Marewan Faraj, R (on the application of) v The Parole Board of England and Wales

The issues raised in this claim concern the interpretation of the Parole Board Rules (“the Rules”) in the context of an application to set aside a decision of the Parole Board to refuse release. Marewan Faraj (“the Claimant”) is a serving prisoner. He brings this claim against The Parole Board for England and Wales (“the Defendant”) challenging the Defendant’s refusal to accept his application to set aside the Defendant’s decision promulgated on 13 December 2024.

The Claimant is represented by Mr Grandison of Counsel. The Defendant is represented by Mr Monighan. I am grateful to both Counsel for their focussed and helpful oral and written submissions.

Following a hearing on 4 December 2024, the Defendant made a decision to refuse the Claimant’s application to be re-released on licence. The decision was promulgated on 13 December 2024 and received by his former solicitors (“Purcell Parker”) the same day. They notified the Claimant of the outcome immediately but there was a delay until 24 or 25 December 2024 before the Claimant received a copy of the decision with its reasons.

The Defendant’s decision contained an Annex which began as follows:

On the second page of the Annex it referred to time limits and extending them in these terms:

The Annex was footed with the Defendant’s postal address, its website address, telephone number and email address of “info@paroleboard.gov.uk”.

The Defendant’s designated email address for receiving a set aside application did not appear on either the face of the decision nor in the Annex, though could be found by accessing the section of the gov.uk website to which reference was made in the Annex. Mr Michael Atkins, Legal Adviser to the Defendant has confirmed in an unchallenged witness statement that this is a secure internal electronic mailbox with deliberately limited access.

Purcell Parker sent a message to the Claimant on 20 December, explaining that the prison was unable to accommodate an appointment until 7 January and invited the Claimant to call them on 2 January 2025 to discuss matters.

On 3 January 2025 (a Friday) Purcell Parker drafted an application to set aside the Defendant’s decision using a standard “stakeholder response form” and not the Defendant’s designated form which was contained on the gov.uk website. (Footnote: ¹)

At 11.32 the same day, Purcell Parker emailed the application to the following email addresses:

At 11.36 Purcell Parker forwarded the application on to James.Chatwin@paroleboard.gov.uk.cjsm.net (the Team Leader of Team 2 - not the team that administers set aside applications).

On 9 January 2025 at 10.46, Leah Crooks, a member of Team 2, emailed Purcell Parker to say that “service of an application for set aside is only acceptable if it is served directly to the set aside team inbox (settingaside@paroleboard.gov.uk).” At 11.00 Purcell Parker asked for confirmation that the application had been forwarded to this email address. The reply at 11.03 was that this was not possible. At 11.30 Natsai Mushore sent the application on to the Defendant’s designated account, copying in Purcell Parker. Shortly afterwards at 11.35, Purcell Parker emailed the application to the designated email address.

The following day at 08.20, Mr Michael Brandon, the Defendant’s administrative officer, emailed Purcell Parker to say that the Defendant was unable to accept the application because it had been received out of time. His email stated, “Your application was received in the set aside team inbox on the 09 January 2025 6 days after the 21-day deadline to serve an application for set aside.” The email quoted from rule 11 of the Rules (method of service) and then went on as follows:

At 17.17 the same day, Purcell Parker responded to assert that the application had been made in time. This was on the grounds that the set aside application had been sent to

“a secure electronic address, namely, the CJSM email address of the case manager, Ms Carole-Anne Williams which address was obviously provided by the Board. In fact her address still appears on PPUD in the Review panel as the PB Caseworker.

Since Ms Williams is the PB Caseworker, her email address would be the logical address for service.”

The Defendant was asked to reconsider its position.

In fact, Ms Williams’ email address did not appear on the Defendant’s electronic system, albeit her name did.

Mr Brandon replied by email on 13 January 2025 at 15.33 to confirm the Defendant’s position was unchanged. He wrote:

“As per Rule 11 the secure electronic address provided by the Board for service of an application for set aside is settingaside@paroleboard.gov.uk. The secure electronic address for service upon the Board is available online at Setting aside a decision – GOV.UK. Service to any other electronic address is not considered correct service and the application cannot be accepted unless it has been served to the secure electronic address provided by the Board for service.

