Atthis, Application to Set Aside, [2025] PBSA 87 (26 November 2025) [2025] PBSA 87
[1]This is an application by Atthis (the Applicant) to set aside the decision not to direct his release. The decision was made by a panel at an oral hearing on 14 October 2025. This is an eligible decision.[2]I have considered the application on the papers. These are: · The dossier now comprising 378 numbered pages; · The decision (DL) dated 20 October 2025; and · The application for set aside dated 6 November 2025 Background[3]On 10 March 2022 the Applicant was sentenced, following a trial, to a total of four years imprisonment for four counts of child cruelty contrary to s. 1 Children and Young Persons Act 1933 ("the index offences") to be served consecutively to sentences of imprisonment imposed for robbery, obstruct PC and burglary.[4]The Sentence Expiry Date is in June 2028.[5]The Applicant committed the index offences of assault and ill-treatment of a child x4 between January 2018 and February 2019 when he lived with his ex-partner and her four children, two girls and two boys aged 13, 11, 9 and 6 respectively. Over that time period the children were physically and verbally abused. In addition, the boys were assaulted and forced to carry knives and machetes and the Applicant smoked cannabis and displayed sexual acts and acts of violence in front of the children. He acknowledged using and selling drugs during this time.[6]The Applicant has an extensive criminal record of convictions, since the age of 14, for 66 offences including robbery, possession of an offensive weapon, assault, ABH, public order, burglary, theft and other dishonesty and driving matters. He has also breached court orders and bail requirements.[7]The Applicant is 38 years of age and was aged 34 at the time of sentencing for the index offences.[8]The Applicant was released automatically on licence on 17 July 2024. He was recalled on 2 August 2024 but was not returned to prison until 14 August 2024, having absconded from Approved Premises (AP) and been unlawfully at large for 11 days. The Applicant accepted that his recall was appropriate.[9]T his was his first review. Application for Set Aside[10]The application for set aside has been drafted on behalf of the Applicant by his solicitors. It states that it "is made on the basis that there was closely intermingled errors of fact and law" in the DL. I will deal with these matters in detail in the Discussion section of my decision . Current parole review[11]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.[12]The case proceeded to an oral hearing on 14 October 2025 before a panel of two independent members of the Parole Board, one of whom acted as the Chair.[13]The panel heard oral evidence from the Prison Offender Manager (POM), the Community Offender Manager (COM) and the Applicant who was legally represented throughout.[14]The panel did not direct the Applicant's release. The Relevant Law[15]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.[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 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[18]PPCS on behalf of the Respondent confirmed by email dated 7 November 2025 that no representations are offered in response to the application . Discussion[19]My task in dealing with this application has been made considerably more difficult by the manner in which it has been presented and the submissions which have been made.[20]As the Applicant is serving a determinate sentence of imprisonment, the reconsideration process is not available but, nevertheless, his solicitors have seen fit to assert irrationality (paras. 13, 26, 30 and 32 of the application) and to devote a considerable portion of the application to setting out the Board's general powers and, in particular, to the judicial review jurisdiction with numerous citations.[21]It would have been more helpful to me if the extensive submissions provided had focused on the specific grounds upon which a set aside application may be made.[22]However, in fairness to the Applicant and in deference to what may be legitimate arguments to be made on his behalf, I have attempted to extract from the application the material which raises issues for consideration within the set aside jurisdiction.[23]These would appear to centre on the Panel "erring" in concluding that there was further work for the Applicant to complete in custody and a failure by the panel to provide adequate reasons for finding that the Applicant's risks could not be safely managed in the community under the risk management plan (RMP) and for declining to accept the "expert evidence" of the POM and the COM who both recommended a direction for release.[24]Whilst noting that the COM and the POM are, for obvious reasons, more properly described as professional rather than expert witnesses, I start, of course, from the position that the views of all professional witnesses must be properly considered by the panel although it is not bound to accept their assessment. It must, nevertheless, make clear its reasons for disagreeing with such assessments.[25]The panel made a number of relevant findings. It was satisfied that the Applicant's offending history demonstrated a propensity to be violent towards a range of individuals including males, females, partners and children.[26]The Panel accepted that, since his recall, the Applicant had demonstrated a period of positive behaviour in custody which was to his credit but it did, nevertheless, find that he was not always able to apply the learning from the Thinking Skills Programme (TSP), which he had completed, when he felt anxious and upset.[27]The Panel also noted that the Applicant had a conviction for assaulting his ex-partner, who was the mother of the victims of the index offences, and that he was assessed to be a High risk in relationships to partners and to others with a High risk of causing serious harm to known adults due to the violence within his previous relationships.[28]The Panel also concluded that the Applicant posed a risk of general and intimate partner violence and this was particularly relevant to any future relationships if there were children in the household because of the previous evidence of domestic abuse and the nature of the index offences.