The Parole Board for England and Wales

 

[2025] PBSA 18

 

 

Application for Set Aside by Edgar

 

Application

 

1.   This is an application by Edgar (the Applicant) to set aside the decision not to direct his release. The decision was made by a panel after an oral hearing on 6 January 2025. This is an eligible decision.

 

2.   I have considered the application on the papers. These are the dossier, the undated oral hearing decision issued on 10 March 2025, and the application for set aside dated 17 March 2025.

 

Background

 

3.   On 7 February 2022, the Applicant received a sentence of 4 years and 11 months imprisonment following conviction for racially/religiously aggravated assault, assault occasioning actual bodily harm, battery and criminal damage to which he pleaded guilty.

 

4.   The Applicant was aged 33 at the time of sentencing. He is now 36 years old.

 

5.   He was automatically released on licence on 29 september 2023. His licence was revoked on 19 December 2023, and he was returned to custody on 21 December 2023. This is his first recall on this sentence, and his first parole review since recall.

 

Application for Set Aside

 

6.   The application for set aside has been drafted and submitted by his legal adviser.

 

7.   It submits that there has been an error of fact, details below.

 

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 release.

 

9.   The case proceeded to an oral hearing on 6 January 2025 before a 2-member panel, The panel heard evidence from the Applicant, his Prison Offender Manager (POM) and his Community Offender Manager (COM). The Applicant was legally represented throughout the hearing.

 

 

10.The panel did not direct the Applicant’s release.

 

The Relevant Law

 

11.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.

 

12.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)).

 

13.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

 

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

 

Discussion

 

15.It is submitted by the Applicant’s legal adviser that this matter should be set aside because the panel who considered the case failed to order a further adjournment (before concluding the case), to allow the prisoner’s COM to meet the prisoner. It is argued that a (one to one) meeting with the prisoner may have resulted in a different recommendation from the COM.

 

Discussion

 

16.The background to this application was a difficulty which occurred as a result of changes in the Applicant’s allocated COM.

 

17.An oral hearing took place and at short notice a stand-in COM gave evidence. An issue arose as to whether the Applicant was likely to have a place at a drug rehabilitation unit (something which had been mooted in earlier discussions about the progression of the Applicant).

 

 

18.After the formal hearing the panel chair then adjourned the matter (on two occasions) asking for further information. Further information was provided by various professionals. One of the requests was for the COM to attempt to meet with the Applicant and subsequently to provide a professional opinion as to whether the Applicant had a place in a drug rehabilitation unit and to review the professional recommendation.

 

19.Although the panel received additional detailed information from various professionals, including information about a deterioration in the Applicant’s  behaviour, the panel did not receive any written updated report from the COM.

 

20.The argument adduced in relation to set aside is that the matter should be set aside because the panel failed to adjourn and await the receipt of any further report from the COM before making a decision. There had been an oral update from the COM, by way of a conversation with a parole board case manager. The substance of that oral update was recorded in the decision.

 

21.In order to consider the submission it is necessary to refer to the basis upon which set aside can be ordered. As is noted above, a decision may be set aside if a direction for release would not have been given or made but for an error of law or fact and it is in the interests of justice to do so.

 

22.In this case there is no argument that there was any error of law.

 

23.The question therefore is whether there was an error of fact which engages set aside. As I have indicated above, the argument is that the panel should have continued to adjourn this case until they received more information from the COM about drug rehabilitation units and had given the COM the opportunity to discuss the Applicant’s future, on a one to one basis with him.

 

24.I have carefully considered the submissions in this case, however I can find no error of fact which can engage set aside. A decision not to adjourn the panel hearing for more information cannot be characterised as an error of fact.

 

25.A panel of the Parole Board is entitled to decide when it has sufficient information upon which to make the decision on the basis of the referral. In this case there was a substantial amount of written information about the Applicant’s progress. The Applicant had been involved in a number of negative issues in the prison. He had been in the segregation unit and had received adjudications.

 

26.Having considered the matter in detail, I can find no error of fact upon which this application could rest, and therefore have concluded that the application to set aside must be refused.

 

27.For the avoidance of doubt, having considered the dossier as a whole, even if I had found that there had been errors of fact in the panel’s decision, (which again to be clear I do not), I do not find that the matters raised by the Applicant would have made a difference to the panel’s decision not to have directed the Applicant’s release.

 

Decision

 

28.The application for set aside is refused.

 

 

 

HH Stephen Dawson

26 March 2025