The Board will take no further action on your application to set aside.”

On 15 January 2025 the Claimant, now unrepresented, wrote to the Defendant in these terms,

“May I submit to you that although it's 21 days to submit application to set aside from the date of decision, to be fair you ought to also consider when I received it please find a message from my OMO at HMP that I only received it on 24/12/24, the decision. Then my solicitor was trying to contact me without success due to Christmas season holidays HMP was short staffed. Nevertheless my solicitors did their best and submitted set aside application on 3/01/2025. But now you say that it went to a wrong e-mail address. I have read your guidelines sent with the decision to set aside at nowhere it gives a specific address to make application. You may say that I have a case against my solicitors. But let’s say I did not have a solicitor, can I email you? No I do not have a facility to email from HMP. So you ought to provide a fair and equal service to prisoners in order to provide justice.” (Footnote: ²)

The Defendant replied on 13 February 2025 maintaining its position. The terms of its letter show that it had treated the Claimant’s letter as a request for it to extend time for the set aside application to be accepted and that it did not consider it had the power to alter the deadline,

“We understand you are asking us to reconsider our position again however we are unable to do so as the deadline to submit an application has passed and we are bound by the Parole Board rules which means we cannot reopen the timeframe. The Board is not responsible for any delays in you receiving your decision as your decision letter was issued to your prison and your legal representative so this should have been provided to you. If you wish to raise any concerns about the delay in you receiving your decision then this should be taken up directly with your legal representative, the prison or you may wish to contact the Public Protection Casework Section.”

The claim for judicial review was signed before receipt of the Defendant’s reply and was sealed on 25 February 2025.

In his “Statement of facts relied on” (Section 5 of the claim form), the Claimant explained there had been difficulty in contacting his solicitors after the original decision had been made. He said despite these problems the set aside application had been made in time but sent by his solicitors to a different email address from that accepted by the Defendant. He wrote, “There is an exchange of emails between my solicitor and Parole Board Legal Hub but I am denied the opportunity to be heard further. I personally wrote to the Parole Board but I received no response”. That would appear to be a reference to his letter dated 15 January 2025 to which he had not received a reply by the time he drafted his claim form.

His “Detailed statement of grounds” (Section 6 of the claim form) began, “My grounds are only based on access to the public law bodies with fairness and equality (sic). The Parole Board say these are strict rules they can not open any door for me.” His grounds went on to argue that the 21-day time limit should not be applied strictly over the Christmas and New Year holiday period; and that the Defendant’s designated email address for making a set aside application had not been made known.

On 25 September 2025 HHJ Rawlings (sitting as a Judge of the High Court) granted the Claimant permission to bring his claim.

Since the circumstances giving rise to this claim there have been two significant developments. Firstly, the Defendant has improved the means by which it provides prisoners and their legal representatives with notice of the designated email address for set aside applications. Secondly, with effect from 15 December 2025, Parliament removed the right of a prisoner to apply to set aside a final decision of the Defendant and rule 28A of the Rules has been amended accordingly.

The Claimant’s grounds of challenge have been amended from their original form when he was not represented. There are now two amended grounds of challenge:

Mr Grandison helpfully submits that the grounds of challenge involve determining three issues:

Mr Monighan submits that no application to extend time was ever made; and so the third of these questions cannot provide an answer that could assist the Claimant.

He is correct that Purcell Parker did not expressly apply to extend time before ceasing to act as the Claimant’s representative. However, once the Claimant was an unrepresented litigant, it was in my view incumbent on the Defendant to take a more generous interpretation of the correspondence he then sent to it, particularly because the issues about which he was writing engaged his liberty. Viewed from that standpoint, the Claimant’s letter dated 15 January 2025, is capable of being construed as a request for the Defendant to extend time to the limited extent necessary for the set aside application to be accepted.

