The Parole Board for England and Wales

 

[2024] PBSA 74

 

 

Application for Set Aside by the Secretary of State for Justice
in the case of Begley

 

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 Begley (the Respondent). The decision was made by a panel after an oral hearing. This is an eligible decision.

 

2.   I have considered the application on the papers. These are the dossier (266 pages), the decision (dated 12 July 2024), and the application for set aside (dated 6 November 2024).

 

Background

 

3.   On 21 March 2022, the Respondent received a sentence of imprisonment for 45 months following conviction for possession of a shortened shotgun without a certificate. He also received concurrent determinate sentences of 45 months for possessing a shotgun when prohibited and 18 months for possessing an air weapon when prohibited. He pleaded guilty to all charges.

 

4.   His sentence end date is reported to be in July 2025.

 

5.   The Respondent was aged 31 at the time of sentencing. He is now 33 years old.

                                                

6.   He was automatically released on licence on 12 August 2023. His licence was revoked on 9 November 2023, and he was returned to custody the following day.

 

Application for Set Aside

 

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

 

8.   The application for set aside submits there is new information constituting a change in circumstances which came to light after the panel made its decision. It is argued that the panel would not have reached the same decision had this new information been known.

 

9.   The content of the application will be considered in the Discussion section below.

 

Current Parole Review

 

10.The Respondent's case was referred to the Parole Board by the Applicant to consider whether to direct his release.

 

11.The case was considered by a two member panel at an oral hearing on 11 July 2024. The panel heard evidence from the Respondent, his Prison Offender Manager (POM), his Community Offender Manager (COM) and a Police Officer. The Respondent was legally represented throughout the proceedings. The panel directed the Respondent's release.

 

The Relevant Law

 

12.Rule 28A(1)(a) of the Parole Board Rules 2019 (as amended) 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.

 

13.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)).

 

14.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

 

15.The Respondent has submitted no representations in response to the application and the deadline for representations has now passed.

 

Discussion

 

16.The Applicant submits the following:

 

a)   On 18 September 2024, the Respondent is said to have been seen on CCTV in an altercation with another prisoner. During this incident, the Respondent is said to have thrown an orange at the other prisoner, before throwing his mug of drink at him and then hitting him in the face with the ceramic mug. The mug shattered and caused lacerations requiring hospitalisation.

 

b)   On 4 October 2024, the police confirmed they were actively investigating the allegations. A police statement says that CCTV shows the incident. It was not known whether the injured prisoner would provide a statement, but if not, the police would consider pursuing an evidence-led prosecution.

 

17.First, I must consider whether there is new information and/or a change in circumstances. The allegation of a violent assault against another prisoner is certainly new information.

 

18.Next, I must consider whether the panel would not have directed the Respondent's release if it had known of this new information. I find that to be the case. The panel acknowledges that its release decision was "finely balanced", and I am certain that fine balance would have been tipped by an outstanding police investigation into an allegation which is directly relevant to risk of serious harm.

 

19.Finally, in order to grant the application for set aside, I must also be satisfied that it is in the interests of justice to do so. I am satisfied that it is in the interests of justice for the decision to be set aside, since those interests would not be served by releasing a prisoner with risks including violence, weapon carrying, poor consequential thinking skills, and impulsivity, who is under police investigation for allegations involving the use of a ceramic cup as a weapon in an incident which hospitalised another prisoner.

 

Decision

 

20.For the reasons I have given, the application is granted. and the decision of the panel dated 12 July 2024 is set aside.

 

21.I must now consider two matters under rule 28A(8). First, whether the case should be decided by the previous panel or a new panel and second, whether it should be decided on the papers or at an oral hearing.

 

22.The previous panel has the great benefit of having prepared the case, carefully considering the evidence before it at the time, reaching and documenting its decision. It is best placed to consider the case again, and I direct that it does so.

 

23.Finally, I have also considered whether an oral hearing is necessary considering the principles in Osborn v Parole Board [2013] UKSC 61. On the evidence before me, I conclude that the panel would be able to conclude the review on the papers. It is, of course, open to the panel to direct the review to an oral hearing if it considers it necessary to do so. Representations are invited on the Respondent's behalf.

 

 

Stefan Fafinski

18 November 2024