Holden, Application to Set Aside, [2025] PBSA 84 (17 November 2025) [2025] PBSA 84

PBSA

Holden, Application to Set Aside, [2025] PBSA 84 (17 November 2025)

[2025] PBSA 84 · 2025-10-21

[1]This is an application by Holden (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 313 numbered pages), the decision (dated 21 October 2025), the application for set aside (dated 1 November 2025) and a letter from the Applicant (dated 31 October 2025 as far as I can ascertain, the date having been partially cut off during the document scanning process). Background

[3]On 6 March 2023, the Applicant was convicted of burglary and theft (dwelling). He received a determinate sentence of imprisonment for 40 months. On the same occasion he was also convicted of assault by beating of an emergency worker and received a further eight month consecutive determinate sentence. He was also convicted of using a vehicle while uninsured and had his driving licence endorsed with six penalty points.

[4]The Applicant was 46 years old at the time of sentencing and is now 49 years old.

[5]He was automatically released on licence on 17 July 2024. His licence was revoked on 23 August 2024, and he was returned to custody the following day.

[6]The Applicant's sentence ends in September 2026. Application for Set Aside

[7]The application for set aside has been drafted and submitted by the Applicant and argues that there have been errors of fact and errors of law in the decision. 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]The review proceeded to an oral hearing on 16 October 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.

[10]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

[11]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.

[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 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 indicated that no representations will be made in response to this application. Discussion

[15]The Applicant is not legally represented for the purposes of this set aside application. In fairness to him, I have read his application and covering letter very carefully to determine which of the potential grounds for set aside might arise from the points he has made. I have set the material parts of the application out below. Other points raised by the Applicant were concerned with the panel's interpretation of evidence and, as such, cannot form part of a set aside application unless there was a material error of fact. No such errors are established on the face of the application.

[16]The Applicant argues that he was not given enough opportunity to put his case forward. Such arguments would generally fall under the broad heading of procedural unfairness which is outside the scope of the set aside mechanism.

[17]The Applicant argues that his recall was potentially inappropriate. He states that " it might have been justified at the time on that current information, however that current information was incorrect as it has come to light later on" . This could amount to an error of law if the panel applied the legal test incorrectly or applied the wrong test.

[18]The legal test that should be applied was set out in R(Calder) v Secretary of State for Justice

[2015] EWCA Civ 1050

. This sets out two conditions developed by case law which the Respondent must satisfy to establish the lawfulness of the recall. First, the Respondent must establish that he could on reasonable grounds conclude that the prisoner was in breach of his licence conditions (at [21]). Second, that recall was necessary in all the circumstances (at [27]).

[19]With regard to the first limb, I find that the panel did properly consider the evidence before the Respondent at the time of recall. It did not, however, explicitly address the matter of whether recall was necessary in all the circumstances, and consequently I am not satisfied that it properly applied Calder in its entirety. I therefore find that this omission amounts to an error of law for the purposes of rule 28A(4)(a).

[20]However, I can only grant the application for set aside if I am satisfied that the panel's decision not to direct release would not have been made but for that error of law. This is a strict causation test: the panel must have reached a different decision absent the error.

[21]The panel accepted that the Applicant had made some recent progress in custody, particularly his improved behaviour since moving to a safer wing, his negative drug test, and his engagement with Phoenix Futures. They also recognised his motivation to address both substance misuse and childhood trauma, and they noted the recommendations for release from both the POM and COM.

[22]However, the panel identified several significant areas of concern. The Applicant has a long-standing pattern of entrenched criminality, with his offending strongly linked to chaotic lifestyle factors and, critically, to longstanding substance misuse. Although he has been abstinent for approximately four months, the panel viewed this as a short period when set against many years of drug-driven offending. Given his history of relapsing at times of stress, they were not satisfied that the Applicant would be able to cope with the challenges of release without reverting to drugs, which would rapidly and unpredictably increase his risk.

[23]The Applicant has not completed any accredited risk-reduction work since recall, and the panel was not satisfied that he had yet developed sufficient internal risk-management skills to prevent serious harm if confronted with difficulties in the community. The proposed risk-management plan was weakened further by the fact that he would be subject to Probation Reset. After a short period in Approved Premises, he would not have active supervision, with oversight relying largely on self-disclosure. The panel concluded that such limited monitoring would be unlikely to detect any escalation in risk before serious harm could occur.

[24]While the Applicant has some protective factors, these were assessed as limited. His mother is an important support but is herself unwell, and this may add to his stress rather than reduce it.

[25]The panel's reasoning makes clear that the circumstances of recall were peripheral to the core public protection assessment. The determinative factors were the Applicant's entrenched risk profile, limited period of abstinence, absence of risk-reduction work and the limited oversight available under Probation Reset.

[26]Therefore, I am not satisfied that a full application of Calder would have led the panel to direct release. In these circumstances, the interests of justice threshold in rule 28A(3) is not met. Decision

[27]Accordingly, for the reasons set out above, I am not satisfied that the decision would have been different but for the identified error of law. The application is therefore refused. Stefan Fafinski 17 November 2025