The Parole Board for England and Wales

 

[2025] PBSA 21

 

 

Application for Set Aside by Secretary of State for Justice

in the case of McNaughton

 

 

Application

 

1.   This is an application by the Secretary of State (the Applicant) to set aside the decision to direct the release of McNaughton (the Respondent). The decision was made by a panel after an oral hearing 4 February 2025. This is an eligible decision.

 

2.   I have considered the application on the papers. These are the dossier consisting of 200 pages, the oral hearing decision of 12 February 2025, the application for set aside dated 7 March 2025 including video clips and the response to the application.

 

Background

 

3.   On 31 May 2017, the Applicant received an extended sentence of 16 years comprising a custodial term of 12 years and an extended licence of 4 years, following conviction for aggravated burglary and robbery to which he pleaded guilty. He was also sentenced to concurrent sentences for possession of an imitation firearm (25 months) and actual bodily harm (18 months concurrent on each of two offences). His sentence expiry date is December 2032.

 

4.   The Applicant was aged 26 years old at the time of sentencing. He is now 34 years old.

 

Application for Set Aside

 

5.   The application for set aside has been drafted and submitted by the Public Protection Casework Section (PPCS) acting on behalf of the Applicant.

 

6.   The application submits that there has been new information constituting a change in circumstances which came to light after the panel made its decision. The new information alleged that the Respondent had breached his licence conditions by travelling where not permitted whilst on RDR or ROTL and did not reside at his mother’s address as approved. The new information also questioned the Respondent’s relationship which it was said had not been notified fully and honestly to Probation and there was concern that as the relationship is with a former prison officer, the relationship may have started whilst she was still in service. It is argued that Probation is no longer in a position to support the Respondent’s release.

 

7.   The Application will be 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 4 February 2025 before a 2-member panel, which included a psychologist specialist member. The panel heard evidence from the Respondent, his former Prison Offender Manager (POM), his Community Offender Manager (COM) and a new COM. The Respondent was legally represented throughout the hearing, the Applicant did not have an appointed advocate.

 

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 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 detailed representations in response to this application.

 

Discussion

 

15.There are in effect two grounds put forward by the Applicant, the first relates to locations and the second to the Respondent’s relationship. The Applicant presents evidence in the form of videos which it is submitted, show the Respondent and his partner at various locations during the period when he was on RDR or ROTL and was only permitted to reside at this mother’s address. The application also submits that the Respondent did not provide an honest account of the commencement of his relationship with his partner who is said to be a former prison officer. The application submits that doubt has been cast on the Respondent’s honesty and commitment to compliance and in the circumstances the COM considers that his risk cannot be managed on release.

 

16.The Respondent in his submissions sets out an explanation for each of the videos. He accepts being in the company of his partner in various locations but does not accept that they were together at times which would have put him in breach of the licence condition of residence. 

 

17.With regard to this ground - whilst the videos show the Respondent in various places, they do not confirm that he resided in the various other places in breach of any licence condition to reside with his mother. The application acknowledges, certainly in respect of the first video, that whilst a hotel room is depicted no overnight stay can be confirmed. There is no evidence present that that was not the case in respect of the remainder of the videos. Additionally, there is no evidence that the Respondent’s mother played any part in assisting or encouraging the Respondent to breach any licence condition relating to accommodation. 

 

18.Regarding presence at locations prohibited by his licence conditions, the Respondent’s submission does not appear to appreciate or accept that those locations put him in breach of conditions. In any case this was evidence presented at the hearing before the panel which reported (paragraph 2.5) that the Respondent had contact with his partner, both by phone and whilst on ROTL. Having regard to the risk factors identified by the panel, the conditions on the release licence are sufficient to protect the public and with regard to prohibited locations the Respondent will be subject to an electronically monitored GPS satellite tag. The interests of justice are not made out on this ground.

 

19.Regarding the undisclosed details of the Respondent’s relationship, he states in his submissions that whilst he met his partner in the custodial environment their relationship did not commence until sometime later. He gives details of the development of the relationship. That relationship was known to the Applicant and to the panel before the hearing. What was not known, perhaps, was that his partner was a former prison officer but that is not a factor that goes to risk. On the contrary, the panel found the relationship to provide a protective factor for the Applicant.

 

20.Having carefully considered the application I am satisfied that whilst there is some new information that was not available to the panel when the decision was made, I do not find that it would have changed the panel’s decision to release the Respondent. The licence conditions on release are sufficiently robust to provide protection in respect of any risk raised by the new information. I am therefore not satisfied that it would be in the interests of justice to set aside the final decision.

 

Decision

 

21.The application for set aside is refused.

 

 

 

 

Barbara Mensah

02 April 2025