Our first event on parole decisions
16 March 2018
Last week (Wednesday 7th March 2018) we held our first Centre for Criminal law event on parole board decision making, and recalls to prison. Clearly it was overdue. We learnt a lot and we will certainly aim to hold a second event concerning prisons before much longer.
The event was partly by way of response to the publicity concerning the decision by the Parole Board to direct the release of John Worboys (as he is still best known). As it turned out, the event took place just one week before the judicial review into that decision was to be heard.
As readers probably already know by now, this case was brought primarily by two of his victims, but joined also by the Mayor of London, and (since part of the challenge is directed at the inflexible rule in secondary legislation that the Parole Board should never publicise reasons its decisions) by sections of the press as well.
As to the substantive challenge, the claimants argued that the Parole Board too readily accepted Mr Worboys’ explanation of the reasons for his offending, which seems at variance with many known facts, and that it was irrational for them to conclude that he now has new insight into his past offending which makes it safe for him to be released. The case was heard over two days this week and judgment has been reserved.
As to giving reasons, we already knew that the Ministry of Justice is considering reform in the area of transparency in parole board decisions. It appears that it is due to reach its conclusions soon, perhaps to pre-empt any decision that may be made by the High Court. Those who followed the evidence of the current Parole Board Chairman, Professor Nick Hardwick, to the Justice Committee may recall his answer to the question what he hopes might come from the review:
An action I do not want, if I could say that, is some huge knee‑jerk change, possibly without thinking it all through … What I do not want to do is get back to an Osborne situation, which this Committee has been concerned about, where we get a huge load of extra work, we do not have the resources to deal with it and cases get delayed, so we end up shelling out money in compensation to prisoners, because that would not be what people want as the result of this situation.
(Full text available at http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/justice-committee/the-transparency-of-parole-board-decisions-and-involvement-of-victims-in-the-process/oral/78328.html)
One can always hope.
Lessons from the event
What, in particular, did we learn from the question answer section with our panel, consisting of Dr Jamie Bennett (Governor of HMP Grendon and Springhill) Sir David Calvert-Smith (former Chairman of the Parole Board) James Dixon (No 5 Chambers) Phillippa Kaufmann QC (Matrix Chambers) and Deborah Russo (Prisoners' Advice Service) ?
Reasons have never been public
It was always thus, probably because the Parole Board started off as an informal mechanism for offering independent advice to Home Secretaries who had to decide when it was safe to release prisoners serving life sentences. Back in the 1960s, such cases were few and far between. There was not the additional workload of prisoners serving indeterminate sentences for a range of offences for public protection, nor were many prisoners recalled to prison for breaching licence conditions.
So the Parole Board was not originally conceived as a kind of “court”; though nonetheless it was defended as such for the purpose of arguing that the state complied with its obligations periodically to review grounds of detention under Article 5 (4) ECHR. Nowadays it is more readily accepted to be a court. Each panel must have a minimum of four members, one of whom must respectively be a judge, a psychiatrist, someone who has experience of aftercare/supervision and someone who has studied the causes of delinquency or the treatment of offenders.
But the argument that, as a court, its reasoning should be made public, is only now being tested.
What good reasons might there be for privacy?
A case can certainly be made for privacy. As readers will appreciate, the task of the parole board is to decide whether it is safe for the prisoner to be released now; and any prisoner seeking release will rely on evidence from offender supervisors (either probation officers or specialist prison officers) based in prisons, and from completed rehabilitation courses.
So the emphasis is on a personal risk assessment; and unlike the original criminal trial, there is not the additional public interest in understanding the circumstances of an offence and the verdict of the court. In a trial, the judge looks down at the defendant in the dock, either surrounded by prison guards or his legal team. At the parole board, the members converse frankly with the prisoner, sitting almost as close to them as one might sit with one’s own family at dinner. Indeed (for those who like these terms) the procedure is much more inquisitorial than it is adversarial.
Further, much of the evidence of the prisoner’s safety will consist of evidence of his own reflection as to why he offended. All too frequently, this will be evidence of how he was abused (in any of a number of senses) as a child, with consequent psychiatric damage which has only begun to be addressed after he was convicted. Much of this evidence will suggest serious criminal acts by others, who are not there to defend themselves.
Whether such evidence can properly be publicised is one of many difficult decisions to be made when deciding upon transparency. It is not just a matter of the interests of the nominated abusers. The prisoner may be reluctant to offer (true) evidence of his abuse if it is to be public, as is the case of most victims of sexual crimes. Or, he may be reliant on the support of family members for a decision that he can safely be released, which may not be available if he is known to have spoken about childhood abuse by another family member. So there are some real differences between regular criminal proceedings and parole decisions as far as the rights of the media are concerned.
