The Parole Board for England and Wales

 

[2025] PBSA 8

 

 

Application for Set Aside by Burns

 

Application

 

1.   This is an application by Burns (the Applicant) to set aside a decision not to direct his release. The decision was made by a panel after an oral hearing on 22 January 2025. This is an eligible decision.

 

2.   I have considered the application on the papers. These are the dossier (187 pages), the oral hearing decision dated 23 January 2025, and the application for set aside dated 28 January 2025.

 

Background

 

3.   On 19 September 2023, the Applicant received three custodial sentences in relation to two offences of battery and one of intentional strangulation. He had pleaded guilty. The total consecutive custodial sentence was one year and seven months. His sentence expires in March 2025.

 

4.   The Applicant was aged 36 at the time of sentencing. He is now 37 years old.

 

5.   He was automatically released on licence on 22 May 2024. His licence was revoked and he was returned to custody on 17 June 2024. This was 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 his legal adviser.

 

7.   It submits that there has been an error of fact. The details of that error are addressed below. The Applicant's legal adviser argues that consequent upon the error of fact the decision not to direct release, should be set aside.

 

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 an oral hearing on 22 January 2025 before a single member panel. The panel heard evidence from the Applicant, his Prison Offender Manager (POM) and his Community Offender Manager (COM). The Applicant was legally represented throughout the hearing.

 

10.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.As noted above, the Applicant in this case, is serving consecutive determinate sentences of imprisonment totalling one year and seven months. His sentence expires in March 2025.

 

16.The index offences consisted of two convictions for the offence of battery and a single conviction for an offence of intentional strangulation. The sentencing judge imposed consecutive sentences totalling the figure above. The victim of the index offences was a (now former) partner of the Applicant. The offences occurred on two occasions and involved throwing items at the victim which struck her, and also strangling her in an altercation. The offences were committed when the Applicant was subject to a previous probation licence.

 

17.The records indicated that there had been numerous callouts in the past in relation to domestic violence allegations relating to the Applicant.

 

18.The Applicant was released automatically from his sentence in May 2024. He was recalled in June 2024. The recall occurred in circumstances where the Applicant was reportedly making repeated attempts to self-harm and take his life while living in probation premises. Probation staff therefore indicated that the Applicant's risk could no longer be managed. The risk being both to himself, but also to others because of his deteriorating and concerning mental health issues.

 

19.The Applicant was recalled and subsequently a further referral was made by the Respondent to the Parole Board to consider whether a direction for release should be made.

 

20.An oral hearing took place. Evidence was received at the hearing from the Applicant's COM. The COM was asked about the effect of the recently introduced probation policy, called RESET. A discussion took place at the hearing about these arrangements.

 

21.The (RESET) policy was introduced by the probation service to reduce workload pressures on probation practitioners. The practical effect of the policy was that contact appointments for some of those on probation licence would cease in the final third period of their licence (instead of continuing until their sentence ended). It also meant that post sentence supervision (PSS) of prisoners would cease, unless certain criteria were met. One of the criteria for probation contact continuing in the final third of a sentence (and therefore an exception to the general policy) was dependent upon whether the prisoner came under the auspices of MAPPA (the multi-agency public protection arrangements). Cases governed by MAPPA were exempted from some RESET arrangements.

 

22.The panel chair, in the panel decision, noted that the COM had given evidence explaining that the MAPPA status of the Applicant had ended which had meant that supervision by the probation service (as the Applicant's sentence was in its last third) had also ended.

 

23.In the decision letter the panel chair therefore noted that "the previous category two, level one MAPPA status had ended when supervision was suspended at two thirds of the licence". The chair therefore was told and understood that probation supervision had been suspended as a result of probation reset arrangements.

 

24.In a subsequent email, secured by the POM, and sent to the Applicant's solicitor, a senior probation officer concerned with MAPPA policy confirmed that a prisoner subject to MAPPA categorisation would (in fact) remain subject to that categorisation as long as they were subject to a licence. In this case therefore the categorisation would continue until the Applicant's sentence expired. Effectively the Applicant, because his was a MAPPA managed case, was in a category of individuals whose supervision by the probation service would continue until the expiry of their sentence.

 

25.The information provided to the Chair was therefore erroneous. The chair relied upon that information and noted it in his decision.

 

26.The chair also (correctly) noted that there would be "no proactive engagement with probation upon release".

 

27.The chair's conclusion was "In practical terms, the available risk management plan is simply insufficient, to manage the risk. He will likely be eligible for homelessness provision, such as 84 nights under CAS3, but he will be entirely without Probation support/monitoring. His offending behaviour needs will remain unaddressed. There is, as yet, no plan/resource to provide the necessary (specialist mental health) related treatment."

 

28.The chair erred therefore in concluding that the Applicant would be entirely without probation support. The Applicant will be supervised until his sentence expires, in the next few weeks.

 

29.As to accommodation, the reason for the recall of the Applicant was that the probation provided accommodation was deemed inappropriate and unmanageable as the Applicant was repeatedly self-harming. The probation accommodation provider was not equipped to manage the Applicant's risks of self-harming and his place was withdrawn. This withdrawal triggered the Applicant's recall as his general risks are inextricably associated with his risks in the realm of mental health and instability.

 

30.On this basis it was almost certainly the case that the Applicant would not be able to return to probation provided accommodation. This is also reinforced by the fact that the Applicant's licence and therefore his right to remain in probation accommodation, would cease within a few weeks of any release (at his SED).

 

31.The chair and professionals all took the view that stable accommodation was an essential element of any risk management plan. The chair also noted that the risk period (for the purposes of the decision to release) was to be measured "indefinitely". The chair had the duty to consider risk beyond the SED, subject to the considerations enunciated in the case of R v Dich and Murphy [2023] EWHC 945 (Admin).

 

32.The test in relation to setting aside is set out above. The test is twofold, firstly was there an error of fact? If there was an error of fact, I must then consider whether I am satisfied that the decision would not have been made, but for the error of fact.

 

33.In this case I am satisfied on balance that there was an error of fact. The chair was misled into thinking that probation supervision would not continue for the final one third of the Applicant's licence, in fact it will continue.

 

34.Turning to the second consideration, I have considered the totality of the decision in this case. The basis of the decision was that the Applicant's mental health continued to be poor. He was awaiting a review of medication. The chair concluded that the Applicant's mental wellbeing was linked to stability, and that instability would be likely to lead to substance misuse, and then to an elevation of the risk of violence. The index offence was closely associated with decompensation and mental ill health. On balance it was clear that even if supervision were to continue for the short period until the Applicant's SED he would have had no guarantee of stable accommodation available if directed for release. Without stable accommodation, he would not have access to mental health treatment which would need to be organised through mental health services in the community. The panel chair also noted that his offending behaviour needs generally remained unaddressed.

 

35.I therefore determine that despite the error in relation to the Applicant's supervision status, I am not satisfied (as I must be) that the decision not to direct release would not have been made in this case. It is apparent from the decision that there were a number of factors beyond the issue of the Applicant's supervision status which underpinned the decision not to release.

 

36.I have also considered whether it would be in the interests of justice to set aside this decision. The interests of justice are a balance between the interest of the public and public protection and the interests of the Applicant. I do not find that it would be in the interests of justice to set aside in this case, as I do not think that the error would have impacted upon the overall decision of the panel. That decision was that the Applicant's risk of serious harm could not be managed safely on the basis of the proposed risk management plan and therefore it remained necessary in order to protect the public that the Applicant be detained.

 

Decision

37.For these reasons I decline to direct that the decision be set aside.

 

HH S Dawson

07 February 2025