The Parole Board for England and Wales

 

[2025] PBSA 10

 

 

   Application for Set Aside by Greenwood

 

Application

 

1.   This is an application by Greenwood (the Applicant) to set aside the decision not to direct his release. The decision was made by a panel after a paper hearing on 3 January 2025. This is an eligible decision.

 

2.   I have considered the application on the papers. These are the dossier, the paper decision, and the application for set aside dated 5 December 2024.

 

Background

 

3.   On 8 April 2024, the Applicant received a determinate prison sentence of 1 year 5 months and 28 days. The offences were possession of a controlled drug, two counts of using threatening behaviour, committing an act outraging public decency, criminal damage, possession of an offensive weapon in a public place, possession of a knife blade or sharp pointed article in a public place and assault occasioning actual bodily harm. He pleaded guilty.

 

4.   The Applicant was aged 40 at the time of sentencing. He is still 40 years old.

 

5.   He was automatically released on licence on 26 September 2024. His licence was revoked on 27 September 2024, and he was returned to custody on 27 September 2024. This is his first recall on this sentence, and his first parole review since recall. His sentence expires in August 2025.

 

Application for Set Aside

 

6.   The application for set aside has been drafted and submitted by the Applicant's legal adviser.

 

7.   It submits that there has been an error of law. The details are set out below.

 

Current parole review

 

8.   The Applicant's case was referred to the Parole Board by the Secretary of State (the Respondent) to consider whether to direct release.

 

9.   The case proceeded to a paper hearing on 3 January 2025 before a single member (MCA) panel.

 

10.The referral requested that the Parole Board consider whether it would be appropriate to direct release in this case. The panel did not direct the Applicant'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 no representations in response to this application.

 

Discussion

 

15.It is argued on behalf of the Applicant in this case that an error of law occurred. That error was said to be the fact that an MCA member, when considering a review of the Applicant's case, incorrectly asserted that "When the panel initially sat on 2 December 2024, it adjourned to invite legal representations. [The Applicant] has not provided any personal representations and no legal representations have been advanced on his behalf ".

 

16.In fact, representations were submitted to the Parole Board, however those representations were not sent to the MCA panel member before the decision was issued.

 

17.It is clear therefore that an error occurred in this case. I do not find it to be an error of law (as is argued by the Applicant's legal adviser), however I do find that an error of fact occurred. Legal representations were submitted and the MCA panel member erroneously asserted that there had been no representations made.

 

18.The background to this case is that the Applicant was convicted of a number of offences as set out above. He had a lengthy record of offending. His historical offending includes a number of offences committed while on bail, breaches of community orders, conditional discharges and driving disqualifications and offences committed while on the operational period of a suspended sentence. He also repeatedly breached restraining orders.

 

19.In relation to this case, the Applicant was subject to a determinate sentence and automatically released on licence. On the day of release the Applicant failed to arrive at probation accommodation, as was required, and he had failed to make any further contact (save for the initial induction meeting), with the probation service. As a result he was recalled.

 

20.Following recall, he was asked about the circumstances of his failure to adhere to licence conditions. When interviewed in prison, it is noted on the dossier that he explained to his Community Offender Manager (COM) that he had drunk alcohol to excess on the train journey en route to the probation premises. He had then decided to continue to drink alcohol rather than attend the arranged accommodation. He explained that he had felt anxious at the train station because he was unfamiliar with the area and he had then bought himself alcohol to deal with his anxiety.

 

21.This explanation was recorded by his COM and included in the dossier and considered by the MCA panel member who had written the decision letter.

 

22.I have considered the content of the legal representations which were not made available to the MCA member. Those representations indicated that the Applicant had "made a foolish decision" and decided to take alcohol to "calm his nerves". The representations also noted that the Applicant had continued drinking for the following three days.

 

23.The representations indicated that "[the Applicant] deeply regrets his actions and accepts that alcohol misuse is an issue for him. As a result he has been attending AA meetings in custody and fully intends to continue this in the community. He will be completing Alcohol Awareness and Relapse Prevention workbooks in custody and has placed himself on the list to complete the TSP, which he hopes to start soon. "

 

24. Having concluded that an error of fact occurred in this case, to set the decision aside, I must now consider two further factors. Firstly, whether, but for that error of fact, a direction not to release would not have been made. Secondly, I must consider whether my decision is in the interests of justice.

 

25.Having considered the dossier in this case and the further representations from the Applicant's legal adviser I find the following:

 

a)   It is clearly regrettable that the legal representations did not find their way to the MCA member and form part of the considered documents when the decision not to direct release was made. However, the Applicant had, in fact, had an opportunity to explain the circumstances of his recall to his probation officer and that explanation had been recorded by the probation officer and was in the dossier. The MCA member had therefore fully considered the circumstances which led to the recall and those circumstances are mirrored in the legal representations.

 

b)   Also noted on the dossier was the fact that the Applicant confirmed to his probation officer that he intended to undertake further work in relation to thinking skills and that he had applied to join a programme at the prison.

 

c)    Noted in the legal representations, but not on the dossier, was the fact that the Applicant had been attending AA meetings and had completed workbooks relating to relapse prevention.

 

26.I have therefore considered whether the decision (not to direct release) would not have been made if the legal representations were before the decision making panel. As noted above, the panel did in fact have the explanation for the licence breaches before it, in the form of the report from the probation officer.

 

27.The attendance, by the Applicant, at AA meetings and intention to complete workbooks was not before the panel member.

 

28.The rationale for the decision (not to direct release) was set out in the decision. The panel member noted the "very significant history of offending which is punctuated by acts of violence, impulsivity, threatening violence and noncompliance." The panel agreed with the view of the Applicant's probation officer that the Applicant's risk of causing serious harm in the community was high.

 

29.The MCA panel member concluded that the Applicant had "active risk factors at least in relation to alcohol misuse, thinking skills, consequential thinking and compliance issues" and had "treatment needs outstanding which should be addressed prior to a further release from custody."

 

30.In the light of this explanation, I am not persuaded that, but for the error of fact (namely the absence of the legal representations) the decision not to direct release would not have been made.

 

31.I have also considered whether it would be in the interests of justice to direct that the decision in this case should be set aside. The interests of justice are a balance between the need to protect the public from harm and the need to ensure that prisoners are not unfairly incarcerated. The basis of the decision is clearly set out by the panel. The Applicant has "active risk factors" and a high potential risk of causing serious harm based on his difficulties with alcohol and his propensity towards violence when disinhibited. There is a need therefore for the public to be protected from serious harm. For these reasons I do not find that decision should be set aside in the interest of justice.

 

Decision

 

32.The application for set-aside is refused.

 

 

HH Stephen Dawson

14 February 2025