Uddin, Application for Set Aside [2025] PBSA 29 (06 May 2025) [2025] PBSA 29

PBSA
Uddin, Application for Set Aside [2025] PBSA 29 (06 May 2025)
[2025] PBSA 29 · 2025-04-12
[1]This is an application by Uddin (the Applicant) to set aside the decision not to direct his release. The decision was made by a panel following an oral hearing . This is an eligible decision.[2]I have considered the application on the papers. These are the dossier (consisting of 276 numbered pages), the decision (dated 12 April 2025), and the application for set aside (dated 16 April 2025). I have also listened to an audio recording of the hearing. Background[3]On 20 October 2017, the Applicant received a determinate sentence of imprisonment for 93 months following conviction after trial for conspiracy to possess a firearm with intent and conspiracy to possess ammunition with intent.[4]The Applicant was 24 years old at the time of sentencing and is now 31 years old.[5]He was automatically released on licence on 25 August 2021. His licence was revoked on 23 July 2024, and he was returned to custody the same day. He was recalled after a vehicle which he was driving was pulled over by police. There were two passengers (a Mr M and a Mr H) in the vehicle. Two non-lockable folding pocket-knives (both under three inches in length) were found in the vehicle, along with drug paraphernalia and bottles of alcohol. The Applicant initially gave a false name to police. After correctly identifying himself, he was found to be disqualified from driving and driving without insurance. He received a four week sentence for driving while disqualified and driving without insurance.[6]His sentence ends in July 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 to direct his release.[9]The review proceeded to an oral hearing on 24 March 2025 before a two-member panel. The panel heard evidence from the Applicant, his Prison Offender Manager (POM) and his Community Offender Manager (COM). The Applicant was legally represented throughout the hearing. Both the POM and COM were supporting release. The panel did not direct the Applicant’s release. 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 indicated that no representations will be made in response to this application. Discussion[14]The application for set aside argues that the panel made an error of fact upon which the panel relied heavily in making its decision.[15]Paragraph 2.4 of the panel’s decision describes the recall as follows:
“At the time of arrest there were two other men in the vehicle, one being called [Mr H] who the panel noted was one of the same male co-defendants who was arrested with [the Applicant] back in 2015/16 when there was the conviction for violent disorder linked to rival drugs gang fights (the panel noted that this man was convicted for the acts of violence and that the original charges faced by the defendants was one of attempt murder.”
[16]Having linked Mr H to previous serious violent offending as a co-defendant with the Applicant, the panel went on to say (at paragraphs 3.3, 4.7 and 4.9):
“The panel notes that [the Applicant] was recalled in a car with one of his original co-defendants which gave some concern that he was not as far away from serious violence as he might have liked to portray to the panel. The panel were not so convinced that [the Applicant] had moved away from his criminal associates, as he articulated, and found it of concern that one of his earlier co-defendants (for violence) was arrested with him in the [car] that was linked to a serious violent offence. [Indicators of the Applicant’s ability to live a pro-social life] were out weighed … by what appeared to be a veneer of compliance and a more deep seated link to criminal associates and a lifestyle that was likely to be sustained by criminal links. [The panel concluded] there was more than a minimal risk that [the Applicant] would be linked back to other criminal associates and would be at risk of behaviour that could cause serious harm.”
[17]It is submitted that the Mr H in the vehicle was not, in fact, a co-defendant of the Applicant from the 2015/16 matters (even though they shared the same surname).[18]The CPS Prosecution Case Summary within the dossier, is clear that a Mr H was the victim of the charges for attempted murder, wounding with intent to do grievous bodily harm and conspiracy to cause grievous bodily harm with intent. It lists ten co-defendants, none of whom were named Mr H.[19]It is therefore entirely incorrect for the panel to say that the Applicant was recalled in a car with a previous co-defendant (for completeness, Mr M was also not a co-defendant in the 2015/16 matters).[20]Having listened to the recording, I agree with the Applicant’s submissions that the identity of Mr H was not explored in oral evidence. It is not clear (although probably highly unlikely) whether the Mr H in the car at recall was the same Mr H who was the victim of the previous violent offending. Even if it was, it is certainly clear that the Mr H in the car at recall was not a co-defendant in the earlier matters.[21]Neither the Applicant nor his legal representative were given an opportunity to respond to the assumption that the Mr H involved in 2024 was the same individual from the 2015/16 matters. It is also noted that the COM was not asked to confirm any links between the Applicant and a former co-defendant, and no such association was alleged in the recall report.[22]I therefore find that the panel made an error of fact.[23]I must go on to consider whether the decision not to direct release would not have been made but for that error of fact. The application offers less on this point, other than to emphasise the heavy reliance placed on the error by the panel in reaching its decision.[24]Having read the panel’s conclusion, it appears that the factors in favour of release were clearly outweighed by its (unfounded) concerns of the Applicant’s ongoing links to criminal associates. I conclude that the panel would have made a different decision had it not made its fundamental error of fact.[25]Finally, I must consider whether it is in the interests of justice for the decision to be set aside. The application offers no submissions on this point, presumably because it considers the matter to be self-evident. The interests of justice cannot be served in refusing release in a decision strongly influenced by a fundamental mistake by the panel.[26]I am therefore satisfied that all necessary elements for the decision to be set aside are made out. Decision[27]For the reasons set out above, the application for set aside is granted. Stefan Fafinski 06 May 2025