Umar Jones, R (on the application of) v The Parole Board for England and Wales

ANDREW KINNIER K.C. sitting as a Deputy Judge of the High Court Introduction

1. Mr Umar Jones (formerly known as Stephen Jones), the Claimant, seeks to challenge the decision (dated 4 August 2025) of the Parole Board for England and Wales (“ the Parole Board ”), made under r. 28A of the Parole Board Rules 2019 (“ the Parole Board Rules ”), to set aside its previous decision (dated 4 June 2025) to direct his release from custody (“ the decision ”). PART 1 – the issues

2. On 5 November 2025, Alan Bates, sitting as a Deputy Judge of the High Court, granted the Claimant permission to rely upon three grounds of challenge: (a) Ground 1 : the judicial member misdirected himself in law as to the correct test under s. 28A(4)(b) of the Parole Board Rules, namely whether “a direction given by the Board for the release of a prisoner would not have been given if … information that was not available to the Board when the direction was given had been so available.”: Rather than applying the test of whether the direction for release “would not have been given”, the judicial member applied a necessarily lower test of whether the direction “might not have been given”. (b) Ground 2 : the judicial member failed to take any steps to obtain further information about the security intelligence gists relied upon, including (i) any further detail of the allegation; (ii) any evidence in support of the allegations and/or (iii) any indication as to the reliability of the allegations. That was unlawful, because it was (i) a breach of the Parole Board’s Tameside duty; and/or (ii) procedurally unfair; and/or irrational. The judicial member was not entitled to leave those matters for assessment at a future hearing before the Parole Board, they were a necessary part of the lawful application of the test in r. 28A(4)(b) of the Parole Board Rules. (c) Ground 3 : the judicial member erred in law in his assessment whether “it is in the interests of justice” to set aside an otherwise final decision, per r. 28A(3)(a) of the Parole Board Rules, by failing to have regard to relevant considerations which weighed against setting aside the decision including (i) the weighty public interest in the finality of judicial decisions; and (ii) whether the security intelligence gists relied upon were available to the Secretary of State at the time of the hearing before the Parole Board (and, if so, why they were not produced before the Parole Board at that time.)

3. The Deputy Judge also directed an expedited hearing which was heard on 4 December 2025. The Claimant was represented by Tim James-Matthews; the Parole Board neither attended nor was represented and the Secretary of State was represented by Rachel Naylor. I am grateful to Mr James-Matthews and Ms Naylor for their submissions and the co-operative way in which they conducted the hearing. I am also grateful to the Claimant’s solicitor for the efficient preparation of the bundles. PART 2 – the background The Claimant’s convictions and sentences

4. The Claimant is serving two sentences of life imprisonment. On 6 September 2004, he was convicted of murder and sentenced to a minimum term of 14 years and 5 months imprisonment. That sentence was ordered to run concurrently with a determinate sentence of 10 years’ imprisonment following a conviction for robbery. On 15 April 2005, he was convicted of wounding with intent to commit grievous bodily harm contrary to s. 18 of the Offences Against the Person Act 1861 for which he was sentenced to a minimum term of 5 years and 3 months imprisonment.

5. The Claimant’s tariff expired on 6 February 2019. The Parole Board’s decision

6. The Parole Board heard the Claimant’s case on 30 May 2025. The panel included a judicial member and a specialist psychologist member. It had the benefit of a detailed dossier which contained various reports and other information about the Claimant. It also heard oral evidence from the Claimant; Ms Domonique Samuels, the Claimant’s Prison Offender Manager (“ the POM ”); Ms Clare Payne, the Claimant’s Community Offender Manager (“ the COM ”); Ms Halcyon Smith, a psychologist employed by HM Prison and Probation Service (“ the Prison Service ”) and Dr Karyn Mannix, an independent psychologist.

7. The evidence before the panel included security entries. The POM confirmed in oral evidence that she was not persuaded that they were matters of concern and she supported the Claimant’s release from prison.

8. On 4 June 2025, the Parole Board directed the Claimant’s release because it concluded that, for the purposes of s. 28(6) (b) of the Crime (Sentences) Act 1997 , it was no longer necessary for the protection of the public that the prisoner should be confined. The application to set aside the direction for release

9. On 11 July 2025, the Public Protection Casework Section of His Majesty’s Prison and Probation Service, on behalf of the Secretary of State and under r. 28A of the Rules, applied to the Parole Board to set aside the direction for the Claimant’s release (“ the set aside application ”). That application was supported by a report from Ms Clare Webber, the Security Manager at the Prison, which included gists of security intelligence gathered between 28 February 2025 and 9 June 2025, i.e. both before and after the Parole Board hearing on 30 May 2025.

