Elue, Application for Set Aside [2025] PBSA 22 (11 April 2025) [2025] PBSA 22

PBSA

Elue, Application for Set Aside [2025] PBSA 22 (11 April 2025)

[2025] PBSA 22 · 2025-01-29

[1]This is an application by Elue (the Applicant) to set aside the decision not to direct his release. The decision was made by a panel after a paper hearing on 29 January 2025. This is an eligible decision.

[2]I have considered the application on the papers. These are: a) The dossier now paginated to 334 pages; b) The decision (DL) dated 29 January 2025; and c) The application for set aside dated 18 March 2025 with annexes. Background

[3]The Applicant was convicted, following a trial, of offences of wounding with intent to cause grievous bodily harm, attempted wounding with intent to cause grievous bodily harm, possession of a bladed article and possession of a class B drug with intent to supply.

[4]On 19 June 2018 he received an extended determinate sentence comprising a custodial element of nine years and an extended licence period of four years. The index offences were committed in the context of the Applicant's significant role in a drug operation and his stabbing the victim on a number of occasions with "a Rambo-style hunting knife". Whist in custody the Applicant received a further sentence of imprisonment, to be served consecutively, for an offence of assault occasioning actual bodily harm upon a female prison officer.

[5]The Applicant was aged 22 at the time of sentencing. He is now 29 years old.

[6]The Applicant's parole eligibility date is given as 17 February 2025 and this was his first review. Application for Set Aside

[7]The application for set aside has been drafted and submitted on behalf of the Applicant by his solicitors.

[8]It submits that the DL contains 2 errors of fact in relation to: a) The Applicant's deportation status; and b) An assault upon another prisoner on 29 April 2024.

[9]I will deal with both these matters in detail in the discussion section of my decision . Current parole review

[10]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 the Applicant's release.

[11]The case proceeded to a paper hearing on 29 January 2025 before a single MCA member of the Parole Board

[12]The panel did not direct the Applicant's release. The Relevant Law

[13]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.

[14]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)).

[15]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

[16]The Respondent has offered no representations in response to this application . Discussion

[17]It is argued on behalf of the Applicant that there have been two errors of fact. (A) T he panel was provided with information about the Applicant's deportation status by Home Office Immigration Enforcement (HOIE) in a document dated 11 December 2024 (dossier pp. 226-8)

[19]The Applicant was born in the UK on 28 January 1996 and in October 1996 was listed as a dependent on his father's asylum claim which was refused in May 1997.

[20]The Applicant was granted indefinite leave to remain in the UK as a dependent of his father in April 2002.

[21]The Applicant has a lengthy criminal record with several convictions for violence and is subject to deportation, the deportation order having been signed on 16 October 2023. The Applicant lodged an appeal, but this was not pursued and was marked as withdrawn and concluded on 17 September 2024.

[22]It is submitted on behalf of the Applicant that the panel relied heavily on information within the dossier that the Applicant signed a Stage 1 Deportation Order that would allow for his deportation from the UK.

[23]I can find no suggestion in the HOIE document nor in the DL that the Applicant signed the deportation order. Indeed, on the contrary it is made clear (dossier p.60) by the Prison Offender Manager in a report dated 13 September 2024 that; "[The Applicant] has consistently refused to sign any conveyances or disclaimers from HOIE stating that his solicitor is dealing with everything. To date he has been served his Stage 1 notification + disclaimer and his FRS disclaimer which remain unsigned, on the occasions I have seen him he has not engaged much but remained polite."

[24]I find that the reference to the deportation order being signed is a reference to its execution by or on behalf of the proper authority.

[25]I can find no error of fact here but for which the decision not to direct release would not have been made. (B) It is also submitted on behalf of the Applicant that the panel relied heavily on incorrect information within the dossier that there was an outstanding police investigation into an allegation of assault against him.

