Baber, Application to Set Aside, [2025] PBSA 90 (28 November 2025) [2025] PBSA 90
[1]This is an application by Baber (the Applicant) to set aside the decision not to direct his release. The decision was made by a panel after an oral hearing on 7 October 2025. This is an eligible decision.[2]I have considered the application on the papers. These are the dossier, the oral hearing decision dated 21 October 2025, and the application for set aside dated 11 November 2025. Background[3]On 2 April 2018 the Applicant was sentenced to 9 years imprisonment for a number of offences, including inciting a child under the age of 16 to engage in sexual activity.[4]The Applicant was aged 43 at the time of sentencing. He is now 51.[5]The Applicant was automatically released on licence on 24 August 2022. His licence was revoked on 16 June 2023, and he was returned to custody on 19 June 2023. This is his first recall on this sentence, and his second parole review since recall. Application for Set Aside[6]The application for set aside has been drafted and submitted by the Applicant's legal representative.[7]It submits that the panel have made errors of fact and mistakes of law in reaching the decision.[8]The Applicant argues that there have been errors of fact in that the panel has effectively ignored answers given by witnesses when they were cross examined on behalf of the Applicant.[9]Further the Applicant submits that the panel erred in law by failing to consider the arguments put forward by the Applicant's legal representative in closing submissions and by placing any weight on the evidence of the Community Offender Manager (COM) in circumstances where she had not read the dossier. Current parole review[10]The Applicant's case was referred to the Parole Board by the Secretary of State (the Respondent) to consider whether to release the Applicant on licence.[11]The case proceeded to an oral hearing on 7 October 2025 before a two member panel. The panel heard evidence from the Applicant, his Prison Offender Manager ( POM ), his Community Offender Manager ( COM ) and a psychologist. The Applicant was legally represented throughout the hearing.[12]The panel did not direct the Applicant's release. The Relevant Law[13]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.[14]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)).[15]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[16]The Respondent has offered no representations in response to this application . Discussion[17]It is argued on behalf of the Applicant that there have been errors of fact and errors of law.[18]In relation to errors of fact the Applicant complains that there were mistakes of fact in that the panel did not take notice of answers given to questions from his legal representative. In relation to the evidence of the psychologist, the issue between the Applicant and the psychologist was that while the psychologist was of the opinion that the Applicant had a clear and entrenched sexual interest in children, it was argued on behalf of the Applicant that it was only transitory and was present only at times when he was very stressed. While the psychologist accepted that this was a possibility and that it was impossible to confirm that the Applicant was physiologically predisposed to this attraction, it does not mean that the panel had to accept that there was not an ongoing sexual attraction to children. This was the panel's conclusion, and they were entitled on the evidence to reach it. It was important in their assessment of risk as it led to the conclusion that the Applicant might not take the necessary steps to mitigate the risk. Further, in relation to the psychologist's evidence, it is said to be an error of fact that the psychologist and the panel made in concluding that looking up daddy/daughter pornography was relevant to a sexual interest in children. It is pointed out that the evidence of the Applicant was that this was a popular category of pornography depicting adults playing out a fictional sexual scenario. The psychologist concluded that in the light of the index offences this was indicative of a continuing sexual interest in children and the panel accepted that. In my judgment, in relation to the evidence of the psychologist as a whole the panel were entitled to do so. It does not establish a mistake of fact by the panel. It is a conclusion on the facts that the Applicant disagrees with. The conclusion of the psychologist, with which the panel agreed, was that what was required to reduce the risk of the Applicant to meet the release test was an acceptance of his ongoing sexual interest in children and to be open and honest with probation about it.[19]The Applicant also complains that the panel have made errors of fact in their consideration of the evidence of the POM and COM. The reality is that the POM and COM opposed release or a move to open in reliance on the basis of the opinion of risk expressed by the psychologist. They were entitled to do that and the critical evidence which led the panel to their decision was that of the psychologist.[20]The Applicant also complains that there were errors of law in that the panel did not appear to take account of the legal representative's submissions on the evidence and placed weight on the views of the COM even though she had not read the dossier. The panel is not bound to mention the submissions on the evidence in their decision provided that looking at the decision in the context of the submissions the decision deals with the issues raised at least in general terms. In my judgment the decision does that. It is quite clear why the panel came to its decisions. They based their decision on the evidence of the psychologist which they accepted having considered the challenge made to it. In relation to the evidence of the COM it is clearly regrettable to say the least that she had not seen the dossier before giving her evidence but the only weight the panel appear to have put on her evidence was her consideration of the difficulties in controlling the risk presented by the Applicant in the community in the light of the evidence of the psychologist.[21]I doubt whether the matters raised by the Applicant as errors of law are capable of being errors of law.[22]The Applicant further argues that the decision should be set aside on the basis that it is in the interests of justice to do so. That is not a ground for set aside on its own but only in conjunction with one of the other grounds.[23]I understand the frustrations of the Applicant at being refused release on licence. He has done everything asked of him after his return to custody. The set aside procedure is not designed or intended to be used where essentially there is a disagreement with the findings made by the panel. I have not identified an error of fact or law. Decision[24]The application for set aside is refused. John Saunders 28 November 2025