There’s a month to go to the General Election. It’s a tight contest - and crime is a key battleground.
A notorious prisoner has applied for release, as he is entitled to do, having served substantially more than his minimum term. Prison and probation staff, as well as psychologists, agree that it is safe to let the offender out, under strict conditions.
A panel of three Parole Board members, headed by a judge, recommends his release.
The papers land on the desk of the Justice Secretary.
What do you think he will do?
That scenario may well play out under Dominic Raab’s plan to restore to Ministers in England and Wales powers over the release of some life sentence prisoners, as I suggested he would earlier this year.
Raab, who took over at the Ministry of Justice (MoJ) last September when Sir Robert Buckland was sacked, is planning three fundamental changes to the parole system, which governs when lifers, prisoners serving indeterminate sentences for public protection and certain other inmates can be freed.
First, he wants more people with policing backgrounds to sit on parole hearings -"grizzled" police officers he termed them - to bring their experience of dealing with serious offenders to bear on release decisions.
Knowledge of public protection will of course be valuable, but there is no guarantee that involving more law enforcement experts in a complex and multi-layered process will make a significant difference to outcomes. The stereotype of hardened cops that he used in the House of Commons as he answered questions about the plans is not one I recognise. I’m reminded of Theresa May’s reforms to police misconduct proceedings, in which disciplinary panels were to be chaired by independent legal advisers, rather than senior officers. It was intended to lead to tougher sanctions - it appears to have had the opposite effect.
Raab’s second key proposal is to make it clear in legislation that the “only priority” when the Parole Board makes release decisions is whether it is safe to do so. But that’s the essence of the test that already exists. The Board can direct release only if it is "satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined." The presumption is that the inmate stays in jail - unless there is convincing evidence that it is not required. Raab says the meaning of the test has "morphed" into more of a balancing act between public protection and prisoners' rights, but it is hard to see how tweaking the wording will make much practical difference.
Finally, Raab wants to take back control. In future, the Justice Secretary will be able to block the release of the “most dangerous” offenders - convicted murderers, rapists, terrorists and those who have caused or allowed the death of a child - in the “interests of public safety”. It’s estimated that could apply in around 600 cases each year.
The proposal flies in the face of a series of legal rulings over the past two decades, including in the UK, that the courts, or bodies like courts such as the Parole Board, should determine when prisoners are freed - not the Government.
The rulings generally centred around the intersection of human rights laws and decisions about how long prisoners should serve in jail. That will present a major hurdle for Raab which he is planning to overcome by creating a new rights framework through a new Bill of Rights. However, he might care to reflect on the comments by senior members of the judiciary when the last such case was determined in the courts.
It concerned a prisoner called Wayne Black, who’d been jailed for 24 years for false imprisonment, kidnapping, robbery and escaping from custody, among other offences.
In 2006, a recommendation by the Parole Board that Black be released at the halfway point was rejected by the then Labour Home Secretary, whose responsibility for prisons and sentencing was later transferred to the Justice Secretary.
In the Court of Appeal, Lord Justice Latham (who incidentally went on to become Chair of the Parole Board) said leaving release decisions “in the hands of the executive” - the Government in other words - was “capable of being applied arbitrarily”.
Lord Phillips of Worth Matravers, in one of his last rulings in the House of Lords before it was converted into the UK Supreme Court, was also critical. He cited previous remarks from Lord Bingham who had noted that by 2002 it was recognised that “assessment of the risk presented by any individual prisoner…was a task with no political content and one to which the Secretary of State could not (and did not claim to) bring any superior expertise.”
In the Lords case, Lord Rodger of Earlsferry said of the Justice Secretary at the time, Jack Straw: “I find it hard to understand why he should wish to cling tenaciously to this last vestige of his power to determine when prisoners should be released, since she [sic] accepts that there can be no legitimate political input into the decision”. Lord Carswell agreed there appeared to be “no good reason” to do so.
Raab clearly believes there is a good reason why he and his officials in MoJ can do a better job of assessing risk than experts at the Parole Board. And it could be argued that his case has been strengthened by a series of contentious Board decisions to free offenders who barely deserve a second chance, among them the child rapist and murderer Colin Pitchfork. He was later sent back to jail after breaching his release conditions. The case of Tracey Connelly, jailed for killing her son, known as Baby P, helped to make his point: she was cleared for release just as the proposals were published.
But assessing risk is hugely difficult, "fiendishly" difficult, as the Justice Secretary has himself acknowledged. If he errs on the side of caution every time the Parole Board recommends a prisoner for release it will add to the expanding jail population, with all the costs that flow from that, and bring the parole system into disrepute. That will result in multiple challenges in the courts, some of which he will lose.
If the Justice Secretary accepts some of the Board’s advice then he must also accept the consequences when a prisoner he has approved for release commits a further serious offence. The buck will then no longer stop with the Parole Board, it will stop with him. Has Raab thought this through?
Far better would be to adopt the ‘referral’ model used by the Attorney General. The Attorney has powers to refer certain Crown Court sentences to the Court of Appeal if they are not thought to be tough enough. In 2020, 61 of the 97 sentences reviewed by appeal judges were increased because they were assessed as ‘unduly lenient’.
The advantage of this approach is that it gives Ministers a ‘checking’ power over sentences they or the public are uncomfortable with - but not the final say. That rests with judges. If Raab is concerned that the Parole Board does not give enough weight to public safety considerations, then this is a way forward: the Justice Secretary would have powers to refer such cases to a High Court judge to determine.
The Board has come quite a distance since the disastrous John Worboys release decision was overturned: victims and other interested parties can now read summaries of decisions; cases can be internally reviewed. There is still much for the organisation to do, to increase transparency, improve communications and give greater access to victims. But there is no evidence the Justice Secretary’s proposed measures will raise the level of decision making. They are a distraction from the deep and persistent problems facing the criminal justice system: Dominic Raab would do better to focus on driving down the record court backlogs and lengthening waiting times for victims, witnesses and defendants than tinkering with release rules.
His plan to reinstall a Ministerial veto is certainly a clever political device, likely to leave Labour with an awkward policy dilemma: to support it will chime with victims but run contrary to human rights laws. And the move will no doubt be popular with voters, and Conservative backbenchers. But the prospect of a Justice Secretary slamming the prison gates shut just as polling day looms is not one any of us should relish. Keep politics out of parole.