10. The report identified seven “gists” of security intelligence material: (a) Gist 1 : “Reporting indicates that Mr Jones wanted to know what the staff in Recycling have planned for the Muslim prisoners with regards to what job they are being given. Mr Jones can be short with females when given work instructions.” (b) Gist 2 : “Reporting indicates that Mr Jones became threatening towards another prisoner when they looked at him. This was following Jones being upset about an entry being put on NOMIS.” (c) Gist 3 : Reporting indicates that Mr Jones had paid £200 for chocolate to be trafficked from visits to Recycling.” (d) Gist 4 : “Reporting indicates that Mr Jones is encouraging prisoners to assault staff in Recycling after a Nomis entry made for JONES out of concern for his welfare.” (e) Gist 5 : “Reporting indicates that another prisoner is holding illicit items on behalf of Mr Jones.” (f) Gist 6 : “Reporting indicates that Mr Jones is involved in bullying prisoners to hold illicit items.” (g) Gist 7 : “Reporting indicates that Mr Jones has been passing messages back to the Recycling staff stating “nice Try” and he’s got his CAT D.”

11. The report was supplemented by responses from members of the probation service to the information quoted in Ms Webber’s report. In summary: (a) The COM stated that she had not known about the information cited by Ms Webber before the hearing. If she had known about the allegations of bullying prisoners, encouraging assaults on staff and possession of illicit items, she would not have supported release. (b) The Senior Operational Lead of the National Security Division of the National Probation Service said that the new intelligence “if accurate, could significantly undermine the proposed risk management plan. We have considered whether additional licence conditions could be utilised to seek to mitigate the risk, but there is nothing we feel that would be sufficiently robust based on the information that has been available to us.” (c) The Head of the National Security Division (London, Kent, Surrey and Sussex) of the National Probation Service said that “on the basis of the rationale outlined in this email thread, I’m happy to support this request.”

12. On 17 July 2025, the Claimant’s representatives made submissions in response to the set aside application. He vigorously denied the allegations. In particular, he noted that he had not been disciplined in relation to any of the allegations contained in the security intelligence gists during the relevant four-week reporting period. The Claimant also said that it would be unfair to set aside the Parole Board’s direction and that the principle of finality of judicial decisions should be respected. There was no response to the Claimant’s submissions. I should draw out two particular paragraphs in the Claimant’s submissions not least because of their relevance to grounds 1 and 2. (a) At para. 18 the submissions addressed the seven gists of intelligence material. In answer to the point that the material had not been before the panel at the hearing on 30 May 2025, the submissions contended that much of the material was likely to have been available at the time of hearing before the Parole Board and “the fact that this intelligence was not provided to the Parole Board strongly suggests that it was not considered relevant to risk and/or was assessed as being low level intelligence. It is therefore concerning that this intelligence is now relied on by the Secretary of State as being ‘new intelligence that was unknown as the point of the hearing’, when it is clear that cannot be true.” (b) Para. 25 articulated the Claimant’s principal argument thus: “The Secretary of State has therefore provided the Parole Board with an application to set aside a release decision based on unsubstantiated allegations, some of which pre-date the hearing and none of which resulted in any further disciplinary action being taken. Beyond that, the Parole Board has no means by which to explore the veracity of the allegations or fairly make any risk relevant findings in relation to the disputed allegations. Therefore, the Parole Board cannot adopt a fair approach to these allegations which it must do, given the important consequences for the prisoner of an adverse finding.” The decision

13. On 4 August 2025, HHJ Graham White, the judicial member, made the decision, under r. 28A of the Parole Board Rules, to set aside the direction for the Claimant’s release.

