The Ministry of Justice has announced that there will be a new review process to challenge Parole Board decisions termed the Reconsideration Mechanism. This is a worrying development for prisoners serving indeterminate and extended sentences. When it comes into effect – and there is no definite date for this yet – there will be two inevitable results.
A prisoner who has had a release decision from the Parole Board will no longer know for certain that they are to be released. In every case (for indeterminate and extended sentenced prisoners) there will be a period of 21 days in which it will be possible for that decision to be challenged. Prisoners will not be released during this period. This is a deprivation of liberty for all those prisoners. The Parole Board will already have decided that they do not need to be confined for the protection of the public, but they will stay in prison for at least three additional weeks. Many will stay in longer.
The Secretary of State has decided that his department, the Public Protection Casework Section (‘PPCS’), should be the gatekeepers of this process. The explanation given for this is that it will save victims the cost and risk of taking legal proceedings and will avoid cases which do not have merit going ahead. On the face of it, this may seem reasonable.
The main problem is that it puts the state at the heart of an important judicial process. There is a long line of cases in which courts have decided that the state should not be involved in decisions regarding the release of prisoners serving indeterminate sentences. They have emphasised that these decisions should be made by courts or court-like bodies such as the Parole Board.
The review mechanism allows PPCS to act on a request to stop a prisoner being released. PPCS will be able to refer the case back to the Parole Board to ask for it to be reconsidered.
The Reconsideration Mechanism paper explains that judicial review type criteria will be used to assess cases. It suggests that PPCS have the expertise to apply these criteria effectively and Victim Liaison Officers (VLOs) will be able to advise victims about the possibility of a case being reconsidered.
People who have day to day experience of PPCS and VLOs might have some doubts about this claim.
The good news for prisoners
The one aspect of the new mechanism which is likely to be welcomed by prisoners is that it is open to them to use too. They will not need to ask the Secretary of State to request a review of a decision to refuse to release them. They will be able to apply directly to the Parole Board, either by themselves or by a legal representative applying on their behalf.
It will be wise to get good advice to prepare such an application and not to expect that it will succeed. Applying a judicial review test is not straightforward and the application will need to be compelling.
No details have been worked out yet of the funding system to support this. A fair system will ensure that prisoners can access legal aid for high quality legal advice and assistance both to make and defend applications. It could reasonably be argued that victims should also have legal aid to provide access to quality assistance. The Secretary of State’s proposals do not allow for that, arguing that the presence of PPCS is a sufficient service and safeguard for victims.
Is the new process lawful?
The new mechanism gives the Secretary of State’s department ‘two bites of the cherry’. If they do have concerns about a prisoner being released, it is already open to them to play a full part in parole proceedings. They already have an extensive role in presenting evidence to the Parole Board. This is what they are supposed to do. They can already have an advocate at the hearing and argue a case. If they do not like the Parole Board’s decision, the new mechanism makes it much easier to interfere with the Parole Board’s decision that the prisoner meets the test for release. This looks like interference with the Parole Board’s independence and some might argue that this makes the process unlawful.
The Secretary of State will say that he is not making a decision to overturn release. He will maintain that the mechanism only allows his department to refer a case back to a Parole Board judge and that judge will decide whether the case should be directed to a new panel to hear again. At the very least, it will give him the chance to delay the release of a prisoner for several weeks, possibly months. This might destroy the prisoner’s release plans as well as forcing that person to endure the stress and anxiety of not knowing the outcome of their case. I do not have much confidence in the claims that this will be a quick and efficient process.
Can the Parole Board judge itself?
The Reconsideration Paper says that the ultimate decision-maker will be a Parole Board judge. The judge or judges who will perform this function have not yet been defined. As with most lengthy documents, it is important to read them carefully. Fairly hidden away is a paragraph which reads:
‘Subject to the volume of prisoner applications and member capacity, it may be necessary for the Parole Board to operate an administrative sift process so not all prisoner applications may be seen by a judicial or accredited member.’
This paragraph undermines the commitment that it will be judges who have experience in applying judicial review tests who will be making decisions.
Will Parole Board members have the necessary distance and objectivity to judge whether their colleagues have made an irrational or procedurally unfair decision?
The Ministry of Justice has also begun a ‘Tailored’ Review of the Parole Board in which they will look (again) at whether the status of the Parole Board should change. I have been advocating for a long time that the Parole Board needs to become a proper court or tribunal. This would require the removal of the Secretary of State from many aspects of his current role within the parole process. It could give the Parole Board powers to enforce directions and to operate like a real court. It could also provide a proper appeal route which could cure some of the flaws of the new Reconsideration Mechanism.
In the meantime, prisoners who rely on the Parole Board for their release should be prepared for a rocky road ahead.
Andrew Sperling