Allen, Application to Set Aside, [2025] PBSA 97 (15 December 2025) [2025] PBSA 97
[1]This is an application by Allen (the Applicant) to set aside the decision not to direct his release. The decision was made by a panel at an oral hearing on 20 October 2025. This is said to be an eligible decision.[2]I have considered the application on the papers. These are: · The dossier now comprising 439 numbered pages; · The decision (DL) dated 29 October 2025; and · The application for set aside dated 8 December 2025 Background[3]On 12 March 2021, upon his guilty plea, the Applicant received an extended determinate sentence of imprisonment comprising a custodial element of five years and eight months and an extended licence period of four years for an offence of possession of a firearm with intent to cause fear of violence ("the index offence").[4]The context for the commission of the index offence was the Applicant's membership of a gang in Birmingham when on 20 April 2020 he and three other gang members travelled by car to another area of Birmingham in order to exact retribution or inflict fear on members of an opposing gang. The Applicant and at least one of the other men were armed with pistols.[5]When they saw members of the opposing gang, three of them got out and the Applicant and one of the other gang members pursued the rival gang members with guns drawn and shot at them in an alleyway and a shop they had entered. Very fortunately, neither the intended victims nor members of the public were injured.[6]Whilst serving his sentence for the index offence the Applicant received, on appeal, determinate sentences of detention totalling 18 months for two counts of possession with intent to supply Class A drugs (heroin and crack cocaine). These offences were committed around 19 months before the index offence when the Applicant was aged 16.[7]The Applicant was first convicted in 2015 at the age of 13 for offences of robbery and attempted robbery and thereafter was further convicted of robbery, common assault, battery, possession of an offensive weapon, possession of illicit drugs and possession with intent to supply Class A drugs. He also has a conviction for possession of extreme pornography.[8]The Parole Eligibility Date was 16 January 2025, the Conditional Release Date is in November 2026 and the Sentence Expiry Date is in November 2031.[9]The Applicant is now 24 years of age and was aged 19 at the time of sentencing for the index offence.[10]T his was his first review. Application for Set Aside[11]The application for set aside has been submitted on behalf of the Applicant by his solicitors, GT Stewart, and, specifically, by the solicitor who represented the Applicant at the oral hearing, who seeks to demonstrate that the decision was irrational, procedurally unfair and based on an error of law . I will deal with these submissions in the Discussion section of my decision . Current parole review[12]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.[13]The case proceeded to an oral hearing on 20 October before a three-member panel. The panel heard oral evidence from the Applicant, the Prison Offender Manager (POM) and the Community Offender Manager (COM). The Applicant was legally represented throughout the hearing. There was no professional support for release.[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]By email dated 8 December 2025 PPCS confirm on behalf of the Respondent that no representations are made in response to the application . Discussion[19]I have given anxious consideration to this application which states that the panel's decision may be set aside on the grounds of irrationality and procedural unfairness. This is incorrect. I have set out above the grounds for a successful application for set aside and they do not include irrationality or procedural unfairness.[20]Accordingly, I do not intend to consider those arguments any further although it is necessary for me to express considerable disquiet that the solicitor for the Applicant should submit that the panel was guilty of procedural unfairness in that, " The panel proceeded without hearing directly from [the Applicant] 's Personal Adviser [sic] (PA) , despite acknowledging her role as a critical protective factor and the time-sensitive nature of her statutory involvement. This deprived the panel of live evidence on reintegration planning, which was central to the mitigation case ."[21]In fact, the panel notes in its introduction to the DL: "On the day of the adjourned hearing the panel was informed that [the Applicant's Personal Advisor] , was unable to attend. Given that there was a very recent report from her in the dossier and she would not have been able to assist the panel in assessing risk, it was the panel's view that the hearing could proceed in her absence. The legal representative agreed [My emphasis]".[22]The solicitor also submits that there has been an error of law and, of course, I may set aside a decision of a panel if it is in the interests of justice to do so and I am satisfied that the decision not to direct release would not have been made but for that error of law.[23]The Applicant's solicitor makes the sweeping assertion that the panel misapplied the statutory test for release and I have given this submission appropriate consideration.[24]In the Applicant's favour, the panel noted some protective factors in his case and that he maintained Enhanced IEP status and had engaged in work to try and better understand his risk factors and offending behaviour.[25]However, both the COM and the POM considered that the Applicant needed to demonstrate over a sustained period that he was able to consistently put his learning into practice without resorting to further risky behaviour.[26]In addition, there was considerable concern about aspects of the Applicant's behaviour in prison where he had been the subject of disciplinary measures for a number of infractions including fighting, assaulting other prisoners and assaulting prison staff to whom he had been threatening and abusive during recent months. He had also been found in possession of illicit mobile phones and to be using drugs; he was found to be under the influence and frankly acknowledged his cannabis use in custody.[27]The panel considered the risk management plan (RMP) to be robust but noted that there was no support for the Applicant's release from the professional witnesses who were not satisfied that, if released, he would comply with the RMP and his licence conditions and believed that he demonstrated a distrust of professionals and that his risks were currently not manageable in the community.[28]The panel accepted the COM's conclusion that the Applicant needed to remain in custody and focus on behavioural stability and demonstrate sustained and meaningful change before release could be safely considered.[29]The Panel found that the Applicant posed a high risk of causing serious harm to the public and presented a high risk of re-conviction and of serious recidivism.[30]The Panel concluded, "The Parole Board shall not direct release unless it is satisfied that it is no longer necessary for the protection of the public that [the Applicant] should be confined. Taking everything into account and applying the Codified Public Protection Test the panel was not so satisfied and concluded that the risk he presents cannot be managed in the community."[31]I find that the panel, having read the dossier and heard the relevant evidence including from the Applicant, set out its findings with considerable clarity and appropriate detail, and came to its own judgement in relation to risk-related issues, which is, of course, a matter pre-eminently for the panel.[32]The Codified Public Protection Test is set out as an Annex to the DL which, I find, is comprehensive and evidence-based. In my view, no error of law is made out in the submissions of the Applicant's solicitor and I reject as being without foundation the suggestion that the panel has misapplied the statutory test and that "evidence of more than minimal risk of serious harm......was not established." Decision[33]I have carefully considered this application. I find that it discloses no error of law 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 entirely without merit and it is refused. PETER H. F. JONES 15 December 2025