Hamza, Application for Set Aside [2025] PBSA 63 (29 August 2025) [2025] PBSA 63

PBSA

Hamza, Application for Set Aside [2025] PBSA 63 (29 August 2025)

[2025] PBSA 63 · 2025-06-11

[1]This is an application by Hamza (the Applicant) to set aside the decision not to direct his release. The decision was made by a panel after consideration on the papers on 11 June 2025. This is an eligible decision.

[2]I have considered the application on the papers. These are the dossier, the MCA paper decision dated 11 June 2025, and the application for set aside dated 12 August 2025. Background

[3]On 18 July 2023, the Applicant was sentenced to 54 months imprisonment for an offence of robbery.

[4]The Applicant was aged 21 at the time of sentencing. He is now 23 years old.

[5]The Applicant was released on home detention curfew on 4 December 2024, and his licence was revoked on 10 April 2025 as a result of his arrest for further offences. Application for Set Aside

[6]The application for set aside has been drafted and submitted on the Applicant’s behalf by his legal representative.

[7]It submits that there has been an error in law in the MCA decision in that it failed to apply the Supreme Court guidance as to when there should be an oral hearing. The Applicant applied for an oral hearing, but this was refused by the MCA panel who decided the matter on the papers. It is argued that there was an error in law in that decision in that guidance set out in Osborn -v- Parole Board

[2013] UKSC 61

was not followed. 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 release the Applicant on 12 May 2025.

[9]The case proceeded to a paper hearing on 11 June 2025 before a single member MCA panel. The panel decided the case on the papers having considered written representations from the Applicant’s legal representative.

[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 law in making the decision not to release in that the matter should have been sent for an oral hearing. I am afraid that I have found it very difficult to follow the grounds for the application for setting aside the decision. The application is lengthy but to me it was unclear. It would greatly assist the person dealing with the application if the grounds were numbered and set out first in a sentence and then the argument to support that ground can be set out afterwards. The application was not set out in that way.

[16]The history of this matter in brief is that the Applicant was sentenced originally in July 2023 for an offence of robbery. The Applicant and others used force to steal a car. He was sentenced to 54 months imprisonment. While on home detention curfew the Applicant was arrested and later pleaded guilty to further offences involving the use of a car including dangerous driving. He was later sentenced to 12 months imprisonment for those offences. At the time the MCA paper decision was made the Applicant was waiting to appear before the court which imposed the sentence.

[17]The Applicant made written representations to the Board that his case should be adjourned for an oral hearing. The MCA member refused this application and the Applicant asked for the issue of whether there should be an oral hearing to be reconsidered and it was, but the result was the same. Both the MCA member and the member making the further decision on an oral hearing indicated that they had independently considered the principles in Osborn and had both decided that applying those principles the matter should not be referred for an oral hearing. I do not think that the criticism made of the single member who made the second decision that it was a review rather than a new decision is justified. The decision makes it clear that the decision was made having independently considered the guidance given in Osborn. This application is made however on the basis of the original decision being made on an incorrect legal basis rather than the further hearing as I understand it.

[18]At the time of the initial MCA hearing, applying the principles set out in Osborn there were no good grounds for an oral hearing. The Applicant had committed further offences while on home release curfew and MCA member decided that further work needed to be done in prison before he could be safely released. That reasoning is not legally incorrect and cannot be criticised. Osborn does not say that in every case where it is asked for an oral hearing one should be granted. If there is realistically no hope that release will follow at the time of the hearing, then it is not necessary to have an oral hearing. The guidance in Osborn is somewhat different when dealing with prisoners who are serving indefinite sentences and are over tariff.

[19]What is really argued is that the MCA member should have adjourned the decision until after the sentence had been imposed for the offences committed on home detention curfew. It is always very difficult to argue that a matter should be adjourned. Panels, just like courts, are rightly discouraged from adjourning cases. It is even more difficult to argue that the failure to adjourn was made as a result of an error of law.

[20]In my judgement no error of law has been demonstrated in this case and certainly none which would have resulted in a different decision had the law been correctly applied. Decision

[21]The application for set aside is refused. John Saunders 29 August 2025