The decision specified in the claim form as the decision he sought to have judicially reviewed was dated 13 January 2025. But when the claim form is read as a whole, taking fair account of the facts and grounds drafted by an unrepresented litigant, the challenge was clearly not only to the refusal of the Defendant to accept the set aside application, but also to the Defendant’s failure to extend time for the set aside application to be made if an extension of time was required. The Defendant’s letter dated 13 February 2025 makes clear the Defendant’s position, maintained in argument during the hearing of this claim, that it did not have power to extend the time for making a set aside application retrospectively.

The hearing before me has therefore dealt with all three of the issues identified by Mr Grandison.

The Defendant is a creature of statute. The Rules were made pursuant to section 239(5) of the Criminal Justice Act 2003 which empowers the Secretary of State to “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.” The making of rules providing for a “power on the Board to set aside a decision or direction that is within subsection (5B) [of s239]” was a power added by amendment on 28 June 2022.

Section 239(6) empowers the Secretary of State to give the Defendant directions as to the matters to take into account in exercising its functions and in doing so the Secretary of State must have regard to –

The Defendant has no inherent jurisdiction and so must apply the Rules to all cases and applications before it (see R (Dickins) v Parole Board [2021] EWHC 1166 (Admin) at para 14). Because it operates within a self-contained rule-based structure, when construing or analysing the Rules, reference to the practice and procedure of other Courts or Tribunals is of little assistance.

The rules engaged by this claim and which must be construed are as follows:

The preliminary issue, which arose at the start of the hearing, is whether the Claimant’s set aside application was late, regardless of the validity of the recipient address used. That is because rule 12(1) provides that documents transmitted by email pursuant to rule 11(1) are deemed served on the next working day. If that provision applied to the email sent by Purcell Parker on 3 January 2025 (a Friday) then the date of deemed service would be 6 January 2025 (the following Monday) and so later than the 21 days allowed in the Rules for a set aside application to be made.

I am very grateful to both Counsel for addressing this issue through written submissions after the hearing was concluded. They are agreed that the deeming provisions in rule 12 do not apply to the making of a set aside application. Their written submissions identify three persuasive reasons for this conclusion.

Firstly, rule 28A distinguishes between the “making” of an application (see rule 28A(5)) and the “service” of the application and any representations in support (see rule 28A(6)). This distinction in language between an application that is “made” and an application that is “served” also applies in other parts of the Rules. This must mean that the Rules, a self-contained code, contemplate that the “making” of an application is distinct from its “service”. The time limit applies to the “making” of the set aside application. Rule 12 is a deeming provision which applies only to documents that must be “served”. It therefore does not apply to rule 28A(5).

Secondly, and applying a general principle of statutory construction, the general deeming provisions applicable to dates of service in rule 12 must give way to the specific time limit provided by rule 28A(5). To conclude otherwise would cause the specific period allowed for the making of a set aside application to be cut down in some circumstances, such as those in the instant claim. This would be a surprising outcome in circumstances where the Rules have specified a time limit that is short for the making of a set aside application.

Thirdly, Mr Monighan submits that an approach that avoids the application of the deeming provision in rule 12 is the only approach that ensures coherence within the Rules. Otherwise rule 8 would, in some circumstances, be in conflict with rule 12 and produce a different result.

Rule 8 provides that:

Mr Monighan’s fourth argument relates to potential administrative inefficiencies caused by applying rule 12 to the time limit in rule 28A(5) which I would not have found compelling in isolation.

The structure of rule 28A is somewhat confusing in that it contemplates an application being both “made” and “served” on the Parole Board which is the decision-making body. That contrasts with the more usual position in which an application is “filed” or “lodged” with the decision-making body (Court or Tribunal) and then “served” on a party. However I accept that the use of clearly different language (“making” and “serving”) which recurs throughout the Rules must, as Counsel submit, mean different things.

I accept the agreed position advanced by Counsel for the three reasons set out above which I respectfully adopt. Mr Grandison’s alternative position, namely that a panel chair or duty member could “direct otherwise” in this case to avoid the consequence that the application was inevitably late, therefore does not arise for consideration.