14. The decision can be divided into four parts: the first (paras. 12-25) summarised the panel’s reasons for directing the Claimant’s release; the second (paras. 26-28) set out the relevant elements of r. 28A of the Parole Board Rules; the third (paras. 29-35) summarised the parties’ submissions and the final part (paras. 36 and 37) contained the judicial member’s reasoning: “36. The new intelligence reveals wide ranging allegations of conduct, all of which is to the issue of risk in the Respondent’s case, bearing in mind his earlier history of violence and drug use. Irrespective of the fact that the incidents are alleged to have taken place before the hearing date, none of the intelligence about it was known to the professional witnesses and it has never been tested. I am satisfied had it been before the Panel in these circumstances a direction for release would have been made [sic].

37. Furthermore, in the light of the risk issues related to violence and the need to fully assess any evidence of such risk I consider that it is in the interests of justice for the Panel’s decision to be set aside.”

15. The judicial member directed that the matter should be considered at an oral hearing on the first available date after 1 September 2025 and before the panel that had directed the Claimant’s release. Various case management directions were given including preparation of addendum reports from the POM and the COM which considered Ms Webber’s report. There was also an order that the professional witnesses (including the POM and the COM) attend the hearing. Pre-action correspondence

16. On 7 August 2025, the Claimant sent a pre-action protocol letter to the Parole Board which was also copied to the Secretary of State. The Claimant relied upon the same three grounds for which permission was granted in this claim. In their respective responses, both the Parole Board and the Secretary of State said that they would adopt a neutral position on the merits of the claim. The Parole Board also said that, as it was functus officio in relation to the decision, it could not grant the remedy sought by the Claimant. The addendum reports

17. In compliance with the judicial member’s directions, the POM and the COM served addendum reports on 8 and 11 August 2025 respectively. Although both post-dated the decision, for the sake of completeness only and in deference to the Claimant’s submissions, I summarise their contents here.

18. As to the POM’s report: (a) She does not say whether she was aware of any of the security intelligence material set out in Ms Webber’s report before the Parole Board hearing on 30 May 2025. She also does not say whether the material had been previously assessed, investigated or discussed by the authorities in a “Pathfinder” meeting or some other forum. (b) The POM confirmed that the Claimant had not been the subject of any adjudications, negative behaviour entries or a move which required his segregation. (c) It had been confirmed that, following an investigation into two illicit telephones recovered at the Prison, they had no connection to the Claimant. It was also confirmed that the Claimant’s cell had been searched on 20 May 2025 (that is to say, 10 days before the hearing on 30 May 2025) and nothing illicit had been found. (d) The POM continued to recommend the Claimant’s release to the Parole Board. Her considered view, in light of the security intelligence material and following discussions with the Claimant’s COM and others, was that the risks presented by the Claimant could be effectively managed in the community.

19. As to the COM’s report: (a) It noted that the “intelligence stated in the report is not specific” and “it cannot be fully investigated or explored” and the Claimant’s denial of the allegations. (b) The COM observed that “if there is truth to the intelligence this would make managing his risk in the community very difficult and undermine the proposed Risk Management Plan.” The COM also noted that “if the intelligence about Mr Jones encouraging prisoners to assault staff is true, it is possible he could repeat the behaviour with Approved Premises residents.” The COM also said that the allegations of threatening behaviour towards another prisoner could not be ignored and that it was concerning. As the Claimant observed in submissions, these latter comments are confusing because they seemingly accept that the alleged behaviour has been proven when, as the COM said in opening, the difficulty was that the allegations “cannot be fully investigated or explored”. (c) The COM declined to make any recommendation pending a further psychological assessment. Procedural background

20. The claim was issued on 2 September 2025.

21. The Parole Board’s Acknowledgement of Service was filed and served on 3 October 2025. It confirmed that, as a court/tribunal, it did not intend to make a submission. That said, in relation to ground 2, the Parole Board set out some “information” to assist the court, namely: (a) It was accepted that although the Parole Board was subject to a Tameside duty of inquiry, that did not require every single possible inquiry to be made. It only requires the Parole Board to make inquiries which are reasonable and proportionate to the seriousness and complexity of the issues. (b) The court will need to decide whether further inquiries were necessary in this case. In so doing, the court should consider the following points: first, an application to set aside is only ever made in the context of a prisoner whose release is imminent; secondly, a swift decision on the application is necessary in order to prevent a prisoner who poses a risk to the public from being released or to ensure that a prisoner who meets the test for release is not detained for longer than necessary to give effect to the decision; thirdly, the purpose of the set aside provisions is to ensure that the public is protected in cases where new risk-related information becomes available and it is not a re-run of the full process; fourthly, allowing a set aside application will invariably result in a further decision where the codified public protection test is applied in full to all of the new information and with time to enable further and more detailed inquiries to be made; fifthly, the set aside process should not be unduly onerous in terms of the further inquiries to be made. (c) The Parole Board is neutral on the issue whether it has discharged its duty to make reasonable and proportionate further inquiries in this case which is a matter for the court. (d) The Parole Board would “appreciate any guidance the court is able to give as to how the Parole Board should apply the Tameside duty in the context of a set aside application.”

