Donaldson, Application for Set Aside [2025] PBSA 46 (24 July 2025) [2025] PBSA 46
[1]This is an application by Donaldson (the Applicant) to set aside a decision not to direct his release. The decision was made after a paper hearing on 9 June 2025. This is an eligible decision.[2]I have considered the application on the papers. These are the dossier, the panel decision dated 9 June 2025, and the application for set aside dated 26 June 2025. Background[3]On 22 December 2016, the Applicant received a 12 year determinate sentence following a conviction for an offence of grievous bodily harm with intent (s18).[4]The Applicant was aged 41 at the time of sentencing. He is now 50 years old.[5]He was automatically released on licence on 24 December 2021. His licence was revoked on 26 December 2021, and he was returned to custody on 27 December 2021. 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 the Applicant’s legal adviser.[7]It submits that there has been an error of law. The details are set out below. 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 release.[9]The case proceeded to a paper hearing on 9 June 2025 before a single member panel. The panel considered the dossier and further evidence received during the course of the review.[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]This application to set aside relates to a submission, by the Applicant’s legal adviser, that a decision not to direct release was unlawful (an error of law) because the Parole Board member who drafted the decision failed to give the appropriate notice to allow for representations to be made by the Applicant or his legal adviser (pursuant to Rule 21 of the Parole Board rules).[16]The background to this application is that in February 2024, following a referral from the Respondent, a Parole Board member directed that there should be an oral hearing in the Applicant’s case.[17]Later in December 2024 it emerged that the Applicant was planning to engage in therapy in relation to his risks. He would be moving prison in order to undertake the assessments and the work.[18]On 30 April 2025 a Parole Board duty member considered the position. It was clear that there would be a lengthy period of time before the matter could be considered by a panel. No timescale was available. The plan was for the Applicant to undertake Eye Movement Desensitization and Reprocessing (EMDR) therapy. Following any therapy, it was anticipated that there would be a need for a psychological risk assessment.[19]The Parole Board duty member indicated (in the light of the potential therapeutic work which was being undertaken) that it was appropriate to consider whether the case should be concluded pursuant to rule 21 (a paper decision). This was not surprising in the light of the potential lengthy time period anticipated for the therapeutic work. The duty member invited representations in relation to rule 21 to be submitted by 23 May 2025. A notification (Stakeholder’s Response Form) SHRF was issued to all parties.[20]In May 2025 the Applicant moved prisons in order to allow for the therapeutic intervention to be undertaken.[21]On 14 May 2025 the Respondent indicated that the Applicant would be assessed at the new prison establishment to ascertain whether suitable therapy was available. The prison indicated that there was a lengthy waiting list for assessment as well as treatment.[22]Following the invitation by the Parole Board duty member, the Respondent indicated that she did not wish to make any representations in relation to concluding the matter on the papers (subject to rule 21).[23]Neither the Applicant nor his legal adviser offered any representations in relation to concluding the matter on the papers.[24]The matter came before a duty member on 3 June 2025. The duty member considered the position at that stage. It was noted that no representations had been received from the Applicant or his legal advisers. The duty member then concluded that it was appropriate to conclude the matter on the papers pursuant to rule 21.[25]Within the duty member’s decision, the basis for the decision was that there was no timescale as to when any therapeutic intervention would begin and for that reason the duty member concluded that the matter should be considered without an oral hearing.[26]Rule 21 of the Parole Board rules allows for a panel chair or duty member to direct that a case should be decided on the papers where an oral hearing is no longer necessary. Various criteria are appropriate which include:(a) The need to effectively manage the case;(b) and/or any other reason which the duty member considers appropriate (including where further evidence was received by the Board).[27]It is clear in this case that the further evidence received by the Board and the parties was that the Applicant would be undertaking lengthy therapeutic work and that there was no discernible date at which that work would be complete.[28]The duty of the Parole Board under Article 5(4) of the European Convention on Human Rights is to provide a speedy review of the prisoner’s detention. Reviews must be delayed as little as possible.[29]As noted above, the position of a Parole Board panel in relation to referrals from the Respondent is that the panel are obliged to consider risk at the time of the referral. The panel is not entitled or required to become involved in sentence planning or assessments relating to sentence planning.[30]In my determination therefore, the panel member, in the circumstances, was entitled to take account of the need for a speedy review in considering the position at the time of the paper decision.[31]The Applicant’s legal adviser argues that the appropriate notice, as required by rule 21 of the Parole Board Rules, was not given in this case. However as noted above, it is clear that the notice was given. The Applicant or his legal adviser had the opportunity to make representations in relation to rule 21 as set out in a notification sent to all parties on 02 May 2025.[32]In the light of this determination, the application to set aside fails on the basis that an appropriate notice was given to the parties in accordance with the rules. In those circumstances an error of law is not established.[33]In relation to set aside - Rule 28 A(4) (a) of the Parole Board rules sets out the requirements to establish where set aside may be considered. The conditions are that there should be; an error of law or fact; and the decision not to direct the release of the prisoner would not have been given or made but for that error of law or fact.[34]No error of fact is argued in this case.[35]As indicated above I determine that no error of law occurred as the appropriate notice was given.[36]For completeness, I also do not find that the first limb of the criteria (namely that the direction not to direct release would not have been given) would have been established in this case in any event. At the time of the decision, the Applicant was being assessed for a period of intensive therapeutic work and would have required a psychological risk assessment following that therapeutic work. The need for the therapeutic work was directly associated with the Applicant’s risk of serious harm. For that reason, I am not persuaded that a panel would have reached any other conclusion than that of the panel member who declined to direct release.[37]For these reasons, I do not direct that the decision be set aside. Decision[38]The application for set aside is refused. HH Stephen Dawson 24 July 2025