Tony Hudgell’s adoptive mother said she is “disappointed” after a bid to delay the release of his abusive birth mother from prison was found unlawful by a High Court judge.
Jody Simpson, 29, and her partner Anthony Smith Both were both jailed for 10 years in 2018 after torturing the little boy, now aged eight, so badly that he needed both legs amputating.
Simpson had been due for release on licence in August at the halfway point of her sentence.
But her case was personally referred to the Parole Board by Justice Secretary Dominic Raab under new discretionary powers to protect the public from dangerous offenders.
The referral overrides the automatic conditional release of a prisoner, in specific circumstances where public safety is deemed to be at risk.
Prisoners referred under this “power to detain” are not released until the Parole Board is satisfied that it is no longer necessary for the protection of the public for the prisoner to be confined or they reach the end of their sentence.
Smith’s sentence was also previously referred to the board by Mr Raab, which put his release on licence on hold.
Simpson brought a legal challenge against Mr Raab’s decisions, arguing that they were “unreasonable”, unlawfully prolonged her detention and were not justified in departing from the view of the sentencing judge that she “did not pose a significant risk of serious harm to members of the public”.
In a ruling on Friday, Mrs Justice Heather Williams said Mr Raab’s decisions to refer Simpson’s case should be quashed.
Tony’s adoptive mother, Paula Hudgell, told BBC News she was “disappointed”.
“I thought Dominic Raab had an extremely strong case,” she said.
“Obviously we knew they would be released at some point, but every extra day is a bonus as far as we’re concerned.”
Her MP, security minister Tom Tugendhat, described the ruling as “very disappointing”.
He told the broadcaster: “These two people have committed a horrific act against a young child, and Tony and his real parents, the parents who actually love him, Paula and Mark, have been campaigning to get the law changed.
“They always knew it wasn’t going to change for Tony of course, that’s in the past, but that’s exactly why they were campaigning to get the law changed for the future.”
Tougher sentencing for child abusers came into force in June, meaning anyone who causes or allows the death of a child or vulnerable adult in their household can now be given up to life in prison – increased from the previous 14-year maximum.
The sentencing changes under the Police, Crime, Sentencing and Courts Act 2022 are known as “Tony’s Law”, following campaigning by the child’s adoptive family.
Tony was 41 days old when he was assaulted by his birth parents, an attack which caused multiple fractures, dislocations and blunt trauma to the face, leading to organ failure, toxic shock and sepsis.
He was left untreated and in agony for 10 days, and due to the extent of his injuries both his legs had to be amputated.
His adoptive mother previously said that the boy “suffers every single day” and that Simpson and Smith’s sentence “doesn’t reflect the severity of the crime”.
Mrs Justice Heather Williams concluded that Mr Raab did not have the legally required “reasonable grounds” for believing the prisoner posed a “significant risk” as opposed to “a possible risk of her re-offending or a risk that cannot be ruled out altogether”.
“In this instance there was a formidable body of material before the secretary of state, at each stage of his decision-making, which indicated that (Simpson’s) risks could be safely managed if she was released,” the judge said.
The judge added that the Probation Service previously concluded that the risk Simpson posed to children arose “in very specific circumstances that she would not be in a position to repeat” and that her licence conditions would “’significantly mitigate’ the risk that she posed over the next five years”.
Previously proposed conditions to be imposed on Simpson if she were released included not to communicate with Tony or his family, not to have unsupervised contact with children under 16 without prior approval, not to contact Smith, and to observe a nightly curfew.
Mr Raab said he was considering whether to appeal.
“I want to see the most dangerous offenders spend longer behind bars which is why I intervened in this case, passed tougher sentences for child cruelty, and introduced parole reforms to keep prisoners who pose a risk to the public off our streets,” he said.
“I am now carefully considering whether to appeal in this case.”
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