Having accepted that the Claimant’s set aside application was “made” within the time allowed, the next question that arises is how his set aside application had to be “made”. That question arises because rule 11 expressly applies to “Methods of service (my emphasis)” and applies “Where a party or other person is required to serve (my emphasis) documents on the Board …”

A set aside application can only be “made” once sent to an appropriate recipient. It cannot have been intended that whereas the Rules make detailed provision for a limited range of “methods of service” in rule 11 that an application could be validly “made” in some different way entirely independently of these provisions. There is no logical reason for mandating methods of “service” on the Board but then permitting the “making” or “providing” of documents to be done in a different way. The purpose of rule 11 is to achieve good administration so that the Board, as a large public organisation, can regulate its processes to ensure that applications and other documents it receives are dealt with appropriately and in a timely fashion.

I am fortified in that view by the terms of sub-rules 11(5) and (6), which, when read together, do not logically distinguish between the methods of service for a prisoner “providing” documents to the Board and “serving” documents on the Secretary of State. Rule 11(5) provides that a prisoner validly “provides” documents to the Board and “serves” them on the Secretary of State by handing them to a custodian. The duty of the custodian in rule 11(6) to endorse the time and date of receipt, record receipt and forward them promptly to the addressee is only expressed to be a duty where documents are “served”. The custodian’s duty must, though, also be intended to apply to the “providing” of documents to the Board. That is the only conclusion consistent with good administration. I am fortified in that view by the fact that rule 11(6)(c) imposes a duty on the custodian to forward “served” documents promptly “to the addressee”. If the intention of the draftsman was that the duty only applied to documents “served” pursuant to rule 11(5), the only possible “addressee” would be the Secretary of State. The use of the generic term “addressee” rather than there being a specific reference to the Secretary of State in rule 11(6)(c) implies that the term “addressee” was intended to include both the Board and the Secretary of State.

My conclusion is that rule 11 applies to the “making” of an application albeit it expressly refers to “Methods of service”.

Mr Grandison’s primary submission was that each of the cjsm suffix email addresses to which Purcell Parker sent the set aside application was an address that was within the scope of rule 11(1)(a). In the absence of the Defendant’s preferred or designated address being stipulated in the Rules, decision, accompanying annex or application form, any “ambiguity” in the address to which the application should be sent in order to be validly made should be resolved in the Claimant’s favour to avoid injustice.

Mr Monighan argued that the designated email address was in fact “secure” in that it could not be accessed by unauthorised third parties. Any subjective doubt on the part of the sender about whether or not it was a secure address was irrelevant. It was the only email address “provided by the Board” for the purposes of making a set aside application and was accessible through the gov.uk website. The email addresses of individual case workers used by Purcell Parker had not been “provided by the Board” and the “summaries” email address was not “provided by the Board” in connection with a set aside application. When construing the Rules, the Court was limited to an exercise of statutory interpretation and could not take a broad purposive approach or re-write the rules to try to do justice in any individual case. In any event, the approach suggested by the Claimant was incompatible with good administration.

My conclusion is that on a true construction of rule 11(1)(a) of the Rules, “a secure electronic address where one has been provided by the Board” must mean the designated setting aside email address accessible through the gov.uk website.

Having regard to Mr Atkins’ unchallenged witness statement, it cannot be contended that this is other than a secure electronic address. Mr Grandison does not argue otherwise though he observes that it is rather less obviously a secure electronic address than the addresses that have a cjsm suffix. He may well be correct about that, but it does not detract from the position that the designated address is in any ordinary sense of the word “secure” as a matter of fact.

The phrase “provided by the Board” must refer to the particular purpose for which the electronic address is provided - in this case for a set aside application to be made. While the Defendant could rightly be criticised for requiring potential applicants to have to click through options on the relevant part of the gov.uk website to locate the address, it is nonetheless “provided” when that process is followed. No other electronic address was “provided by the Board”, albeit the summaries address and the addresses of individual caseworkers may have been known by Purcell Parker.

There is here no ambiguity in the language of the rule. Rather there was bad practice in the way in which it was implemented. As a public body controlling processes that affect the liberty of the subject, it is indefensible that the Defendant did not provide the designated email address front and centre of all the communications that related to the making of a set aside application. Similarly, it is extremely regrettable that it took six days for the error in the email address to be notified by the Defendant to Purcell Parker. It is a welcome development that there is now better communication of the set aside email address.

