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When is a review not a review? Inside Time

Every month hundreds of parole hearings take place up and down the country. Almost all of them take place out of the glare of the public eye. Parole hearings have been held in private in England and Wales ever since the Parole Board was established fifty years ago. That may be about to change.

The Parole Board’s decision to direct the release of a very high-profile prisoner has been the subject of countless headlines, discussion articles, statements and radio phone-ins during January. It has also spawned one abandoned judicial review claim and possibly two in the pipeline. Almost everyone who has commented about the case – including this writer – has not seen the reasons for the Parole Board’s decision. Those reasons will be included in a detailed decision letter sent by the Parole Board which will have been shared with a small number of people who were involved in the case.

The Chairman of the Parole Board, Nick Hardwick, has explained that it is not the Parole Board’s desire to keep parole proceedings hidden from the public. He has been consistent about this. Several weeks before the decision in this case was made, he made a speech explaining that he wanted parole proceedings to be far more open and transparent. The Parole Board do not make the Parole Board Rules. They are, in reality, the Secretary of State’s Rules, written and laid before Parliament, by the Justice Secretary’s lawyers and civil servants. Section 25 of the 2016 version of the Rules says very clearly:

Information about proceedings under these Rules and the names of persons concerned in the proceedings must not be made public.

The current Justice Secretary, David Gawke, is the fourth person to hold the post in less than 18 months. One of his first public statements as Justice Secretary was that he would do everything in his power to prevent the release of the prisoner in this case. A few days later, he declared in Parliament that he would not be applying for a judicial review of the Parole Board’s decision. He did not provide much of an explanation for this decision other than to say that he had been advised that the prospects of success were not good enough.

I have not seen the advice he was given but I am confident that someone will have explained that the Secretary of State is hopelessly compromised in challenging a decision like this. The ‘Secretary of State’ is responsible for creating the Parole Board Rules. He or she appoints Parole Board members. His officials put together the dossier of evidence to be considered by the Parole Board. He can be represented at a hearing by an advocate who can challenge evidence at a hearing and make submissions. He is also responsible for the probation officers and prison psychologists who will have given evidence at the hearing. It would be hard for him to argue it was an irrational decision if one of those witnesses supported the release of the prisoner. He is also responsible for the Probation Service and the Victim Contact Scheme. It is possible that failures to notify victims were down to them and not the Parole Board.

He is also ultimately responsible for decisions about treatment and interventions in prison. Last year the Ministry of Justice published research which showed that there was no evidence that any of the sex offender treatment programmes run in prisons actually worked. The research also showed that in some cases the programmes actually increased the risk of reoffending. These programmes have been run in English and Welsh prisons for over 25 years.

The review of the Parole Board which the Justice Secretary has announced does not include any of these issues. The summary of the terms of reference is included here because it could have a significant impact on many readers of this article.

  1. An in depth examination of the current law, policy, guidance and practice relating to Parole Board challenges, specifically whether there should be a mechanism to allow Parole Board decisions to be re-considered

  2. Looking at how to improve the transparency of Parole-Board decision-making, including whether the decisions and the reasons for the decisions should be made available.

  3. Improvements to victim engagement, including how victims are involved at parole hearings and how decisions are communicated to victims.

No details have been provided of who will conduct the review and how it will be carried out. It will “draw on the views and experience of victims, practitioners and international best practice”. Predictably absent is any reference to consulting prisoners or their families.

Parole decisions contain a lot of very personal, private information about prisoners, their family histories and their hopes and plans for the future. They also sometimes include information about victims that they may not want to be in the public domain. Victims of crime are not a homogenous group. They do not necessarily all want the same thing.

The idea of rehabilitation is an important component of our justice system. Openness and transparency are important goals but so are the ability to change and to live a life free of unnecessary intrusion and vigilantism. There is nothing wrong with people wanting to know why a decision has been made but they should be willing to have an open mind. The decisions being considered in this review are not about one prisoner but about the thousands of other prisoners and their families who rely on the parole system to rebuild their lives.

Consideration of victim engagement should also explore restorative justice and the availability of decent, therapeutic support for victims. Expecting the parole process to deliver what victims of serious crimes need may be a problem in itself.

A worthwhile review would examine the role of the Secretary of State in the whole process and the independence of the Parole Board. It might conclude that the system is inherently flawed and that one way of resolving it would be to make the Parole Board a properly constituted Court or Tribunal.

A really useful review would also look at what the Parole Board get right; the many thousands of released prisoners who go on to make a success of their lives and never cause any serious harm again. It would consider the business of risk assessment and what really works to reduce the risk the people will seriously harm each other. That kind of review would be a fitting response to a very troubling case.

Andrew Sperling

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