[29]As to the need for the Applicant to undertake further work and whether that should be in custody or the community, the Panel had no difficulty in finding that, despite the work covered in the TSP, the Applicant had not completed any risk reduction work specifically in respect of intimate partner violence given the COM's evidence to the panel that the Applicant had not completed risk reduction interventions in respect of interpersonal violence and there was outstanding work to be completed.[30]The panel was also told that the Applicant had been identified as eligible for the Building Choices High Intensity programme although the POM confirmed he would not be eligible for the course for some considerable time because he had recently completed TSP.[31]In addition, the COM expressed the opinion that, although a Building Choices programme was available in the community, this was not to the same intensity as the one delivered in custody.[32]The Panel noted that the Applicant had spent a significant period of his adult life in custody and had accepted in evidence that he struggled to read other people's emotions or see things from their perspective. The Panel was therefore concerned that this would continue to pose a risk in relationships until sufficient interventions had taken place in custody to reduce that risk.[33]On the basis of the evidence it received and the findings that it made, the Panel formed the clear conclusion that the Applicant had outstanding work to complete in custody on relationships which included intimate and non-intimate personal relationships and that there was also outstanding work in respect of victim awareness.[34]I can discern no error of fact in this regard.[35]The Panel stated that it had carefully considered the views of the professionals about the Applicant's risk and whether or not he could be managed safely on licence and found that the RMP was not robust enough to manage him in the community.[36]I find that it set out its reasons at some length. The panel found that the Applicant responded well to the structure and routine in custody but that this would be largely absent in the community and that he would find this particularly challenging once he had to leave the AP.[37]It noted the view of the COM that it was not ideal that the RMP envisaged the Applicant being managed by a "caretaking COM" since he needed time to build relationships and trust with professionals.[38]The panel also found that the Applicant did not have any definite plans as to where he wanted to live if released, did not have a strong support network in the community and would be heavily reliant on professional services. In addition, he was unlikely to have constant support available to him and the panel was concerned that he had a history of demonstrating negative, impulsive and reactive behaviour in response to disappointment both in custody and in the community.[39]The Panel was not persuaded that the Applicant would comply with his licence conditions if re-released given his extensive history of non-compliance and absconding on licence and the Panel found that he had repeatedly struggled in the community throughout his adult life, that his risk was linked to his emotional response to challenging situations and it was not convinced by his evidence that he had sufficient internal controls to react differently in the future.[40]Referring specifically to the views of the two professional witnesses from which it differed, the Panel found that they had placed a significant amount of weight upon the completion of one programme which had not prevented the Applicant from reacting impulsively and receiving adjudications since his recall to prison. He had not undertaken the specific risk reduction interventions identified as essential work for him to complete and it took into account that he had previously resisted the completion of offending behaviour work whilst in the community.[41]The panel concluded that the COM and POM had placed undue emphasis on his custodial behaviour and completion of TSP and insufficient weight on his history of previous offending and risk in relationships.[42]Having carefully analysed the documentation before me I am in no doubt that the panel provided more than adequate reasons for declining to accept the recommendations of the two professional witnesses and for finding that the Applicant had outstanding risk-related work to complete in custody prior to any release back into the community.[43]The Applicant's solicitors submit that the panel did not properly consider certain elements of the codified public protection test which is, of course, included in the body of the DL.[44]In fact, the Panel confirms that it reviewed the codified public protection test to consider future risk and determine whether release would cause more than a minimal risk of serious harm to the public. The Panel concluded that, on the basis of the evidence available to it, the risk to children, the public and known adults would be prevented or reduced by the Applicant's continued detention and that he posed more than a minimal risk of serious harm.[45]Upon careful consideration of this application, I do not find any evidence to support this submission and am satisfied that the panel has not fallen into error as to either fact or law.[46]The balance of the Applicant's submissions are essentially a re-statement of the reasons put forward in support of his application for release during the hearing and in his solicitors' closing written submissions with further arguments in support of his position.[47]I find that the panel, having read the dossier and heard the relevant evidence including from the Applicant, has set out its findings with considerable clarity and appropriate detail, having come to its own judgement in relation to risk-related issues, which is, of course, a matter pre-eminently for the panel. Decision[48]I have carefully considered this application. I can find no errors of fact or law 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 entirely without merit and it is refused. PETER H. F. JONES 26 November 2025