The Parole Board for England and Wales

 

[2025] PBSA 11

 

 

Application for Set Aside by Robson

 

Application

 

1.   This is an application by Robson (the Applicant) to set aside the decision not to direct his release. The decision was made by a panel after an oral hearing on 19 December 2024. This is an eligible decision.

 

2.   I have considered the application on the papers. These are the dossier comprising 341 pages, the oral hearing decision dated 27 December 2024, and the application for set aside received on 31 January 2025.

 

Background

 

3.   On 10 June 2016, the Applicant received a determinate sentence of 10 years imprisonment for wounding with intent to cause grievous bodily harm.

 

4.   The Applicant was aged 21 at the time of sentencing. He is now 29 years old.

 

5.   He was automatically released on licence on 8 July 2021. His licence was revoked on 13 July 2022, and he was returned to custody on 23 July 2022. This is his first recall on this sentence, and his second parole review since recall.

 

Application for Set Aside

 

6.   The application for set aside has been drafted and submitted by solicitors acting for the Applicant.

 

7.   It submits that there have been errors of fact and law and that but for those errors the decision not to release the Applicant would not have been made.

 

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 his release.

 

9.   The case proceeded to an oral hearing on 19 December 2024 before a two-member panel. The Applicant did not attend the hearing. At a case conference hearing on 26 November 2024 which was attended by the Applicant and a legal representative, the panel considered an application for a victim observer to attend the hearing. The Applicant raised concerns which were taken into account by the panel resulting in the panel directing that parts of the hearing were to be conducted in closed session without the victim observer and seeking undertaking in respect of aspects of evidence.

 

10.At the outset of the oral hearing in December 2024 the panel were provided with a note from the Applicant in which he expressed an unwillingness to attend the hearing. The note read "I'm professionally embaressed to work with the parol board. ATT" (sic). The panel was told that ATT meant 'at this time', however no other explanation was provided regarding the interpretation of the note. The panel carefully considered the meaning of the note, considered the Parole Board Rules and concluded that the Applicant would not be attending and that the hearing should proceed in his absence.

 

11.The panel heard evidence from the Applicant's Prison Offender Manager (POM) and his Community Offender Manager (COM). The Applicant had not engaged with his legal representative who had withdrawn his representation the day before the hearing. Also present at the hearing but not participating was the victim observer. The applicant did not seek an adjournment to identify other legal representation.

 

12.The panel did not direct the Applicant's release.

 

The Relevant Law

 

13.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.

 

14.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)).

 

15.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

 

16.The Respondent has offered no representations in response to this application.

 

Discussion

 

17.It is argued on behalf of the Applicant that there has been an error of law in the panel proceeding with the hearing in the absence of the Applicant and the presence of the observer. It is further submitted that there was an error of fact in the panel interpreting ATT as "at this time" and nevertheless proceeding with the hearing when the interpretation would indicate that the Applicant would attend at a future time.

 

18.The panel continuing with the oral hearing in the light of the Applicant's decision to absent himself from the hearing does not amount to an error of law. The attendance of the observer and the measures agreed to ensure fairness to the Applicant and to respect the confidentiality of some of his personal information were carefully considered at a conference hearing and fully set out in the directions document of 26 November 2024. The Applicant attended the conference hearing and was legally represented at the hearing.

 

19.The Applicant's decisions not to engage with his representative, who withdrew the day before the hearing and not to attend the hearing or provide a full and clear explanation of his reason for not doing so do not amount to an error of law. In choosing not to attend he would have been aware that he would be losing the opportunity to put his evidence before the panel. The panel adopted the correct and fair approach in its consideration of the attendance of the victim observer, applying the Parole Board policy and seeking legal advice. All the concerns raised by the Applicant on receipt of the observer request were addressed by the panel at the conference and set out in the panel chair directions. The decision to proceed in the absence of the Applicant also properly followed the procedure rules. In doing so the panel applied the decision it had made at the conference hearing regarding evidence being heard in closed session and requiring undertakings. The panel's reasons are clearly set out in the decision letter of 27 December 2024 and do not disclose any error of law or fact.

 

20.The Applicant submits that the error of fact lies in the panel failing to appreciate that the expression "ATT" interpreted as "at this time" indicated that the Applicant would attend at a future time.

 

21.The onus is not on the panel to interpret cryptic messages. If the Applicant wanted an adjournment he could and should have said so. The Applicant had delayed in returning documentation regarding representation, he had not engaged with his representative who had subsequently withdrawn nor had the Applicant engaged the services of a new representative. He had expressed to his POM (not denied in his application) that "he would prefer to spend the remaining period of his sentence in custody rather than engage with a hearing in which the observer attended". In those circumstances the panel was entitled to conclude that for the purposes of the hearing, and no doubt for the foreseeable future until he changed his mind, the Applicant had chosen not to attend the oral hearing. There was no error in that decision. The behaviour and attitude of the Applicant appeared to be an attempt to force the panel to change its decision regarding the attendance of the victim observer. All the evidence was carefully and fairly considered by the panel and none of the matters raised leads me to conclude that it would be in the interests of justice to set aside the decision.

 

22.For all the reasons given I am satisfied that there has been no error of law or fact in the panel's decision.

 

Decision

 

23.The application for set aside is refused.

 

 

Barbara Mensah

14 February 2025