Edge, Application for Set Aside [2025] PBSA 40 (23 June 2025) [2025] PBSA 40
[1]This is an application by Edge (the Applicant) to set aside the decision not to direct his release. The decision was made by a panel after an oral hearing on 7 May 2025. This is an eligible decision.[2]I have considered the application on the papers. These are the dossier consisting of 407 pages, the oral hearing decision dated 19 May 2025 and the application for set aside dated 6 June 2025. Background[3]On 30 June 2017, the Applicant received a determinate sentence of imprisonment of 10 years and 9 months following guilty pleas to aggravated burglary, burglary, theft of a vehicle and false representation for financial gain.[4]The Applicant was aged 25 at the time of sentencing. He is now 33 years old.[5]He was automatically released on licence on 11 November 2022. His licence was revoked on 6 April 2023, and he was returned to custody on 8 April 2023. 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 legal representatives on behalf of the Applicant.[7]It submits that there has been an error of fact with regard to a piece of evidence given by one of the witnesses at the hearing. 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 case proceeded to an oral hearing on 7 May 2025 before a three-member panel. The panel heard evidence from the Applicant, the Senior Probation Officer standing in for the Prison Offender Manager ( POM ), his Community Offender Manager ( COM ), and a Police service witness. The Applicant was legally represented throughout the hearing.[10]The panel did not direct the Applicant’s release. The Relevant Law 11.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.[12]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)). 13.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[14]The Respondent has offered no representations in response to this application . Discussion[15]It is argued on behalf of the Applicant that there has been an error of fact in that the evidence given by the Police witness with regard to the mobile phone data was in relation to Facebook messages and not in relation to the location at the scene of the alleged robbery. The Applicant’s concern is that the mobile phone evidence being interpreted as relating to the location led the panel to conclude that the Applicant was at the scene of the robbery, thus influencing the final decision.[16]I have carefully considered the evidence presented and it is clear that the panel’s decision is not based solely or even mainly on the location of the mobile phone data. The panel carefully analysed all the evidence presented, including that which supported the Applicant’s case of non-involvement in the robbery. Even without the mobile phone data the panel noted that there was CCTV evidence, some DNA evidence consistent with presence and that the account put forward by the Applicant was inconsistent and lacked credibility.[17]In the light of all the findings made by the panel, the evidence regarding the mobile phone data if attributable to the Facebook messages and not the location, would not have made a difference to the panel’s conclusion not to direct release.[18]The panel did not find that the Applicant’s risk could be managed in the community. It found the Applicant lacked internal self-management and thinking skills, that he had attitudes condoning crime and that there were no protective factors in place to mitigate his risk.[19]I am not satisfied that any mistake of fact would have led to a different conclusion. Nor that it would be in the interests of justice to set aside this decision. Decision[20]The application for set aside is refused. Barbara Mensah 23 June 2025