Lawton, Application for Set Aside by the Secretary of State for Justice [2026] PBSA 8 (16 March 2026) [2026] PBSA 8
[1]This is an application by the Secretary of State for Justice (the Applicant) to set aside the decision to direct the release of Lawton (the Respondent). The decision was made by a panel after an oral hearing on 12 January 2026. This is an eligible decision.[2]I have considered the application on the papers. These are the dossier, the oral hearing decision dated 13 January 2026, the application for set aside, and the representations on behalf of the Respondent. Background[3]The Respondent was sentenced on 21 March 2022 to a determinate sentence of six years imprisonment. Details of the sentence and offences are below.[4]The Respondent was aged 20 at the time of sentencing. He was aged 23 at the time of the oral hearing decision.[5]He was automatically released on licence on 14 May 2024. His licence was revoked on 12 July 2024, and he was returned to custody on 13 July 2024. This is his first recall on this sentence, and his first parole review since recall. Application for Set Aside[6]The application for set aside has been drafted and submitted by the Applicant.[7]It submits that there has been new information. Details of the application are set out below. 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 before a single member panel. The panel heard evidence from the Respondent, his Prison Offender Manager ( POM ), his Community Offender Manager ( 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 2025) (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 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 would not have been given if information that had not been available to the Board 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.[14]In Jones [2025] EWHC (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 question is whether the new information or change of circumstances means that the original panel would not have directed release. 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[15]The Respondent has offered written representations in response to this application . Those representations were considered and are referenced below. Background[16]The primary index offence was robbery (August 2019). The Respondent with two co-accused lured a delivery driver to a location. Having threatened and assaulted the driver, one of the three co-accused opened the door of the driver's vehicle and pointed a knife at his face. There was then an attempt to physically remove the driver from his car. There was a scuffle and eventually the driver managed to escape by driving off. He then called the police.[17]A second offence was committed on the same day. A taxi driver was lured to an address. The Respondent with others attacked the taxi driver and stole a wallet and cash.[18]The third offence was committed on 3 May 2021. The Respondent again with others, flagged down a driver and passenger. The Respondent and his co-accused falsely indicated that they were being chased by people who were intent on stabbing them. The driver (who was accompanied by his father who is disabled) agreed to take them out of the area. On entering the vehicle one of the co-accused grabbed a black wallet from the centre console and the Respondent and his co-accused ran away. They were chased by the driver who was threatened by the Respondent and the co-accused who were armed with knives. At one point the victim was subject to an attempt to stab him. The Respondent also picked up a bottle and threw it at the victim.[19]The recall incident occurred following an incident reported to the police on 12 July 2024. The police information was that the driver of a vehicle was approached by three individuals one of whom was suspected to be the Respondent, the other the Respondent's brother. They were seen to be in a red vehicle which was described as being at the scene of the incident. The perpetrators were seen to have a machete and to have struck a victim. A firearm was also observed.[20]So far as the recall incident is concerned the police investigated the incident however the outcome was that there was insufficient evidence to identify the perpetrators and the matter was not therefore proceeded with by the police.[21]So far as previous convictions are concerned, the Respondent was convicted of three robbery offences in 2019. He was also convicted of conspiring to commit acts which would have the intent to pervert the course of justice in 2020.[22]The Respondent's case was referred to the Parole Board by the Applicant to consider whether the Respondent should be subject to a direction for release. The Respondent came before a panel of the Parole Board in January 2026. The panel directed release.[23]The hearing had been delayed to await the outcome of the police enquiry into the circumstances which led to the recall.[24]The panel indicated in their written decision that the relevant risk factors were pro-criminal attitudes; offending with other negative associates; violence with weapons; a lack of victim empathy; poor thinking and coping skills and a resistance to supervision.[25]The panel noted that since recall the Respondent has had several adjudications relating to the possession of weapons and other unauthorised items as well as other prison discipline issues. He had told the panel that he had a weapon when he was recalled as he felt under threat in a volatile environment. He told the panel that if he felt under threat in the community, he would seek help rather than use weapons.[26]The Respondent was assessed as being suitable for a behavioural programme but was not able to undertake the programme because of a lengthy waiting list.[27]The Respondent was assessed by the probation service as having a high probability of both violent and general offending and if he did offend there was a high risk of serious harm being caused to the public. The Respondent's COM did not recommend release. The COM took the view that the Respondent's propensity to be violent needed to be addressed through core risk reduction work based on the Respondent's historical violence. The COM had noted in reports that it was the belief of the probation service that the Respondent demonstrated superficial compliance when in the community.