22. By a letter sent by the Government Legal Department (dated 7 November 2025), the Parole Board confirmed that it would not file Detailed Grounds of Defence or a skeleton argument or attend the hearing or to take any step to defend or actively participate in the claim.

23. In his Acknowledgement of Service (dated 25 September 2025), the Secretary of State indicated that although he did not intend to contest the claim, he placed a “submission on the facts” (also dated 25 September 2025) before the court. In summary: (a) Para. 4 of the submission explained the process by which the security report was prepared for the Claimant’s hearing before the Parole Board on 30 May 2025. It was drafted by an individual in the Prison’s Security Department and it included intelligence reports which that person has decided is relevant to risk. The security report was submitted to the panel on 1 May 2025. Para. 4 of the submission stated that “none of the reporting referred to within the Application to Set Aside Release … was included within the security report”. Gist 1 was not included because at the time of writing the report, the analyst has concluded that it was irrelevant to risk; gists 2-6 were not included because the report had been submitted before the intelligence was received by the Prison’s Security Department. (b) The submission also explained, at para. 6, that the gists set out in the set aside application were in the format used in the “Enhanced Parole Process” (“ EPP ”) under which information about prisoners managed by the National Security Casework team is provided in summary form. It is designed to allow the panel to question the prisoner but also to protect the sources, methodologies and tactics used in gathering the intelligence. It is accepted that although the Claimant had once been managed by the National Security Casework team, that was no longer the case. It is said that the Prison “inadvertently” reverted to the EPP form when the intelligence was submitted as part of the set aside application. (c) The submission provides further detail in relation to the seven gists set out in Ms Webber’s report. The additional detail consists of the date on which the incident is alleged to have occurred, when it was reported to the Prison’s Security Department and to whom and when the intelligence was further relayed. All but the final alleged incident happened before the hearing on 30 May 2025.

24. On 2 October 2025, the Claimant served a Reply to the Secretary of State’s submission. In short, the Claimant contended that the submission strengthened the merits of his case on grounds 2 and 3. He also submitted that the Secretary of State had failed to provide any substantive detail about the gists or the subsequent assessments carried out by various bodies or what was sought (if anything) by the POM in respect of the security intelligence before the hearing on 30 May 2025.

25. As indicated in para. 2 above, on 5 November 2025, the Claimant was granted permission on all grounds. At paras. 4 and 5 of his observations and reasons, the Deputy Judge noted some surprise at the Secretary of State’s asserted neutrality. He made two points: first, the decision appeared to have been taken as a result of an application effectively made at the Secretary of State’s request. If that is so, the set aside application was presumably made on the basis that the information provided to the Parole Board could rationally be determined to be sufficient to meet the test for setting aside the direction for the Claimant’s release. In any event, the Secretary of State had made submissions asking the court to delay deciding permission pending provision of more information. As the Deputy Judge observed, that submission “is not easy to reconcile with true neutrality” and so the Secretary of State was asked to confirm his position. If he had concluded that the decision cannot be realistically defended, he should candidly say so. If he wished to attend the substantive hearing, the Secretary of State should give clear instructions on his position in relation to all three grounds of challenge and be ready to assist the court on the law and the merits.

26. Following the Deputy Judge’s order, on 17 November 2025, the Secretary of State submitted “Detailed grounds for contesting the claim on behalf of the Interested Party”. It contended that the set aside application had been correctly made but it made no submissions on the three grounds of challenge except for two general observations which touched upon ground 3. Three statements were also later served by the Secretary of State: Domonique Samuels (the Claimant’s POM) (dated 17 November 2025); Daniel Martin, the Deputy Head of the Parole-Eligible Casework team within the Probation Service (dated 25 November 2025); and Clare Thornton, the Prison’s Head of Security (dated 26 November 2025).

