Miah, Application for Set Aside by the Secretary of State for Justice [2025] PBSA 14 (06 March 2025) [2025] PBSA 14
[1]This is an application by the Secretary of State for Justice (the Applicant) to set aside the decision to direct the release of Miah (the Respondent). The decision was made by a panel after an oral hearing on 20 August 2024. This is an eligible decision.[2]I have considered the application on the papers. These are the dossier of 610 pages including the oral hearing decision dated 27 August 2024, and the application for set aside dated 17 February 2025. Background[3]On 10 May 2013, the Respondent received an extended sentence of 18 years imprisonment following his plea to three offences of rape of a female under 16. The sentence was made up of a custodial element of 12 years and an extended licence period of 6 years. He was also sentenced to a concurrent extended sentence of 5 years imprisonment with a 5 year licence extension for an offence of robbery and a determinate concurrent sentence of 18 months imprisonment for possession of a bladed article.[4]The Respondent was aged 19 at the time of sentencing. He is now 31 years old.[5]He was automatically released on licence on 30 May 2022. His licence was revoked on 8 June 2022, and he was returned to custody on 9 June 2022. This is his first recall on this sentence, and his second parole review since recall. Application for Set Aside[6]The application for set aside has been drafted and submitted by the Public Protection Casework Section (PPCS) on behalf of the Applicant.[7]It submits that there has been new information which came to light after the panel made its decision. It is argued that the panel may not have reached the same decision had this new information been known.[8]The content of the application will be considered in the ‘Discussion’ section below. Current parole review[9]The Respondent’s case was referred to the Parole Board by the Applicant to consider whether to direct his release.[10]The case proceeded to an oral hearing on 20 August 2024 before a 2-member panel. The panel heard evidence from the Respondent, a stand-in Prison Offender Manager ( POM ) as his appointed POM was unable to attend the hearing, his Community Offender Manager ( COM ) and a HMPPS forensic psychologist. The Respondent was legally represented throughout the hearing.[11]The panel directed the Respondent’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 detailed representations in response to this application . Discussion[16]It is argued on behalf of the Applicant that there has been new information. The new information consists of train line maps found in the Respondent’s cell. The Applicant submits that this information needs to be considered in the light of photographs in the Respondent’s possession of images of a fighter plane alongside images of a mosque and his claim to be a Taliban supporter. The Applicant also relies on other background information regarding the Applicant’s ideology and aspects of his character.[17]The Respondent rejects the submissions noting that the claims are not new and the conclusions drawn with regard to risk are tenuous and without foundation. The Respondent further submits that he has no objections to the additional licence conditions proposed in the case.[18]On the face of it this information about train lines seems unalarming in the possession of a person about to be released from custody and who has an interest in engineering and modes of transport. It is not entirely clear whether all the material is new as suggested in the application or whether it was not raised at the hearing. There are disputes between the parties as to the source of the information, whether on a device or in a poster. This concern about the reliability of the source of material is noted by the Senior Probation Officer. These are not matters which can be determined without hearing evidence.[19]Putting aside the question of whether the claims against the Respondent are new claims or not, as queried by the Applicant, whether the information in the light of the Respondent’s interests and risk would have affected the panel’s conclusion is not something I can determine on the papers. In particular because many of the matters relied upon by the Applicant, their provenance and reliability, were not considered by the panel. Oral evidence will need to be obtained from the Respondent as to his views and the significance of the material in his cell. The Respondent notes the recent police questioning which led to no further action being taken which would appear to suggest the risk is not great. The Applicant makes no mention of the recent police questioning. The Respondent will need to provide details of date and nature of that police questioning.[20]It would appear from the response that additional licence conditions may have been proposed, it is not clear what those additional conditions are and whether those additional conditions are proposed in order to manage the additional risk raised by the discovery of the new material. This will need to be explored at an oral hearing. Decision[21]The application for set aside is accepted. Barbara Mensah 06 March 2025