Sykes, Application to Set Aside, [2025] PBSA 85 (18 November 2025) [2025] PBSA 85
[1]This is an application by Sykes (the Applicant) to set aside the decision not to direct his release. The decision was made by a panel at an oral hearing on 3 September 2025. This is an eligible decision.[2]I have considered the application on the papers. These are: · The dossier now comprising 671 numbered pages; · The decision (DL) dated 21 September 2025; and · The application for set aside dated 4 November 2025. Background[3]On 12 February 2020 the Applicant was sentenced, upon his guilty pleas, to an extended determinate sentence of imprisonment comprising a custodial term of 86 months and a licence period of three years for an offence of robbery with a concurrent sentence of imprisonment for four months for possession of a butterfly knife ("the index offences").[4]The Parole Eligibility Date is given as 17 June 2024 while the Conditional Release Date is in November 2027 with a Sentence Expiry Date in November 2029.[5]The Applicant has prior convictions for burglary, theft and other dishonesty, ABH, criminal damage, drunk and disorderly, possession of drugs and driving matters. He has also breached court orders and bail requirements.[6]The Applicant is 35 years of age and was aged 29 at the time of sentencing for the index offences.[7]The Applicant was transferred to open prison conditions in October 2023 and returned to the closed estate in October 2024.[8]T his was his first review. Application for Set Aside[9]The application for set aside has been drafted on behalf of the Applicant by his solicitors.[10]It submits that the DL contains numerous errors of fact. I will deal with these matters in detail in the Discussion section of my decision. Current parole review[11]The Applicant's case was referred to the Parole Board by the Secretary of State (the Respondent) to consider whether or not it would be appropriate to direct the Applicant's release.[12]The case proceeded to an oral hearing on 3 September 2025 before a two member panel of independent members of the Parole Board, one of whom acted as the Chair.[13]The panel heard oral evidence from two Prison Offender Managers, the Community Offender Manager, a Prison Psychologist and the Applicant who was legally represented throughout.[14]The panel did not direct the Applicant's release. 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]PPCS on behalf of the Respondent confirmed by email dated 12 November 2025 that no representations are offered in response to the application . Discussion[19]It would appear that the Applicant relies on three errors of fact but for which, it is submitted, the decision not to release would not have been made.[20]In its conclusion at DL 4.5.2.3 the panel finds some evidence of rumination and emotional reaction to issues and that the Applicant's refusal to contemplate a further period in open conditions was shortsighted and an emotional rather than a rational reaction to his situation.[21]The Applicant strongly disputes this interpretation, maintaining that his questioning of the views of the professionals involved (none of whom supported a direction for release) was not intended to challenge or undermine their recommendations but rather was driven by his desire to clarify and understand their rationale.[22]I can discern no error of fact here. The Panel accepted that it was reasonable to ask for explanations from professionals as to why they were making their recommendations and also reasonable not to agree with them. However, the panel was concerned that the Applicant's emotional response to the recommendations was both an indication of some level of offence-paralleling and might also get in the way of effective compliance in the community.[23]I find that the panel, having read the dossier and heard the relevant evidence including from the Applicant, is here simply setting out its findings, having come to its own judgement in relation to risk-related issues, which is, of course, a matter pre-eminently for the panel.[24]The Applicant next submits that the panel made an error of fact in relation to the reasons for his return to the closed estate.[25]The panel noted that the Applicant denied that substance misuse was a factor in this and I am satisfied that it considered his return from open prison conditions at some length (paras 2.12-2.14 of the dossier).[26]The panel noted that it had received no positive evidence to support the suggestion (which the Applicant denied) that he had been under the influence at the time of his return. It also accepted that the adjudication in relation to the items found in his cell (herbal matter in a Kinder Egg and pregabalin) had been dismissed.[27]However, the Applicant did accept that the items found in his cell had been left in a box by a departing inmate and that the box had stayed outside his cell for a couple of days before, having been instructed to do something with it, he took it into his cell despite, on his account, being unaware of the contents.[28]The Applicant went on to accept that, in hindsight, this was a foolish decision, and the panel agreed, particularly given that he was in his parole period, that he was seeking release and that, as the panel found, he had sufficient experience of prison life to be wary of any items being in his cell which had not been declared or investigated.[29]I find that the panel did no more than accept the Applicant's account and agree with his own view that he had made a foolish decision. There is no error of fact here.[30]Finally, while recording the Applicant's denial that he had used drugs in his current prison, the panel noted an unexplained code blue incident in February 2025 during which he was found unresponsive on the floor. The Applicant could not explain the incident, save to say that he was deeply asleep at the time and the panel accepted that no adjudication or disciplinary issue arose and that an ambulance was called and then cancelled.[31]The panel concluded that this incident (as with an occasion in August 2025 when the Applicant was again suspected of being under the influence) was unexplained and might be related to drug use.[32]The Applicant submits that, had drug testing taken place at the time, this would have supported his stance that drug use was not involved.[33]However, the fact is that drug testing does not appear to have taken place and, therefore, the panel has made its finding in the light of the evidence before it in an exercise of its judgement which, in my view, does not involve any error of fact.[34]The Applicant's solicitors in their concluding submissions seek to submit that the hearing was conducted unfairly, despite this not being an issue for me when exercising the setting aside jurisdiction. Decision[35]I have carefully considered this application. I can find no errors of fact but for which the decision not to direct release would not have been made and, for the reasons I have given, I find that the application to set aside is without merit and it is refused. PETER H. F. JONES 18 November 2025