27. On 3 December 2025, the day before the expedited hearing, the Secretary of State lodged a supplemental note. It confirmed that although the Secretary of State had previously stated in his factual submissions and skeleton argument that none of the intelligence reports upon which the seven gists were based contained a reliability rating, that was incorrect. In fact, the raw “Mercury Intelligence Reports” underlying the seven gists did contain a reliability rating but the updated security report gave no reliability rating for the gists. The supplemental note also sought to “clarify” elements of para. 11 of Clare Thornton’s statement in relation to aspects of the consideration of gists 2 and 4. PART 3 – the legal background

28. Section 239 of the Criminal Justice Act 2003 (“ the 2003 Act ”), as amended by the Police, Crime, Sentencing and Courts Act 2022 (“ the 2022 Act ”), materially provides that: “(5) … the Secretary of State may make rules with respect to the proceedings of the Board, including proceedings authorising cases to be dealt with by a prescribed number of its members or requiring cases to be dealt with at prescribed times. (5A) Rules under subsection (5) may, in particular, make provision – (a) requiring or permitting the Board to make provisional decisions; (b) about the circumstances – (i) in which the Board must or may reconsider such decisions; (ii) in which such decisions become final; (c) conferring power on the Board to set aside a decision or direction that is within subsection (5B), and any such provision may relate to cases referred to the Board under this Chapter or under Chapter 2 of Part 2 of the 1997 Act . (5B) The following are within this subsection – (a) a direction given by the Board for, on a decision made by it not to direct, the release of a prisoner which the Board determines it would not have given or made by for an error of law or fact, or (b) a direction given by the Board for the release of a prisoner which the Board determines it would not have given 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. (5C) Provisions made by virtue of subsection (5A)(c) – (a) may not confer power on the Board to set aside a direction for the release if a prisoner at any time when the prisoner has already been released pursuant to that direction, but (b) may make provision for the suspension of any requirement under this Chapter or under Chapter 2 of Part 2 of the 1997 Act for the Secretary of State to give effect to a direction of the Board to release a prisoner, pending consideration by the Board as to whether to set it aside.”

29. The Secretary of State exercised that rule-making power by way of the Parole Board (Amendment) Rules 2022 which introduced r. 28A into the Parole Board Rules. That provision adopts the language of s. 239(5) -(5C) of the 2003 Act and materially provides that: “(1) The Board may set aside a final decision made under rule 19(1)(a) or (b), 21(7) or 25(1) – (a) on application by a party; or (b) on initiation by the Board chair. (2) An application or initiation under paragraph (1)(a) or (b) must be considered on the papers by a decision maker. (3) A final decision may be set aside under paragraph (1) by a decision maker if – (a) it is in the interests of justice to do so; and (b) one or more of the conditions in paragraph (4) are satisfied. (4) The conditions are – (a) the decision maker is satisfied that a direction given by the Board for, or a decision by it not to direct, the release of a prisoner would not have been given or made but for an error of law or fact; (b) the decision maker is satisfied that a direction given by the Board for the release of a prisoner would not have been given 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. (5) An application or initiation to set aside a decision under paragraph (1)(a) or (b) must be made – (a) within 21 days of the decision; or (b) if the application or initiation relies on a condition in paragraph (4)(b), before the prisoner is released. (6) Where an application is made under paragraph (1)(a) – (a) the party who made the application must serve the application and any representations in support upon the Board and the other party; (b) the Secretary of State must serve all relevant information and reports upon the Board and the other party; and (c) the other party may make any representations in reply, and those representations must be provided to the Board and the party who made the application within 7 days of service of the application. …. (8) Where the decision maker directs that a final decision should be set aside, they must also direct that the case should be – (a) decided again on the papers by the previous panel or a new panel appointed under rule 5(1), or (b) decided again at an oral hearing by the previous panel or a new panel appointed under rule 5(2). (9) The decision of the decision maker under paragraph (3) must include the reasons for that decision. (10) Any requirement on the Secretary of State to give effect to a Parole Board direction to release a prisoner under Chapter 2 of Part 2 of the 1997 Act or Chapter 6 of Part 12 of the 2003 Act , is suspended when an application is made under paragraph (1)(a) or (b), pending the decision under paragraph (3). (11) In this rule, “decision maker” means – (a) a panel appointed under rule 5(4a) to consider the application; unless (b) one or more grounds of the application related to paragraph (4)(b) of this rule apply and the panel appointed under rule 5(4A) delegates the role of decision maker to the chair of the panel who made the decision which is sought to be set aside.” PART 4 - Preliminary matters

