Moghamad, Application for Set Aside [2025] PBSA 7 (11 February 2025) [2025] PBSA 7
[1]This is an application by Mr Moghamad (the Applicant) to set aside the decision not to direct his release. The decision was made by a Member Case Assessment (MCA) Panel after a paper review on 6 December 2024. This is an eligible decision.[2]I have considered the application on the papers. These are the dossier, the MCA decision, and the application for set aside dated 22 January 2025. There were no representations from the Public Protection Casework Section (PPCS). Background[3]On 17 December 2021, the Applicant received a sentence of 50 months of imprisonment following conviction for wounding with intent to cause grievous bodily harm (GBH), possession of a knife/blade and affray. He pleaded guilty.[4]The Applicant was aged 26 at the time of sentencing. He is now 29 years old.[5]He was automatically released on licence on 17 May 2023. His licence was revoked on 26 July 2024, and he was returned to custody on 29 July 2024. This is his first recall on this sentence, and his first parole review since recall. Application for Set Aside[6]The application for set aside has been drafted and submitted by legal representatives on the behalf of the Applicant.[7]It submits that there has been an error of law.[8]The legal representatives submit that the MCA member made an error of law by refusing to wait for the police report and/or the outcome of the proceedings in the Crown Court. The dismissal/discontinuance of the proceedings now enables the Parole Board to assess the risk and that the decision should now be set aside. Current parole review[9]The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) to consider whether to direct re-release.[10]The case proceeded to a paper hearing on 6 December 2024 before an MCA single member Panel.[11]The Panel did not direct the Applicant’s release.[12]The MCA Panel first reviewed the Applicant’s case on 14 October 2024 and a dossier paginated to 205 pages. The Applicant had been recalled following one conviction for possession of Class A (Heroin) drugs and was being investigated for a domestic abuse allegation of strangulation, for which he was bailed until 16 October 2024. He was assessed as no longer manageable in the community and recalled on 26 July 2024.[13]His legal representative had difficulties accessing PPUD (the case management system that holds the Applicant’s reports and information) and taking instructions. At that time, the application to the Panel was not to make a decision without further information about the status of the alleged strangulation, until after 16 October 2024. The MCA Panel adjourned the case for further information, including a police report and further legal representations.[14]The MCA Panel reconvened on 6 December 2024 with a dossier of 289 pages. Despite escalation, the direction for a police report had not been complied with. The MCA Panel therefore considered whether a further adjournment was necessary, however the Community Offender Manager (COM) had provided a report which informed the Panel that the police investigation had led to the Applicant being charged and committed for trial at a Crown Court in January. The MCA Panel therefore concluded it had sufficient information on which to consider the Applicant’s risk, and that a further adjournment for the police report would cause disproportionate delay. No further legal representations were received. The Relevant Law[15]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.[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 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[18]The Respondent has offered no representations in response to this application . Discussion[19]It is argued on behalf of the Applicant that there has been an error of law.[20]In relation to the Applicant’s submission that the decision contains an error of law. I note that at the time of the Applicant’s review the Panel had not received the police report. These submissions did raise concerns about the sufficiency of information available without this report and or whether the Panel should have waited for the outcome of the court hearing. Whilst the last correspondence from the representatives on behalf of the Applicant, dated 30 September 2024, had requested no decision be made until after 16 October 2024 and that thereafter a further application would be submitted, there was in fact no further application by the representatives. The Panel acquiesced to the request not to conclude until after 16 October 2024 and adjourned the hearing further to 6 December 2024. On that date there was still no further submissions on behalf of the Applicant but in the light of an update from the COM the Panel was satisfied that it had sufficient information before it and concluded the Applicant’s case on the papers.[21]In the application for set aside the representative reports that the Applicant had informed him that the Crown Court proceedings have been dismissed. Unfortunately, no date is given for that claim, nor any details nor any supporting document. The application requests that the Panel decision is set aside in the light of that information. It is argued that the refusal to wait for the police report and/or the outcome of the Crown Court proceedings amounts to an error in law. It must be noted that the representatives following their communication of 30 September 2024 failed to provide the Panel with any further update or make any further request for an adjournment. The COM’s report states that the Applicant appeared at the Magistrates Court on 26 November 2024. There is no explanation for the failure of the representative to pass on that or other information to the Panel before the 6 December 2024.[22]It is argued that the discontinuance/dismissal of the proceedings now enable the Parole Board to assess the risk and that the decision should be set aside.[23]However, despite the failure of the representative to make any application, the question remains as to whether the Panel had sufficient information on which to consider the Applicant’s risk in the absence of the police report or outcome of the proceedings or hearing from the Applicant with regard to the allegations.[24]Panels have a responsibility to make reasonable enquiries into allegations that are potentially relevant to risk and, if unable to make a finding of fact on the balance of probabilities, may still give weight to those allegations as appropriate in its evaluation of all evidence before it. In these circumstances, the Applicant must have the opportunity to state his own position, and any weight attributed must be reasonable.[25]In this particular case, the first question is whether the allegation which led to the Prisoner’s recall was potentially relevant to risk. I find that it was, for the following reasons:a. The index offence involved a serious offence of violence.b. The allegations of intentional strangulation took place.c. There was evidence of illicit drug taking, a well-documented risk factor and he was subsequently convicted of possession of drugs, namely heroin and received a sentence of 1 day imprisonment.[26]There is little primary evidence within the dossier regarding the allegations or the reasons for which the associated charges were dismissed at court. Whilst the direction for a police report had not been complied with, a direction could have been made for other primary evidence (such as witness statements and the police prosecution summary) as well as a direction for the COM to provide dates for progress of the case in the Crown Court.[27]Whilst the Applicant did not appear to dispute his recall, he clearly denied the allegations as set out in the legal representations of 30 September 2024. In those circumstances I am satisfied that if the Panel member had considered the principles in Pearce , he should have adjourned the case to give the Applicant the opportunity to present his case or adjourned for further information regarding the allegations. Therefore, I am satisfied that the failure to apply Pearce correctly amounts to an error of law.[28]Finally, I have to be satisfied that it is in the interests of justice for this decision to be set aside. I am so satisfied on all the evidence before me.[29]In this regard, I have to find that the Panel did so err. The Panel was aware that the case was imminently listed and that it did not have the benefit of the police report which it had directed. I find that, in fairness, the Panel ought to have adjourned for the information requested and/or directed an oral hearing of the case.[30]Having made such a finding, I must finally consider whether it is the interests of justice for the decision to be set aside. I am so satisfied on all the evidence before me. Decision[31]The application for set aside is accepted. Zaiada Bibi 11 February 2025