If decisions were to be explained publicly, there was also thought to be the risk that Parole Board members – whose identities might also be publicised – would become more risk-adverse. Indeed, it is one thing to talk about the necessity of access to the media in terms of promoting criminal justice, but that assumes a certain responsibility on the part of the media itself. Do we see this as being present, when notorious offenders are discussed?
Should decisions be internally reviewed?
There was some useful discussion of this at the Justice Committee (see link above). There seems to be uniform agreement that, if any internal review process were created, to pre-empt the necessity for judicial review, it should be open to prisoners as well as victims. Indeed, since the present judicial review by two victims of Worboys is the first known instance of a judicial review of the parole board by victims, it is safe to say that an internal system of review would mostly be used by prisoners.
But there is no possibility that every case could be reheard. Finding appropriate grounds for review may not prove to be so easy. Limiting it to errors of law or procedure, which might be determined on the basis of the paperwork, will surely not go far. Most decisions are entirely fact-sensitive. Moreover, we return to the earlier point that the Parole Board is now conceived as a court, and not another arm of the executive. It must be that much harder informally to review the decision of any court than it is to, say, review a decision of someone working for the Crown Prosecution Service.
What are the reasons for the overload of cases?
There was agreement that it is difficult to look at transparency and review of parole decisions in isolation. Surely we need to start with the reasons for the backlog of cases, without which no kind of progress is feasible.
It is easy to think that the backlog of cases at the Parole Board is due to the IPP sentences that were passed following the Criminal Justice Act 2003, s.225. But in fact, this is not the primary source of their caseload. This lies in determining whether to re-release prisoners who, having been released on licence, breached their licence conditions and were recalled to prison. Most of these are “new” to the Parole Board, having been automatically released on licence half-way through their determinate sentence.
Were ex-prisoners better at adhering to licence conditions, the case load of the Parole Board might be roughly halved. But many prisoners, having led chaotic lives before prison, and having had routines imposed upon them in prison, find great difficulty in adapting to organise themselves to comply on a regular basis with their licence conditions; alcohol misuse is one of many likely problems. Further, for some years now, probation officers have been told to be stricter in enforcing licence conditions,
Nor is that the end of the story. It is now accepted that one cannot fairly determine applications without meeting the prisoner; perhaps even more so than at trial, hearing the offender can quite transform the impression one might have had from the paperwork. But we want Parole Board members to be experienced and there are not enough suitable candidates to go around. So the delays stack up, and those who have perhaps been unnecessarily recalled may have to wait a very long time before being re-released.
When Chris Grayling was Minister for Justice, he was interested in the possibility of transferring the less serious parole board work to lay magistrates with the opportunity for the magistrates to decline jurisdiction if they considered the case too complex or difficult. Some cases, eg those where the prisoner denied having been in breach at all, would not be so dissimilar from their experience hearing minor cases in their courts.
But the idea never saw the light of day. Maybe it seemed impractical. Prisons are frequently in rather inaccessible places and it would be that much harder to persuade magistrates (giving up their time freely) to attend them than it is to ask them to attend their own courts. That is to say nothing of the fact that even the latter is now proving much more difficult: several closures of magistrates’ courts in recent years have also led to crisis in the numbers in the lay magistracy.
The fate of the IPP prisoner
Our final question of the evening provoked perhaps the liveliest discussion. What is to be done about the many prisoners convicted of offences when the Criminal Justice Act 2003 was in force, but before 3 December 2012, who were sentenced to IPP sentences, mostly in situations when they would not have been eligible to receive one of the “extended” prison sentences which later replaced the IPP regime?
There remain some 3,000of IPP prisoners awaiting release, 87% of whom long since served their tariff period. This includes, extraordinarily, one prisoner whose tariff period was just two months, sentenced (properly, at the time) all the way back in 2006. The Parole Board has done its best to reduce the numbers still in custody but only legal change can address the problem that many prisoners are still imprisoned for public protection when, if they had been sentenced more recently, they would not be.
One proposal has been to reverse the burden of proof in such cases, such that these prisoners are entitled to be regarded as safe unless the Parole Board is sure that it is not safe to do so. One might wonder whether such a solution would survive the first instance of any released prisoner then committing a further serious offence.
What, then, is to be done, for these prisoners, given the other constraints of the Parole Board? It is a tough question and few expressed confidence that any government will be prepared to take the political risk involved in a change to the status quo. Alas, the Worboys saga is probably not going to influence politicians to look harder for solutions.
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* My thanks again to those panellists who commented on this summary; any errors remain my own responsibility.