The Parole Board for England and Wales

 

[2022] PBSA 22

 

 

 

Application for Set Aside in the case ofby Nkromah

 

 

Application

 

1.   This is an application by Nkromah (the Applicant) to set aside the decision made by a paper review panel (the panel) dated the 7 October 2022 not to direct his release.

 

2.   I have considered the application on the papers, these are:

 

a)   The Decision Letter dated the 7 October 2022;

b)   A decision dated the 15 November 2022 by a Duty Member of the Parole Board refusing the Applicant’s application for an oral hearing;

c)    The application to Set Aside from the Applicant; and

d)   The dossier, numbered to page 119, of which the last document is the decision by the Duty Member on 15 November 2022. The panel had a dossier numbered to page 107.

 

Background

 

3.   The Applicant is now 49 years old and he was 48 years old when we was convicted on the 10 December 2021 for offences of stalking (involving fear or violence), criminal damage and intimidating a witness.  He received a sixteen month custodial sentence and his sentence expiry date is listed as thein 26 March 2023. These convictions came a month after the Applicant was convicted of two offences of pursuing a course of conduct which amounted to harassment, harassment (put in fear of violence) and assault of an emergency worker.

 

4.   The background to his behaviour was that the Applicant had harassed his ex-partner and damaged her car. He assaulted a police officer and persistently harassed his ex-partner. The Applicant has an extensive history of offending and the panel noted his numerous convictions in its assessment of his case.

 

5.   On the 28 February 2022, the Applicant was released automatically from custody. He was recalled to prison on 1 March 2022 and was then unlawfully at large. In his time in the community, the Applicant breached the restraining order in place to protect his ex-partner and he was convicted of this at court on the 29 April 2022.

 

6.   The Applicant was re-released on the 23 June 2022 on Home Detention Curfew. On release, it was reported that the Applicant did not agree with the identified licence conditions and he refused to sign his licence. He had written a letter prior to his release identifying conditions he did not think should be imposed on his release licence. In his letter to the panel, following recall, the Applicant stated that he had not objected to the ‘principles’ of any licence condition but had questioned their proportionality and necessity when considering guidance issued to the Probation Service.  

 

7.   The Applicant was recalled to custody on the 15 July 2022, returning to prison the next day. His second recall followed concerns that he was suspected of making numerous calls to his ex-partner in breach of a restraining order. Charges of breaching the restraining order were discontinued following his return to custody. In discussion with his Probation Officer after his recall, the Applicant was reported to have acknowledged that his behaviour had been unacceptable.

 

8.   The Secretary of State referred the Applicant’s case to the Parole Board for it to determine whether he should be re-released. Reports before the panel recommended the completion of further work in custody and the panel determined that the Applicant did not meet the test for release. It refused his release in its Decision Letter of the 7 October 2022.

 

9.   Following the panel’s written decision, the Applicant applied to the Parole Board for his case to be considered at an oral hearing. This is a process that the Applicant was free to follow, as set out in the Parole Board Rules 2019 (as amended). His application was subsequently refused by the Parole Board Duty Member in a decision of the 15 November 2022.

 

 

Application to Set Aside

 

10.In his application to set aside, the Applicant seems to suggest that there has been an error of fact in certain statements relied upon by the panel and that there has been an error about information reported in terms of his past compliance. He states that certain information has not been considered and he seems to suggest that there has been misquoting in a report from the Probation Service. In his view, the evidence produced by the Secretary of State was prejudicial and he disputes some of the panel’s assessment in what he describes as ‘contested statements of facts’.

 

11.Much of the Applicant’s argument focuses on what he sees as prejudicial material or irrationality, as opposed to an error of law or fact as outlined in the guidance on the form CPDSA2 issued by the Parole Board.

 

The Relevant Law

 

12.Rule 28A of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2022) provides that a party may apply to the Board for it to set aside a final decision.

 

13.The types of decisions eligible for set aside are set out in rules 28A(1) and 28A(2). 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)).

 

14.A final decision may be set aside if it is in the interests of justice to do so and one or more of the conditions under rule 28A(4) are met (rule 28A(5)):

 

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 made if

 

(i)information that was not available to the Board when the direction was given had been so available, or

 

(ii) a change in circumstances relating to the prisoner that occurred after the direction was given, had occurred before it was given.

The reply on behalf of the Secretary of State

 

15.The Respondent has not produced any representations.

 

Discussion

 

16.I have taken great care to review the dossier, the Decision Letter and the Applicant’s grounds to set aside the decision of the panel not to direct his release. It is clear that the Applicant disagrees with the assessment of risk in his case and he is unhappy with how his recall and his attitude towards his licence were presented to the panel.

 

17.However, these are points of mitigation as opposed to any identified error of law or fact. There is nothing before me to persuade me that there was any error that would have led to a different decision in this case.

 

18.The Applicant may disagree with the panel’s conclusion but this does not establish an error of law or fact.

 

Decision

 

19.For the reasons I have given, I am not persuaded that the final decision of the panel dated the 7 October 2022 should be set aside. The application is refused.

 

 

 

Robert McKeon

21 December 2022