30. There are three preliminary matters that are best addressed at this stage: first, the Secretary of State’s contention that the claim is academic; secondly, the question whether the application was properly made; and thirdly, the Secretary of State’s present position in relation to the set aside application. Whether the claim is academic

31. In his Detailed Grounds and skeleton argument, the Secretary of State had submitted (albeit hesitantly) that “the claim has arguably become academic” because the hearing before the Parole Board has now been fixed for 28 January 2026. The Secretary of State’s supplemental note confirmed that the point had been abandoned in light of his understanding of the relief sought by the Claimant. Was the set aside application properly made?

32. The Secretary of State’s submissions primarily sought to address the question whether the set aside application was properly made. That concern was seemingly prompted by the Claimant’s submissions (principally in the context of ground 3) that the Secretary of State should explain why the seven gists were not put before the panel on 30 May 2025 when information about all but the seventh (and post-hearing) incident was known to one or more bodies within the Ministry of Justice at the time of the hearing.

33. Given the constraints of time, it is not necessary to rehearse each phase of the administrative confusion and misplaced assumptions that culminated in the unfortunate result that the panel were not told about six of the seven gists which happened before the hearing on 30 May 2025. The Claimant’s POM was aware of at least four of the gists (1, 3, 4 and 5) and may have known about (but cannot now recall) gist 6. It appears that information about gists 1-6 was variously known to the staff in the Prison’s Security Department; the Prison Prevent Lead; the South-East Region Counter Terrorism Team; the Joint Extremism Unit at the Ministry of Justice and/or the South-East Regional Prison Intelligence Team. It also appears that gist 1 was discussed at a “Pathfinder” meeting and gists 3, 4 and 5 were discussed during a telephone call between the POM and the Pathfinder Chair. Finally, the present evidence is that gists 1, 3, 4, 5 and 6 had been assessed by the Secretary of State’s intelligence specialists as having a “low” level of reliability and gists 1, 3, 5 and 6 as irrelevant to managing the Claimant’s risk in prison and in the community. The present evidence is that gist 4 was relevant to risk.

34. It is doubly unfortunate that before the set aside application was issued, the relevant body which made the set aside application did not know that gists 1, 3, 5 and 6 had received a “low” reliability rating. It is also regrettable that the EPP form was incorrectly used in the Claimant’s case because the correct “SPRH” form would usually contain a reliability rating. The EPP form generally provides what has been described as a more nuanced indication of the intelligence’s reliability. Unfortunately, in this case, the EPP form gave no such indication at all (nuanced or otherwise).

35. The essential point is that, in order to resolve the grounds for which permission was granted, it is not necessary to decide whether the set aside application was properly made or not. On the basis of the Secretary of State’s admittedly limited (and so flawed) inquiries, the seven gists appeared to be new information which he was understandably concerned to place before the Parole Board before the Claimant’s release. In fairness to the Secretary of State, it should again be noted that the seventh gist concerned an incident after the hearing on 30 May 2025. It might be hoped and expected that in future cases, basic steps are taken, before a set aside application is made, to check at least whether (a) any ostensibly “new” information is, in fact, novel and (b) its reliability has been assessed whether by the Secretary of State’s own intelligence specialists or any other relevant authority. The set aside application – the Secretary of State’s present position

36. At the hearing, the Secretary of State confirmed that following the recent disclosure of the “low” level of reliability attributed to most of the gists, the Claimant’s COM joined the POM in recommending his release. In the circumstances, the Secretary of State had decided not to pursue the set aside application. Although this stance does not affect the court’s consideration of the grounds of challenge, it is relevant to relief which I consider at para. 51 below. PART 5 – the grounds of challenge Ground 1 – the judicial member misdirected himself in law about the correct test The Claimant’s submissions

37. The Claimant’s submissions are, essentially, three-fold: first, the statutory test is whether the direction for release “would not have been given” had the new information been available to the Parole Board. It is implicit within the statutory test that the decision-maker must have formed some concluded view about the effect of the new material on the Parole Board’s original decision. Once the decision-maker has concluded that the direction “would not have been given”, the power to set aside then arises. If that is right, the test in r. 28A of the Rules necessarily imposes a high threshold which, in turn, reflects the wording and intent of s. 239 (5B)(b) of the 2003 Act . That high threshold reflects the “exceptional context in which r. 28A is designed to operate, i.e., the setting aside of a concluded judicial decision of the Parole Board directing the prisoner’s release.”

