Simoni, Application for Set Aside [2025] PBSA 59 (21 August 2025) [2025] PBSA 59

PBSA

Simoni, Application for Set Aside [2025] PBSA 59 (21 August 2025)

[2025] PBSA 59 · 2025-07-08

[1]This is an application by Simoni (the Applicant) to set aside the decision not to direct his release. The decision was made by a panel after a paper hearing. This has been deemed to be an eligible decision.

[2]I have considered the application on the papers. These are: · The dossier now paginated to 549 pages; · The decision letter (DL) dated 8 July 2025; and · The application for set aside dated 29 July 2025. Background

[3]On 12 March 2021 the Applicant was sentenced to 66 months imprisonment for an offence of residential burglary. The Sentence Expiry Date (SED) is given as September 2026.

[4]The Applicant was aged 50 at the time of sentencing and is now 54 years old.

[5]He was released on licence automatically on 7 December 2023. His licence was revoked on 16 February 2024, and he was returned to custody on 19 February 2024. This was his first parole review since recall.

[6]The Applicant committed the index offence on 11 September 2020 whilst he was the subject of an extended licence for aggravated burglary, wounding with intent to do grievous bodily harm and assault occasioning actual bodily harm. He gained entry via the back door of the property when the victim was at home and stole numerous items including debit and credit cards.

[7]The Applicant has a lengthy criminal record of convictions for over 100 offences since the age of 10. He has a history of traumatic and damaging childhood experiences and has diagnoses for a number of mental health issues against a backdrop of acknowledged, chronic drug misuse.

[8]The Applicant was recalled to prison after he had been in the community for less than three months due to a variety of concerns relating to his active risk factors including his return to crack cocaine use which was confirmed by testing and by the Applicant himself. Application for Set Aside

[9]The application for set aside has been drafted and submitted by solicitors acting on behalf of the Applicant.

[10]The application appears to be based on two grounds: a) That the Panel Chair made an error of law in deciding that an oral hearing was no longer necessary and determining that the case should be decided upon consideration of the papers alone; and b) The decision to make an assessment of the Applicant’s risk was unfair and not in the interests of justice under rule 28A(3)(a).

[11]I will consider the grounds put forward in detail in the discussion section of my decision. Current parole review

[12]The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) to consider whether or not the Applicant should be released.

[13]The case proceeded by way of a paper hearing and the Panel, having considered a dossier paginated to 525 pages, did not direct the Applicant’s release. The Relevant Law

[14]Rule 28A(1)(a) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2024) (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.

[15]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)).

[16]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

[17]By email dated 31 July 2025 PPCS confirmed that the Respondent offers no representations in response to this application . Discussion Ground (a)

[18]Pursuant to r.21 of the Parole Board Rules, where further evidence is received after a panel has directed that a case should be determined at an oral hearing, a Panel Chair can direct that the case should be decided on the papers if an oral hearing is no longer necessary.

[19]In a careful and comprehensive decision letter the Panel Chair set out at length how the decision to proceed under r.21 was arrived at: “ [The Applicant’s] case was considered by an MCA panel on 3 June 2024 when the review was concluded with no direction for his release. [The Applicant’s] legal representative requested an oral hearing and this was granted by a duty member on 17 July 2024. A remote video link hearing with a single panel member was originally scheduled for 9 December 2024. [Subsequently] the Panel Chair was made aware of information that [the Applicant] was subject to a number of police investigations related to his sexual and threatening behaviour towards officers in custody. The then (and now previous) Community Offender Manager (PCOM) at the time expressed serious concerns about his behaviour, mental health and risk of serious harm (RoSH), such that his RoSH was increased. His PCOM recorded a lack of support for [the Applicant’s] release. The Panel Chair sought submissions on concluding [the Applicant’s] review ‘on the papers’. After careful consideration of the submissions received from both parties, the Panel Chair confirmed that the hearing would proceed. On 6 December 2024, the Panel Chair’s attention was brought to two security entries submitted to the dossier by the then Prison Offender Manager at [Prison A] . The Panel Chair was greatly concerned by the content of these two security entries which recorded the possibility that [the Applicant] had, as well as his emerging sexualised and threatening behaviour towards female staff, begun to express extremist views.“

[20]The Panel Chair adjourned the hearing and made further directions.

[21]The hearing was listed before a two-member panel on 10 January 2025 when the Applicant's legal representative confirmed that he was satisfied that the Applicant had the mental capacity to engage in the parole process.

