Hill, Application for Set Aside [2025] PBSA 73 (17 October 2025) [2025] PBSA 73
[1]This is an application by Hill (the Applicant) to set aside the decision not to direct his release. The decision was made by a panel following an oral hearing . This is an eligible decision.[2]I have considered the application on the papers. These are the dossier (consisting of 388 numbered pages), the decision (dated 4 September 2025), and the application for set aside (dated 1 October 2025). Background[3]On 21 February 2019, the Applicant was convicted of causing death by dangerous driving to which he pleaded guilty. He received a sentence of imprisonment for 10 years and six months.[4]The Applicant was 24 years old at the time of sentencing and is now 30 years old.[5]He was automatically released on licence on 15 December 2023. His licence was revoked on 20 December 2024, and he was returned to custody on 31 December 2024.[6]The Applicant was recalled to custody following reports from police that he had been residing at an address within his exclusion zone.[7]He had previously been issued with a licence compliance letter in April 2024 for failing to notify a developing relationship and a ‘decision not to recall’ letter in August 2024 following concerns about his compliance with GPS tagging. He also failed three drug tests in October 2024 (cannabis and cocaine), November 2024 (cannabis and cocaine) and December 2024 (cocaine). He then failed to attend an appointment with the substance misuse service.[8]The Applicant’s sentence ends in March 2029. Application for Set Aside[9]The application for set aside has been drafted and submitted by solicitors on behalf of the Applicant and argues that the panel made errors of law and errors of fact.[10]These grounds are supplemented by written arguments to which reference will be made in the Discussion section below. Current Parole Review[11]The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) to consider whether to direct his release.[12]The review proceeded to an oral hearing on 27 August 2025 before a two-member panel. The panel heard evidence from the Applicant, his Prison Offender Manager (POM) and his Community Offender Manager (COM). The Applicant was legally represented throughout the hearing.[13]In the professional opinion of the POM and the COM, the Applicant could be safely managed in the community. The panel did not direct the Applicant’s release. The Relevant Law[14]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.[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 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[17]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/orf. improperly delegates decision-making power.[18]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[19]The Respondent has indicated that no representations will be made in response to this application. Discussion[20]The Applicant advances a number of grounds which he submits amount to errors of law and fact, rendering the panel’s decision fundamentally flawed. I have considered each in turn.[21]The first ground concerns alleged procedural unfairness, said to arise from the panel’s treatment of certain evidence, particularly the identification evidence of a police community support officer, and the adequacy of the panel’s reasons. The Applicant contends that the panel failed to engage with submissions made on his behalf and therefore erred in law.[22]Procedural unfairness and illegality are distinct bases of challenge and only the latter is relevant to an application for set aside. The decision shows that the panel considered the disputed evidence in detail. It expressly addressed the concerns raised about the police identification, stated why it preferred the officer’s evidence, and gave clear reasons for its finding that the Applicant had breached his exclusion zone and been dishonest about doing so. The panel was entitled to assess credibility and weight as it saw fit. While the Applicant disagrees with the outcome, disagreement with the panel’s evaluation does not amount to an error of law.[23]The Applicant also argues that the panel erred in law and fact when assessing his objection to the proposed exclusion zone. The alleged factual error concerns the panel’s conclusion that the Applicant lacked victim empathy. That conclusion was a matter of evaluative judgement based on his oral evidence and written submissions, not a misstatement of fact.[24]As to the alleged legal error, the Applicant relies on the panel’s statement that the setting of licence conditions “ is not a balancing exercise ”, submitting that this demonstrates a misdirection in law. Read fairly and in context, however, the panel immediately went on to apply the proper tests of necessity and proportionality and to balance the protection of the public and the victim’s family against the Applicant’s liberty and rehabilitation. The wording may have been inelegant, but the reasoning demonstrates that the correct legal test was applied in substance. There is therefore no material error of law. Decision[25]For the reasons set out above, the application for set aside is refused. Stefan Fafinski 17 October 2025