Bailey, Application for Set Aside by the Secretary of State for Justice [2026] PBSA 11 (27 March 2026) [2026] PBSA 11

PBSA

Bailey, Application for Set Aside by the Secretary of State for Justice [2026] PBSA 11 (27 March 2026)

[2026] PBSA 11 · 2026-02-27

[1]This is an application by the Secretary of State for Justice (the Applicant) to set aside the decision to direct the release of Mr Bailey (the Respondent). The decision was made by a panel on the papers . This is an eligible decision.

[2]I have considered the application on the papers. These are the dossier (now consisting of 247 numbered pages), the decision (dated 27 February 2026), and the application for set aside (dated 13 March 2026). Background

[3]On 14 November 2023, the Respondent was convicted of two counts of possession of a controlled Class A drug with intent to supply (heroin and crack cocaine) to which he pleaded guilty. He received two concurrent four year determinate sentences.

[4]The Respondent was 32 years old at the time of sentencing and is now 35 years old.

[5]He was automatically released on licence on 25 November 2024. His licence was revoked on 24 October 2025, and he was returned to custody the same day.

[6]His recall followed his arrest and charge for possession of Class A drugs with intent to supply (heroin and crack cocaine).

[7]The matter was subsequently marked as no further action. A police report within the dossier (dated 20 January 2026) notes that lab results were not provided in time and all other reasonable lines of enquiry had been pursued.

[8]A report from the Community Offender Manager (dated 27 January 2026) notes that Investigations into the allegations were ongoing, and the charges and prosecution may be reinstated. Application for Set Aside

[9]The application for set aside has been drafted and submitted by the Public Protection Casework Section (PPCS) acting on behalf of the Applicant.

[10]The application for set aside submits there is new information, constituting a significant change in circumstances, which impacts the risk management assessment and has come to light since the panel directed the Respondent's release.

[11]The content of the application will be considered in the Discussion section below. Current Parole Review

[12]The Respondent's case was referred to the Parole Board by the Applicant to consider whether or not it would be appropriate to direct his release.

[13]The case was reviewed on the papers by a single-member panel.

[14]The panel accepted that the Respondent's offending history showed a clear pattern of drug supply and included earlier violent behaviour, including a robbery conviction and a domestic battery offence. It also noted adjudications for fighting in custody in 2019. However, the panel considered that the most recent violent behaviour was relatively historic and that his current risk profile did not demonstrate an escalation of risk of serious harm.

[15]In considering the Respondent's more recent conduct, the panel placed weight on the fact that he had been released automatically in November 2024 and had complied well with probation supervision in the community for nearly a year. During that period there were no reported concerns regarding his behaviour. Since his recall to custody, there had likewise been no reports of problematic behaviour.

[16]The recall had followed charges relating to further drug supply offences. However, the police investigation was discontinued due to evidential difficulties, and no further action was being taken at that time. While the panel considered that the circumstances suggested the Respondent may have been associating with individuals involved in drug dealing, it did not regard it as fair to delay a decision on re-release while uncertainty remained about whether any further proceedings might occur.

[17]The panel accepted the professional assessment that the Respondent's likelihood of reoffending was assessed as medium overall. It considered that this level of risk could be managed in the community through licence conditions. The panel also noted that the Respondent had accommodation available, had family support, had expressed willingness to comply with licence conditions, and that there was a community management plan in place which was judged capable of managing the identified risks.

[18]Taking these matters together, the panel concluded that the Respondent's risk could be safely managed in the community on licence and therefore directed his release. The Relevant Law

[19]Rule 28A(1)(a) of the Parole Board Rules (as amended by the Parole Board (Amendment) Rule 2025 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.

[20]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)).

[21]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 would not have been given if information that had not been available to the Board when the direction was given had been available, or b) 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.

[22]In R(Umar Jones) v Parole Board

[2025] EWHC 3216 (Admin)

the High Court held that the words " would not have been given " within rule 28A(4) had their natural and ordinary meaning, not qualified by probability or likelihood. The court held that, in deciding whether or not a direction would have been given, the decision-maker is required to consider the evidence relied upon in the set aside application in the context of the evidence before the panel which made the release direction, giving sufficient consideration to its nature, relevance, reliability and cogency in the light of the facts of the particular case. The reply on behalf of the Respondent

[23]The Respondent submitted no representations in response to the application before the statutory deadline. Representations were received out of time, but with no application or reasons for late service. In any event, given my decision, the Respondent is not disadvantaged by the refusal to permit late service. Discussion

[24]The Applicant notes that the Respondent does, in fact, have outstanding criminal charges for which he is on conditional bail. This appears to be in connection with an allegation of assault by beating committed on 11 May 2025 with the next hearing having been listed for May 2026.

[25]It is argued that had this information been available at the time of the hearing, it may have had a bearing on the panel's assessment of the Respondent's risk and overall suitability for release.

[26]I accept that the information relied upon in the application was not before the panel when it directed the Respondent's release. The question I must therefore determine is whether the release direction would not have been given had the information been available at the time the panel made its decision. It is not sufficient that the information might have affected the panel's reasoning.

[27]In answering that question, following Jones , I must consider the nature, relevance, reliability and cogency of the information relied upon, in the context of the evidence that was before the original panel.

[28]The information relied upon concerns an allegation of assault by beating for which the Respondent is said to be on conditional bail. No details are provided regarding the circumstances of the allegation, the strength of the evidence or the level of harm said to have been caused.

[29]The panel that directed the Respondent's release was already aware that his recall followed criminal allegations relating to further drug supply offences. The panel considered those matters carefully. It concluded that, notwithstanding those allegations, it would not be fair to delay a decision on the Respondent's suitability for release pending the outcome of uncertain criminal proceedings.

[30]The information now relied upon does not materially alter that position. Moreover, it does not undermine the reasoning adopted by the panel when deciding to direct the Respondent's release.

[31]The alleged offence is unrelated to the index offending, which concerns the supply of Class A drugs. While the Respondent does have some history of violence, the panel noted that the most recent violent behaviour identified in the dossier dated from 2019 and did not indicate a current escalation of risk of serious harm.

[32]The new information therefore amounts to an allegation of a relatively low-level violent offence for which the Respondent has not been convicted and in respect of which limited evidential detail has been provided.

[33]In those circumstances I am not satisfied that the panel would not have directed release had this information been available to it. Indeed, the Applicant only goes so far as to contend that the panel might not (rather than would not) have directed release.

[34]The panel's reasoning focused on the Respondent's demonstrated compliance on licence for almost a year, the absence of concerning behaviour since recall, the assessed level of risk, and the availability of a community management plan capable of managing that risk.

[35]Nothing within the information relied upon undermines those conclusions. The statutory criteria for setting aside the decision are therefore not met. Decision

[36]For the reasons set out above, the application for set-aside is refused. Stefan Fafinski 27 March 2026