The Parole Board for England and Wales

 

[2025] PBSA 5

 

 

Application for Set Aside by Gega

 

Application

 

1.   This is an application by Gega (the Applicant) to set aside the decision not to direct his release. The decision was made by a Panel on 28^th October 2024 following an oral hearing on 15^th October 2024. This has been deemed to be an eligible decision.

 

2.   I have considered the application on the papers. These are:

 

·         The dossier now paginated to 414 pages;

·         The decision letter (DL) dated 28^th October 2024;

·         The application for set aside dated 6^th January 2025; and

·         The decision of 16^th December 2024 in relation to an application dated 18^th November 2024 for reconsideration of the same decision not to release the Applicant.

 

Background

 

3.   On 16^th April 2018 the Applicant received an extended sentence for offences of kidnap, false imprisonment, robbery, blackmail, affray, possession of an offensive weapon and causing grievous bodily harm with intent to do grievous bodily harm. The sentence consisted of a custodial term of nine years imprisonment and an extended licence period of two years.

 

4.   The Applicant was 19 years old at the time of sentencing. He is now 26 years old.

 

5.   The Applicant's Parole Eligibility Date is given as 26^th October 2023, and this was his first parole review.

 

Application for Set Aside

 

6.   The application for set aside is said to rely on "numerous errors of fact" in the DL and no mention is made of the interests of justice.

 

Current parole review

 

7.   The Applicant's case was referred to the Parole Board in January 2023 by the Secretary of State (the Respondent) to consider whether the Applicant should be released.

 

8.   The Panel did not direct the Applicant's release following an oral hearing by video conference on 15^th October 2024. The Panel consisted of an independent member, a judicial member and a psychologist member. It heard evidence from the Applicant, his Prison Offender Manager (POM), his Community Offender Manager (COM) and a forensic psychologist on behalf of HMPPS. The Applicant was legally represented throughout the hearing.

 

The Relevant Law

 

9.   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.

 

10.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)).

 

11.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

 

12.By email dated 7^th January 2025, PPCS on behalf of the Respondent declined to submit representations regarding the application.

 

Discussion

 

13.The solicitors for the Applicant challenged the decision of the Panel, which was at that stage provisional, by making an application for reconsideration pursuant to Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2022) (the Parole Board Rules) which provides that applications for reconsideration may be made in eligible cases (as set out in rule 28(2)) either on the basis (a) that the decision contains an error of law, (b) that it is irrational and/or (c) that it is procedurally unfair.

 

14.It would appear from the decision of the Board member, which I have considered, that reconsideration was sought on the basis of "procedural irrationality" [sic] in relation to analysis of risk and risk reduction work and in relation to custodial behaviour.

 

15.It is to be noted that the two grounds put forward as amounting to errors of fact are set out under the same headings and, although I have not seen the reconsideration application, it would appear from a careful reading of the reasons for the refusal of reconsideration of the decision, as being neither irrational nor reflecting procedural unfairness, that the same matters are now said to amount to errors of fact.

 

16.Nevertheless, I have considered the substance of the present application, and I find that it can be dealt with shortly.

 

Ground 1 - Evidence of Error of Fact - Risk and Risk Reduction Work

 

17.This ground simply repeats evidence which was before the Panel and seeks to make further submissions in support of the application for release.

 

18.The Panel was well aware that there was unanimous professional support for release but, like all Parole Board panels, it was not obliged to adopt those views and recommendations and I find that the Panel set out clearly and in detail its reasons for diverging from the professional opinions, having carried out its own independent risk assessment and making its findings in the light of the totality of the evidence. This was a decision peculiarly for the Panel and, in my view, the grounds relied on do not disclose any error of fact but for which the decision not to direct release would not have been made.

 

Ground 2 - Evidence of Error of Fact - Custodial Behaviour

 

19.The submissions made here essentially mirror those put forward in Ground 1 but under a different heading. The Panel carefully considered the Applicant's custodial behaviour and did not come to the same conclusions as the POM and the COM, particularly as regards the entries in the security report and his inappropriate comments to staff.

 

20.The Panel did not accept the assertion of improved behaviour set out in the application, finding instead that the evidence did not support the suggestion that there had been a two year period of improved behaviour. The Panel set out fully its reasons for diverging from the professional assessments and found that the Applicant's risks could not be safely managed in the community under the proposed risk management plan. Again, the Panel was here exercising its judgement on the basis of all the relevant evidence, and I can find no error of fact but for which the decision not to release would not have been made.

 

Decision

 

21.I have carefully considered the application and, for the reasons I have given, I find that the application to set aside is misconceived and entirely without merit and it is refused.

 

                                        

PETER H. F. JONES

22 January 2025