The Parole Board for England and Wales

 

[2025] PBSA 4

 

 

Application for Set Aside by Wheatley

 

Application

 

1.   This is an application by Wheatley (the Applicant) to set aside the decision not to direct his release. The decision was made by a panel after a Member Case Assessment (MCA) paper hearing on 21 October 2024. This is an eligible decision.

 

2.   I have considered the application on the papers. These are; the dossier, the paper hearing decision dated 21 October 2024, and the application to set aside dated 10 November 2024 and received on the 07 January 2025.

 

Background

 

3.   On 16 November 2022, the Applicant received a determinate sentence of 34 months in relation to an offence of assault occasioning actual bodily harm. The Applicant was convicted after a trial.

 

4.   The Applicant was aged 34 at the time of sentencing. He is now 36 years old.

 

5.   He was automatically released on licence on 6 June 2023. His licence was revoked on 29 July 2024, and he was returned to custody on 29 July 2024.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's legal adviser. It submits that there has been an error of fact and therefore the decision should be set aside. See details below.

 

Current parole review

 

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

 

8.   The case proceeded to a paper hearing on 21 October 2024 which was conducted by a single member MCA panel. The panel considered a dossier consisting of 132 pages. The panel also considered legal representations on behalf of the Applicant.

 

9.   The panel did not direct the Applicant's release.

 

 

Recall

 

10.The Applicant had been recalled having committed a further offence, namely an assault in domestic circumstances. He was sentenced to a further period of imprisonment of four months for the second assault. The second sentence was served and had expired and the panel were therefore considering whether to direct release following the recall for the index offence.

 

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.

 

Application

 

15.It is argued on behalf of the Applicant that there has been an error of fact in this case. That error is said to arise because the panel relied upon a finding that the Applicant did not have insight into his behaviour and had not completed any core risk reduction work.

 

Discussion

 

16.Dealing firstly with the issue of  the completion of core risk reduction work. The Applicant did (to his credit) complete non accredited interventions in prison, however these were not interventions or work which could be considered to be core risk reduction work. Indeed, it is accepted by the Applicant that he has not completed a core programme Building Better Relationships (BBR). This is a programme which both he and his Community Offender Manager (COM) believe is required to manage his risk in the future. His application includes representations that release would enable him to undertake this work under licence in the community. I find that there was no error of fact in this regard, as the Applicant had not undertaken any core risk reduction work in prison following his recall.

 

17.So far as insight into behaviour is concerned, the panel noted that there was "little evidence" that the Applicant had "developed insight into his risk".

 

18.The panel noted as follows "The Panel finds no positive change in [the Applicant's] behaviour or any amelioration of the risk factors in his case. In the light of the existing history of convictions for violent offences, his reoffending in a violent manner against [the Victim], his inability to demonstrate insight into his own risk within relationships, his concerning attitudes supportive of the use of cocaine alongside his alcohol misuse, the links between alcohol and substance misuse and his violence, and the lack of any core risk reduction work to date to address his risk .... were he to be released at this point [the Applicant] would pose an unmanageable risk of causing serious harm in the community".

 

19.Thus the factual basis of the panel's view, that the Applicant lacked insight, was made clear by the panel (history of convictions, reoffending, insight into relationship problems, and alcohol and substance misuse).

 

20.In my determination the panel based their assessment (of a lack of insight) upon facts which were unchallenged. The assessment was clearly a view the panel were entitled to adopt.

 

21.The assessment by the panel, was not, in my determination, a fact or an error of fact which engages an application to set aside. As noted above, the facts in this case were not subject to major challenge by the Applicant, the argument was that the Applicant now wished to undertake work to address risks. Unfortunately (as was noted in the decision) BBR was a programme not offered in prison, although available in the community.

 

22.I have carefully read the submissions advanced on behalf of the Applicant and cannot find anything within them that would amount to an error of fact. The matters raised primarily deal with the panel's interpretation of the evidence before it and not the facts within the evidence upon which any interpretation was based.

 

23.Even if I had found there to have been errors of fact in the panel's decision (which again, to be clear, I do not), I do not find that the matters raised by the Applicant would have made a difference to the panel's decision not to have directed the Applicant's release. The Applicant's risk remained unaddressed at the time of the panel's decision. The panel were clearly not in a position to direct release contingent upon completing risk reduction work (if available) in the community. The panel were obliged to apply the statutory test for release, and to be satisfied that the test was met before directing release.

 

Decision

 

24.The application to set aside is therefore refused.

 

 

HH S Dawson

16 January 2025