[28]The Respondent told the panel that he had matured, and he would avoid conflict situations or becoming involved with negative peers as had happened in the index offences.[29]The Respondent's POM recommended release saying that she took the view that the Respondent was motivated to avoid further offending.[30]The panel indicated that they had taken account, "in making the decision", of the content of the proposed licence conditions, which included not associating with co-defendants (including his brother).[31]So far as the matters which led to the recall were concerned, the panel concluded that they could attach "no weight to these allegations" as no charges had been brought and the Respondent denied any involvement.[32]From the analysis of the panel's decision it is clear that the panel made their decision on the basis that(a) there was insufficient evidence to support the allegations which led to the recall which involved threats of violence and association with peers(b) that they accepted that the Respondent had matured and would avoid conflict situations(c) that they accepted that the Respondent would avoid co-defendants which would include his brother(d) that the Respondent would be compliant with the risk management plan and licence conditions and would undertake further work in the community to address his risks.[33]Subsequent to the oral hearing panel's decision, the Applicant has applied for the decision to be set aside. The basis of the application is that the direction for release would not have been made if information that was not available to the panel when the direction was made had been available.[34]The information relied upon by the Applicant was detected by the prison who had monitored phone calls between the Respondent and the partner of the Respondent's brother. The partner had enabled the Respondent to speak to his brother by facilitating a three-way call from the prison.[35]By engaging in a three-way call with his brother, the Respondent was in breach of prison regulations and the regulations relating to the use of prison phone numbers.[36]The engagement was also contrary to the representations by the Respondent that he was no longer intending to associate with antisocial peers including his brother.[37]The content of the verbal exchange between the Respondent and his brother were monitored and recorded in writing. During the course of the call the Respondent discussed with his brother the need to secure items which he called "mindies" (street slang for knives). Also discussed were the potential for carrying "shanks" (again street slang for knives).[38]The Respondent on another occasion told his brother's partner that he was under the influence of MDMA.[39]The Applicant also notes that there had been negative entries since the Parole Board decision, one entry involved refusing to exit a prisoner's cell when requested to do so by staff and a second entry related to continuing to cover an observation panel when being asked not to by staff. Both being issues relating to compliance.[40]The evidence supporting the application for the matter to be set aside has been presented by the Applicant by way of a written spreadsheet setting out the dates and times of the telephone conversations and the content of those conversations. The conversations appear to have been recorded and later monitored and summarised in writing.[41]The spreadsheet has been made available to the Respondent's legal adviser. The Respondent's legal adviser was invited to make representations and has made representations. Discussion[42]I have considered the nature and quality of the evidence presented in relation to the telephone calls. The calls were recorded both it seems by way of audio recording and later were monitored, and the content summarised in detail in writing. The Respondent has been given an opportunity to comment upon the content of the allegations within the calls and the calls themselves. The Respondent, through his legal adviser, has accepted that the three-way conversation took place although he challenges to extent the allegations arising from the call.[43]As noted above two sets of representations, drafted by the Respondent's legal adviser, have been received on behalf of the Respondent. The initial representations repeat the risk factors set out by the panel in the panel decision and point out that despite those risk factors the panel concluded that the Respondent's risk could be safely managed in the community. It is pointed out that the decision was made in the full knowledge of the Respondent's historical violence, association risks, substance misuse history, and mixed custodial compliance.[44]In later representations the Respondent's legal adviser confirms that the Respondent was aware of the fact that there was an indication that he would be meeting his brother in the community (which would have been a breach of his licence conditions) however it is submitted that this was general conversation and did not demonstrate concrete plans to breach licence conditions.[45]So far as the reference to " mindies" was concerned the Respondent told his legal adviser that the term was a slang for "girls." It is submitted that the reference does not relate to knives. Although slang language can be multifunctional, it is of note that some dictionaries referred to " mindies" as knives. The derivative of the word being a Somali word "mindi" which in the Somali language means knife. Additionally, there was conversation detected relating to "shanks" which is far more commonly known as a street slang term for knives.[46]In commenting upon the evidence provided by the prison relating to the telephone call the Respondent's legal adviser characterises it as intelligence-based, untested, not subject to a criminal charge, and not subject to adjudication findings. The Respondent's legal adviser takes the view that the panel who initially adjudicated upon the decision would have declined to attach any weight to what is characterised as "untested intelligence".