This is a guest post by Peter Dawson, Director of the Prison Reform Trust.
Very shortly after he was appointed Justice Secretary, David Gauke was confronted with a media storm over the Parole Board’s decision to authorise the release of John Worboys. Following judicial review proceedings in which the Her Majesty’s Prison and Probation Service (HMPPS) was probably more heavily criticised than the Parole Board, The Justice Secretary nevertheless decided to sack the Parole Board chair, Professor Nick Hardwick, and, in the way that governments do, announced a couple of reviews to soak up the immediate pressure on his own department. A year later, the outcome of those two reviews has been published – one looking at Parole Board rules generally, and one a more specific response to a public consultation on whether Parole Board decisions should be subject to an appeal process.
For ministers, this whole saga will have been dominated by the intense public and political interest in the particular case of Mr Worboys. But for the thousands of prisoners whose release depends on the Parole Board’s judgement, there is a great deal more at stake. The decision to sack the supposedly independent chair of a supposedly independent court like board on the strength of a single decision will rightly have sounded alarm bells for all of them. Releasing people convicted of serious offences is never going to be politically attractive, and the extent to which Parole Board panels feel free to take decisions free from political influence is immensely significant.
So do these two documents do anything to reassure the people whose whole future depends on the way parole operates?
Fundamentally, the answer is very little. The Board still does not have the statutory independence from the government for which the Prison Reform Trust and others have long argued. But at least the issue has been acknowledged in the announcement of (yet another) review – this time called a “Tailored Review”, which is explicitly required to look at the question of the Board’s status. Unusually for the ministry, a deadline has been set for that review to be completed – the summer of 2019.
There are some other modest steps in a positive direction. The Board now produces reasons for the decisions it makes. That might seem uncontroversial, but governments have long resisted it. There is a promise to publish the guidance by which the Board operates – a crucial document for prisoners for whom that process very often comes across as bewildering and unfair. A new operational protocol between the Board and HMPPS will be “agreed and published”, though we don’t know by when. So will a new instruction on how the parole process is supposed to work, including how the quality of dossiers will be assured. There will be new protection in Parole Board rules for prisoners with mental health needs and learning difficulties. And there will be a strictly time limited appeals process, open to prisoners as well as victims.
In the detail, however, significant problems remain unresolved.
A lack of detail
In the detail, however, significant problems remain unresolved.
There will be no appeal against a pre-tariff expiry refusal to send someone to open conditions, even though for almost any prisoner this is the gateway to eventual release. Similarly, determinate sentenced prisoners who have been recalled and depend on the Parole Board to sanction re-release will have no appeal against a knockback. No-one will be entitled to legal aid to help them make their case.
This is all predictable given the resource implications of a full appeals process, and any avenue of appeal needs to have a test that you have to meet – whether prisoner or victim – to avoid a situation in which there is an automatic right just to have a different panel consider the same evidence. But there is a concern that many appeals will be lodged, an administrative backlog will build up, and releases will be delayed as a result.
The various commitments to a more transparent process are welcome. There is no reason for the way the Board operates to be a secret – indeed, its sacked former chair, Nick Hardwick, was a champion for a more open process. It will be good if HMPPS also delivers on the promise of publishing the detail of its procedures and is held more clearly to account both for hitting the deadlines they contain and for providing the opportunities prisoners need to show they are safe to be released. But the ministry’s track-record on simplifying and publishing its own instructions is patchy at best. No deadline has been set for meeting the promises it has made.
This matters right now. A key finding of the judicial review in Mr Worboys’ case was that the Parole Board panel had not inquired sufficiently into the allegations against him that were not brought to trial by the Crown Prosecution Service. And for that matter, neither had HMPPS adequately considered those issues during his nine years in custody. Parole Board panels are to receive new guidance on this crucial and difficult issue. But that guidance is not yet available, and it’s not clear whether HMPPS is operating differently in anticipation of it. The implications for prisoners could scarcely be more significant – are you going to arrive at a panel hearing to be questioned about allegations which have never been proved and have never formed part of your sentence plan? The Board needs this new guidance urgently, and prisoners whose release depends on their decision – even if that is many years in the future – must be told straightaway what it is.
The question of remorse
There is a related issue on the question of “showing remorse”, on which both review documents are completely silent. It attracted a lot of public comment early last year – how could the panel be so naïve as to place weight on Mr Worboys’ belated expressions of remorse for his crimes? Yet the evidence of the various psychologists who gave evidence in that case was conflicting. For some, remorse went in the prisoner’s favour – for others it was at best irrelevant and might even go against him. For many commentators who felt competent to offer their view on the basis of what the papers printed, it simply proved that the panel was having the wool pulled over its eyes by a wicked and scheming criminal. The reality is that parole panels review thousands of complex and difficult cases each year and know that the evidence they receive may not always be the unvarnished truth. The issue is whether their treatment of evidence is fair and consistent. So there is a test here for the government’s new commitment to transparency – will promised guidance on this key aspect of the process be published to prisoners and inform their opportunities for progression throughout their sentence?
If the Board had statutory independence, it would be clear that key issues considered at appeal would set precedent for cases that followed. The same is true now with cases that go to judicial review. The government has not made clear what the force of appeals considered under its in-house procedure will be. But it is very likely that the existence of that procedure will make it even more difficult for anyone to get a case heard in the High Court on judicial review. This is significant because judicial review for decades has been one of the best ways to put right unfairnesses in how prisoners are treated. Is it likely that a judge who is a member of the Parole Board is going to make a decision that is critical of the Board’s own way of operating, and perhaps increases its workload? Without judicial review, the parole process would still be the way it was in the early 1990s, with no right to be heard in person or even to see much of the evidence on which a decision was reached.
Many will say this could all have been a lot worse. The government has properly resisted the calls to give victims a veto over a prisoner’s release, for example. Giving reasons for decisions, so long resisted by ministers, has turned out to be the confidence-boosting measure one might have expected all along, and has not created media hysteria . If the promises of greater transparency are met, and in a reasonable timeframe, at least some of the confusion that dogs the way prisoners are prepared for the parole decision may disperse.
But the big question – could a Justice Secretary ever again step in to punish the Parole Board for a decision that he or she didn’t like – is still open. Only statutory independence for the Board will lay that matter to rest.