Harbourne, Application for Set Aside by the Secretary of State for Justice [2025] PBSA 75 (22 October 2025) [2025] PBSA 75
[1]This is an application by the Secretary of State for Justice (the Applicant) to set aside the decision to direct the release of Harbourne (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 265 numbered pages), the decision (dated 17 September 2025), and the application for set aside (dated 6 October 2025). Background[3]On 12 August 2019, the Respondent was convicted of a number of offences and received determinate sentences totalling eight years. He pleaded guilty to all offences, namely: a) Possession of knife/sharp bladed article in public x 2 b) Attempted robbery c) Committing act(s) with intent to pervert the course of justice d) Burglary and theft - dwelling e) Burglary with intent to steal - dwelling f) Taking motor vehicle without consent g) Driving otherwise than in accordance with a licence h) Using vehicle while uninsured.[4]The index offences were primarily committed to fund the Respondent's drug habit, which he has said was costing him up to £500 per day.[5]The Respondent has been released and recalled twice on this sentence. He was first released automatically in December 2023 but recalled after two weeks after his whereabouts became unknown. He was re-released by the Parole Board on the papers in October 2024 but was recalled in January 2025 following missed appointments, and failing to reside as directed. He was returned to custody in March 2025 after being arrested at his ex-partner's home.[6]His sentence is reported to end in July 2027.[7]The Applicant was 24 years old at the time of sentencing and is now 30 years old. 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 is further information which came to light after the panel made its decision. It is argued that the panel would not have reached the same decision had this new information been available at the time.[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.[12]The case proceeded to an oral hearing on 22 August 2025, before a single-member panel. Oral evidence was taken from the Respondent, the Prison Offender Manager (POM), and the Community Offender Manager (COM). The Respondent was legally represented throughout the hearing.[13]The panel found that the recall in January 2025 had been appropriate as the Respondent's whereabouts were unknown and he had disengaged from supervision. However, it also found that his subsequent conduct in custody demonstrated significant improvement and insight. After an initial relapse into drug use, the Respondent had asked to be segregated to detox without medication, regained access to his ADHD treatment and since leaving segregation had shown a " massive " change in behaviour. He had taken on a trusted prison job, engaged positively with staff and maintained Enhanced status. Both the POM and COM confirmed sustained improvement and increasing emotional stability.[14]Although the professional witnesses remained cautious due to the relatively short period of stability, the panel found the proposed risk management plan (including release to designated accommodation, GPS tagging, alcohol monitoring, drug testing, curfew, and close supervision) to be comprehensive and proportionate. It noted that the Respondent had not reoffended during either of his previous periods in the community, appeared motivated to comply, and now demonstrated sufficient internal control and understanding of risk. Balancing these factors, the panel was satisfied that the statutory test for release was met, finding no more than a minimal risk that he would commit an offence causing serious harm if released on licence. The panel therefore directed the Respondent's release. The Relevant Law[15]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.[16]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)).[17]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[18]The Respondent has submitted late representations in response to the application. Although the deadline for submission has passed, they arrived before the decision was complete and I have therefore considered them in fairness to the Respondent. Discussion[19]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 for release was made. The application refers to a decline in his custodial behaviour since September 2025 during which he received nine negative entries and was placed on report for three adjudications. Five negative entries resulted from the Respondent being reportedly found under the influence of substances in his cell. The others were for reported possession of drug paraphernalia, being rude/abusive to staff, refusal to attend work and being in the corridors after movement had ceased. The adjudications were for possession of unauthorised articles (not proceeded with), being present somewhere without authorisation (scheduled) and using threating, abusive or insulting words or behaviour (scheduled).[20]It is noted that the decision mentioned the Respondent's previous substance misuse in custody, but (at the time of the hearing) there had been no significant concerns of note since June 2025. Neither the POM nor COM supported release at the hearing, and both had concerns that the Respondent's improved custodial behaviour had only been evidence for a relatively short period.[21]Moreover, it is also reported that on the day following the hearing, the prison drug dog indicated on the Respondent's partner on a visit. She denied taking, or being around, drugs, refused a closed visit and left. The Applicant submits that this raises further concerns about potential substance misuse in the community.[22]The professional consensus from both the POM and COM is that the Respondent was superficially compliant in the lead up to his hearing. Their view not to support release is said to have been "strengthened" .[23]The representations acknowledge some substance misuse (NPS) following the hearing and attribute this to bereavement and anxiety surrounding the parole process, compounded by a temporary suspension of ADHD medication. It is said that the Respondent has since abstained for several weeks, resumed work and engagement with the Inclusion team, and remains motivated to progress. The representations also clarify that the allegation concerning the Respondent's partner bringing drugs into the prison has not been substantiated, and that the majority of the reported adjudications were dismissed, with one remaining under appeal.[24]I accept that these submissions provide context and some mitigation for the recent deterioration in the Respondent's behaviour. They demonstrate a degree of insight and an ongoing commitment to change. Nevertheless, they do not remove the central difficulty that the Respondent's custodial conduct declined sharply shortly after the oral hearing, directly undermining the panel's conclusion that his apparent stability and internal control had been sustained. The credibility of that short period of stability was critical to the panel's risk assessment. The later explanation does not alter the fact that the underlying behaviour occurred, nor that it would have been regarded as material by the original panel had it been known at the time.[25]While the professional consensus remains that the principal concern lies in compliance rather than the risk of serious harm, compliance itself is integral to public protection and to the operation of the proposed risk management plan.[26]Although the Respondent's substance misuse is well known, and the incidents reported within the application are consistent with his history, the decision to release him appeared to be predicated on a relatively short term period of stability in custody. I find that, if the panel had been presented with the detail of his negative behaviour it would not have directed his release. At the very least, it would have adjourned for further information in relation to the behaviour entries and the outcome of the pending adjudications.[27]It is in the interests of justice to set aside the decision because the information that has since emerged fundamentally alters the evidential landscape upon which the release direction was made. The panel's assessment of the Respondent's risk was expressly dependent on a short and recent period of improved behaviour in custody, which has now been shown to have deteriorated significantly shortly after the hearing. The new material raises legitimate concerns about the reliability of that apparent stability and about the Respondent's capacity to maintain compliance in the community. Allowing the release direction to stand in these circumstances would undermine public confidence in the integrity of the parole process and risk defeating the statutory purpose of protecting the public. A fresh review will ensure that the decision is made on a complete and accurate understanding of the Respondent's current risk and behaviour. Decision[28]For the reasons set out above, the application for set aside is granted. Stefan Fafinski 22 October 2025