[26]At DL para. 2.6 the panel notes, "Most recently was an assault on another prisoner on 29th April 2024 (after completing TSP), which when asked [the Applicant] state [sic] was due to him hearing voices and telling him to do this. This matter was referred to the police. It is unclear at the time of this review the status of these police matters, the police report directed has not been complied with, and [the Applicant's] COM states that they have no information that these matters have been concluded."

[27]The panel was rightly concerned about this matter and the review had been adjourned with a request for a detailed police report (dossier p.178). Most unfortunately, this was not forthcoming, but the dossier does contain a document headed Adjudication for charge LGI-001282 at pp.229-231.

[28]This is an unsatisfactory document as it is undated and appears to contain some commentary. However, on its face, it would appear to confirm that the prison adjudication process was commenced on 29 April 2024 when the Applicant was alleged to have punched another prisoner to the face and was placed on report.

[29]A hearing took place before a governor on 1 May 2024 and the matter was deemed sufficiently serious for it to be referred to the police.

[30]Under a heading, " Police referral", there appears:

"Reason for referral Assault Will this charge continue to prosecution? No Outcome Schedule a hearing"

[31]It is then confirmed that a hearing was scheduled for 13 June 2024 before a governor and finally it is stated, " There are no punishments added. You can only add punishments if the charge is proved."

[32]The document appears to have been prepared by "[ RW] Seconded Probation Officer" who is not the Applicant's Community Offender Manager.

[33]This document was attached by the Applicant's solicitors to the application in support of their submission that there was no outstanding police investigation at the time this review was considered on the papers.

[34]As I have already stated, this document was already part of the dossier when the solicitors provided further legal representations on 17 January 2025. However, the solicitors make no reference to it and, indeed, in their written representations in support of a request for an oral hearing dated 31 January 2025 the solicitors appear to accept that a police investigation was still ongoing, pointing out that the Applicant had not yet been contacted or interviewed by the police and going so far as to submit that the panel should have directed the " Investigating Police Officer to attend a future parole oral hearing to update the Panel with their investigation."

[35]The panel finds this to be a troubling matter not least because there appears at pp.181-184 a list of the Applicant's adjudications for which the data is said to have been "refreshed" on 19 November 2024 which states, without more, that the matter of an assault upon an inmate was referred to the police on 1 May 2024.

[36]This contrasts with the document produced by RW which indicates that a swift decision had been taken by the police that the matter of assault on 29 April 2024 would not proceed to a prosecution and that the adjudication reverted back to be handled within the prison system, initially on 13 June 2024.

[37]The panel was clearly provided with no assistance by the Applicant's solicitors on this issue nor by the professionals in their reports but it is evident that the panel proceeded on the basis that there was an outstanding police matter and it relied on this fact in more than one place in the DL (2.13: 3.6: 4.1: 4.5) when it came to make its decision not to direct release. Indeed, there is reference to outstanding " matters " in the plural, but it appears that this was the only one.

[38]On the basis of the evidence before me I am satisfied that the panel may well have been in error in finding as a fact that there was an outstanding police referral for an alleged assault by the Applicant in April 2024 and that this was sufficiently fundamental to the panel's analysis and risk assessment that the decision not to direct release would not have been made. Indeed, in my view, but for this error, rather than refusing to direct release, the panel, in order to fully and fairly consider the review, might well have decided to ensure that all previous directions were complied with fully, to obtain further information about the allegation and to hear from the Applicant on this and other matters at an oral hearing.

[39]I am also satisfied that it is in the interests of justice that, for the reasons I have given, the decision of 29 January 2025 should be set aside.

[40]Finally, for the sake of completeness, I note that the Applicant seeks to challenge by way of the set aside procedure the decision of a duty member dated 7 February 2025 to refuse a request for an oral hearing. This is a decision which is not eligible for set aside and such an application should not have been made. Decision

[41]The application for set aside is accepted. PETER H. F. JONES 11 April 2025