Heffernan, Application for Set Aside by the Secretary of State for Justice [2025] PBSA 67 (12 September 2025) [2025] PBSA 67
[1]This is an application by the Secretary of State for Justice (the Applicant) to set aside the decision to direct the release of Heffernan (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 298 numbered pages), the decision (dated 25 July 2025), and the application for set aside (dated 4 September 2025). Background[3]On 14 February 2018, the Respondent was convicted of causing grievous bodily harm with intent to do grievous bodily harm to which he pleaded guilty. He received a determinate sentence of imprisonment for 10 years.[4]The victim was the Respondent's wife. Over a ten day period, he assaulted her on multiple occasions, including biting off parts of her ear twice, breaking her nose, eye socket, and cheekbone, and whipping her with an electrical cable. These assaults occurred in the family home while their four children were present, though they did not witness the violence directly. The Respondent also displayed controlling behaviour by insisting the victim claim that a third party was responsible for her injuries. He was using drugs, mainly cocaine, at the time, though it is unclear if he was under the influence during the assaults. At the time of sentencing, the Respondent also attributed his offending to a failure to take his anti-psychotic medication.[5]The Respondent was automatically released on licence on 9 September 2022.[6]On 10 February 2023, the Respondent disclosed that he was staying at his girlfriend's address instead of his approved address and had also not paid service charges at his approved address. Although he was warned on 24 February 2023 to remain at his approved address and a decision was then taken not to recall him, concerns continued. On 23 March 2023, his keyworker confirmed he was still not staying at his approved address and had not arranged to repay arrears. He then failed to attend an appointment with his Community Offender Manager ( COM) on 24 March 2023, attributing this to drowsiness from new medication, and admitted by phone that he had again stayed at his girlfriend's address. His licence was revoked on 24 March 2023, and he was returned to custody on 28 March 2023.[7]The Respondent was 29 years old at the time of sentencing and is now 37 years old. His sentence ends in September 2027. Application for Set Aside[8]The application for set aside has been drafted and submitted by the Public Protection Casework Section (PPCS) acting on behalf of the Applicant.[9]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.[10]The content of the application will be considered in the Discussion section below. Current Parole Review[11]The Respondent's case was referred to the Parole Board by the Applicant to consider whether to direct his release. This is the Respondent's second parole review since his recall.[12]The case proceeded to an oral hearing on 16 July 2025, before a three-member panel including a psychologist specialist member. Oral evidence was taken from the Respondent, the Prison Offender Manager (POM), the COM, a forensic psychologist commissioned by HMPPS and a support worker from the prison's Offender Personality Disorder (OPD) service. The Respondent was legally represented throughout the hearing.[13]The panel recognised the seriousness and sustained nature of the index offences and noted the Respondent's continuing tendency to minimise and partially blame the victim. While it also considered that his recall in 2023 had been appropriate given his failure to comply with residence conditions, it noted that recall had not been triggered by further offending or violence.[14]The panel had concerns about the Respondent's persistent drug use and the potential risks this posed, particularly in combination with any new relationship in the community. However, it placed significant weight on his progress in custody, including over 18 months of engagement with the OPD service, where he had developed insight into his behaviour, improved coping strategies, and a willingness to take responsibility. Professional witnesses, including his COM and psychologist, supported release, emphasising his motivation to continue treatment, maintain stability through prescribed medication, and engage with licence conditions.[15]Although not " the finished article ", the panel concluded that the Respondent had made sufficient progress for risk to be managed safely in the community. It considered the risk management plan (including residence at approved premises, psychological support, substance misuse and mental health services, GPS monitoring, disclosure of relationships, daily reporting, curfews, and drug testing) to be robust enough to mitigate risks. On that basis, it found that continued confinement was no longer necessary for the protection of the public and directed his release. The panel acknowledged that its decision was " a finely balanced one" . The Relevant Law[16]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.[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 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[19]The Respondent's legal representative has submitted written representations (dated 4 September 2025 and confirmed as such on 5 September 2025) on his behalf in response to the application. These will also be considered in the Discussion section below. Discussion[20]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.[21]The first matter relied upon concerns a serious violent incident in custody on 9 August 2025. The Respondent was allegedly involved in an altercation with another prisoner which resulted in that prisoner sustaining serious injuries, including a head injury requiring hospital treatment. Accounts of the incident differ, but staff evidence indicates that the Respondent was the instigator, having allegedly attacked the other prisoner by attempting to gouge his eyes, strangle him, and bite his arm. Although the Respondent has maintained that he was the victim of a planned assault, he has also acknowledged violent tendencies and described himself as having " blacked out ". The similarity between this conduct and the index offence is of particular concern. The matter remains subject to adjudication and potential police investigation.[22]Second, since the panel's decision, there has been a marked escalation in the Respondent's substance misuse. Case notes describe frequent use of spice and close association with other prisoners using drugs. The Respondent is said to have admitted that his drug use has become " out of hand " as a means of coping with emotional difficulties.[23]Third, the Respondent has demonstrated increasing disengagement from positive custodial activities. He is said to have refused to participate in workshops, declined prescribed medication due to paranoia, and failed to utilise available support services such as the OPD service.[24]Finally, the COM has withdrawn her support for release. She now considers that the risk management plan endorsed by the panel is no longer sufficient in light of the escalation of violence and substance misuse, the failure to employ coping strategies, and the similarity of recent conduct to the index offence.[25]Taken together, the Applicant submits that these developments materially alter the risk assessment and consequently that the panel's direction for release would not have been made had this change in circumstances occurred before the panel made its decision.[26]On 4 September 2025, the Respondent's legal representative submitted by email that " there should be another hearing and the "evidence" being relied upon to set aside cannot be taken as read and ought to be properly tested as part of a fair process" . The Parole Board Case Manager reminded her that the set aside decision had not yet been made. On 5 September 2025, the legal representative confirmed that her earlier email should be considered as the representations on the setting aside application.[27]The reported incident is clearly relevant to risk since it concerns an allegation of serious violence exacerbated by an increase in substance misuse. These were factors present at the time of the index offence. The complainant is reportedly pressing charges and, if so, police involvement and further investigation are likely. Even though the evidence is currently untested and the allegation undetermined, I cannot envisage any way in which the panel would have directed release in the face of unresolved risk-related matters of such potential gravity.[28]The legal representations appear to be resigned to the decision being set aside, as they are purely concerned with arrangements for the next hearing rather than offering any reasons as to why I should not set the release decision aside.[29]I therefore find that the panel's direction for release would not have been given if the change in circumstances had occurred before it was given.[30]I also find that it is in the interests of justice for the decision to be set aside because allowing the release decision to stand would risk exposing the public to a level of danger that the panel could not have anticipated at the time of its decision. Setting aside the direction ensures that the Respondent's risk is reassessed in light of all relevant and up-to-date information. It will also give the Respondent the opportunity to test the evidence against him and put forward his account of the circumstances which led to the application for set aside being made. Decision[31]For the reasons set out above, the application for set aside is granted. Stefan Fafinski 12 September 2025