Walsh, Application for Set Aside by the Secretary of State for Justice [2025] PBSA 83 (11 April 2025) [2025] PBSA 83
[1]This is an application by the Secretary of State for Justice (the Applicant) to set aside the decision to direct the release of Walsh (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 212 numbered pages), the decision (dated 29 September 2025), and the application for set aside (dated 3 November 2025). Background[3]On 18 May 2022, the Respondent was convicted after trial for causing grievous bodily harm with intent to do grievous bodily harm and received a sentence of imprisonment for 46 months. On 10 January 2023, he was further convicted on four counts of handling stolen goods (cars taken from domestic burglaries) to which he pleaded guilty. He received determinate sentences of 20 months (consecutive to the GBH sentence), 14 months, 14 months, and 10 months respectively.[4]He was automatically released in October 2024 but recalled in January 2025 following his arrest and charge in connection with alleged involvement in handling a stolen car. He was convicted and received a further nine month custodial sentence.[5]His sentence is reported to end in June 2027.[6]The Applicant was 21 years old at the time of sentencing and is now 25 years old. Application for Set Aside[7]The application for set aside has been drafted and submitted by the Public Protection Casework Section (PPCS) acting on behalf of the Applicant.[8]The application for set aside submits there is further information constituting a significant change in circumstances which impacts the risk management assessment and 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.[9]The content of the application will be considered in the Discussion section below. Current Parole Review[10]The Respondent's case was referred to the Parole Board by the Applicant to consider whether to direct his release.[11]The case proceeded to an oral hearing on 29 September 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.[12]The panel took full account of the seriousness of the index offences and the Respondent's extensive history of offending, including a demonstrated capacity to cause harm. However, it found that the combination of protective factors and strengthened risk management arrangements meant that the risk of serious harm could be managed safely in the community. The Respondent demonstrated insight into his behaviour and an emerging ability to reflect on his conduct, accepting responsibility for his past actions and expressing a clear wish to lead a more stable and prosocial life. He had completed victim awareness work in custody, articulated realistic goals for education and employment, and was assessed as motivated to comply with supervision.[13]The panel accepted that his violence was reactive rather than targeted or premeditated, that there was no entrenched pattern of serious violent offending, and that the greater likelihood of reoffending was through low-level acquisitive behaviour rather than violence. Crucially, the Respondent's previous recall followed an unplanned release to his father's home after a place in designated accommodation fell through on the day of release, leading to homelessness and instability. On this occasion, by contrast, the panel was satisfied that confirmed designated accommodation would provide the necessary structure, supervision, and support to promote desistance and manage risk.[14]Taken together with a comprehensive set of additional licence conditions (including curfew, drug testing, engagement with the Integrated Offender Management team, and attendance at medical and offending behaviour appointments) the panel judged that any residual risk could be identified and addressed promptly by supervising professionals. It therefore concluded that continued confinement was no longer necessary for public protection and directed the Respondent's release on licence to designated accommodation. 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 representations in response to the application which are considered in the Discussion section below. Discussion[19]The Applicant is seeking to set aside the release decision on the ground that there has been a change in the Respondent's circumstances since the direction for release was made.[20]The application reports that, following the panel's decision, the Respondent's behaviour in custody reportedly deteriorated significantly. The Applicant states that the Respondent became aggressive and threatening towards staff, repeatedly refused to return to his cell, and on several occasions had to be restrained by officers. He is said to have climbed on the wrong side of an elevated railing, set off the fire alarm in his cell, and been placed on an ACCT after disclosing that he felt he might " do something mad ," referencing previous incidents of violence and fire-setting. On 17 October 2025, the Respondent allegedly started a fire in his cell, remained inside for 20 minutes, and was subsequently taken to hospital for treatment. The matter has been referred to the police, and his risk of serious harm has been reassessed as having increased, with new concerns about fire-setting and emotional instability.[21]The Applicant further explains that the designated accommodation originally identified for release withdrew its offer following the fire, necessitating alternative placement at another location distant from the Respondent's existing support network. The COM considers that this separation, coupled with the Respondent's recent behaviour, heightens the risk of non-compliance and undermines his manageability in the community. The Applicant therefore argues that the panel's original conclusion that the risk of serious harm could be managed safely in the community under licence would not have been reached had this information been available at the time.