Malik, Application to Set Aside, [2025] PBSA 93 (02 December 2025) [2025] PBSA 93
[1]This is an application by Malik (the Applicant) to set aside the decision not to direct his release. The decision was made by a panel after a paper hearing. This has been deemed to be an eligible decision.[2]I have considered the application on the papers. These are: · The dossier now comprising 494 numbered pages; · The decision (DL) dated 14 October 2025; and · The application for set aside dated 7 November 2025. Background[3]On 2 February 2015 the Applicant was sentenced to a total of 12 years imprisonment for five counts of rape. No separate penalties were imposed for offences of assault occasioning actual bodily harm and battery. He was subsequently sentenced to three months imprisonment for perverting the course of justice to be served consecutively. The Sentence Expiry Date is in October 2026.[4]The victim of the index offences was his second wife whom he married in 2007 and by whom he has two children. O ver a period of around nine months the Applicant, who was separated from the victim, returned to the family home on five separate occasions and vaginally and anally raped her. He also punched her in the back whilst she was in his car having previously assaulted her with a hot iron causing a burn on her stomach.[5]Whilst on remand for the index offences, the Applicant wrote three letters to the victim, suggesting she withdraw the case.[6]The Applicant denied and continues to deny responsibility for the offences. He was aged 41 at the time of sentencing and is now 52 years old.[7]The Applicant was released on licence automatically in August 2020. He then married his current wife (the wife). On 20 July 2024, she rang the police to report that the Applicant had slapped her face and threatened to kill her.[8]This was his first parole review since recall. Application for Set Aside[9]The application for set aside has been drafted and submitted by solicitors acting on behalf of the Applicant.[10]The application relies on a number of grounds which I will consider 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 the Applicant should be released.[12]The parole review was directed to an oral hearing which was due to be convened on 23 September 2025.[13]On 21 August 2025, the panel chair received a request from the Applicant's legal representative requesting that the review be deferred to allow him to complete a recommended High Intensity Programme.[14]The panel chair considered that the review should be concluded on the papers in accordance with Parole Board Rule 21 and adjourned for legal representations. These were received submitting that there were exceptional circumstances which justified a longer deferment than the four months stipulated in the relevant Parole Board Guidance.[15]The panel considered the representations and provided its reasons for declining the requested deferment and went on to find that it had sufficient information to make an independent assessment of the Applicant's risk and concluded his review on the papers with a decision for no release. The Relevant Law[16]Rule 28A(1)(a) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2024) (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.[17]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)).[18]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[19]By email dated 18 November 2025 PPCS confirmed that the Respondent offers no representations in response to this application . Discussion[20]As the Applicant is serving a determinate sentence of imprisonment, the reconsideration process is not available but, nevertheless, his solicitors have seen fit to assert procedural unfairness, irrationality and even that the decision is "unsafe". None of these grounds are matters for me when exercising the set aside jurisdiction.[21]The application relies on five grounds.[22]Ground 2 alleges procedural unfairness in failing to grant the application for a further deferment. The panel set out the reasons for its decision which was made in the exercise of its judgement, and, in any event, procedural unfairness is not a matter for me in the exercise of the set aside jurisdiction.[23]Ground 3 suggests that the panel mischaracterized the wife's circumstances. The reference at DL 2.4 relates to the assessments made by probation at the time of recall while the police report from the time of the Applicant's arrest (dossier p.177) confirms that the victim was relocated because she was in fear of the Applicant and that thereafter she obtained her own accommodation which she refused to disclose to the police.[24]These references would appear to do no more than set out the circumstances at the time the statements were made.[25]In addition, in relation to the wife's command of English, it is to be noted that the police made use of an Urdu interpreter and, when she subsequently obtained her own legal advice, her solicitors also had recourse to Urdu interpretation.[26]I can find no errors of fact here.[27]Ground 4 amounts to a challenge to the panel's decision not to direct release with the Applicant seeking to rely on further arguments in support. I find that these submissions do not contain any matters which would constitute an error of fact or law.[28]Ground 5 suggests that the panel was guilty of "inconsistent reasoning on recall facts" which is "irrational and unsafe". Even if that were the case (which I do not find) these are not matters for me exercising the set aside jurisdiction and do not amount to errors of fact or law.[29]I find that the only matter of any substance put forward on the Applicant's behalf is Ground 1 which relies on the reference in a number of places in the DL to the Applicant being charged with threats to kill and coercive control. It is quite clear that this was not the case and that, while he was arrested on the basis of the wife's initial allegations of threats to kill and coercive control, she very quickly withdrew her statement and her support for a prosecution, and it was therefore not possible for any further action to be taken.[30]I find this is an error of fact, but I must also be satisfied that, but for that error, the decision not to direct release would not have been made.[31]I have given this matter anxious consideration. There is, of course, an important difference between an allegation being found to reach the requisite standard for a criminal charge to be preferred and, as here, the Applicant being arrested in relation to a complaint of serious intimate partner violence, being taken into custody, interviewed and then admitted to police bail.[32]However, the panel was entitled to take account of the circumstances in which the police were compelled to take no further action, and it was satisfied that the Applicant's recall to prison as a result was appropriate. Quite properly, too, the panel did not make any finding of fact as to whether or not, on the balance of probabilities, the Applicant had committed any offence against the wife.[33]I am satisfied that this allegation was by no means the only basis for the panel's decision to decline to direct the Applicant's release.[34]The overarching reason was the unanimous professional view, which the panel accepted, that the Applicant needed to undertake the recommended high intensity programme, which he had agreed to, and which was considered to be essential risk reduction work to be completed in custody.[35]This had formed the basis for the panel's decision to refuse to grant a deferment since completion of the programme would need to be followed by a post-programme report, a period of consolidation work and then further assessments by professionals of the extent to which the Applicant had internalised his learning so as to develop the necessary controls.[36]The panel took into account the seriousness of the index offences, the assessed levels of risk, the identified risk factors and the recommendations of the professionals who did not support release.[37]The psychologist assessed the Applicant as "high risk, with few protective factors in place. He has not completed any specific work on his IPV related thinking and attitudes and will be returning to a marriage with a highly vulnerable individual" and she noted that the wife was currently living with the Applicant's family and that her immigration status depended upon her marriage to him. There was also concerning evidence about the extent to which the Applicant was continuing to exercise control over her from prison.[38]The panel considered that it was positive that the Applicant was engaging with the recommended high intensity intervention but was not confident that he demonstrated sufficient insight into his risk factors, had developed his internal controls and that the proposed risk management plan could safely manage his risks in the community at this time.[39]The panel considered the representations of the Applicant and statements from the wife together with the balance of the documentation contained in the dossier and set out its findings and the reasons for its conclusion that the Applicant did not meet the test for release.[40]In all the circumstances I am entirely satisfied that the panel's unfortunate references to the Applicant having been charged rather than simply arrested and bailed in relation to alleged offences of threats to kill and coercive control do not amount to an error of fact which was so fundamental to the panel's reasoning as to allow me to find that, but for that error, the decision not to direct release would not have been made.[41]I repeat that it is disappointing that, for the most part, this application seems to have been drawn up without proper consideration being given to the ambit of the set aside procedure and does not, I find, disclose any error of fact (or, indeed law) but for which the decision not to direct release would not have been made. Decision[42]I have carefully considered this application. The Panel exercised its judgement in this case, and I can find no errors 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 02 December 2025