Wooden, Application for Set Aside [2025] PBSA 69 (22 September 2025) [2025] PBSA 69

PBSA
Wooden, Application for Set Aside [2025] PBSA 69 (22 September 2025)
[2025] PBSA 69 · 2025-08-21
[1]This is an application by Wooden (the Applicant) to set aside the decision not to direct his release. The decision was made by a panel on the papers . This is an eligible decision.[2]I have considered the application on the papers. These are the dossier (consisting of 160 numbered pages), the decision (dated 21 August 2025), and the application for set aside (dated 11 September 2025). Background[3]On 26 October 2023, the Applicant received a determinate 32 month sentence of imprisonment following conviction for harassment (put in fear of violence) to which he pleaded guilty. He was also made subject to a seven year restraining order. On the same occasion he was also convicted of harassment (breach of restraining order) and criminal damage and received concurrent determinate sentences of eight months and two months respectively. He pleaded guilty to both additional charges.[4]The Applicant was 39 years old at the time of sentencing and is now 41 years old.[5]He was automatically released on licence on 27 June 2024. His licence was revoked on 23 October 2024, and he was returned to custody on 5 November 2024 after a period during which he was unlawfully at large.[6]The Applicant's sentence ends in January 2026. Application for Set Aside[7]The application for set aside has been drafted and submitted by solicitors on behalf of the Applicant and argues that there has been an error of law. 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]On 10 January 2025 a Member Case Assessment (MCA) panel directed the case to an oral hearing. It was noted that the Applicant had disputed a number of factual matters via his legal representative and consequently an oral hearing was required in fairness to the Applicant (and in line with the principles established in Osborn, Booth & Reilly [2013] UKSC 61 ). Various updated reports were directed.[10]The case was listed for an oral hearing to take place on 15 September 2025.[11]On 22 July 2025, the allocated panel chair issued Panel Chair Directions (PCDs). These noted that the directions set at MCA had not been met and speculated that this might be because the Applicant potentially met the criteria for FTR48.[12]FTR48 is the working acronym for an immediate measure to manage the pressures on prison capacity from September 2025, until the Sentencing Review measures are implemented in Spring 2026. It was implemented via The Criminal Justice Act 2003 (Suitability for Fixed Term Recall) Order 2025. Under FTR48, anyone with a standard determinate sentence (SDS) of less than four years, who is not covered by certain exemptions and is recalled following release, will now only be recalled to custody on a Fixed-Term Recall of 28 days, or 14 days if their sentence is under 12 months.[13]The implementation of FTR48 is phased, based on a prisoner's sentence expiry date. For the Applicant, whose sentence ends in January 2026, he would - if subject to FTR48 - have been automatically re-released on 9 September 2025. FTR48 applies retrospectively.[14]On 21 August 2025, the panel chair concluded the Applicant's review on the papers and made no direction for release. The decision noted:
"[The Applicant's] case meets the criteria for FTR48 which means that he will be automatically released on 9 September 2025 unless a no release decision is made before 1 September 2025. If a no release decision is made then he will remain in prison for a further 56 days."
The Relevant Law[15]Rule 28A(1)(a) of 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.[16]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)).[17]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 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. Error of law[18]An administrative decision is unlawful under the broad heading of illegality if the panel: a) misinterprets a legal instrument relevant to the function being performed; b) has no legal authority to make the decision; c) fails to fulfil a legal duty; d) exercises discretionary power for an extraneous purpose; e) takes into account irrelevant considerations or fails to take account of relevant considerations; and/or f) improperly delegates decision-making power.[19]The task in evaluating whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring the duty or power upon the panel. The instrument will normally be the Parole Board Rules, but it may also be an enunciated policy, or some other common law power. The reply on behalf of the Respondent[20]The Respondent has indicated that no representations will be made in response to this application. Discussion[21]The Applicant argues that there was an error of law as: a) the failure to hold the hearing was a breach of the Board's own directions; and b) the decision was taken without notice to the parties and without any opportunity for representations.[22]Consequently, it is submitted that the Applicant was denied his right to a fair hearing under common law and article 5(4) of the European Convention on Human Rights and Fundamental Freedoms (as incorporated into national law via the Human Rights Act 1998).[23]Once an oral hearing has been directed, a decision may still be made on the papers under rule 21 of the Parole Board Rules.[24]Rule 21 sets out strict procedural rules by which this may happen to ensure that any such decisions are fair. In particular, rule 21(2) requires the Board to notify the parties when it is considering directing conclusion on the papers, and rule 21(3) gives the parties opportunity to make representations.[25]There is no evidence within the dossier to suggest that such notice was given, nor that representations were invited or received.[26]The application notes that " at no point was there any indication that the matter would...be concluded on the papers. Neither [the Applicant] nor his representatives were notified of any change to the procedure. No invitation to make written submissions was issued" .[27]The Parole Board's internal guidance on FTR48 (PBM 007-2025 as updated, 26 August 2025) notes that FTR48-eligible cases may be concluded on the papers but also goes on to say " ...the Oral Hearing Guidance sets out procedural requirements for concluding on the papers under rule 21" .[28]The oral hearing was directed under Osborn principles to protect procedural fairness. Therefore, strict compliance with rule 21 is critical once an oral hearing has been directed so as not to undermine that fairness requirement.[29]I have seen no evidence to suggest that the Applicant's review was concluded in accordance with rule 21, nor the Parole Board's internal guidance. Consequently, I find that the panel chair failed to fulfil the legal duty imposed by rule 21, and this amounts to an error of law.[30]The decision not to direct release could not lawfully have been made but for that error. The unlawful short-circuiting of the oral hearing process meant the panel never reached a lawful decision, so the decision itself cannot stand. It is evidently in the interests of justice for the decision to be set aside, as the Applicant not only has plainly been deprived of his liberty by the panel's unlawful conclusion of his review without an oral hearing, but the Board also has an obligation to maintain public confidence in fair process. Decision[31]For the reasons set out above, the application for set aside is granted. Stefan Fafinski 22 September 2025