Sunderland, Application for Set Aside by the Secretary of State for Justice [2025] PBSA 53 (25 July 2025) [2025] PBSA 53

PBSA
Sunderland, Application for Set Aside by the Secretary of State for Justice [2025] PBSA 53 (25 July 2025)
[2025] PBSA 53 · 2025-06-02
[1]This is an application by the Secretary of State for Justice (the Applicant) to set aside the decision to direct the release of Sunderland (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 255 numbered pages), the decision (dated 2 June 2025), and the application for set aside (undated but received on 18 July 2025). Background[3]On 25 October 2018, the Respondent was convicted on six counts of indecent assault on a male under 14 and two counts of attempted buggery with a boy under 16. Following variation, the net sentence was an extended sentence for offenders of particular concern (SOPC) comprising eight years in custody with a 12 month period on extended licence. These are historic offences committed between 1966 and 1978. The Respondent has maintained his innocence.[4]His parole eligibility date passed in September 2022. His conditional release date is in September 2026, and his sentence is reported to expire in September 2034.[5]The Applicant was 71 years old at the time of sentencing and is now 78 years old. Application for Set Aside[6]The application for set aside has been drafted and submitted by the Public Protection Casework Section (PPCS) acting on behalf of the Applicant.[7]The application for set aside submits there has been a change in circumstances since the panel made its decision. It is argued that the panel would not have reached the same decision if the change in circumstances had happened beforehand.[8]The content of the application will be considered in the Discussion section below. Current Parole Review[9]The Respondent’s case was referred to the Parole Board by the Applicant in May 2024 to consider whether or not it would be appropriate to direct his release. This is the Respondent’s second parole review.[10]The case proceeded to an oral hearing on 2 June 2025, before a two-member panel. 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.[11]The panel’s decision notes the following: a) The last parole review (in December 2023) concluded on the papers because there was a lack of confirmed accommodation. b) In directing this review to oral hearing (in September 2024), it was noted that detailed directions were made regarding accommodation. c) Panel Chair Directions (in March 2025) made it very clear that the COM “ MUST ensure that their addendum report includes confirmation of proposed accommodation”. d) At the time of the hearing, the matter of accommodation remained unresolved, and it was only in May 2025 that it was decided that a referral should be made to CAS3 accommodation. e) The panel undertook a brief hearing, focussing on the proposed accommodation and the proposed additional licence conditions.[12]I particularly note the following passage from the panel’s decision:
“The panel wishes to formally record that it is unsatisfactory, given the history of this case and the well-established difficulties with identifying suitable accommodation for [the Respondent], that planning did not begin 6 months before the review date/hearing as would normally be expected. The case was referred to the Parole Board in May 2024 and there have been 12 months in which to consider the potential accommodation options. Whilst it is not clear where responsibility for these failures lies, the panel chair considered it appropriate to raise this matter formally at the hearing so that it could form part of the official record. [the Respondent] is an elderly man, with not insignificant health problems.”
[13]The panel directed the Respondent’s release after hearing that the COM identified Nottingham as the preferred release area and planned to seek housing support from the local authority, although no priority needs assessment had been completed. The Respondent would initially spend up to 84 nights in CAS3 approved accommodation. The COM could not confirm whether the Respondent would have housing after that period. Given his significant health issues, age, and need for community living support identified by adult social care, the panel considered it unlikely he would be denied priority status, although the COM offered no view on this. 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)): f) 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 g) a direction for release would not have been given if information that had not been available to Board had been available, or h) 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 22 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.[19]On 17 June 2025, a CAS3 property was identified but subsequently rejected following a multi-agency risk assessment due to the presence of other registered sex offenders and several children in the vicinity. Following this, the CAS3 service confirmed that no other suitable accommodation was currently available and that it could be several months before a viable alternative arises, unless there is an unexpected vacancy.[20]The Probation Service then explored the possibility of seeking priority housing through the local authority in Nottingham. While the Respondent may be eligible due to his age and physical health needs, he would likely be placed in temporary hotel accommodation, which presents serious safeguarding issues given his registered sex offender (RSO) status and the likelihood of children being present. The frequent and unpredictable movement associated with such placements would also place an unmanageable burden on police and Probation Services, and potentially increase the Respondent’s risk to himself and others.[21]On 20 June 2025, the Probation Service formally notified both the Parole Board and PPCS (on behalf of the Applicant) that it was no longer in a position to implement the proposed risk management plan. As a result, the COM has confirmed that, had these circumstances been known at the time of the hearing, they would not have supported release. It is submitted that the change in accommodation status is significant and undermines the basis upon which the panel’s release decision was made. It is also noted that he could not be released to no fixed abode as he will be subject to GPS tagging.[22]The Respondent submits that the release decision should stand as the Respondent clearly meets the statutory test for release, given both his age and the fact that his offending took place around 40 years ago. The situation now is comparable to how probation would be expected to manage his release at his automatic release date.[23]Two practical steps are proposed: first, the removal of the GPS monitoring condition, which is now inappropriate given the Respondent’s age and history; and second, allowing the local authority to carry out a needs assessment once he is in the community. Any additional resource burden on community agencies should not prevent release.[24]Although there may be a delay in securing a suitable ground floor CAS3 placement, the provider has not withdrawn acceptance of the Respondent. In light of all this, and his minimal risk of serious harm, it is submitted that the release direction remains justified and should be implemented without further delay.[25]In my view, while the withdrawal of the proposed CAS3 address is a relevant development, it does not fundamentally undermine the basis of the panel’s decision. The panel was aware that accommodation arrangements were provisional. The panel considered this uncertainty and nevertheless concluded that the statutory test for release was met, primarily on the basis of risk and proportionality.[26]Second, it remains the case that the Respondent has been accepted by CAS3, and that the issue is one of timing rather than complete unavailability. The suggestion that appropriate accommodation might not be secured for “ several months ” is speculative. Moreover, no evidence has been presented that the Respondent poses an immediate or unmanageable risk in the absence of a fixed address. The Respondent’s case is not one of release to no supervision. He will remain subject to stringent licence conditions, GPS tagging (unless varied), and MAPPA oversight.[27]Third, the Respondent’s representations correctly highlight that if these accommodation challenges arose at the point of his automatic release date, the Probation Service would have no choice but to manage him safely in the community. The same logic applies now.[28]I acknowledge the practical difficulties faced by probation and public protection agencies, but these do not amount to a legal or evidential basis to overturn a decision properly made. The panel’s conclusion that the Respondent posed no more than a minimal risk of serious harm was based on a fair and careful hearing. There is no basis to conclude that the outcome would have been different had the current accommodation delay been known at the time.[29]There is a statutory duty placed on the Applicant by section 256AZC(2) of the Criminal Justice Act 2003 to give effect to a release direction of the Parole Board as soon as is reasonably practicable in all the circumstances including, in particular, the need to make arrangements in connection with any conditions that are to be included in the person’s licence. I see no reason for departing from this position.[30]I finally return to the panel’s evident dismay at the ongoing delays in finding accommodation. The Respondent’s needs have been known for years, and it is inexplicable that they are still not resolved. The lack of resolution is no basis on which to set aside a release decision. Decision[31]The original panel reached a reasoned and proportionate decision in full awareness of the risks and uncertainties. The subsequent difficulties in implementation do not justify setting that decision aside. The application is therefore refused Stefan Fafinski 25 July 2025

Cited in 1 later judgment