The Parole Board for England and Wales

 

[2025] PBSA 13

 

 

       Application for Set Aside by Payne

 

Application

 

1.   This is an application by Payne (the Applicant) to set aside the decision not to direct his release or recommend a transfer to open prison conditions. The decision was made by a panel after a paper hearing. 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 195 pages;

·        The decision letter (DL) dated 13 December 2024; and

·        The application for set aside dated 7 February 2025.

 

Background

 

3.   On 13 April 2005 the Applicant, upon his guilty plea, was sentenced to life imprisonment for murder. The minimum term was set at 12 years less time spent on remand in custody and the tariff expiry date is given as 4 August 2016.

 

4.   The Applicant was aged 21 at the time of sentencing and is now 41 years old.

 

5.   He was released on licence, following a direction of the Parole Board, on 1 September 2022. His licence was revoked on 15 October 2024 and he was returned to custody the next day. This is his first recall on this sentence and his first parole review since recall.

 

6.   The Applicant pleaded guilty to the murder of the victim, PJ, in July 2004 when the Applicant was leading a chaotic lifestyle marked by significant alcohol and drug misuse. In the course of an argument, he struck the victim to the head with a hatchet on more than one occasion and left him to die of his injuries.

 

7.   The Applicant had a number of previous convictions mostly relating to the misuse of alcohol and non-compliance in the community.

 

8.   The Applicant was recalled to custody after a report from his partner that the Applicant’s dog had bitten her nephew causing puncture wounds and subsequently the Applicant had become verbally aggressive whilst in possession of a knife and threatened “to put her and the family down” if anything happened to the dog. He made threats to kill himself and, when later apprehended by the police, was in possession of a Stanley knife. He was arrested for affray, possession of a bladed article and possession of a dangerous dog causing injury and the dog was seized.

 

9.   The Panel was aware that the Applicant had been charged and was due to appear in the Magistrates Court on 11 November 2024 to face charges of being the owner of a dog dangerously out of control, possession of an offensive weapon and a s.4 Public Order Act 1986 offence but was not aware of the outcome of these proceedings.

 

Application for Set Aside

 

10.The application for set aside has been drafted and submitted by solicitors acting on behalf of the Applicant.

 

11.It submits that there has been an error of fact/law in that, had information now provided by the solicitors for the Applicant been known to the Panel at the material time, a different outcome would have resulted. It is not made clear what this “different outcome” would have been, but it must be remembered that the set aside procedure does not apply to a refusal to recommend a transfer to open conditions.

 

Current parole review

 

12.The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) on 6 November 2024 to consider whether or not the Applicant should be released or, in the alternative, whether he should be transferred to open prison conditions.

 

13.The case proceeded by way of a paper hearing and the Panel, having considered a dossier paginated to 186 pages, did not direct the Applicant’s release or recommend a transfer to open conditions.

 

The Relevant Law

 

14.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.

 

15.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)).

 

16.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

 

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

 

Discussion

 

18.The application for set aside does not specify whether an error of fact or an error of law is relied on, and no mention is made of the interests of justice.

 

19.The Applicant’s solicitors report, without providing the date upon which the proceedings were concluded, that the Applicant was convicted of two offences and sentenced to three months imprisonment for being the owner of a dog dangerously out of control with no separate penalty being imposed for the public order offence. A charge of possessing an offensive weapon was not proceeded with.

 

20.This application can be dealt with shortly. The Panel was aware that the Applicant faced fresh charges before the Magistrates Court and was aware of the nature of those charges and the allegations made.

 

21.The Panel had the power to deal with the review on the papers in accordance with r.19 Parole Board Rules. The decision was initially provisional. As is made clear in the DL, the Applicant was entitled to apply for an oral hearing to determine the case pursuant to r.20 Parole Board Rules within 28 days of the date on which the decision was sent to him.

 

22.I am not told that the Applicant applied for an oral hearing nor, as he contacted his solicitors on 21 January 2025, for an extension of time to do so pursuant to r.9 Parole Board Rules. The decision not to direct release or recommend a transfer to open conditions therefore became final.

 

23.The Panel considered the principles set out in the case of Osborn, Booth & Reilly [2013] UKSC 61 concerning the holding of oral hearings and did not find any reason for directing the review to an oral hearing.

 

24.It presumably took the view that it did not need to know the outcome of the fresh proceedings and that it had sufficient information to deal with the review fairly on the papers in December 2024.

 

25.I find the Panel correctly stated the factual position as set out in the dossier and it is difficult to see how the knowledge that the Applicant was convicted of two of the offences which he faced and was sentenced to a term of imprisonment for them would have led, as is submitted, to a different outcome.

 

26.The Panel in this case exercised its discretion to proceed by way of a paper review and the DL made specific reference to the Applicant’s right under the Rules to apply for an oral hearing. Unfortunately, this application seems to have been drawn up without proper consideration being given to the ambit of the setting aside procedure and does not, I find, disclose any error of fact or law but for which the decision not to direct release would not have been made.

 

Decision

 

27.I have carefully considered this application. The Panel exercised its judgement in this case, and I can find no errors of law or fact but for which the decision not to direct release would not have been made and, for the reasons I have given, I find that the application to set aside is without merit and it is refused.

 

 

PETER H.F. JONES

26 February 2025