Hotti, Application to Set Aside, [2025] PBSA 54 (30 July 2025) [2025] PBSA 54

PBSA
Hotti, Application to Set Aside, [2025] PBSA 54 (30 July 2025)
[2025] PBSA 54 · 2025-06-25
[1]This is an application by the Secretary of State for Justice (the Applicant) to set aside the decision of a Panel of the Parole Board to direct the release of Hotti (the Respondent). This is an eligible decision.[2]I have considered the application on the papers. These are: a) the dossier now paginated to 549 pages; b) the decision dated 25 June 2025; and c) the application for set aside which is undated but was apparently received by the Board on 22 July 2025 Background[3]On 14 October 2005 the Respondent received, upon his guilty pleas, sentences of imprisonment for public protection for two counts of robbery. The minimum term was set at three years less time spent on remand in custody and the Sentence Expiry Date is given as 14 June 2008. He had previous convictions for robbery and for matters of dishonesty.[4]The Respondent was aged 30 at the time of sentencing and is now 50 years old.[5]He has been released on licence on 4 occasions during his sentence (initially in 2013) and subsequently recalled each time, most recently in April 2023. He has committed further offences whilst on licence and his history is one of a longstanding polydrug addiction which is regarded as his main risk factor.[6]This was the second review since his most recent recall to prison. 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 that, the decision for release would not have been made if new information had been available when the Panel made the decision to direct the Respondent's release.[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 to direct his release or, in the alternative, to advise whether he should be transferred to open prison conditions.[11]A three-member panel of the Parole Board consisting of two independent members (one of whom acted as the Chair) and a psychologist member considered the case at an oral hearing on 11 June 2025. The panel considered the dossier and heard oral evidence from the Respondent, the Community Offender Manager ("COM"), the Prison Offender Manager ("POM") and two psychologists. The Relevant Law[12]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.[13]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)).[14]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[15]The Respondent's Solicitors have provided helpful representations dated 25 July 2025 opposing the application which are also considered in the Discussion section below. Discussion[16]My task has not been made any easier by the manner in which the application is drawn and the apparent lack of appreciation that this is not an appeal from the decision of the panel nor an opportunity for the COM to restate arguments in favour of her opposition to a direction for release. It is also unhelpful to be told that the Probation Service have held further meetings and to be provided with the current views of professionals from whom the panel did not hear.[17]The focus should be to provide details of the information which was not available to the panel and which it is submitted would have led to the direction for release not being given had it been available.[18]The panel was clearly aware of the Respondent's chronic history of serious drug misuse and its relevance to his offending and his future risks.[19]The decision records that the Respondent's most recent proven adjudications were on 23 May 2025 and 10 June 2025 when he tested positive for drug use and that he has frequently asked for medication to maintain abstinence. However, the panel was told that the prison has a policy that, unless the Respondent tested positive for drugs, he would not be prescribed medication , an approach which the panel assessed as a systemic barrier to obtaining help and assistance.[20]The gravamen of this application to set aside would appear to be the following information:
"On 23 June 2025, the POM advised the Parole Board that [the Respondent] received six proven adjudications for possession of unauthorised articles including: - 1x phone charging cable found during cell search - 500ml bottle of blue liquid suspected to be barbicide - 1x mobile phone - 3x a4 sheets of suspected NPS (new psychoactive substance) -white powder tested as Buprenorphine -500ml bottle of synthetic cathinodes"
[21]The solicitor for the Respondent quite properly notes that the Board was apparently notified of this information two days before the date of the decision. However, whatever "advised the Parole Board" actually entailed, it is clear from the decision that the panel was unaware of this information since, in my view, it is inconceivable that, had the panel been made aware of it, it would not, at the very least, have referred to it in the decision and set out the panel's view of this new information.[22]I am therefore satisfied that this is new information which was not available to the panel on 25 June 2025 and the further question for me is, therefore, had it been available would the panel have given a decision for release?[23]All professional witnesses were agreed that the Respondent had no outstanding core risk reduction work to complete and, save for the COM, there was professional support for release to specialised accommodation offering consistency, a psychologically informed environment and longer-term accommodation than would be available at an Approved Premises.[24]The panel considered the recent positive drug tests and balanced them against the Respondent's requests for medication to help him with his ongoing drugs issues which fell foul of prison policies which, the panel found, hindered his access to medication to manage his abstention from drugs. Nevertheless, the panel also found that, once he had been prescribed medication, if the Respondent should then test positive for unprescribed drugs whilst inside or outside prison, this would be an indication of risk escalation.[25]A total of 6 illicit substances/items are said to have been found in the Respondent's possession. Unhelpfully, it is said that he has 6 proven adjudications for these although it is later stated in the application that he has accepted the adjudication for possession of the sheets of NPS but, on the other five adjudications, has "abstained". This is a phrase with which I am not familiar but, presumably, indicates that he may wish to challenge some or all of the other adjudications.[26]The Respondent is said to have been placed in segregation in the form of 21 days cellular confinement.[27]These developments obviously require further investigation since the Respondent is said to admit possession of a not insignificant amount of NPS while, if the other substances, when properly tested, are confirmed as drugs or drug-related products, then this would appear to represent an increase in the Respondent's substance misuse in custody and may go to undermine the panel's finding (paragraph 4.7 of the decision) that "There is no evidence that [the Respondent] has relapsed in this review period ".[28]In addition, the Respondent is said to have been found in possession of other items which, if proven, would indicate a willingness to breach other prison rules which, again, will require further exploration as will his reported response to the POM when questioned.[29]In consequence of this new information, the Applicant submits that the release decision should be set aside.[30]I have carefully considered the documentation placed before me and expressed my disquiet at the terms in which the application for set aside is couched.[31]The panel were satisfied that the Respondent met the public protection test for release whilst at the same time recognising that his main risk factor is substance misuse for which he would require appropriate psychological and professional support, drug-testing and monitoring if released back into the community.[32]The panel also took into account, what it regarded as, recent lapses into drug use in May and June. However, I am satisfied that, on the evidence before me, had the panel been aware of the fresh circumstances relating to possession of the items for which he has been adjudicated and was placed in segregation, it would have found that these required further investigation and consideration (particularly if the Respondent was by this time receiving relevant medication) and that they would not have given the direction for release on 25 June 2025.[33]I confirm that I am satisfied that it is in the interests of justice for the Panel's decision to be set aside . Decision[34]The application for set aside is granted. PETER H.F.JONES 30 July 2025