Nimbo, Application for Set Aside [2025] PBSA 45 (11 July 2025) [2025] PBSA 45
[1]This is an application by Nimbo (the Applicant) to set aside the decision not to direct his release. The decision was made by a panel after an oral hearing on 25 March 2025. This is an eligible decision.[2]I have considered the application on the papers. These are the dossier consisting of 792 pages, the oral hearing decision dated 29 April 2025, and the application for set aside dated 12 June 2025. Background[3]On 18 September 2013, the Applicant following conviction after trial received an extended sentence for the offence of rape. The sentence was made up of a custodial term of 15 years and an extended licence period of 5 years.[4]The Applicant was aged 25 at the time of sentencing. He is now 37 years old. Application for Set Aside[5]The application for set aside has been drafted and submitted by legal representatives acting for the Applicant.[6]It submits that there have been errors of fact and but for those errors the decision not to release the Applicant would not have been made. Current parole review[7]The Applicant’s case was referred to the Parole Board in December 2021 by the Secretary of State (the Respondent) to consider whether to direct his release.[8]The case had a protected history set out in the decision letter which resulted in a number of adjournments. The case eventually proceeded to an oral hearing on 25 March 2025 before a 3-member panel, which included a psychologist specialist member. The panel heard evidence from the Applicant, his Prison Offender Managers ( POMs ), his Community Offender Manager ( COM ), an HMPPS psychologist and a psychologist commissioned on behalf of the Applicant. The Applicant was legally represented throughout the hearing.[9]The panel did not direct the Applicant’s release. The Relevant Law 10.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.[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 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[13]The Respondent has offered no representations in response to this application . Discussion[14]It is argued on behalf of the Applicant that there have been errors of fact recorded by the panel. Those errors submitted by the Applicant are;(1) with regard to the Applicant’s whereabouts on 31 July 2013, the Applicant submits that on that date he had not moved into the victim’s accommodation; and(2) with regard to the nightclub on 19 August 2013, the Applicant submits that he was not present during the night club visit incident and the drugging of the victim and further submits that there was lack of evidence as to whether the victim was drugged.[15]The Applicant challenges the panel’s decision that he lacked empathy. He further draws attention to the offer of employment he has been offered in custody and that the New Me MOT work recommended is not available to him in his current establishment and therefore affecting his ability to progress and the fairness of the decision.[16]I have carefully considered the matters which the Applicant states amount to errors of fact. It is clear that the details of the index offence recorded by the panel came from the Judges’ sentencing remarks. The question of the Applicant’s presence or absence on 31 July 2013 may have been ambiguously expressed in the sentencing remarks and erroneously interpreted in the decision letter but it would not have made a difference to the panel’s decision that this defendant was found guilty by a jury of rape in circumstances where, even if he was not present at the outset of the incident he was present for a sufficient period of the incident for the Judge to impose a total extended sentence of 20 years.[17]It is not for the panel to revisit findings such as whether or not the victim was drugged. The trial Judge heard the evidence and drew her conclusions from the facts as found by the jury. The Judge acknowledges, and the panel accept and repeat, the Applicant’s later involvement in the events that made up the index offending. The Judge sentenced the Applicant on the basis of his involvement in the index offence. The panel’s consideration of the case was on that basis.[18]The detail of the index offence provides background but there is no evidence that the panel in its consideration attached greater weight to the matters highlighted by the Applicant. Although the application submits that the panel placed disproportionate weight on the perceived risk of harm associated with the index offence, it fails to identify any passage in the decision letter to support that claim. The index offence involved a violent gang rape in which the Applicant at some stage became involved and the panel could not ignore that fact. The panel noted the Applicant’s rejection of the psychologist’s view that he had an attraction to violent sex and fairly concluded that the concern was not his sexual preference but his ability or inability to control his emotions and avoid risky situations or remove himself from them as they develop.[19]None of the matters raised by the Applicant as errors of fact were matters which affected the panel’s final conclusion. His disagreement with the emphasis/weight attached by the panel to various matters is not a basis for set aside. In a very thorough and detailed consideration of the evidence the panel’s conclusions are soundly and fairly based and would not have been any different in the light of the matters raised by the Applicant.[20]Whilst not a matter for set aside, the panel accepts that some of the work proposed cannot be completed at the Applicant’s current establishment but notes that some of it can be completed where he is currently based. The panel does not specifically reference New Me MOT in its conclusion and in addition correctly notes that it has no role in sentence panning. The conclusion as to work to be done and its availability or lack of availability at particular institutions does not affect the fairness of the decision.[21]None of the errors or disagreements raised in the application would have affected the panel’s final decision not to direct release and it would not be in the interests of justice to set aside this decision. Decision[22]The application for set aside is refused. Barbara Mensah 11 July 2025