Sherratt, Application for Set Aside by the Secretary of State [2025] PBSA 6 (05 February 2025) [2025] PBSA 6
[1]This is an application by the Secretary of State (the Applicant) to set aside the decision to direct the release of Sherratt (the Respondent). The decision is dated 6 January 2025 and was made by a single member panel (the Panel) by way of a Member Case Assessment (MCA) Paper Review. It is an eligible decision.[2]I have considered the application on the papers. These are the dossier, the oral hearing decision, and the application for set aside. Background[3]On 15 April 2024, the Respondent was sentenced to a combination of concurrent and consecutive terms of imprisonment for an effective period of 2 years, 8 months and 27 days. He had pleaded guilty to three restraining order breaches and one charge of resisting arrest, and a jury had found him guilty of assault occasioning actual bodily harm and threatening another with a knife blade. The victim in respect of one restraining order breach was a former partner who was the mother of his son. The victim of the assault, the threat and the two other restraining order breaches was his partner at the time.[4]The Respondent was aged 29 at the time of the index offences and is now 31. He had many previous convictions dating from 2008 when he was a juvenile, including convictions for theft, driving a vehicle without consent, burglary, making counterfeit currency, battery, resisting a constable, handling stolen goods, criminal damage, harassment, breaching a non-molestation order, and assault occasioning actual bodily harm. He is reported to have a history of abusive relationships with several intimate partners.[5]The Respondent was automatically released on licence on 19 September 2024. The licence was revoked on 11 October 2024 for breaching the condition to be of good behaviour and not behave in a way which undermines the purpose of the licence period. He was returned to custody the same day. This was the Respondent’s first recall under the current sentence, and his first parole review since recall. Application for Set Aside[6]The application for set aside has been drafted and submitted by the Public Protection Casework Section (PPCS) of His Majesty’s Prison and Probation Service on behalf of the Applicant.[7]It is submitted that new information has come to light that was available but not provided to the panel at the time of the review. This is considered in the Discussion section below. Current parole review[8]The Respondent’s case was referred to the Parole Board by the Applicant to consider whether or not to direct his release. Release would be appropriate only if the protection of the public from serious harm does not require him to be confined.[9]The Respondent has remained in custody since recall. His sentence does not expire until May 2026.[10]The case proceeded to the MCA Paper Review conducted by the Panel on 6 January 2025. The case dossier included details of the circumstances relating to the recall, risk assessments, and plans for resettlement and risk management in the community. There was little information about his conduct in custody following recall. Written submissions had been provided by his legal representative.[11]The Respondent’s recall was triggered by his arrest for a further alleged breach of the restraining order in respect of the mother of his son. He had turned up at the son’s school but on his account only to see the son. He was charged and after he pleaded not guilty, the criminal proceedings were discontinued in the light of the recall. The Panel found the recall had been appropriate.[12]The Respondent has remained at his current prison since his return to custody. In the Part B Report dated 15 November 2024, his Community Offender Manager (COM) refers to the Respondent’s reflection on the decision to visit his son’s school and his acceptance of the need for further thought about its wider implications. The Report contains no commentary on the Respondent’s custodial behaviour apart from stating “ Information has yet to be received, but having looked at nDelius there appear to be no entries of note”.[13]The Panel accepted the assessments in the 15 November 2024 Offender Assessment System (OASys) Report that the Respondent posed a medium risk of future convictions for offending generally and for non-violent offending but a high risk for violent offending. The Panel further concurred with the OASys assessment that the risk of serious harm to known adults and to the general public in the event of any re-offending was high.[14]The Risk Management Plan (RMP) involved the Respondent going back to live with his father and stepmother. There would be other external protective factors including the imposition of appropriate licence conditions. The Respondent had re-engaged in physical training as a mechanism for coping with mental health problems.[15]The COM expressed the opinion that the Respondent could be safely managed in the community. In its decision, the Panel referred to the fact that “since his return to custody there have been no concerns about [the Respondent’s] conduct” . Whilst noting the Respondent’s history of non-compliance with restraining orders, the Panel concluded that on this occasion the error was poor decision making which had not led to further charges. The Panel concluded that it was not necessary for the protection of the public that the Respondent remain confined 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 decision 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.[19]Rule 28A(5) provides that such an application must be made within 21 days of the decision. This application was made on 20 January 2025 in compliance with that Rule.[20]Rule 28A(6) provides that the party who made the application must serve the application and any representations in support upon the Board and any other party. Service was effected on 20 January 2025. The reply on behalf of the Respondent[21]In an email to the Board dated 23 January 2025, the Respondent’s legal representative confirmed that the Respondent denies all the allegations in the new information. Discussion[22]It is submitted on behalf of the Applicant that further information about the Respondent’s negative behaviour in custody constituting a significant change in behaviour has come to light after the Panel made its decision on 6 January 2025.[23]The prison security department has confirmed that:(i) on 05 January 2025, the Respondent was witnessed arguing with another prisoner, resulting in the Respondent lunging towards him in an aggressive manner;(ii) on 13 January 2025 there were tensions between the Respondent and the same prisoner;(iii) on 15 January 2025 the Respondent refused to locate to another houseblock and was racist towards a member of staff by saying “ You dirty foreign cunt ”.[24]These and other incidents have led to four adjudication procedures against the Respondent involving the following allegations which have yet to be resolved:(i) 05 January 2025 - “ upon opening a prison door of another prisoner, he entered [the Respondent’s] cell whereby he then fled in a hurry as [the Respondent] followed him with a kettle of water”.(ii) 14 January 2025 - “ threw two wet floor signs from the top landing where other prisoners were in the location. He was confronted why he was doing this and he stated he was not happy as he was still on(sic) prison, and he began to scream abusive words and squaring up to the officer”.(iii) 15 January 2025 - “ racially abusive towards an officer when he was asked to relocate by saying “you dirty foreign cunt”(iv) 15 January 2025 - “ he was asked to relocate to another wing, but he refused”.[25]The Respondent’s status under the Incentives and Earned Privileges (IEP) Scheme has been reduced to Basic as a consequence of his behaviour and he has been placed on a Challenge Support and Intervention Plan due to the acts of violence. It is alleged that when throwing wet floor signs, he said he was going to make it awkward for all staff.[26]None of the information referred to in paragraphs 23, 24 and 25 above was before the Panel when it made its decision. Indeed, all but one of the incidents occurred after that date.[27]In their reply, the Respondent’s legal representative submits that he has been targeted due to incorrect information being circulated throughout the prison and that several moves since his return to prison have triggered a decline in his mental health. They repeat that he had not been recalled for violent offending but rather for a simple mistake by attending the school with no intention to confront his ex-partner. He had attended all his supervision appointments and had engaged positively. Release had been supported by his COM.[28]However, the Respondent’s most recent alleged actions give rise to serious concerns about his ability to manage his emotions, his impulsivity, his poor thinking skills and lack of consequential thinking, all of which were specifically referred to by the Panel in its decision as risk factors. They also give rise to concerns about his mental stability, his compliance with legal authority, and the use of violence to resolve disputes. This evidence has never been tested. Decision[29]I have concluded that the test for setting aside the decision by reference to Rule 28A(4) sub paragraphs (a) and (b) have been met. I am satisfied that, had the information about the 5 January 2025 incident been available to the Panel when it made the decision and, if the events alleged to have occurred after the decision had taken place occurred beforehand, the Panel would not have directed the Respondent’s release. HH Judge Graham White 5 February 2025