Parkinson, Application for Set Aside [2025] PBSA 61 (28 August 2025) [2025] PBSA 61
[1]This is an application by Parkinson (the Applicant) to set aside the decision not to direct his release. The decision was made by a panel after an oral hearing on 21 May 2025. This is an eligible decision.[2]I have considered the application on the papers. These are: · The dossier now paginated to 546 pages; · The decision (DL) dated 2 July 2025; and · The application for set aside dated 14 August 2025 Background[3]On 22 March 2007, following his guilty pleas, the Applicant received sentences of imprisonment for public protection for offences of rape of a girl under 13 and sexual assault upon a female by penetration (“the index offences”). The minimum term was set at three years less time spent on remand in custody, and the Tariff Expiry Date is given as 11 December 2009.[4]The index offences were committed on 9 December 2006 when the Applicant purchased alcohol for two 12-year-old girls. They drank alcohol together and he engaged in sexual intercourse with one victim and digitally penetrated the other. He was 22 years old at the time. He later disclosed that he had been “full of drink and drugs” at the time of his offending.[5]The Applicant has numerous convictions for offences of violence and a history of poor compliance and alcohol and polydrug misuse.[6]The Applicant was aged 23 at the time of sentencing. He is now 42 years old.[7]Beginning in 2012 the Applicant has progressed to open prison conditions but later been returned to the closed estate on four occasions having become involved with further drug misuse.[8]Between July 2017 and February 2023, he was released into the community and recalled to prison on three occasions, again, for the most part, due to concerns about his drug use accompanied by clear indications that his risk was increasing.[9]Most recently he was released back into the community on 7 May 2024 and recalled three days later due to, on the first occasion, by his own account, “ smoking a pipe’s worth of monkey dust.” On the second occasion he was found unresponsive after using monkey dust (a substance said to have unpredictable and potentially violent side-effects) and was taken to hospital in an ambulance where the medical discharge letter describes “ monkey dust overuse” which had triggered agitation, confusion and non-epileptic seizures while the h ospital records refer to “monkey dust use and aggressive behaviour and assaulting a staff member there” (dossier p.389).[10]T his was his first review since his most recent recall. Application for Set Aside[11]The application for set aside has been drafted on behalf of the Applicant by his solicitors.[12]It submits that the DL contains a number of errors of fact. I will deal with these matters in detail in the Discussion section of my decision. Current parole review[13]The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) to consider whether or not it would be appropriate to direct the Applicant’s release or to recommend his transfer to open prison conditions.[14]The case proceeded to an oral hearing on 21 May 2025 before a two-member panel of the Parole Board comprising an independent member as Chair and a Judicial member.[15]The panel heard oral evidence from the Applicant, the Prison Offender Manager (POM), the Community Offender Manager (COM) and an Approved Premises Manager. The Applicant was legally represented throughout.[16]The panel did not direct the Applicant’s release or recommend a transfer to open prison conditions. The latter decision is not a matter for me. The Relevant Law[17]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.[18]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)).[19]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[20]PPCS on behalf of the Respondent confirmed by email dated 15 August 2025 that no representations are offered in response to this application . Discussion[21]It is argued on behalf of the Applicant that the Panel made errors of fact. Sadly, due to the indiscriminate nature of the submissions made, it is difficult to identify exactly what these errors are said to be.[22]As regards the Building Choices (BC) programme, the panel noted the evidence of the POM that, even if the Applicant was assessed as suitable, he would need to complete it in custody while the COM did not believe that undertaking BC would effect significant change in the Applicant’s behaviour and that he needed “ to go back to basics ” whilst remaining in custody.[23]The Applicant’s solicitors now submit that the Applicant has the motivation and internal skills to complete further work in the community and suggest that this should have been reflected in the DL.[24]A failure to record a submission on the Applicant's behalf does not amount to an error of fact but for which the decision not to release would not have been made and, in any event, the Panel noted the Applicant’s evidence that he wanted the chance, either in the community or open conditions, to prove that he would comply and would remain abstinent.[25]I also note that this submission sits rather uneasily with the solicitors’ closing written representations that further work could be overtreatment of their client.[26]The next submission is said to relate to paragraphs 4.11 and 4.12 of the DL which deal with the panel’s decision not to recommend a progressive move to open prison conditions.[27]Put shortly the set aside procedure does not apply to a decision not to make such a recommendation.[28]However, it is right to record that the panel was concerned that the Applicant had already failed four times in open conditions for a variety of reasons but mainly relating to substance misuse, a factor which the panel found the Applicant had yet to adequately address. The panel, nevertheless, acknowledged that he had never absconded from open conditions.[29]Finally, it is submitted that the work which the Applicant had completed with the prison substance misuse team was not “ reflected well” in the DL. Again, this hardly amounts to an error of fact although the Panel does indeed record that the Applicant consistently engaged with the substance misuse team and peer mentors and had completed “ extensive relapse prevention work” (DL 2.10) while also telling the panel in evidence that he did not have a problem with drugs (2.15).[30]The substance misuse team also reported that the Applicant did not appear to be honest and open about his drug use (dossier p. 390) as evidenced by his persistent denials to that organisation, to other professionals and, initially, to the panel that he had used monkey dust prior to his recall to prison.[31]Put shortly I do not find that the application discloses any error of fact but for which the decision not to release the Applicant would not have been made.[32]I note that in conclusion it is said that the Applicant believes that the oral hearing was conducted unfairly. No grounds are put forward in support and this submission seems to be made in ignorance of the fact that the question of unfairness is not an issue for me when exercising the set aside jurisdiction. Decision[33]I have carefully considered this application. I can find no errors of fact but for which the decision not to direct release would not have been made and, for the reasons I have given, I find that the application to set aside is without merit and it is refused. PETER H. F. JONES 28 August 2025