[2024] PBSA 79
Consideration of Set Aside in the case of Darrell
Application
1. The set aside process was initiated by the Parole Board Chair under rule 28A(1)(b) of the Parole Board Rules 2019 (as amended) on 13 November 2024. It falls to me to decide whether to set aside the decision made on the papers by a single-member Member Case Assessment (MCA) panel dated 15 April 2024 to direct the release of Darrell (Prisoner). This is an eligible decision.
2. I have considered the application on the papers. These are the dossier, the oral hearing decision, stakeholder response forms dated 25 April 2024 (SHRF 1), 7 May 2024 (SHRF 2), 17 May 2024 (SHRF 3), 28 May 2024 (SHRF 4), 19 July 2024 (SHRF 5), 23 October 2024 (SHRF 6) and 11 November 2024 (SHRF 7), an undated note to the Parole Board, and a note to the Parole Board dated 17 September 2024. I have also seen an email from the Parole Board duty member to whom SHRF 7 was assigned dated 12 November 2024, and the email from the Parole Board Chair dated 13 November 2024 initiating the set aside process.
Background
3. On 25 January 2019, the Prisoner received a determinate sentence of 90 months following conviction for manslaughter to which he pleaded guilty. He was aged 17 at the time of sentencing and is now 22 years old.
4. He was automatically released on licence in August 2023. His licence was revoked in November 2023 following a number of concerns about non-compliance with his licence, and he was returned to custody in December 2023 following a period unlawfully at large. He had received a warning prior to recall. He had also had a GPS tag fitted prior to recall which had indicated that he was passing through his exclusion zone. There were also concerns that he was not keeping the tag charged.
Current Parole Review
5. The Prisoner’s case was referred to the Parole Board by the Secretary of State to consider whether to direct his release.
6. The Prisoner’s case was reviewed by a single-member (MCA Member) panel on 15 April 2024 which directed his release.
7. Following the release direction, an unusually large number of SHRFs were submitted by the Public Protection Casework Section (PPCS) on behalf of the Secretary of State. Their dates are as set out above.
8. SHRF 1 requested two additional licence conditions:
a) An exclusion zone; and
b) Non-contact with two named individuals.
9. A Duty Member declined the request, noting that there was no reported victim involvement in the case, there were no reasons given for the request, the conditions were not requested at the MCA stage, and they were not on the original release licence. Further information was requested.
10.SHRF 2 was provided in response to SHRF 1. It noted that there was no victim involvement at the time of the release direction, but this had changed. The two named individuals were family members of the victim. The new conditions were proposed by the Victim Liaison Officer.
11.These new conditions were agreed by a Duty Member.
12.SHRF 2 went on to report that the Prisoner was subject to multi-agency public protection arrangements (MAPPA). At the time the release decision was made, the Prisoner was assessed as requiring MAPPA Level 1 management (multi-agency support). However, he had been reassessed as requiring MAPPA Level 3 management (enhanced multi-agency support). MAPPA Level 3 is the highest level of multi-agency management. His risk has been reassessed as high.
13.As the Prisoner’s case had been escalated to MAPPA 3, further licence conditions were also requested in SHRF 2:
a) Restrictions on the use of social media;
b) Restrictions on mobile phone usage; and
c) Not to delete internet usage history and to provide devices for inspection.
14.These conditions were requested on the basis of a documentary about the case in which it was said that mobile phone messaging apps were used to communicate about “the ambush and murder” of the victim. (I note that the Prisoner was convicted of manslaughter, while two co-defendants were convicted of murder).
15.An undated note to the Parole Board advised that the Prisoner had received two adjudications:
a) For possession of two USB storage decides and a mobile phone; and
b) For possession of an iPhone.
16.These matters had been referred to the police. The Prisoner reportedly said the items belonged to his cell mate.
17.Moreover, SHRF 2 noted that an application would be made to designated accommodation, and, consequently, two further licence conditions were also requested:
a) Overnight curfew; and
b) Daily reporting.
18.The Duty Member sought clarification of the Prisoner’s views in relation to the new licence conditions relating to his MAPPA 3 re-categorisation. The Duty Member also considered that the new information constituted “a change in circumstances after the [release] decision was made” and invited the Secretary of State to consider submitting a set aside application.
19.SHRF 3 requested another licence condition to disclose developing relationships and the ending of any relationships on the basis that there were associates involved in the commission of the index offence. This was agreed by a Duty Member.
20.SHRF 4 mirrored SHRF 3.