[22]During the hearing, the Applicant informed the panel of his medication regime which he said had increased his paranoia (although he was not hearing voices) which manifested itself in an increasing fear of his cell door opening and of going out of his cell.

[23]The hearing was adjourned for further risk assessments to be undertaken including a psychiatric assessment and a psychological risk assessment (PRA).

[24]Following completion of these assessments, it was recommended that the Applicant needed to display a longer period of stability in his mental health and to undertake work to address his risk behaviours.

[25]Accordingly, the Panel Chair sought submissions from the parties as to concluding the review under r.21.

[26]Having considered submissions received on behalf of the Applicant and the Respondent the Panel Chair directed himself in accordance with the principles set out in the case of Osborn, Booth and Reilly

[2013] UKSC 61

concerning oral hearings and concluded: “on the basis of all of the material in the dossier and the information provided, that there is no reason to believe that oral evidence would assist in: resolving any disputes concerning facts; providing information that might mitigate the apparent level of risk presented; or, would enable clarification of any points materially relevant to the assessment of risk. Information on all of these matters was clearly set out in the information supplied. In making its decision, the Panel Chair took into account that, over the course of his review, [the Applicant] has provided upwards of 30 pages of personal submissions and a considerable number more have been sent in by the prison which represent his correspondence with various female staff members along with a copy of his ’life story’ (written for an English education assignment). In addition, [the Applicant] was able to answer questions from the Panel on 10 January 2025 and has since taken the opportunity to say what he wanted about the issues pertinent to his review to the authors of the psychiatric and PRA reports. His views were recorded in their reports for consideration. The Panel Chair also took into account that his legal representative has made extensive submissions throughout the review which include [the Applicant’s] views. Consequently, the Panel Chair has determined to conclude [the Applicant’s] review ‘on the papers’”.

[27]The Panel Chair set out in considerable and persuasive detail the reasons for concluding the review pursuant to r.21 and, in my view, it is difficult to discern on what basis it can be suggested that the panel made an error of law, but for which the decision not to direct the Applicant’s release would not have been made, by deciding so to do.

[28]As is made clear in the DL and throughout the dossier, the panel heard at length from the Applicant, not only in oral evidence in January 2025 but through his numerous written submissions and other documentation which he produced together with his detailed instructions as communicated to the panel via his legal representatives.

[29]The panel correctly directed itself as to the principles to be applied when deciding whether an oral hearing was required in this case and fully set out its reasons for finding that the review should be concluded under r. 21.

[30]I find no error of law here.

[31]For the sake of completeness I will also deal with the narrow issue raised on the Applicant's behalf about an alleged note in his prison records of his role in a burglary as long ago as 1988 which involved an indecent assault.

[32]I am not taken to any official document contained in the dossier which refers to this matter nor, apparently, was it raised by any professional as part of their risk assessment of the Applicant.

[33]It is raised as a matter of concern only by the Applicant and, given the considerable amount of evidence which the Applicant himself provides in his statements and by his presentation and actions it is difficult to see how it can be suggested that the panel fell into error in finding that this constituted further evidence of his paranoid thinking. Ground (b)

[34]It is also submitted that, “ If an error of law is not found, or said error is not found to have been key in the making of the decision, the negative decision against [the Applicant] should be set aside in the interests of justice” . This point appears be linked to an earlier suggestion made by the solicitors for the Applicant that, in making an assessment of the Applicant’s risk, the panel was acting unfairly. These points appear to involve a significant misunderstanding of the set aside procedure. “The interests of justice ” is not a stand-alone ground but requires, in addition, a finding of one of the criteria provided for in r.28A(4)).

[35]Thus to suggest that, if an error of law is not found, a decision can be set aside merely “in the interests of justice" is unsustainable as is the suggestion that “ said error is not found to have been key in the making of the decision ” (whatever is meant by this phrase) is a trigger for the application of an “interests of justice“ test.

[36]Finally, a submission based on unfairness is not a matter for me when exercising the power to set aside a panel decision.

[37]I find that the Panel Chair in this case had ample reason to exercise the power to proceed by way of a paper review pursuant to s.21 and I also find that, disappointingly, this application in general seems to have been drawn up without proper consideration being given to the ambit of the set aside procedure and does not, in my view, disclose any error of law but for which the decision not to direct release would not have been made. Decision

[38]I have carefully considered this application. The Panel exercised its judgement in this case, and I can find no errors of law but for which the decision not to direct release would not have been made and, for the reasons I have given, I find that the application to set aside is without merit and it is refused. PETER H.F. JONES 21 August 2025