A far-reaching judgement
Most people know the basic details of why two victims of John Worboys (known to the tabloids as the Black Cab Rapist) and the Mayor of London Sadiq Khan asked the High Court to undertake a judicial review of the parole board’s decision to release him and that the court today (28 March 2018) upheld their case.
This blog post provides details on the judgement itself and its implications for the future of parole.
I’m indebted to the barristers of Matrix Chambers for publishing a plain English summary of the High Court’s judgement and its implications:
The Court quashed the decision to release Worboys and remitted his case back to the Parole Board for re-consideration. The Court decided that on the information before the Board at the time of its decision on Boxing Day 2017, there was “considerable force” in the criticisms of the decision which the two victims who brought the judicial review argued, in particular the failure to probe Worboys further about the account he had given of his offending
However, the Court also found that the decision to direct Mr Worboys’ release was not irrational but that it was irrational of the Board not to have undertaken further inquiry of various matters, including evidence of his wider offending .
Perhaps most importantly, the Court also held that Rule 25(1) of the Parole Board Rules 2016, which prohibit any information about parole proceedings being made public, goes too far and is therefore unlawful.
As a result, Mr Worboys will remain detained, and the Parole Board will reconsider whether he is safe to be released. The new Board will have to consider the Court’s judgment; make or instigate further inquiries about a number of matters including the evidence of his wider offending; consider how that material can fairly be deployed at a future hearing; and then reassess his risk. The Court has also said that the new Board should include someone with judicial experience.
Rule 25(1) of the Parole Board Rules will have to be amended, permitting at least some information about some parole proceedings to be made public. The precise scope of that new rule will be for the Secretary of State and ultimately Parliament.
Despite these criticisms, the Court was at pain to emphasise that the Worboys case was exceptional and, according to Matrix the judgement:
Is not, therefore, opening any floodgates to challenges by victims of Parole Board decisions, nor to the routine admission of evidence of offences of which prisoners have not been convicted.
The MoJ response
Justice Secretary David Gauke issued a statement immediately whose most important element is reproduced in full below:
I have already decided to abolish Rule 25 and will do so as soon as possible after the Easter recess. This will enable us to provide for the Parole Board to make available summaries of the decisions they make to victims.
In addition, I will bring forward proposals for Parole Board decisions to be challenged. I intend to consult on the detail of these proposals by the end of April alongside other proposals to improve the way that victims are kept informed about the parole process.
The decision to introduce some transparency into parole board decisions was no surprise and had been advocated by parole Board Chair Nick Hardwick and Chief Executive Martin Jones (see his blog post here). The apparent decision to allow parole board decisions to be challenged is much more controversial since many victims of serious crimes or their family members might be presumed to want to challenge the decision to release the perpetrator of their harm in almost every case. Currently, victims have the right to be heard by parole board panels but not to contest any decision to release.
In a later oral statement to the House of Commons, Mr Gauke said he would be:
- Instructing my officials to issue new guidance that all relevant evidence of past offending should be included in the dossiers submitted to the Parole Board, including possibly police evidence, so that it can be robustly tested in each Parole Board hearing.
- Putting in place robust procedures to check that every dossier sent by HMPPS to the Parole Board contains every necessary piece of evidence – including sentencing remarks or other relevant material from previous trials or other civil legal action.
- Boosting the role of the Secretary of State’s representative at Parole Board hearings – with a greater presumption that they should be present for those more complex cases where HM Prison and Probation Service is arguing strongly against release, as was the case here.
- Working with the Parole Board to review the composition of panels so that the Parole Board includes greater judicial expertise for complex, high profile cases – particularly where multiple victims are involved or where there is a significant dispute between expert witnesses as to the suitability for release.
- And develop more specialist training for Parole Board panel members.
The loss of Nick Hardwick
To my mind, one of the most damaging consequences of the Court’s decision has been that Parole Board Chair Nick Hardwick was pressured to resign by the Justice Secretary.
The former Chief Inspector of Prisons was (and is) widely respected in the criminal justice field for his qualities of leadership and his willingness to advance the causes of transparency and reform. I have reproduced his resignation letter in full below:
Dear Secretary of State,
We met this afternoon to consider the implications of the judgment in the Worboys’ case.
I want to repeat my admiration for the courage and tenacity of the women who brought the judicial review. Their success will have consequences that go far beyond this individual case and will benefit victims and the administration of justice for years to come.
I am very pleased that the court declared the Rule that prohibits the Parole Board from explaining its decisions should go and that the judgment recognised that this was something I had been calling for.
I am pleased too that as a result of Dame Glenys Stacy’s investigation into victim communication in the case, these processes will be improved in future and that she made no criticism of the Parole Board’s actions in this matter.
I am also confident that as a result of this case a much simpler system for reviewing Parole Board decisions will be established and, as I have already made clear in my submission to you, this is something I would very much welcome.
Consistent with these principles, I have been clear throughout the legal processes that followed the decision in the Worboys’ case that I welcomed the scrutiny to which it was subject.
I instructed that there should be no procedural moves to prevent such scrutiny, as the judgment indicated could have been made, and that our disclosure of material relating to the case should be as full as possible.
I am as anxious as everyone else that the correct decision should be made.
The court was critical of some aspects of the panel’s decision-making processes although it did not overturn the panel’s decisions on these grounds.
It could not, no more than you or I, put itself in the place of the expert and experienced panel members who heard the evidence and made the decision.
The court did however find that the panel’s understanding that it could not go beyond the offences for which Worboys was convicted was mistaken in this “difficult, troubling case with many exceptional features”.
I shared the panel’s misapprehension in this matter and this was supported by the advice I received. We were wrong.
You told me that you thought my position was untenable.
I had no role in the decision of the panel in the case and believe I am capable of leading the Parole Board through the changes, many of which I have advocated, that will now be necessary.
I am sorry for the mistakes that were made in this case but I have always made it clear that I will support the members and staff of the Board in the very difficult individual decisions they make and I will accept accountability for the work of the Board.
I will not pass the buck to those who work under me. In these circumstances I inform you of my decision to resign with immediate effect.
In conclusion, I want to state my concern about the independence of the Board.
I believe this matter raises very troubling questions about how the Board’s independence can be safeguarded.
I hope Parliament will consider what structural changes are necessary to ensure this independence is protected in future.
Chairman, the Parole Board for England and Wales
As you can plainly see, Mr Hardwick uses his resignation letter to highlight the importance of the parole board maintaining its independence.
So where does this leave us?
We have a commitment to transparency without the leader who was pushing the transparency agenda in place to lead it.
We have political signals that might undermine the very notion of parole and substantially increase our prison population even further.
Perhaps most worryingly, the initial review of the parole process appears to be happening entirely within the MoJ and will be completed at breakneck speed by the end of April. Consultation is promised at this point, but my view is that we would get a much more evidence-based and potentially positive modernisation of parole if the review was independently led and involved a wider consultation over a longer period.