Clark, Application for Set Aside by the Secretary of State for Justice [2025] PBSA 50 (25 July 2025) [2025] PBSA 50
[1]This is an application by the Secretary of State for Justice (the Applicant) to set aside the decision to direct the release of Clark (the Respondent). 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 (consisting of 402 numbered pages), the decision (dated 8 May 2025), and the application for set aside (dated 11 July 2025). Background[3]On 17 July 2017, the Respondent received a determinate 10 year sentence following conviction for robbery. He also received a concurrent three year determinate sentence for possession of an imitation firearm with intent to cause fear of violence. He pleaded guilty to both offences.[4]The Respondent has been released and recalled twice on this sentence. He was first released automatically in November 2021 but recalled in November 2022. He lived in supported accommodation but was recalled following concerns about his mental health, substance misuse and poor behaviour. He was released following an oral hearing in September 2023 but was recalled in October 2023 after it became apparent to staff at his designated accommodation that his mental health was deteriorating and there were concerns about his substance misuse.[5]His sentence is reported to end in November 2026.[6]The Applicant was 36 years old at the time of sentencing and is now 44 years old. Application for Set Aside[7]The application for set aside has been drafted and submitted by the Public Protection Casework Section (PPCS) acting on behalf of the Applicant.[8]The application for set aside submits there is further information which came to light after the panel made its decision. It is argued that the panel would not have reached the same decision had this new information been available at the time.[9]The content of the application will be considered in the Discussion section below. Current Parole Review[10]The Respondent's case was referred to the Parole Board by the Applicant to consider whether or not it would be appropriate to direct his release.[11]The case proceeded to an oral hearing on 30 April 2025, before a two-member panel, including a psychiatrist specialist member. The Respondent was located in open prison conditions at the time. Oral evidence was taken from the Respondent, the Prison Offender Manager (POM), and the Community Offender Manager (COM). The Respondent was legally represented throughout the hearing.[12]The panel directed the Respondent's release after concluding that the risk he presents to the public could be safely managed in the community through a robust risk management plan. While the Respondent has a significant offending history and was recalled after a brief release in 2023 due to deteriorating mental health and substance misuse, he had since shown improvements. His conduct in custody had been stable, he had maintained prison employment, completed periods of release on temporary licence (ROTL) largely without incident, and demonstrated a renewed commitment to pro-social relationships and abstaining from drugs. He acknowledged past failings and expressed clear insight into the factors that led to his previous recall.[13]The panel accepted professional assessments that, although the Respondent remains a high risk to the public, that risk is not imminent and would require multiple deteriorating factors to escalate. The proposed release plan included initial residence at designated accommodation, mental health support, substance misuse monitoring, and an alcohol monitoring tag. The panel was persuaded by the Respondent's motivation to comply and his understanding of the consequences of further non-compliance. As there was no further custodial work required and support was available in the community, the panel concluded that continued confinement was no longer necessary for public protection. The Relevant Law[14]Rule 28A(1)(a) of 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.[15]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)).[16]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 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[17]The Respondent has submitted written representations (dated 18 July 2025) via his legal representative in response to the application which will also be considered in the Discussion section below. Discussion[18]The Applicant applies to set aside the decision on the ground that there has been a change in the Respondent's circumstances since the direction was made. The application notes the following: a) On 19 June 2025, the Applicant was notified by the POM that the Respondent had been returned to closed conditions after " being found under the influence". b) The Respondent initially attributed this to misuse of prescribed medication but later admitted to obtaining and consuming " sleepers " from another prisoner, alongside his prescribed medication. c) There was concern that he remained visibly intoxicated 12 hours later, suggesting possible further substance use. d) The Respondent gave inconsistent accounts to different staff and has since been described by the POM as engaging in deceptive behaviour, including earlier instances of concealing substance misuse behind prescribed medication side effects. e) Both the POM and COM now advise that the Respondent's risk to self and others cannot currently be managed in the community.[19]Very brief legal representations in response to the set aside application argue that the Respondent will always have problems with addiction which will not be addressed in custody and that his risk has not escalated.[20]This submission is noted, but it does not adequately or persuasively address the matters raised by the Applicant. The panel placed significant weight on the Respondent's recent stability, insight, honesty, and capacity to manage stress without resorting to substance misuse. It is now apparent that this foundation was materially flawed. The fact of relapse is not determinative on its own, but the circumstances in which it occurred, close to release, in open conditions, and with evidence of concealment and minimisation, raise legitimate concerns about manageability in the community. The support available in the community was a key element of the risk management plan, and its effectiveness is called into question when the Respondent is found to be engaging in deceptive behaviour prior to release.[21]Moreover, the updated professional consensus from both the POM and COM is that risk is no longer manageable in the community at this time. This undermines a central premise of the panel's conclusion.[22]I am therefore satisfied that the panel would not have directed release had the Respondent been returned to closed conditions following a relapse into illicit drug use, alongside deceptive behaviour and changed professional assessments of risk. This constitutes a material change in circumstances that undermines the original decision.[23]It is in the interests of justice to set aside the release decision because the Respondent's recent conduct—specifically his relapse into illicit substance use, inconsistent disclosures, and subsequent return to closed conditions—fundamentally alters the risk landscape that the original panel assessed. The integrity of the Parole Board's decision-making process depends on accurate and complete information about a prisoner's behaviour and risk immediately prior to release. Given that this new information goes to the heart of the panel's reasoning, allowing the release to proceed without reassessment would risk undermining public protection and the credibility of the parole process. A fresh review is therefore necessary to ensure that the decision to release, if maintained, is made on a fully informed and up-to-date basis. Decision[24]For the reasons set out above, the application for set aside is granted. Stefan Fafinski 25 July 2025