As set out above, the Defendant is a large public organisation exercising a range of functions. It is necessary in the interests of good administration that it controls the electronic traffic it receives so that applications are appropriately directed and addressed in a timely fashion. The comments made by Mr Brandon in his email of 10 January justifying the use of a designated email account are plainly apposite.

The methods of service set out in rule 11 are exclusive and for the reasons I have already given apply with equal force to the “making” of an application. Purcell Parker did not send the set aside application to the address provided by the Board for that purpose nor comply with any of the other methods of service provided by rule 11. There was no compliance with the rule and so the application was not validly made.

Mr Grandison submitted that service to an address that was incorrect though still within the Defendant’s system was an “error of procedure … including a failure to comply with a rule”. As such rule 29(a) applied so that the error did not “invalidate any step taken in the proceedings” in the absence of a direction to the contrary. He submitted that “the proceedings” were ongoing at least until the expiry of the 21-day primary time limit for applying to set aside the final decision.

He drew support for his submission from the decision of R (Lawrence) v Parole Board and another [2022] EWHC 1026 (Admin). In Lawrence an unrepresented litigant had submitted a claim electronically to a King’s Bench email account when the relevant Practice Direction required submission to the Administrative Court Office. By the time it had been received by the Administrative Court Office, the claim was out of time. Linden J concluded this was a procedural error in a valid claim which could be rectified by application of CPR 3.10 (which is in similar terms to rule 29).

Mr Monighan’s position was that rule 29 was not available to avoid the consequence of the set aside application being invalidly made. He distinguished between an error or defect that caused the Defendant to lack jurisdiction (which was outside the scope of rule 29) and a procedural error that arose after the Defendant had been clothed with jurisdiction. He argued there was no jurisdiction after a final decision had been made unless and until some post-hearing application was validly made. He drew support for his submission from R (Good Law Project Ltd) v Secretary of State for Health and Social Care [2022] EWCA Civ 355 (see para 41 in particular). The decision in Good Law was made in the context of a claim for judicial review where the court distinguished between the service of a claim form and other procedural steps. Carr LJ said, “[The claim form] performs a special function: it is the act by which the defendant is subjected to the court’s jurisdiction. … The need for particular care in effecting valid service, particularly when there are tight time limits and/or a claimant is operating towards the end of any relevant limitation period, is self-evident.”

My conclusion is that non-compliance with an initiating procedure, without which the Defendant has no jurisdiction, cannot be “cured” by rule 29. I accept Mr Monighan’s submissions on this point.

My interpretation is based on reading rule 29 as a whole and with regard to the terms of rule 28A.

Rule 28A is a rule that applies to the setting aside of final decisions. An application to set aside a final decision can, self-evidently, only be made when the proceedings that led to the final decision have been concluded. Rule 28A clearly prescribes the mechanism for setting aside a final decision. It requires either an application by a party or an initiation by the Board chair. In the absence of an application or initiation to set aside a final decision, the final decision is just that. When a final decision has been made, proceedings are no longer ongoing. The Defendant’s jurisdiction in those proceedings has ended.

Sub-rules 29(a) and (b) provide a two-part remedy for an error of procedure (including a failure to comply with a rule) that apply conjunctively. The rule provides that the error “does not invalidate any step taken in the proceedings” and “the panel chair or duty member may make a direction or take any step that it considers appropriate”. Rule 29(b) presupposes there has been a “step taken in the proceedings”.

A “step taken in the proceedings” must mean that there are proceedings ongoing. There will not be ongoing proceedings after a final decision has been made unless and until some post-hearing application is validly made so that some new “proceedings” are commenced, albeit their subject matter relates back to the final decision that has been made. I reject the suggestion that the original proceedings continue past the final decision for a further 21 days, in anticipation of a possible application to set aside or as Mr Grandison described it as a “cooling off period”. Giving the phrase its natural meaning, the application or initiation by which consideration of the setting aside of a final decision is commenced is not a “step taken in the proceedings”. It is the initiating process on which the Defendant’s jurisdiction to re-visit a final decision is based.

