The Parole Board for England and Wales

 

[2025] PBSA 12

 

 

Application for Set Aside by Carolan

 

Application

 

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

 

2.   I have considered the application on the papers. These are the dossier (consisting of 168 numbered pages), the decision (dated 9 January 2025), the application for set aside (dated 10 February 2025) and a copy of a certificate presented to the Applicant on completing the Thinking Skills Programme (TSP).

 

Background

 

3.   On 31 August 2023, the Applicant received a total sentence of two years and two months following conviction for various offences, including dangerous driving, driving under the influence of drugs, driving whilst disqualified and possession of cannabis with intent to supply.

 

4.   The Applicant was 28 years old at the time of sentencing and is now 29 years old.

 

5.   He was automatically released on licence on 11 October 2023. His licence was revoked on 15 August 2024, and he was returned to custody the following day. He was further convicted of dangerous driving, driving whilst disqualified and driving without insurance. He received a concurrent eight-month sentence.

 

6.   His sentence ends in May 2025.

 

Application for Set Aside

 

7.   The application for set aside has been drafted and submitted by solicitors on behalf of the Applicant and submits that the panel's decision contained an error of fact.

 

Current Parole Review

 

8.   The Applicant's case was referred to the Parole Board by the Secretary of State (the Respondent) to consider whether or not it would be appropriate to direct his release.

 

9.   A single member panel made no direction for release on the papers.

 

The Relevant Law

 

10.Rule 28A(1)(a) of 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.

 

11.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)).

 

12.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 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

 

13.The Respondent has not submitted any representations in response to this application.

 

Discussion

 

14.The application for set aside argues that the panel made an error of fact and that the panel would have released him but for that error.

 

15.The panel's conclusion noted that "until [the Applicant] addressed his poor thinking skills and attitude to offending, further work in the community was unlikely to succeed and the risk of offending would remain".

 

16.It is submitted that the Applicant had, in fact, addressed his thinking skills by completing TSP on 13 November 2024. This is evidenced by the certificate annexed to the application.

 

17.In determining whether the panel made an error of fact, I note that (at para 2.6) the decision states "[The Applicant]...has been exploring the possibility of completing the Thinking Skills Programme but there are no further updates in the dossier".

 

18.I have reviewed the dossier carefully. The panel was correct in its statement. There is nothing in the dossier to suggest that the Applicant had, in fact, completed TSP. The panel was not mistaken, based on the evidence before it.

 

19.I also note that the written legal representations within the dossier (dated 6 December 2024) state that the Applicant "has actively participated in Thinking Skills work". The representations did not say that he had completed that work, even though they were drafted some three weeks after the Applicant had, in fact, completed TSP. Given that there was no other certainty about TSP within the dossier at that time, the pre-decision representations would have afforded the ideal opportunity for the Applicant to bring his completion of TSP to the panel's attention, before it made its decision, rather than attempting retrospectively to rely upon it.

 

20.In any event, the panel did not make an error of fact by failing to note that the Applicant had completed TSP. The panel could not be mistaken about matters of which it is unaware at the time it made its decision. The panel's decision was based on the evidence available at the time. Since there was no documentation in the dossier confirming the completion of TSP, the panel was not in error. A panel cannot be expected to consider facts that were not presented to it before making a decision.

 

21.There being no error of fact, the application must fail.

 

Decision

 

22.For the reasons set out above, the application for set aside is refused.

 

 

Stefan Fafinski

18 February 2025