Sunderland, Application to Set Aside, [2025] PBSA 94 (12 December 2025) [2025] PBSA 94

PBSA

Sunderland, Application to Set Aside, [2025] PBSA 94 (12 December 2025)

[2025] PBSA 94 · 2025-06-02

[1]This is an application by the Secretary of State for Justice (the Applicant) to set aside the decision to direct the release of Sunderland (the Respondent). The decision was made by a panel after an oral hearing . This is an eligible decision.

[2]I have considered the application on the papers. These are the dossier (consisting of 255 numbered pages), the decision (dated 2 June 2025), and the application for set aside (undated but received on 4 December 2025). I have also seen relevant sentence calculation sheets. Background

[3]On 25 October 2018, the Respondent was convicted on six counts of indecent assault on a male under 14 and two counts of attempted buggery with a boy under 16. Following variation, the net sentence was an extended sentence for offenders of particular concern (SOPC) comprising eight years in custody with a 12 month period on extended licence. These are historic offences committed between 1966 and 1978. The Respondent has maintained his innocence.

[4]The Applicant was 71 years old at the time of sentencing and is now 78 years old. Application for Set Aside

[5]The application for set aside has been drafted and submitted by the Public Protection Casework Section (PPCS) acting on behalf of the Applicant.

[6]The application for set aside submits there has been a change in circumstances since the panel made its decision. It is argued that the panel would not have reached the same decision if the change in circumstances had happened beforehand.

[7]The content of the application will be considered in the Discussion section below. Current Parole Review

[8]The Respondent's case was referred to the Parole Board by the Applicant in May 2024 to consider whether or not it would be appropriate to direct his release. This is the Respondent's second parole review.

[9]The case proceeded to an oral hearing on 2 June 2025, before a two-member panel. Oral evidence was taken from the Respondent, the Prison Offender Manager (POM), and the Community Offender Manager (COM). The Respondent was legally represented throughout the hearing.

[10]At the time of the hearing, the Respondent's parole eligibility date (PED) was reported to have passed in September 2022, with his conditional release date (CRD) reported to be in September 2026, and his sentence end date (SED) in September 2034.

[11]The panel directed the Respondent's release after hearing that the COM identified Nottingham as the preferred release area and planned to seek housing support from the local authority, although no priority needs assessment had been completed. The Respondent would initially spend up to 84 nights in CAS3 approved accommodation. The COM could not confirm whether the Respondent would have housing after that period. Given his significant health issues, age, and need for community living support identified by adult social care, the panel considered it unlikely he would be denied priority status, although the COM offered no view on this.

[12]In July 2025, the Applicant sought to set this decision aside ( Sunderland

[2025] PBSA 53

) on the basis that it was no longer in a position to implement the proposed risk management plan as there remained difficulties in sourcing appropriate accommodation. This application was unsuccessful and the decision to direct release remained in place.

[13]The Respondent has not yet been released, and the Applicant has brought a second set aside application. The Relevant Law

[14]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.

[15]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)).

[16]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

[17]The Respondent has submitted written representations which will be referred to in the Discussion section below. Discussion

[18]The Applicant applies to set aside the decision on the ground that there is new information available since the direction was made and submits that the panel would not have made the direction to release the Respondent if this information had been available at the time it made its decision.

[19]It is noted that as part of the preparation for the Respondent's release, the Applicant was notified by the prison that it had been identified during release checks that the Respondent's sentence had been incorrectly calculated and had not included a consecutive element of a determinate sentence. This meant that, by law, the Applicant is unable to release the Respondent prior to September 2026.

[20]The Respondent's legal representative has asked that I ensure that the Respondent is in fact not eligible for release as indicated before making a decision. To that end, I directed the Applicant to provide his calculations. The Respondent's legal representative has also had sight of these, with nothing further to add other than a request that the matter be re-referred to the Parole Board. Any such referral is, however, a matter for the Applicant and not something I am empowered to direct.

[21]Having reviewed these calculations, I am satisfied that the Respondent cannot lawfully be released before September 2026. My understanding of the complex situation is this: although the PEDs for the extended sentences were correctly calculated at the time, each of them fell during the custodial element of a consecutive determinate sentence. As a consequence, the PED could not take effect until the consecutive term had been fully served. The earliest lawful point at which release could occur is therefore September 2026. This is a threshold jurisdictional requirement without which release cannot be effected. If my understanding of the calculations is incorrect, it will be a matter for the Applicant to re-refer the case as and when appropriate.

[22]I find that the panel would not have directed the Respondent's release if it had known he was not eligible to be released. It is plainly in the interests of justice for the release decision to be set aside as to do otherwise would put the Applicant in the position of releasing the Respondent unlawfully.

[23]I therefore find that the requirements for setting the decision aside are made out.

[24]That said, this is a deeply troubling case for two reasons. First, because of the original extensive delays in finding accommodation. Notwithstanding the incorrect date on which such accommodation was predicated, there did not appear to have been sufficient urgency in assembling a critical component of the community risk management plan.

[25]Second, the error in calculation has only now been found, over 18 months since the original referral was made. This has meant that the Respondent, who was expecting release once accommodation was in place, will now not have any prospect of release for some time. While I accept this is the correct position in law, the Applicant's error has resulted in the Respondent being given inaccurate expectations about the prospect of release, which is plainly regrettable. Decision

[26]For the reasons set out above, the application for set aside is granted. Stefan Fafinski 12 December 2025