38. Secondly, although it is accepted that the judicial member stated the correct test at paras. 28 and 36 of the decision (subject to an obvious typographical error), if the decision is read as a whole, he erroneously applied a lesser test of whether the direction “might not have been given” rather than the correct test of whether the direction “would not have been given”. In support, the Claimant contends that the judicial member made no attempt to reach any concluded view on the reliability, credibility or accuracy of the intelligence gists. In reality, the judicial member treated the question whether the allegations were reliable, credible and accurate as a matter for another day.

39. Thirdly, the Claimant’s case demonstrates the consequences of applying a lower test to r. 28A decisions. The decision assumes that the information in the intelligence gists is relevant to the risk posed by the Claimant. If, as here, the allegations in the gists are vague, unsubstantiated or incredible, they are not relevant to risk at all. The most that can be said is that the information is of a kind which, if it is credible and accurate, might lead a panel, on a reasonable view of the evidence, to conclude that the test for release was not satisfied. That is a substantially lower test than that contained in r. 28A. Discussion

40. The arrangements contained in r. 28A of the Parole Board Rules were introduced by the 2022 Act . Their purpose is to allow the Board, on an application by a party or the chair of the Parole Board, to set aside a final decision to direct the release of a prisoner: r. 28A(1)(a). Under r. 28A(3), two conditions must be satisfied if a decision-maker is to set aside such a final decision: first, it is in the interests of justice to do so; and secondly, one or more of the conditions in r. 28A(4) are met. For the purposes of this case, the relevant condition in r. 28A(4) is r. 28A(4)(b)(i): the decision-maker is satisfied that a direction given by the Board for the release of a prisoner “would not have been given” if information that was not available to the Board when the direction was given had been available.

41. As there has been no previous authority on the correct approach to r. 28A, I should construe the rule to give effect to the natural and ordinary meaning of its words. Ground 1 is concerned with the construction of the latter limb of r. 28A(4)(b)(i). As a matter of grammar, the phrase “would not have been given” represents the past conditional tense. It is a clear and straight-forward phrase: it describes a situation in which a final decision would not have been made had certain information been available to the panel when it decided to direct the Claimant’s release. The phrase is not qualified by probability or likelihood.

42. In order to form a view as to whether the final decision “would not have been given” the decision-maker is required to consider the evidence relied upon in support of the set aside application in the context of the evidence before the panel which made the final decision. That exercise requires a sufficient consideration of its nature, relevance, reliability and cogency to allow the decision-maker to decide whether the information is such that the direction to release a prisoner would not have been given. What is sufficient will depend upon the facts of each case and, in particular, the nature, relevance, reliability and cogency of the evidence relied upon in support of an application to set aside a final decision.

43. Having identified the correct test, I now turn to consider the decision. It is rightly accepted by Mr James-Matthews that the judicial member correctly summarised the relevant law at paras. 26-28 of the decision. It is also rightly accepted that (subject to an obvious typographical error), the judicial member identified the correct test in the final sentence of para. 36. The question is whether in substance the correct test was applied.

44. Although the judicial member summarised the nature of allegations (at para. 30), noted the Claimant’s strong denial (at para. 34) and emphasised the fundamental importance of fairness in fact-finding established in R (Pearce) v. Parole Board [2023] AC 807 (at para. 35), he did not express a view on the reliability of the allegations sufficient to satisfy himself that had the new information been available, the direction to release would not have been given. That point is particularly important because of paras. 18 and 25 of the Claimant’s response to the set aside application. The former set out the Claimant’s vigorous denial of the allegations. In other words, the Claimant denied the primary facts on which the allegations relied. The latter put the reliability of the allegations squarely in issue. In those circumstances, the judicial member could not have been satisfied that the direction for the Claimant’s release would not have been given without considering the reliability, credibility or accuracy of the allegations sufficient for the purposes of r. 28A. On the face of the decision, he did not do so. Instead, the judicial member effectively treated the question whether the allegations were reliable, credible or accurate as a matter for the new hearing which he directed should be held.

