therefore cannot be said that this is new information which has come to light after the decision.[28]The Applicant goes on the argue that the fact it was not mentioned in the panel’s decision means that it may not have been considered by the panel. This may be right, particularly as it was not placed in a prominent position within reports. However, there are specific grounds for setting aside which need to be met. I therefore had to consider whether this could amount to an error of law or fact.[29]It is possible that an omission within a decision can of course amount to an error of law or fact so I looked carefully at these particular circumstances.[30]The panel applied the correct legal test as can be seen on the front of the decision and within the conclusion section.[31]A decision of the Parole Board is a record of the reasons for the decision reached, not a written record of the evidence read or heard. It is therefore inevitable that some matters are not included. However, the panel has recorded within its decision that it considered all of the available evidence and the page count given for the dossier was correct.[32]Having looked at the decision, the panel was aware of the circumstances of the recall and the issues within the Respondent’s relationship. The panel was also aware of the COM’s professional opinion at the time it made the decision, namely that re-release was not supported. Panels of the Parole Board are not obliged to adopt the opinions and recommendations of professional witnesses. It is their responsibility to make their own risk assessments and to evaluate the likely effectiveness of any risk management plan proposed. Disagreeing with the COM in this situation cannot be said to be an error of law or fact.[33]The panel noted that the Respondent had not committed any further offences. This was correct. Whilst there had been serious concerns around the medication issue, there was no police involvement.[34]The panel must have considered there to be some residual risk to the Respondent’s ex-partner as a non-contact licence condition was put in place. This specific condition had not been in place before, although there had been some previous restriction on their contact. It is noted from the dossier that the Respondent was previously released with a condition not to have contact with his then partner other than in a public place without prior approval from his COM. It is said in the dossier that this was discussed with the Respondent that he could visit his partner but only when her daughter was present. It is not clear to me what occurred following that release to change opinions, but there came a time where the COM approved arrangements for the Respondent to live with that same female. However, the panel noted that on this occasion, release would be to the Respondent’s father’s address.[35]From reviewing the decision, I am unable to find any errors of fact. Whilst there are matters including the medication issue which are not mentioned, none of these omissions have resulted in an error of fact in my view. Decision[36]The application for set aside is therefore refused. Cassie Williams 15 July 2025