The Parole Board for England and Wales

 

[2025] PBSA 20

 

 

Application for Set Aside by Dawes

 

Application

 

1.   This is an application by Dawes (the Applicant) to set aside a decision not to direct his release. The decision was made by a panel after an oral hearing on 28 January 2025. This is an eligible decision.

 

2.   I have considered the application on the papers. These are the dossier, the oral hearing decision dated 21 February 2025, and the application for set aside dated 13 March 2025.

 

Background

 

3.   On 18 May 2005, the Applicant received a sentence of 24 years custody following a conviction for being concerned in the supply of a controlled drug - Class A - Heroin, contrary to s.4(3) of the Misuse of Drugs Act 1971. He had pleaded not guilty at trial.

 

4.   The Applicant was aged 36 at the time of sentencing. He is now 56 years old.

 

5.   He was automatically released on licence on 16 September 2015. His licence was revoked on 16 August 2016. He was re-released on 12 January 2017. His licence was revoked again on 23 January 2023, and he was returned to custody on 24 January 2023. This is his second 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 the Applicant’s legal adviser.

 

7.   It submits that there has been an error of fact and an error of law. The grounds are set out 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 28 January 2025 before a three member panel of the Parole Board. The panel heard evidence from the Applicant, a senior probation officer standing in for 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

 

Errors of fact

 

15.It is submitted on behalf of the Applicant that the panel decision in this case contained errors of fact susceptible to set aside including;

a)   The failure to define why towing away a vehicle of a partner was controlling or coercive;

b)   The failure to define why arriving at a police station (when the partner was seeking advice about the Applicant’s behaviour) was controlling and coercive;

c)   Failure to explain why sending multiple messages and a photo amounted to coercive and controlling behaviour, and;

d)   A misinterpretation of a comment by the Applicant regarding his behaviour being seen as threatening

 

16.I have considered these issues within the context of the hearing and have considered the written panel decision. The panel heard evidence and considered an extensive dossier. I have carefully read the submissions advanced on behalf of the Applicant and cannot find anything within them that would amount to an error of fact. The matters raised primarily deal with the panel’s interpretation of the evidence before it and not the facts within the evidence upon which any interpretation was based. The panel succinctly summarised the reasons for reaching their decision relating to coercive and controlling behaviour. The panel found the evidence of the Applicant’s partner to be credible and concluded “The quantum, and specific detail, of information provided by [the Applicant’s partner] to the police leads the panel to conclude that on the balance of probabilities [the Applicant’s] behaviour was coercive and controlling.”

 

17.Even if I had found there to have been errors of fact in the panel’s decision (which, 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.

 

Errors of Law

 

18.The law relating to allegations in Parole Board hearings was comprehensively analysed in the decision of Pearce [2023] UKSC 13 on appeal from [2022] EWCA Civ 4. The Supreme Court set out their conclusions in this case, which reflects the law, namely;

 

“Paragraph 87: We summarise our conclusions as follows:

 

(i)                There is no general legal rule that in making a risk assessment the Board must adopt a two-stage process of making findings of fact on the balance of probabilities and then treating only those matters on which it has made findings of fact as relevant to the assessment of risk.

(ii)               The Board’s task is to address whether the safety of members of the public requires that the prisoner should remain confined. In so doing, the Board must have regard to the consequences of its decision on the interests of the prisoner, and the hardship he may suffer if he no longer needs to be confined in order to protect the public.

(iii)              There is no rule of substantive fairness, akin to a legitimate expectation, which requires the Board to have regard only to found facts in its assessment of risk.

(iv)              What procedural fairness requires of the Board in its impartial performance of its statutory remit is determined by the statutory terms of that remit and the wider legal context of the common law.

(v)               If weight is to be given to an allegation of criminal or other misbehaviour in the risk assessment, the Board should first attempt to investigate the facts to enable it to make findings on the truthfulness of the allegation. If, as may often be the case despite its efforts to obtain the needed information, the Board is not able to make such a finding, it should investigate the facts to make findings as to the surrounding circumstances of the allegation which may or may not point to behaviour by the prisoner which is relevant to the assessment of risk.”

 

19.The panel in my determination clearly applied the legal principle set out above. At paragraph 1.11, of the oral hearing decision, the panel confirmed that they had considered the allegations relating to the Applicant. They had also fully considered the response and evidence from the Applicant at the hearing. The Applicant has therefore been offered a fair and full opportunity to explain the circumstances of his relationship with his partner at that time. Having assessed all the evidence the panel came to the conclusion that they did not find the Applicant's evidence and explanations to be credible. The panel had considered a detailed written report, given to the police by the Applicant’s former partner, which the panel considered to be credible. The panel applied the correct legal test to the evidence which they considered.

 

20.The Applicant’s legal adviser has listed, in some detail the various aspects of the Parole Board guidance in relation to allegations, however, the fundamental issue in this case, is whether the panel applied the law appropriately and correctly. It is clear from the decision the panel did apply the law as set out in the case of Pearce.

 

21.The submissions on behalf of the Applicant amount to criticisms of the determination and findings of the panel, rather than an error of law. The panel having considered the entirety of the evidence and applied the case of Pearce were entitled to reach the conclusion, which they did. In the circumstances therefore I find there is no error of law in this case.

 

22.Accordingly, as I find no error of law, it follows that the decision made by the panel not to direct release is not impacted by any error of law and cannot therefore be said to be a decision which would not have been made.

 

Decision

 

23.The application for set aside is refused.

 

HH Stephen Dawson

17 April 2025