45. In the circumstances, I am satisfied that although the correct test was stated, in substance it was not applied. To that extent, ground 1 is made out. Accordingly, the decision is unlawful. The other grounds

46. As the Claimant has succeeded on ground 1, the two remaining grounds do not fall to be decided. That said, if I am wrong about the merits of ground 1, I should deal with grounds 2 and 3 briefly.

47. As to ground 2, in its Acknowledgement of Service the Parole Board accepted that it was under a Tameside duty. The question, as ever, is the nature and extent (if any) of the inquiries that should be made in a particular case having regard to the well-known summary of principle in R (Balajigari) v. Secretary of State for the Home Department [2019] 1 WLR 4647 , para. 70. In my judgment, the test under r. 28A of the Parole Board Rules and the Claimant’s denial of the allegations and the doubt he raised about their reliability required the judicial member to ask the Secretary of State for the reliability ratings that had been attached to the allegations. On the facts of this case, with the benefit of that information, he should have been able to form a view, sufficient for the purposes of r. 28A, to decide whether the direction for the Claimant’s release would have been made in light of the seven gists. That step would not have been onerous. It would not have been time-consuming for the judicial member to have asked for the information or disproportionate in terms of resource or time for the Secretary of State to have provided it. Indeed, there is no contrary submission. If it had been asked for and provided, the reliability ratings would have enabled the judicial member to have and consider the information necessary to make a lawful decision under r. 28A. I should say in parenthesis that, had the judicial member asked for and received the reliability ratings, it would have revealed the low rating that had been given to most of them. Therefore, for these reasons, had it been necessary to decide the point, ground 2 would have succeeded.

48. As to ground 3, I am not persuaded that the finality of judicial decisions is a weighty factor in considering the interests of justice under r. 28A(3)(a) or, at least, not as weighty as Mr James-Matthews submits. The purpose of the set aside procedure in r. 28A introduced by the 2022 Act is to allow the Parole Board to set aside (among other final decisions) a direction to release a prisoner. Although the point was not subject to detailed argument, there is some merit in the Secretary of State’s contention that by incorporating r. 28A into the Parole Board Rules, Parliament anticipated that there would be cases where the public interest in not releasing prisoners outweighs the public interest in the finality of judicial decisions. Also, as the Secretary of State submits, if it is correctly decided that a release direction would not have been given if new information had been available, it is likely to be a rare case in which the public interest in the finality of judicial decisions outweighs the public interest in not releasing a prisoner.

49. The second limb of ground 3 alleged that the judicial member failed to have regard to a relevant factor, namely whether the security intelligence gists relied upon were available to the Secretary of State at the time of the hearing before the Parole Board (and, if so, why they were not produced before the Parole Board at that time.) Three points arise: (a) The question under r. 28A(4)(b)(i) is whether the relevant information was not available to the Parole Board (not the Secretary of State) at the oral hearing, a point which Mr James-Matthews accepts. (b) If relevant, credible and accurate information was not before the Parole Board due to administrative error, as a general proposition I accept that the Secretary of State should give the Parole Board the opportunity to consider it. That said, as this case illustrates, it is self-evidently important that the Secretary of State provides the Board with the necessary information to assess, sufficient for the purposes of r. 28A(4), the reliability, credibility and accuracy of that information. (c) On the facts of this case, I am not satisfied that a failure to consider and attach weight to the fact that the information contained in six of the seven gists was available to the Secretary of State at the 30 May 2025 hearing was so material as to vitiate the decision by itself. That is because the operative flaw in this case was not asking for the Secretary of State’s reliability rating to allow a sufficient consideration of the reliability, credibility and accuracy of the allegations contained in the allegations.

50. Therefore, if it had been necessary to decide ground 3, it would have failed. PART 6 – relief

51. As the Claimant has succeeded on ground 1, the decision is unlawful and so it should be quashed. Mr James-Matthews submitted (and I accept), given the Secretary of State’s decision not to pursue the set aside application, there is no need for an order directing the Parole Board to re-consider the set aside application. The practical result of my decision is that the decision is quashed and so the original direction to release the Claimant stands.

52. I would be grateful if counsel could agree a draft minute which reflects my conclusion as soon as possible so that the arrangements for the Claimant’s release can be made expeditiously.