[47]I am not persuaded that the material provided by the Applicant is appropriately characterised as untested intelligence. The material is a factual account of a conversation between the Respondent, his brother, and his brother's partner. In my determination a Parole Board panel would be likely to place a substantial amount of reliance upon a recorded telephone conversation which had been reduced to writing and monitored by a member of staff with a detailed account of the content of the conversation.[48]The Respondent's legal adviser also argues that the factual information within the telephone exchanges does not create a new risk category. It is therefore argued that the original panel took account of the risks that would be reflected in the telephone conversation. Again, I am not persuaded by this argument. The reality is that the Respondent gave evidence to the panel which implied that he had addressed his risk factors and was committed to living a prosocial life avoiding negative peers, associations with weapons, association with substance misuse and adopting a prosocial thinking approach.[49]The clear inference in this application by the Applicant is that the Respondent's risk factors and categories remain live and active rather than addressed by the Respondent's changed approach to antisocial behaviour and his undertakings to adhere to the risk management plan.[50]The general representations on behalf of the Respondent are that the "alleged new behaviour" would be addressed by the licence conditions and other elements of the risk management plan and therefore by inference the panel, even in the face of the subsequent evidence, would have directed release.[51]In considering this application the test is clear. I must be satisfied that a direction for release would not have been given if information that had not been available to the Board had been available.[52]In the light of the fact that the panel decision was based upon a belief that the Respondent was genuinely committed to a prosocial life. That he understood the issues and the risk management plan relating to former associates, that he understood the need for compliant behaviour and adhering to licence conditions and his risk management plan and that he had no intention of returning to risk related behaviour particularly associated with the use of knives.[53]In my determination the content of the telephone call is entirely contrary to the representations and evidence of the Respondent in the panel hearing. There is a strong inference of a desire to return to antisocial behaviour once in the community because of the reference to " shanks " and " mindies " and meeting his brother.[54]The evidence of the call also indicates that there may well have been sufficient information for the panel to investigate the allegations that the Respondent had been with his brother during a violent incident which led to the recall. The additional evidence would be the fact that the Respondent was readily discussing the potential for behaviour involving knives with his brother over the telephone prior to his release. The inference of the telephone call was that there would be involvement relating to knives and the potential for the Respondent to associate with his brother.[55]Again, as noted above, the panel (in its decision) indicated that it had concluded from the evidence presented by the Respondent that he had matured and would avoid conflict situations. The content of the telephone calls indicates the opposite. The inference in the telephone calls is that the Respondent was highly likely to be involved in conflict situations because of the discussions about the need for knives.[56]The panel also appeared to accept in their decision the contention that the Respondent would avoid association with negative peers and in particular with his brother who was to be included as a named individual within the licence conditions. The content of the telephone calls indicates that the Respondent intended to remain in contact with his brother both when in prison and by inference in the community.[57]The panel also relied upon evidence from the Respondent that he would comply with licence conditions and the risk management plan and therefore in general terms that he would be compliant. The fact that the Respondent was prepared to breach prison rules and allow himself to be connected with his brother through the telephone system in the prison was a clear indication that the concerns of the COM in this case, of the Respondent being an individual who presents with superficial compliance, were in fact justified.[58]I note there were also breaches of prison rules included within the application. I have not considered those in detail although I note that the Respondent has explained the reasons for the breaches of those rules to his legal adviser. In the light of my decision relating to the telephone conversation and the reference to knives and the potential violent incident with his brother, I have not addressed those issues directly.[59]The Respondent had also been recorded as indicating that he was, during one conversation, under the influence of MDMA in prison. The Respondent has told his legal adviser that this was a "joke". Again, I have not placed great reliance upon this comment, however in the context of the telephone conversation it appears it would be an odd topic for a joke.[60]Having considered all the evidence in this case I am fully satisfied that a direction for release would not have been given if the information set out above had been available to the panel.[61]I must also consider whether it is in the interests of justice for the decision to be set aside. In the light of the fact that there are highly credible concerns that the Respondent is likely to return to risky behaviour involving the risk of serious harm to the public I have no doubt that it is in the interests of justice that this decision be set aside. Decision[62]The decision of the oral hearing panel is set aside. HH S Dawson 16 March 2026