Porter, Application for Set Aside [2025] PBSA 35 (03 June 2025) [2025] PBSA 35
[1]This is an application by Porter (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 275 numbered pages), the decision (dated 13 May 2025), and the application for set aside (dated 21 May 2025). Background[3]On 5 March 2019, the Applicant received a determinate sentence of imprisonment for 90 months following conviction for robbery. On the same occasion he also received a concurrent 80 month determinate sentence for possessing an imitation firearm when committing an offence. The Applicant pleaded guilty to both charges.[4]The Applicant was 39 years old at the time of sentencing and is now 45 years old.[5]He was automatically released on licence on 26 August 2022. His licence was revoked on 9 June 2023, and he was returned to custody the following day. His recall followed his arrest on 8 June 2023. It is reported that he was stopped while driving at speed by police. He was driving a hire vehicle, for which the cost of rental was £1,800. He was also reportedly found in possession of £3,000 cash and the car was found to contain a mask, gloves, hammer and set of keys. A PNC check showed that the Applicant was wanted in connection with an allegation of section 18 wounding committed on 2 June 2023.[6]It is reported that the matter was filed with no further action after the injured party declined to provide a statement or engage with the prosecution process.[7]The Applicant’s sentence ends in May 2026. Application for Set Aside[8]The application for set aside has been drafted and submitted by solicitors on behalf of the Applicant and submits that the panel’s decision was based upon an error of fact and an error 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 review proceeded to an oral hearing on 8 May 2025 before a three-member panel, including a judicial chair. The panel heard evidence from the Applicant, his Prison Offender Manager (POM) and a stand-in Community Offender Manager (COM). The Applicant was legally represented throughout the hearing. Closing submissions on behalf of the Applicant were provided following the hearing.[11]In the professional opinion of the POM, the Applicant could be safely managed in the community with a robust risk management plan. The stand-in COM believed that the Applicant’s COM (who was unwell on the day of the hearing) was supporting release via designated accommodation. The panel did not direct the Applicant’s release. The Relevant Law[12]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.[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 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 indicated that no representations will be made in response to this application. Discussion[16]The Applicant contends that the panel misdirected itself by formulating a “ theory ” unsupported by the evidence and thereby fell into error of both fact and law. It is said that the panel constructed a timeline to support a pre-determined narrative, rather than assessing the evidence impartially. Having reviewed the decision in full, I am satisfied that the panel correctly applied the codified public protection test, considered the oral and documentary evidence before it, and gave clear and reasoned findings which were open to it. The decision does not disclose any material misdirection in law or reliance on inaccurate facts. The panel acknowledged the limitations of the intelligence material and assessed it with appropriate caution.[17]It is also evident that the panel’s conclusion was not based solely on disputed intelligence. The decision reflects a broader and more integrated assessment of the Applicant’s behaviour on licence, the circumstances of his recall, his ongoing risk factors, and his overall insight and compliance. The panel expressly recognised the denials advanced, and the mitigation offered but was entitled to take account of the seriousness and context of the index offence, as well as the pattern of behaviour since release. Even if aspects of the timeline were discounted, I am not persuaded that the panel would have reached a different conclusion. The panel viewed the risk in the round and determined that the statutory threshold for release was not met. I find no basis to conclude that the decision would have been different but for the alleged errors. Decision[18]For the reasons set out above, the application for set aside is refused. Stefan Fafinski 03 June 2025