The position in Lawrence can be readily distinguished from the position under the Rules. The initiation of the claim in Lawrence was found to comply with the statutory requirement to “make an application … to the High Court” by being filed in a court office of the High Court. It was the subsequent transfer to the Administrative Court Office that was required to cure a procedural defect in a claim that had been validly commenced. In the instant case, the set aside application was not validly commenced.

Rule 29 does not provide a power to cure the invalidity in the making of the Claimant’s set aside application.

Mr Grandison argues that the plain wording of rule 9 provides for a power to alter a time limit regardless of whether the alteration is prospective or retrospective. He contrasts the absence of any express limitation on the power to alter time in rule 9 with rule 20(8) which provides “A decision under or adjourned by a panel chair or duty member under rule 6 and the time limit in paragraph (7) [of 14 days] cannot be extended under rule 9 (my emphasis)”. He submits that where the liberty of the subject is engaged, a broad interpretation of the rule should be adopted. While recognising that finality of decision-making is important, he submits it may be outweighed by other factors (see for example R (Jones) v The Parole Board for England and Wales [2025] EWHC 3216 (Admin) at para 48)

Mr Monighan takes the contrary position and submits that it is for the Claimant to demonstrate positively the existence of a power to alter a time limit retrospectively rather than to rely on a lack of express prohibition. His submission is that where the rule is silent as to retrospective application, the Court cannot imply a power to do so, simply because it may appear expedient or desirable. The Court’s powers are limited to construing the rule, applying the principles of construction set out by Stacey J in Dickins at paras 43 to 45:

I have concluded that the proper interpretation of rule 9 is that it provides an unrestricted power to alter time limits and so can operate either prospectively or retrospectively. I suspect it would only be in rare and possibly exceptional cases that the power would be exercised retrospectively. But the use of rule 9 to extend time retrospectively would be a lawful application of the rule. My reasons for reaching this conclusion are these.

Firstly, rule 9 is framed broadly and in clear language. There is no express or implied restriction on the power it provides, nor on when or how it is to be exercised. As Mr Grandison observes, that contrasts with other rules in which a restriction is imposed by the rule itself (rule 20(8), for example). When drafted without limitation or restriction, Parliament must be presumed to have intended the consequences of section 12(1) of the Interpretation Act 1978 which provides:

Secondly, the discretionary language of rule 9 contrasts with the language of rule 28A(5)(a) which prescribes the 21-day time limit for a set aside application or initiation to be made. This primary period is not lengthy, particularly considering the circumstances of prisoners and the obstacles to speedy communication with them. Applying the principles of construction set out in Bennion, Bailey and Norbury on Statutory Interpretation (8^th ed) at paragraph 11.6, when considering opposing constructions, and the consequences of adopting each, “The Court may be less willing to adopt an “adverse” construction where some official is interposed whose discretion may be so exercised as to reduce the practical ill-effects.” The discretion afforded by rule 9 mitigates any potential hardship to a prisoner caused by the operation of the time limit in rule 28(5)(a). When applied retrospectively it additionally mitigates against the potentially harsh consequence of a prisoner being unable to or having great difficulty in applying for that time limit to be altered before it expires. Where the rule can be construed so as to avoid the potentially unjust consequences of missing a time limit it is right to do so. That is consistent with the statutory requirement in section 239(6) of the Criminal Justice Act 2003 which requires the Secretary of State to have regard to the desirability of securing the rehabilitation of offenders alongside the need to protect the public from serious harm and the prevention of the commission of further offences.

I am equally satisfied Parliament intended to provide such mitigation by way of an unfettered discretion in rule 9 because of the terms of the rule itself. Rule 9 provides that the power to alter a time limit may be exercised where it is necessary to do so in three circumstances which are expressed disjunctively, namely the effective management of the case, in the interests of justice or for such other purpose as the panel chair or duty member considers appropriate. In providing for the circumstances in which the rule 9 power will be exercised in this way, the draftsman has contemplated that there may be circumstances that will fall within the scope of the “interests of justice” or “other appropriate purpose” criteria that are different from the “effective management of the case” criterion. That is strongly indicative of an intention to permit the exercise of the discretion afforded by rule 9 at any time after the case has been concluded (including after the expiry of the primary time limit of 21 days when there can be no ongoing “management of the case” at all, unless or until a late set aside application is accepted).

