Ewing, Application to Set Aside, [2025] PBSA 58 (20 August 2025) [2025] PBSA 58
[1]This is an application (the Application) by the Public Protection Casework Section (PPCS) of the Ministry of Justice on behalf of the Secretary of State (the Applicant) to set aside a decision issued on 20 June 2025 (the Decision) to direct the release of the above-named Ewing (the Respondent). The Decision was made by a panel after an oral hearing on 19 June 2025. This is an eligible decision.[2]I have considered the Application on the papers. These are the dossier (originally 400 pages at the time of the hearing and now 422), the Decision, the unfortunately undated (but apparently signed) application for set aside (the Application) which was however received in time on 24 July 2025. In addition, I received and considered a completed form LISP 4 from the PPCS dated 31 July 2025 detailing the reasons for the Respondent's return to closed conditions in circumstances set out below and representations from the Respondent's legal representatives dated 14 August 2025 (the Representations).[3]An application was made on 30 July 2025 on behalf of the Respondent by his legal representatives for an extension of time for representations in respect of the Application and a 14-day extension from 1 August 2025 was granted by me under Rule 9 of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2024) (the Parole Board Rules ). The Representations were received on 15 August 2025. Background[4]On 6 January 2020, the Applicant received an extended determinate sentence of 7 years imprisonment and 4 years extended licence plus two sentences of 2 years imprisonment (to run concurrently) following conviction for offences covering false imprisonment, supply of class A drugs and assault to which he had pleaded not guilty.[5]The Applicant was aged 44 at the time of sentencing and is now 49 years old. His parole eligibility date was in October 2023, his conditional release date is in February 2026, and his sentence expiry date is in February 2030.[6]At the time of the Parole Board hearing the Respondent was in open conditions. Following the determination of the panel to direct his release, the Respondent was found, according to the prison authorities, on or about 18 July 2025 in possession of 9 grams of cocaine (which, according to them, he promptly acknowledged) leading to his return to closed conditions and prompting the present Application. Whilst apparently acknowledging the discovery of (what is admitted in the Representations) to be a large quantity of cocaine, the Respondent disputes that it was his and disputes the prison authorities' version of events. The Representations imply the cocaine must have been planted on him in his cell. Application for Set Aside[7]The Application for set aside is that there has thus, by reason of this discovery, been an obvious change in circumstances after the Decision to direct his release had been given and which would not have been given had the discovery occurred before the Decision.[8]Even recognising that the Respondent disputes the circumstances of the discovery. it is clear to me given the background and circumstances of the present case that the matter calls for further investigation and that the Application should be granted. I need only to set out that background and circumstances succinctly. Current parole review[9]The Respondent's case was initially referred to the Parole Board by the Applicant in May 2023 to consider whether to direct his release. The case went through a number of hurdles before being eventually heard in June 2025. The first hearing (due in November 2024) was cancelled owing to illness of the panel chair. The panel was reconvened in April 2025 but adjourned due to non-attendance of the Community Offender Manager ( COM ). The hearing finally took place on 19 June 2025 and was concluded.[10]The panel consisted of two members: an independent chair and a psychologist specialist member. The panel heard evidence from the Respondent, his Prison Offender Manager ( POM ), and his COM. The Respondent was legally represented throughout the hearing.[11]The panel directed the Respondent's release.[12]The panel noted a long, prolific and clearly continuous established history and risk factors involving and including acquisitive offences, driving illegally, violence, possession and supply of drugs, anti-social and chaotic lifestyle, pro-criminal attitudes, domestic and alcohol abuse, issues with gambling, negative associates, and a poor record of compliance.[13]On the other hand, it was noted he had completed the Kaizen programme, had engaged positively with the prison regime, held positions of trust, and had accumulated numerous positive behaviour case notes (fewer negative ones) and received no adjudications. He had progressed to open conditions in July 2024.[14]He had completed temporary accompanied and unaccompanied day releases without issue. Psychological risk assessments were broadly favourable with no core risk reduction work outstanding. The POM and COM both recommended release.[15]Extensive security intelligence reports were less favourable, suggesting, amongst other matters, that the Respondent was involved in the prison drug culture, used cannabis, was rude to staff, involved in a fight, and that prisoners were in debt to him. Since however there appeared to be no substantive evidence to corroborate the intelligence the panel expressly resolved to place limited or no weight on it. Despite a lengthy and careful analysis of the noted risks and concerns about how open and forthcoming he would be with his COM on release the panel concluded the risks were manageable in the community under the risk management plan and directed his 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. (This latter being relevant in this case.) The reply on behalf of the Respondent[19]The Representations in substance recognise that the Decision will inevitably be set aside. It is submitted that given the Respondent challenges and disputes the events and circumstances giving rise to the Application the matter should be referred as a matter of priority to an oral hearing.[20]The Representations point to a number of factors calling for investigation or somehow implying a possible sinister motive (despite the support of both POM and COM for his release), for example: a) That the LISP 4 was dated 13 June. (It was not; it was dated 31 July 2025 though the reporting POM's details were given as "13.06.23" (sic) which seems to me for whatever reason to have been an obvious mistake.) b) The date of the search of the Respondent's cell was not given, and the Representations seem to suggest it was on or about 12 July. (A fair reading of the report implies that it was on or about 18 July 2025, but whether it was on the 12 or 18 or thereabouts it was to all intents and purposes after the Decision.) c) The Respondent denies acknowledging the drugs found were indeed cocaine. d) Other matters call for investigation: the reasons for the search of his cell, whether the powder found was tested, why the matter was not (as is alleged to be the case) reported to the police and investigated given the quantity found, nor why the Respondent has not been charged.[21]Taken at face value I accept that all of these matters call for further investigation but do not impeach any decision to set aside the Decision. Discussion[22]Bearing in mind the Representations summarised above, I have absolutely no doubt that the Decision should be set aside if only because the discovery of a quantity of cocaine allegedly in his possession suggests that there may be some substance to the security intelligence reports and lending some weight to the noted concerns about the Respondent's negative associations and degree to which he would cooperate with his COM on release and comply with licence conditions and the risk management plan (RMP), in turn suggesting that the case should be considered afresh in light of this further information and change of circumstances.[23]Even allowing for the fact that the Respondent's conditional release date is February 2026, given the demands on the Parole Board, the need for further reports from the police and prison and probation authorities and re-evaluation of any RMP, for my part I do not consider that the matter should be unduly prioritised even acknowledging the Respondent's apparent completion of core work and his positive custody record. These (including the conditional release date) seem to me to be matters for the panel chair to evaluate in making directions for a further hearing. Decision[24]The application for set aside is accordingly accepted. HH Roger Kaye KC 20 August 2025