21.SHRF 5 provided a response to SHRF 2. It noted that the Prisoner has questioned the appropriateness of the proposed social media condition, but that he would comply. Legal representations on the Prisoner’s behalf argued that the condition was not necessary or appropriate and was too intrusive. A Duty Member noted the objection but concluded that the conditions relating to the monitoring of internet usage were necessary and proportionate and they were agreed.
22.On 17 September 2024, the Parole Board was informed that the Prisoner had been accepted at designated accommodation.
23.SHRF 6 also related to licence conditions, as follows:
a) Reiterated the request for a overnight curfew (from SHRF 2);
b) Reiterated the request for daily reporting (from SHRF 2);
c) Requested an updated exclusion zone (referencing a map which was not provided); and
d) Requested a new licence condition not to partake in, watch, access or distribute any drill videos or gang affiliated material.
24.Legal representations on the Prisoner’s behalf sought clarification of the exclusion zone and argued that a prohibition on watching, accessing or distributing drill videos would not be proportionate as it would mean that the Prisoner would not be allowed “to watch any sort of music channels”.
25.A Duty Member directed a consolidated list of all proposed additional licence conditions (with rationale and maps as appropriate) and invited any further legal representations. The Duty member also reiterated the previous request to the Secretary of State as to whether an application for set aside would be made.
26.SHRF 7 provided the list as directed. No further legal representations were made. PPCS, on behalf of the Secretary of State, confirmed that a set aside application was not considered necessary.
27.A Duty Member referred the matter to the Parole Board Chair via the Parole Board Set Aside Team. The Duty Member considered that there has been a change in circumstances after the decision to release was made as the Prisoner’s risk of serious harm has been increased from medium to high; his MAPPA level has been increased to 3; and there was an outstanding police investigation in relation to mobile phones recovered from his cell after the MCA decision was reached and issued. Given the above and the fact that the Secretary of State had decided not to make a setting aside application, the Duty Member decided to initiate the setting aside procedure.
28.The decision to initiate the set aside process may only be taken by the Parole Board Chair.
29.On 13 November 2024, the Parole Board Chair considered that there had been a change in circumstances relating to the Prisoner and, given the concerns expressed by the Duty Member, initiated the set aside process.
The Relevant Law
30.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.
31.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)).
32.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 parties
33.The Prisoner has submitted further representations dated 20 November 2024 which will be covered in the Discussion section below. The Secretary of State has offered no further representations and the deadline for representations has now passed.
Discussion
34.Representations on behalf of the Prisoner submit (in summary):
a) The Prisoner is happy to comply with any licence conditions imposed;
b) There is no update on the matters that had been referred out to police;
c) The additional licence conditions have been largely prompted from the television documentary which is factually incorrect;
d) There has been no change in circumstances relating to the Prisoner; but
e) If the decision is set aside, then an oral hearing is requested.
35.The first question is whether there has been a change in circumstances relating to the prisoner. I find that there has. While the Prisoner’s legal representative argues that there has been no change in circumstances, his MAPPA level and assessed level of risk have been increased, and the Probation Service has seen fit to request an extensive list of further conditions. Some of these have been agreed and others remain in limbo pending the outcome of this application for set aside. It may be that there is, as the Prisoner argues, no logical or sustainable basis for this increase, but nevertheless the Probation Service’s view of the Prisoner’s risk has materially changed.
36.In order to set the release direction aside, I must also be satisfied that the decision to direct the Prisoner’s release would not have been given but for that change in circumstances.
37.On the basis of the allegations surrounding mobile phone usage alone, I would be satisfied that the direction for release would not have been made. While a pending police investigation is not an automatic bar on release, alleged possession of a mobile phone on two occasions (even if it is entirely unrelated to the contested matters raised in the television documentary) is at the very least potentially indicative of the sort of non-compliance that led to the Prisoner’s recall.
38.Finally, in order to set the decision aside I must consider whether doing so is in the interests of justice. I find that it is. The interests of justice would not be served in releasing a prisoner convicted of manslaughter under a licence that has been incrementally morphed into something significantly different to that which was before the panel considering his release (at a time that his risk had been assessed as being materially lower).
39.I therefore conclude that all elements required for the decision to be set aside are made out.
Decision
40.For the reasons I have given, the application is granted, and direct that the decision of the panel dated 15 April 2024 is set aside.
41.I must now consider two matters under rule 28A(8). First, whether the case should be decided by the previous panel or a new panel and second, whether it should be decided on the papers or at an oral hearing.
42.I direct this case to a new panel.
43.I have also considered whether an oral hearing is necessary considering the principles in Osborn v Parole Board [2013] UKSC 61. For the reasons set out above, and in agreement with the Prisoner’s legal representatives, I consider that it is.
03 December 2024