Application to Set Aside Pearce Release Decision

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  Pearce, Appplication to Set Aside, [2026] PBSA 9 (13 March 2026)

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[2026] PBSA 9

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Application for Set Aside by the Secretary of State for Justice

in the case of Pearce

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Application

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1. This is an application by the Secretary of State for Justice (the Applicant) to set aside the decision to direct Mr Pearce's (the Respondent's) release. The decision was made by a panel after an oral hearing on 12 December 2025. This is an eligible decision.

2. I have considered the application on the papers. The initial documents supplied were the dossier, the oral hearing decision, the application for set aside, and submissions from the Respondent's legal representatives. Having considered the material, I directed further information, and an update from the Prison Offender Manager (POM) was received, followed by additional submissions on the Respondent's behalf.

Background

1. On 6 November 2008, the Respondent received a life sentence following conviction for murder. His tariff expired on 21 April 2023. This is his third parole review on this sentence.

2. The Respondent was aged 30 at the time of sentencing. He is now 47 years old.

3. The index offending related to the Respondent's involvement in the murder of his cousin alongside a co-defendant. The Respondent was heavily intoxicated at the time of the offence. Previous panels, including the most recent panel, had concluded that alcohol and drug misuse were significant risk factors for the Respondent.

Application for Set Aside

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

2. It submits that there is information which was not available to the panel at the time of the decision, which would have meant the decision for release would not have been made.

3. The information grounding this application, explained in detail below, occurred after the decision of the panel was issued. I consider the application should properly have been made under Rule 28A (4)(ii) as a change in circumstances, rather than under Rule 28A (4)(i), and I will address the application on that basis.

4. The change in circumstances were initially presented as follows:

a) The Respondent was found to be under the influence (presumably of drugs) on 10 January 2026, 05 February 2026 and 10 February 2026;

b) The Respondent failed an in-cell medication check;

c) The Respondent has been removed from Alcoholics Anonymous (AA) having missed two sessions;

d) The Respondent had refused assistance from the Substance Misuse Service;

e) The Community Offender Manager (COM) had expressed significant concerns regarding the ability to safely manage the Respondent in the community.

1. Following my directions for further information, the circumstances are now presented in the POM report as follows:

a) The observations of the Respondent being under the influence on 10 January 2026, 05 February 2026 and 10 February 2026 are included in security intelligence and graded high. This suggests that they came directly from staff observations. Healthcare records also support the information from 05 February 2026 and 10 February 2026. It is also noted that the POM's report indicates that the Respondent accepts this was the case;

b) The information around the Respondent's removal from AA appears to have been inaccurate, and his removal from the group was an oversight;

c) There is an entry suggesting that the Respondent had indicated to the Substance Misuse Service that he was being released from custody in two weeks, therefore did not need their help;

d) No additional information about the in-cell medication check was received.

1. The POM report also included information around an alleged assault on another prisoner. For clarity, I have not considered that information as part of this application. It was addressed by the panel in its decision, and is clearly not new information, nor a change in circumstances.

2. On the basis of this information and referencing the panel's concerns in the decision (which is expanded upon below), the Applicant suggests the original decision should be set aside.

Current parole review

1. The Respondent's case was referred to the Parole Board by the Applicant to consider whether to direct his release or make a recommendation that he be transferred to open conditions.

2. The case proceeded to an oral hearing on 12 December 2025 before a three member panel, which included a psychiatrist specialist member. The panel heard evidence from the Respondent, his POM, and his COM.

3. The panel directed the Respondent's release.

The Relevant Law

1. 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.

2. The types of decisions eligible for set aside are set out in rule 28A(1). Decisions concerning whether the prisoner is 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)).

3. 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 would not have been given if information that had not been available to the Board when the direction was given had been available, or

b) 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.

1. In Jones [2025] EWHC (Admin) the High Court held that the words "would not have been given" within rule 28A(4) had their natural and ordinary meaning, not qualified by probability or likelihood. The question is whether the new information or change of circumstances means that the original panel would not have directed release. In deciding whether or not a direction would have been given, the decision-maker is required to consider the evidence relied upon in the set aside application in the context of the evidence before the panel which made the release direction, giving sufficient consideration to its nature, relevance, reliability and cogency in the light of the facts of the particular case.

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The reply on behalf of the Respondent

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1. The Respondent has offered representations in response to this application.

2. Initially, the Respondent's legal representatives indicated a denial that he had been under the influence. When the additional information from the POM report was received, this position shifted, and it was submitted that relapses into drug misuse had been accepted as very likely by the panel when concluding their decision.

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1. The Respondent submits the application to set aside the panel's decision should be refused.

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Discussion

1. The Applicant relies upon two quotes from the decision to support its application.

2. The first is from paragraph 3.5 of the decision, and the second is from paragraph 4.10. They read as follows:

" [The Respondent] does not pose an imminent risk of serious harm and that there would be warning signs of increased risk, such as his general appearance; any disengagement from supervision; substance misuse; and any concerns at the AP, such as being in breach of curfew."

"Should he fail to comply with the requirements of Probation supervision on licence and/or lapse to drug or alcohol use, he is likely to be recalled rapidly to custody."

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1. The inference the Applicant asks me to draw from these quotes, is that the Respondent has already evidenced these warning signs, and as such, the position where he would be recalled if in the community, has been reached before his release.

2. The Panel notes that the quote from paragraph 3.5 relates to the COM's evidence; it is not the panel's comments.

3. In any event, the Applicant has not referenced a number of other significant points made by the panel. Most applicable are paragraphs 4.6 and 4.7 in the panel's conclusion, which are repeated as follows:

"The panel shared [the COM's] concerns regarding [the Respondent's] ongoing tendency to resort to drug use, particularly at times of stress and/or in the company of others, as evidenced on two occasions within the last 8 months in prison. However, the panel did not agree with [the COM] that this made [the Respondent] unsuitable for release."

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** "This is because, on the occasions that [the Respondent] has used illicit substances on this sentence whether in closed or open prison conditions and whilst on temporary licence in the community there is no evidence that he has become violent or aggressive. Indeed, the evidence suggests that the last occasion upon which [the Respondent] used violence was in the index offence, as is the case in respect of alcohol based on all the available evidence. When thinking about those occasions upon which [the Respondent] has lapsed to drug use on this sentence, the panel placed this in the context of his very heavy drug and alcohol use at the time of the index offence to the situation now, i.e. when currently he is abstinent from alcohol and predominantly abstinent from drugs. Given [the Respondent's] substance misuse history the panel would expect to see, as is the case, that his path towards full abstinence is not completely linear."

1. It is evident from these remarks that the panel was very aware of the risk of further drug misuse from the Respondent. The panel had considered this to be a significant possibility, and importantly, did not consider further drug misuse as being a barrier to release. Whilst the Respondent's recent drug misuse is of concern, it is something that the panel anticipated. Notably, the recent drug misuse was not linked to violence or aggression, something which the panel had noted and given significant weight to.

2. Having considered the application in the light of the panel's assessment, I am not satisfied the decision would not have been given in light of the change in circumstances, and the application must fail.

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Decision

1. The application for set aside is refused.

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John Marley

13 March 2026

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URL: https://www.bailii.org/ew/cases/PBRA/2026/s9.html