My third reason is connected with the approach of the Rules to finality of proceedings. Mr Monighan makes the general submission that finality and certainty in parole decisions, including knowing the date after which they cannot be set aside is important, not only for the prisoner and the Secretary of State but also for victims of crime. That submission has some force. However, despite the importance of those considerations, defining an end date with temporal certainty is not treated as paramount in the Rules. There is no dispute that the time limit for a s28A application to be made can be extended prospectively by application of rule 9. That in itself introduces potential uncertainty in identifying when a final decision can no longer be set aside. It distinguishes the Rules from statutory regimes where there is no power to extend time unless Article 6 considerations can be invoked.

Further, the scheme of the Rules as a whole permits variation in this end date.

Starting with s28A(5), although a mandatory time limit of 21 days from the date of decision applies to the making of an application or initiation to set aside a final decision, it does not apply where the application (or initiation) relies on a condition in s28A(4)(b) where “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 available, or (ii) a change in circumstances relating to the prisoner that occurred after the direction was given, had occurred before it was given.” In that instance the application or initiation must be made “before the prisoner is released” without any indication or limit of time being prescribed. The rule does not, for example, provide for any maximum time limit for the application to be made where release is unexpectedly delayed.

Next, the power provided by rule 9 is one of those powers that can be delegated to the Board’s members of staff pursuant to rule 4(3)(g). Where a staff member exercises that delegated function, either party may apply for an automatic re-exercise of that function by the panel chair or duty member within 14 days of the decision (see rule 4(4)) which 14-day period may itself be altered pursuant to rule 9. So even if a prospective application to alter the 21-day time limit is made, the rules anticipate that it may well not be finally determined (if delegated) until considerably after the 21-day primary time limit has expired and on some date that is neither certain nor ascertainable in advance.

This potential for variation where a set aside application is either made or intimated demonstrates that Parliament did not intend a single unextendible and certain period for a valid set aside application to be made. That is compatible with rule 9 being applicable both prospectively and retrospectively.

Finally, the Rules provide a practical mechanism for deciding an application to alter time whether made prospectively or retrospectively; and for dealing with the procedural consequences of a set aside application made after some delay. The power to alter time is exercisable by either a panel chair or duty member or (as set out above) can be delegated to a staff member with the re-exercise of that function carried out by a panel chair or duty member. A duty member is defined by rule 2 as meaning “a member of the Board appointed under rule 4(2)”. Rule 4(2) provides that “The Board chair may appoint a member of the Board to carry out any function as required by the Rules.” The duty member can thus be appointed on an ad hoc basis to deal only with a decision whether to alter the time limit for making a set aside application and need have had no previous involvement in the decision-making relating to the prisoner making the set aside application.

Rule 28A then provides that the substantive decision made on a set aside application is made by a “decision maker” which is defined in rule 28A(11) as “(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.” The Rules thus contemplate the appointment under rule 5(4A) of a fresh panel to determine the set aside application. The original panel that made the decision sought to be set aside does not in any circumstance require to remain constituted. It is only where the set aside application relates to fresh information or a change in circumstances relating to a release decision that the new panel has a discretion (but not a requirement) to delegate its role to the chair of the original panel.

Were the Rules to require or anticipate continuity in decision-makers between the original decision and the application to set it aside, then this would be a strong indicator that retrospectivity in the application of rule 9 had not been intended. There would, in those circumstances, be a practical need to determine a set aside application so swiftly that the original panel remained constituted for the short time allowed for the application to be made. But the Rules instead provide for the appointment of a fresh panel which is a practical solution to avoid this imperative.

I am satisfied that rule 9 provides a mechanism by which the Board can consider retrospectively whether to extend time in the Claimant’s case.

It follows that Ground 1 fails and Ground 2 succeeds.

It is not for this Court to determine whether time should be extended so that the Claimant’s set aside application can be considered on its substantive merits. That is a matter for the Defendant. The role of this Court is limited to determining that rule 9 provides the power to do so.

The claim succeeds and the case is remitted to the Defendant to decide whether time to make a set aside application should be extended in this case.