[2024] PBSA 81
Application for Set Aside by the Secretary of State for Justice
in the case of Disbury
Application
1. This is an application by the Secretary of State for Justice (the Applicant) to set aside the decision to direct the release of Disbury (the Respondent). The decision was made by a panel after an oral hearing on 10 September 2024. This is an eligible decision.
2. I have considered the application on the papers. These are the dossier consisting of 689 pages, the oral hearing decision (dated 8 October 2024), and the application for set aside (dated 15 November 2024).
Background
3. On 15 August 2016, after trial, the Applicant received an extended sentence of 9 years custody with a further 5 years licence following conviction for rape and assault by penetration.
4. The Applicant was aged 21 at the time of sentencing. He is now 29 years old.
5. This is his second parole review on this sentence.
Application for Set Aside
6. The application for set aside has been drafted and submitted by the Public Protection Casework Section (PPCS) acting on behalf of the Applicant.
7. It submits that there is new information consisting of a change in circumstances which came to light after the panel took its decision on 8 October 2024 which impacts the risk management assessment. The content of the application is considered in the discussion section below.
Current parole review
8. The Respondent’s case was referred to the Parole Board by the Applicant to consider whether to direct his release.
9. The case proceeded to an oral hearing on 10 September 2024 before a two member panel (both psychologist members). The panel heard evidence from the Respondent, his Prison Offender Manager (POM), his former POM, his Community Offender Manager (COM) and an HMPPS forensic psychologist. 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 2024) (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 detailed representations in response to this application.
Discussion
15.The Applicant relies on three aspects of new information relating to (1) possession of illicit substances, (2) development of an intimate relationship and (3) attitude and behaviour indicating non-compliance.
16.The Applicant reports that on 13 September 2024 and again on 28 October 2024 a search of the Respondent’s cell revealed a quantity of coloured tablets. The Respondent submits that he was in possession of multi-coloured vitamins and disputes the suggestion that he was in possession of illicit substances.
17.This new information does not conclude that the Respondent has returned to drug misuse himself. The tablets were found in a vitamin container and although tested and found to contain tramadol and methamphetamine no further action was taken against the Respondent, nor any explanation why that was not the case. There is no evidence that the Respondent has been tested and found to be positive for these or any other illicit drugs. In those circumstances, had this information been before the panel I am not satisfied that it would have made a difference to its conclusion. The decision notes that the use of drugs should be regarded as a warning sign, I do not find there is sufficient evidence presented of the use of drugs. The risk management plan contains a condition to monitor alcohol and drug use and is sufficiently robust to manage the Respondent and protect the public in respect of any risk that may arise from a return to illicit drug use. I reject this ground.
18.The Applicant reports that on 21 October 2024 the Respondent disclosed a relationship with a new partner which had not been previously disclosed. The Respondent submits that he made the disclosure to his POM and COM and did not withhold the information from them. In addition, he denies that he had, or told his POM and COM that he had ROTLs involving his new partner before the disclosure.
19.This ground is of particular concern in the light of the Applicant’s index offence. The panel have dealt with the risk of future sexual offending and violent offending. There are several licence conditions concerned with protection against that risk. What is to the Respondent’s credit is that he appears to have made the disclosure himself and that on contact with the new partner by the COM and by MOSOVO it would appear that the Respondent had been honest with her. The question of the timing of the disclosure and details (whether involving ROTLs or whether there was a misunderstanding on the part of the POM and COM) or disclosure of the existence of a child are matters that can only be investigated by an oral hearing panel.
20.On 24 and 25 October 2024 the Respondent was said to have become verbally aggressive towards his Probation Practitioners. On 29 October 2024 the Respondent was returned to closed conditions following which he was said to have become hostile, angry and frustrated and to have made threats about his future conduct.
21.With regard to the Respondent’s verbal aggression and behaviour, his representations in response to the application indicate his frustration and disappointment at being returned to closed conditions. Whether this reflects some more serious behavioural change that would affect his previous commitment to comply with licence conditions and the ability of his COM to manage him in the community are matters that will need to be explored at an oral hearing.
22.I am satisfied that the direction for release would not in the absence of full questioning or investigation of the new relationship and the attitude towards his professionals, have been granted.
Decision
23.The application for set aside is accepted.
Barbara Mensah
16 December 2024