Gray, Application for Set Aside [2025] PBSA 80 (06 November 2025) [2025] PBSA 80

PBSA
Gray, Application for Set Aside [2025] PBSA 80 (06 November 2025)
[2025] PBSA 80 · 2025-10-14
[1]This is an application by Gray (the Applicant) to set aside the decision not to direct his release. The decision was made by a panel after an oral hearing on 14 October 2025. This is an eligible decision.[2]I have considered the application on the papers. These are the dossier, the oral hearing decision, the application for set aside and two further documents submitted by the Applicant himself. Background[3]On 19 February 2012, the Applicant was sentenced to 8 years imprisonment for offences including sexual assault.[4]The Applicant was aged 42 at the time of sentencing. He is now 47 years old.[5]He was automatically released on licence on 4 July 2024. His licence was revoked on 25 October 2024, and he was returned to custody on 28 October 2024.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 is dated 24 October 2025 and is submitted by the Applicant’s legal representative.[7]It submits that there has been an error of law.[8]I have found it extremely difficult to find an error of law identified in the application to set aside. Doing the best I can, the grounds appear to be that the panel applied an incorrect test for release and that there was no evidence on which the panel could properly conclude that the test for release was not met. The Applicant complains that more notice should have been taken of his neurodiversity by the panel in reaching their decision. Current parole review[9]The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) by a notice which is undated.[10]The case proceeded to an oral hearing on 14 October 2025 before a two member panel. The panel heard evidence from the Applicant, his former Prison Offender Manager ( POM ), and his Community Offender Manager ( COM ). The Applicant was legally represented throughout the hearing.[11]The panel did not direct the Applicant’s release. The Relevant Law[12]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.[13]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)).[14]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[15]The Respondent has offered no representations in response to this application . Discussion[16]It is argued on behalf of the Applicant that there has been an error of law. The suggested errors of law are not clearly identified in the application. The application mainly consists of reasons why the Applicant says the decision is wrong. Arguing that the decision was wrong on the evidence is not an error of law. The panel decided that the Applicant should complete the Building Choices programme before release which will be difficult for the Applicant to achieve because of his neurodiversity. Again, that is not a matter of law. In general, the Applicant complains that the panel has not attached sufficient weight to his neurodiversity. The panel knew about it and considered it. The weight they attached to it was for them to consider.[17]In the grounds the Applicant submits:
“ As per the Parole Board’s test for release, it must be necessary that a prisoner remain in custody. It is my submission, that the necessity for continued detention cannot be established. Given the applicant’s positive custodial behaviour, better understanding of the applicant's neurodiverse needs and the proposed risk management plan, it is clear that there is no more than a minimal risk of serious reoffending, thereby satisfying the test for release .”
[18]This mis-states the test that the panel had to apply. The panel said at para 4.3 of their decision:
“ The primary issue for the panel is to consider whether the codified test for release was met, namely whether it is no longer necessary for the protection of the public that [the Applicant] remains in prison. It concluded that his release would cause a more than minimal risk of serious harm to the public at any time.”
[19]As a matter of law, the panel set out the correct test for release and there is no reason to suppose that they did not apply it .[20]The only other possible argument that there was an error of law would be if I were to conclude that there was no evidence on which the panel could have reached the decision that they did. In my judgment there was evidence on which the panel could reach the decision that they did.[21]I understand the feelings of the Applicant who has, on the evidence, done his best since his return to custody but the fact that he disagrees with the decision does not give grounds for the decision to be set aside. Decision[22]The application for set aside is refused. John Saunders 06 November 2025