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  • Writer's pictureDanny Shaw

On parole

Dominic Raab has his sights trained on the Parole Board.

After announcing sweeping plans to reform prisons, victims services and human rights laws, the Deputy Prime Minister and Justice Secretary has given a strong hint that next on his list is the powerful organisation which determines the release of many of the most violent and dangerous prisoners in England and Wales.

Set up in 1968 as a 17-strong committee giving private advice to the government, the Parole Board has expanded into an independent quasi-judicial body of 320 members with an annual budget of £20 million.

"I have some very clear views as to what should happen," he has said.

A 'root-and-branch' review of its work was launched in October 2020 and was due to report back last year, but Raab, who took office four months ago, wants more time to "get it right"; the findings are expected by the summer.

The principal problem, which Raab and his predecessors have struggled with, is that the Parole Board makes decisions which are sometimes deeply unpopular; decisions which can cause public revulsion; decisions over which the government has ultimately no control. It has powers to order the release of prisoners serving indeterminate sentences, including life sentences, after they have served the minimum 'punishment' term imposed by a judge. It makes release decisions about certain other serious offenders, including growing numbers of those jailed for terrorism-related crimes. And it also deals with cases of offenders on licence who have been 'recalled' to jail as well as inmates requesting a transfer to an 'open' prison.

The case of Colin Pitchfork brought things to a head. Pitchfork was jailed in 1988 for the rape and murder of two girls in Leicestershire, the first person to be convicted of murder on the basis of DNA evidence. In June last year, a Parole Board panel decided it was safe for him to be freed, sparking an outcry from relatives of his victims. Sir Robert Buckland, Raab's predecessor, tried - but failed - to reverse the decision and Pitchfork was let out. That he was sent back to jail two months later for breaching his stringent release conditions only added to concerns about the panel's judgment.

Shortly after the story emerged, a "source" was quoted by the Daily Mail saying that Raab "believes the Board is adrift from its core purpose and he wants to make sure it is exactly as he wants it...risk to the public must be the top consideration".

When questioned by the Commons Justice Committee about his plans for change, the Justice Secretary said he had "no criticism" of the Parole Board in terms of the criteria and legal framework it works under, but he supported a more cautious approach: "One of the interesting things and issues that I want to address very squarely is that, effectively, the presumption drives in the direction of release unless it is demonstrated that there is risk. There is a good question about whether the presumption should be that way." More about that later.

Ominously for the Board, Raab indicated that he might strip the organisation of its powers to determine release in the most sensitive cases. "There is a very good question about whether, in relation to the highest risk, it goes before the Parole Board. There ought to be changes that reflect that," he said.

The direction of travel, then, is clear. The question is whether Raab should be embarking on the journey at all.

In perspective

Most of what the Parole Board does goes unnoticed. It gets through a phenomenal amount of work each year: in 2020-21, some 16,400 prisoners' cases were concluded; over 11,400 inmates were ordered to remain behind bars and around 4,200 were released. The contentious cases that hit the headlines can be counted on the fingers of one hand. That of course does not mean that the Board is necessarily operating effectively but it may help put criticism in perspective.

When there is criticism, it is typically that the Parole Board is soft, naive and credulous - and it usually arrives on the back of a decision to order the release of a high-profile killer, such as Pitchfork. In the last three years, three other release decisions have attracted similar opprobrium, those of convicted murderers Ian Simms, Kenneth Noye and David McGreavy. Only one recent case, however, has provided compelling evidence to support the claim that the Board is too willing to believe what a prisoner is saying. In 2018, a three-member panel sanctioned the release of John Worboys, a serial sex attacker known as the 'black cab rapist'. The decision was blocked by the High Court, which said the panel should have conducted further inquiries; Nick Hardwick, chair of the Board, was forced to resign. Worboys was later convicted of further offences after more victims came forward.

The Worboys controversy was arguably the lowest point in the Parole Board's history; it raised wider doubts about how the organisation functions - doubts which still persist and have contributed to the current debate about its future. However, it also led to welcome changes in the way the Board operates, including the introduction of a system to review release decisions without victims or prisoners having to go to court. Another long overdue reform has helped to shine a light on how decisions are reached by ensuring summaries are available on request.

The Board was also the subject of a 'tailored review' by the Ministry of Justice (MoJ) which, among other matters, examined "anecdotal concerns" about the quality of new members and whether they were "appropriately prepared" to conduct parole hearings. The findings of the report, published in October 2020, are significant. It said the review team "did not find evidence of any issues with regard to the robustness of Parole Board decision-making", though it said it supported steps to improve training and development.

Serious Further Offences

Another way to assess its decision-making is to find out how many of the prisoners the Parole Board agrees to let out reoffend. The Board does this by keeping a tally of those who are charged with a 'serious further offence' (SFO) allegedly committed within three years of their release. Reviews are carried out into each case; there were 27 in 2020/21. That figure is then divided by the annual number of releases and transfers to 'open' prisons that the Board is responsible for to give a charge rate. The MoJ report noted that the charge rate for SFOs - which include crimes such as murder, manslaughter and rape - had been "continually low" for a number of years, at or below 1%. The conviction rate is even lower, as about half of SFO prosecutions are withdrawn or result in an acquittal.

