The Parole Board for England and Wales

 

[2025] PBSA 26

 

 

Application for Set Aside by Mushtaq

 

Application

 

1.   This is an application by Mushtaq (the Applicant) to set aside the decision not to direct his release. The decision was made by a panel on the papers on 17 March 2025. This is an eligible decision.

 

2.   I have considered the application on the papers. These are the dossier consisting of 307 pages, the decision dated 17 March 2025, and the application for set aside dated 7 April 2025.

 

Background

 

3.   On 8 November 2023, the Applicant received a sentence of 4 years 2 months imprisonment comprising of consecutive sentences for a plea to supplying drugs and conviction after trial for violent disorder.

 

4.   The Applicant was aged 23 at the time of sentencing. He is now 25 years old.

 

5.   He was automatically released on licence on 4 January 2024. His licence was revoked on 10 August 2024, and he was returned to custody on 13 August 2024. 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 legal representatives on behalf of the Applicant.

 

7.   It submits that there has been an error of law but for which the decision not to direct the release of the Applicant would not have been made.

 

8.   The grounds submit that the decision to cancel the oral hearing, thus preventing the Applicant from giving evidence, and the way in which the allegation of further offending was dealt with amount to errors of law.

 

Current parole review

 

9.   The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) to consider whether to direct his release.

 

10.The case was directed to an oral hearing on 10 March 2025 by an MCA panel on 21 October 2024. Due to an outstanding police investigation relating to drug supply matters by a notice on 10 February 2025 the panel chair informed the parties that he was minded to conclude the case on the papers under rule 21 and invited representations. Representations were submitted on behalf of the Applicant which were rejected by the panel and the case was concluded on the papers on 17 March 2025.

 

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

 

The Relevant Law

 

12.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.

 

13.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)).

 

14.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

 

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

 

Discussion

 

16.It is argued on behalf of the Applicant that there has been an error of law. In particular the Applicant submits that the panel did not follow the guidance on allegations and the decision in Pearce [2023] UKSC 13. Had it done so, the application submits that the oral hearing would have gone ahead and “there is a possibility that the outcome would have been different”.

 

17.There is no error of law in the panel’s decision nor any basis on which to set aside the decision. The investigation by the police would have taken months to conclude, an estimate was that it would be several months before a charging decision would be taken. The investigation involved forensic testing of material and valuations on which results were awaited. This was an allegation that the panel could not resolve on the basis of hearing only the Applicant’s side of events, it would need the results of the forensic testing. In those circumstances the only fair and practical course of action was for the panel to disregard the allegation and consider the review on the basis of the information before the panel which did not require the panel to hear from the Applicant. Nor does the Applicant suggest that in the absence of consideration of the allegation it was necessary for him to give evidence.

 

18.Although the allegation involved a situation which paralleled the index offence, the panel disregarded it and made no finding upon it. A panel choosing to disregard an allegation potentially relevant to risk has not prejudiced the Applicant in any way. The panel’s approach did not infringe the Parole Board guidance or the guidance in Pearce. The allegation did not affect the panel’s risk assessment as the panel attached no weight to it. 

 

19.The panel followed the Board’s guidelines and the guidance in Pearce. Had the panel directed an oral hearing there is no possibility that the outcome would have been different. The panel took into account the details of the index offences, the contents of the dossier, the Applicant’s conduct in custody and on licence, the risk management plan, the unacceptability and therefore the unavailability of accommodation and the recommendation of the professional report writers. The panel concluded that the Applicant’s risks are not manageable in the community at the present time, a conclusion clearly based on the evidence. 

 

Decision

 

20.Accordingly, the application for set aside is refused.

 

 

 

Barbara Mensah

29 April 2025