[22]I have also considered in full the detailed representations submitted on the Respondent's behalf. These provide explanations for many of the incidents relied upon by the Applicant, including assertions that aggression or threats toward staff are disputed, that difficulties returning to his cell are longstanding and linked to neurodivergence, and that the railing incident and overdose occurred during a period of acute distress arising from unresolved healthcare needs and frustration about medical treatment. The Respondent further explains that the fire was set during a period of significant depression, anxiety about release arrangements, and a perception that professionals were not communicating with him about his risk management plan. He expresses remorse and states that he does not intend to repeat such behaviour. Positive developments such as reclassification to standard IEP, constructive engagement with staff, and employment as a reading champion were also highlighted.[23]I accept that these explanations are offered in good faith and that the Respondent may have experienced distress in the period following the release direction. However, the explanations do not alter the nature, severity, or relevance of the behaviours themselves, nor do they challenge the fact that such behaviours occurred. For the purposes of a public protection assessment, the Parole Board must focus on the behaviour and its implications for risk. Even in the most favourable interpretation, the representations confirm that the Respondent experienced a period of emotional instability during which he climbed on a railing, made an overdose attempt, and deliberately set a fire in his cell. Those behaviours engage precisely the same domains of impulsivity, emotional dysregulation, and escalation under pressure that the panel considered central to community risk management.[24]The new information provided by the Applicant is therefore material, credible, and directly relevant to the public protection test. The reported deterioration in behaviour, culminating in deliberate fire-setting and a police referral, represents a substantial and qualitatively different escalation compared to the relatively contained custodial incidents considered at the hearing. The Respondent's own explanations, while mitigating in tone, reinforce rather than diminish the conclusion that he struggled to manage stress and frustration safely. The behaviour therefore constitutes a significant change in circumstances.[25]The new information also bears a clear and direct nexus to the risk factors identified by the original panel. The panel recognised that the Respondent's risk of serious harm was elevated when unsupported, emotionally unstable, or reacting to confrontation. His subsequent difficulties in emotional regulation and fire-setting behaviour demonstrate activation of those very triggers. They indicate a current inability to manage stress, frustration, or perceived challenge without resorting to dangerous behaviour. The deterioration therefore goes to the heart of the panel's earlier conclusion that his risk could be managed safely in the community.[26]Community manageability is further undermined by the withdrawal of the designated accommodation that formed a core component of the release plan. The representations state that the Respondent was unaware of the original placement and felt distressed by perceived lack of communication, but they do not dispute that the original placement is no longer available. The new placement, which is geographically distant from support networks, represents a materially weakened structure compared to that relied upon by the panel. The combined effect of the changed behaviour and the altered accommodation arrangements is that the risk management plan is now significantly less protective.[27]I am satisfied that the panel would not have directed release had these developments been known at the time. The original decision was finely balanced, with the panel acknowledging persistent custodial violence but relying on improved stability, compliance, and accommodation prospects to conclude that risk was no more than minimal. The subsequent fire-setting and loss of the original placement fundamentally alter that balance. The explanations offered by the Respondent do not remove the public protection concerns arising from these events. On that basis, the statutory threshold for setting aside is met.[28]It is in the interests of justice for the decision to be set aside because the Respondent's conduct and circumstances have changed in a way that materially undermines the foundation of the release direction. The Parole Board's overriding duty is the protection of the public. The emergence of credible, contemporaneous evidence of deliberate fire-setting, increased instability, and a weakened risk management plan means that the release decision can no longer safely stand. Setting the decision aside enables a full re-examination of the Respondent's risk on current evidence, including the outcome of the police investigation and updated professional assessments. Decision[29]For the reasons set out above, the application for set aside is granted. Stefan Fafinski 26 November 2025