But, as the tailored review rightly acknowledged, each SFO "represents a tragedy for the victims involved"; they are the gravest of offences. Even if the Parole Board was justified in releasing a prisoner who went on to commit a crime, the inescapable fact is if it hadn't done so the SFO would not have happened. It's also important to recognise the limitations of the figures. SFOs which occurred outside the three-year period are not counted in the charge rate, less serious crimes are excluded and breaches by prisoners of their release conditions, which do not involve a criminal offence, are not part of the picture either. All of this makes it hard to really judge the quality of the Board's decision-making. What would help is if it published more information about breaches, reoffending and, in particular, SFOs, to show how the release decisions were made and what improvements might be needed.

But in its annual report, among dozens of paragraphs about the parole process, timeliness, Covid, corporate governance, remuneration and value for money (all extremely important, of course), the Board makes only five brief mentions of SFOs. There is no explanation as to why the SFO charge rate is calculated as it is, nor a list of the offences which are included. The report says four of the 27 SFOs reviewed last year "did not receive a justified grade" but we are in the dark as to what that means and there is no detail - even in anonymised form - about the cases. The absence of such crucial information from the 83-page document suggests either that the Parole Board believes it does not belong in the public arena or that the Board lacks the confidence to put it there. For an organisation whose primary aim is public protection that is worrying: we need to know when things go wrong and why and have confidence that there will be learning from mistakes.

The release test

The prospect of reoffending is also a concern for Dominic Raab. He accepts that assessing risks posed by prisoners is "not a science" and understands how hard it is for those responsible for such decisions. "In relation either to very dangerous cases or very high-risk cases where it is difficult to gauge the extent of risk after a considerable period of time in incarceration, we have to show some humility. It is incredibly difficult," he told MPs in November. But he implied that the Parole Board could do better. "I would prefer to err on the side of public protection," he said.

The potential remedy that he has hinted at is to change the test which the Board applies to its cases, hence his comment about the "presumption" driving towards release. However, I think the Justice Secretary's presumption about the presumption is wrong.

The release test is defined in legislation. The Parole Board may order the release of a prisoner only if it is "satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined." That has been established to mean that a prisoner can be freed only if he or she can be safely managed in the community. The explanation on its website says: "If the panel decides that an offender should be released, this is not the same as saying that he or she now poses no risk. However, it may be that their risk has been reduced to a level where it is now small enough to be effectively managed in the community, and the panel will only recommend release if they feel this is the case."

For a parole panel to be satisfied that a prisoner can be safely managed in the community it requires evidence to that effect. In other words, the presumption is that the prisoner stays in jail - unless there is convincing evidence that it is not necessary. That the onus is on the prisoner to prove that it is safe for them to be let out has been demonstrated time and again in the cases of those serving Indeterminate Sentences for Public Protection (IPP). Over 8,700 IPP sentences were imposed before they were scrapped in 2012; some 1,600 IPP prisoners are still in jail having had release requests turned down by the Parole Board.

But even if Dominic Raab is mistaken about the "presumption" that does not mean he cannot raise the bar to release. In fact he could do so, without having to introduce primary legislation, by altering the wording in the release test. Changing it, say, to: "The Parole Board must be satisfied that the public will be as well protected by a prisoner being managed in the community as being held in custody" could reduce the number of releases to a trickle. But the fact that no Minister has amended the test since it was enshrined in law in 1997 suggests it might be in the right place already.

Power shift

There is an even more fundamental change under consideration. The Justice Secretary has said "there ought to be changes" in relation to the highest risk cases, suggesting that they would no longer come before the Parole Board. It is unclear exactly what he has in mind, but one possibility is that responsibility for such cases would switch to the High Court or a senior judge, a move likely to bolster confidence in the process, particularly if hearings were to be conducted in public. However, with funding and judicial capacity severely stretched, the courts would have to be properly resourced for such a task. Given record backlogs of criminal trials, it might well be argued that there are more pressing priorities.

A more radical option would see Ministers more involved in the prisoner release process, perhaps giving them the power to veto Parole Board decisions, as they are able to do over proposed transfers to open prisons. Over the years, however, human rights rulings have eroded the powers of the Executive in relation to sentencing, declaring that it is a matter for the courts or court-like bodies. Notwithstanding Raab's determination to amend the 1998 Human Rights Act even this might be an obstacle too far.

The main problem with any change to the way prisoner release decisions are made is that it will raise expectations that cannot be fulfilled. Assessing the risk offenders present, as Raab has conceded, is not a precise calculation. Risk is dynamic and unpredictable. The inmates who present the greatest threat on release are often those serving sentences for less serious crimes, not necessarily the most notorious ones. In a criminal justice system where the vast majority of prisoners are given a second chance someone has to make the decision about whether to let them out or not. We have to accept that not every decision will turn out well.

That is not to say that the Parole Board cannot improve; it should, certainly in terms of transparency and its efforts to increase public understanding and confidence in what it does. But if any major change is to be made - amending the release test, allowing others to make release decisions - it must not be on the basis of a hunch, but on the soundest possible evidence that it will better protect the public.

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