Mason, Application to Set Aside, [2025] PBSA 92 (4 December 2025) [2025] PBSA 92
[1]This is an application by the Secretary of State (the Applicant) to set aside the decision to direct Mason's (the Respondent's) release. The decision was made by a panel after an oral hearing on 7 October 2025. This is an eligible decision.[2]I have considered the application on the papers. These are the dossier, the oral hearing decision dated the 14 October 2025, the representations on behalf of the Respondent and the application for set aside dated 19 November 2025. Background[3]On 4 March 2019 the Respondent was sentenced to a period of imprisonment of 10 years in respect of a series of offences. The offences were three offences of burglary of a dwelling house; a further four burglaries of dwelling houses with intent to steal; two offences of attempted burglary; five offences of false representation for gain; two offences of stealing vehicles; an offence of handling stolen goods and an offence of theft from a dwelling house. The offences were committed in June 2018. The Respondent targeted properties to burgle indiscriminately. He was under the influence of alcohol and drugs at the time. The offences were committed at a time when the Respondent was misusing class A drugs including crack cocaine and heroin and spice. The Respondent has a history of offending which is extensive. There are 31 previous convictions noted by the Parole Board panel member. There are 90 separate offences noted. The panel member who had directed release indicated that the Respondent had a history of class A drug use which underpinned most of his offending behaviour. He also had a history of domestic violence and previously breached a restraining order. His offending, particularly offences of domestic burglary create a high risk of causing psychological harm to many victims.[4]The Respondent was aged 44 at the time of sentencing. He is now 51 years old.[5]The Respondent was automatically released on 11 August 2023. He was recalled on 13 August 2023. The circumstances of the recall were that the Respondent presented to approved premises on the day of his release from prison under the influence of drugs. He was not immediately recalled but due to his physical presentation, slurred speech and general behaviour it was clear that he was affected by drug misuse. He was recalled on the basis that his initial offending was associated with a burglary "spree" associated with drug misuse. Application for Set Aside[6]The application for set aside has been drafted and submitted by the Public Protection Case Management Section (PPCS) on behalf of the Applicant.[7]It submits that there has been a change in circumstances. The position is that the Respondent has been found under the influence of illicit drugs on two occasions, the first on 15 October 2025 the day after his notification that he had received a direction for release. He was again observed by the prison to be under the influence of drugs on 28 October 2025. The basis of the application is that the decision to direct release was posited on the fact that the Respondent had been abstinent of drugs for a period of time in prison. He had made progress in dealing with substance misuse and was working with the appropriate services to maintain his sobriety. As a result of the fact that the Respondent had demonstrated an ability to manage his drug misuse the Community Offender Manager ( COM ) and the Prison Offender Manager ( POM ) had both supported release on the basis that the Respondent's risk could be safely managed as he had appeared to stabilise in terms of drug misuse. The current position is that both professionals now indicate that they cannot continue to support release because of the relapse into drug misuse and the potential for serious harm arising from the possibility of parallel offending. Current parole review[8]The Respondent's case was referred to the Parole Board by the Applicant to consider whether to direct release.[9]The case proceeded to an oral hearing on the 7 October 2025 before a single member panel. The panel received evidence from the Respondent, his POM, and his COM. The Respondent was legally represented throughout the hearing.[10]The panel directed the Respondent's release. The Relevant Law[11]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.[12]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)).[13]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[14]The Respondent has offered representations in response to this application which I will refer to below . Discussion[15]Having considered the representations by the Applicant in this case it is apparent that a change in circumstances relating to the Respondent has occurred. That change in circumstances occurred after the direction for release had been given. The change in circumstances is clearly the relapse into drug misuse after a period of stability and abstinence.[16]I must therefore consider whether the direction for release would not have been given if the change in circumstances had occurred before the decision by the panel member.[17]The panel member set out the reasons why the decision to release had been made. Primarily the decision was based upon the fact that for the 12 month period before the decision the Respondent had been abstinent of drug use within the prison. There had been one relapse in May 2025. Following that relapse the Respondent had moved to a drug rehabilitation wing and had resisted relapse into drug misuse. The single member indicated that the basis of the decision to direct release was that the Respondent had been engaging with support through substance misuse team and was motivated to continue with abstinence in the community. An additional factor was that the professionals were both supportive of a direction for release based upon the Respondent's management of his drug misuse problem.[18]It is clear that the Respondent's relapse into drug misuse is a fundamental factor in assessing this application. The Respondent's risk of serious harm arises when he has relapsed into drug misuse and becomes involved in criminal behaviour such as domestic burglary causing psychological harm and risk to the public.[19]The Respondent's legal adviser has submitted representations in relation to this matter. The representations indicates that the Respondent accepts that there were two separate allegations of him being found under the influence of substances. However, it is submitted that since those two allegations there have been negative drug tests and therefore there is proof that he has not been using drugs since those drug tests were taken. It is also submitted that the Respondent remains on a drug recovery wing. It is submitted that he would not be on that wing if the allegations were true.[20]The Respondent's legal adviser finally submits that the claims of the Respondent being under the influence "are baseless" .[21]The position appears to be therefore that the Respondent accepts that two allegations were made about him being under the influence of drugs. The allegations were not pursued to adjudications, and he was not tested at the time of the allegations. The Respondent appears to have instructed his legal adviser that the allegations are untrue.[22]In my determination there is clearly an issue as to whether the Respondent relapsed into drug taking in accordance with the allegations or whether those allegations lack credibility and therefore could not be relied upon. For the purposes of an application to set aside I must consider whether the release decision would have been made in the circumstances of an allegation of a relapse into drug misuse.[23]It is clear that a decision maker would be required to investigate the circumstances of the allegations of drug misuse and to reach a conclusion on the balance of probabilities relating to those allegations. Once such a decision was reached a further review of risk would need to be applied.[24]I am therefore satisfied that the decision to direct release would not have been made if the decision maker had been aware of the allegations of a relapse into drug misuse by the Respondent.[25]I must also consider whether it is in the interests of justice to set aside the decision. It is quite apparent that in terms of the safety of the public it will be necessary for those who are supporting the Respondent to re-engage in terms of managing his drug misuse and risk. Given the immediacy of the likely risk to the public I am satisfied that it is in the interests of justice for the decision to be set aside. Decision[26]The application for set aside is granted. HH Stephen Dawson 04 December 2025