Friday, 30 March 2018

More on Worboys

The Worboys case continues to generate a lot of interest and discussion, with reader fatigue probably not far off, but for completeness I'd like to run with two further contributions. The first by the Secret Barrister is enlightening from a forensic legal perspective and the second from well-known academic Rob Allen on what the future might hold for the parole process itself.


Your questions answered on the unusual and complex John Worboys case 

On Wednesday 28 March 2018, the High Court handed down its landmark judgment in the case of John Worboys, upholding the challenge by two of his victims to the Parole Board’s decision to release him. The judgment runs to over fifty pages and does not make for easy reading, so here’s a breakdown of this unusual and complex case. 

What is this case about in a nutshell? 
On 13 March 2009, Worboys (now known as John Radford) was convicted of 19 serious sexual offences involving twelve victims, and was sentenced to an indeterminate sentence of imprisonment with a minimum term of 8 years. Upon expiry of that minimum term, Worboys became eligible for release, subject to satisfying the Parole Board that his incarceration was no longer necessary for the protection of the public. On 26 December 2017, the Parole Board directed his release. The decision, as with all decisions of the Parole Board, was taken in private and no reasons are allowed to be published under Rule 25 of the Parole Board Rules 2016. Judicial review proceedings were instituted to challenge both the decision to release Worboys, and the legality of Rule 25. 

Who was involved in the challenge? 
There were three sets of linked proceedings. The first was instituted by the Mayor of London, Sadiq Khan. The second challenge was by two women, DSD and NBV, the latter of whom was a victim who gave evidence at Worboys’ trial, the former of whom was not involved in the criminal proceedings (a decision by the Crown Prosecution Service, not DSD), and obtained a civil settlement against him. The third challenge was by News Group Newspapers Ltd, and was directed solely to the legality of Rule 25. 

What was the Court’s decision? 
Sadiq Khan fell at the first hurdle – the Court ruled that he did not have “standing” to bring a Judicial Review against the Parole Board – that is, he did not have a sufficient interest in the decision. However DSD and NBV, and News Group Newspapers, who did have standing (being, for want of a better expression, directly affected by the issues raised), succeeded in their challenge on both limbs. 

So the Parole Board was wrong to direct that Worboys should be released? 
No. Not exactly. Judicial Review is (very broadly speaking) concerned with process, rather than outcome. The Court did not rule that the Parole Board was wrong to assess Worboys as fit for release. Rather, the Court held that the Parole Board decision was not rational, in that it had failed to undertake further inquiry into “the circumstances of Worboys’ offending and in particular the extent to which the limited way he described his offending may undermine his overall credibility and reliability”. 

What further inquiry should have been undertaken? 
The dossier before the Parole Board appeared disconcertingly light on key materials. There was not a copy of the prosecution opening speech, nor the judge’s sentencing remarks, from Worboys’ trial, which contained important summaries of the circumstances of the offences. Nor was there a copy of the judgment of the High Court in the proceedings brought against the Metropolitan Police by some of Worboys’ victims, which contained further detail as to how he carried out his crimes, including the discovery of a “rape kit” in Worboys’ car, containing, among other things, condoms and strips of Nytol. Nor was there any information concerning the wider offences alleged against Worboys by other women, including some with whom he had reached civil settlements (said to be “without admission of liability”). 

This all matters because until 2015, Worboys had continued to deny his guilt and was pursuing routes of appeal, before, in May 2015, performing a remarkable volte face and admitting the offences of which he had been convicted. That this came only 9 months before he was eligible for release might by itself have raised eyebrows. But more importantly, what he said to the professionals when he did admit his offences did not sit easily with the evidence at trial. He appeared to redraw the limits of his criminality, for example asserting that he had only once used Nytol to drug his victims, and minimising the extent to which he had sexually assaulted them. He also maintained that the only offences he had committed were those of which he had been convicted, notwithstanding the view expressed by the police that he had committed over a hundred like offences. 

The Parole Board relied heavily on a number of reports from probation officers, offender managers and psychologists, who appeared to accept at face value what Worboys told them and concluded that he had taken “full responsibility” for his actions. This was a key factor in assessing his risk, and the methodology behind reaching this view appears, as we can see, worryingly flimsy. The Parole Board panel, before whom Worboys gave evidence at his hearing, adopted a similarly credulous approach, not asking a single question to test his averred reformation, nor even seeking the original case papers to check whether what Worboys was now admitting did in fact amount to a “full” acceptance of responsibility. The Court was not impressed, finding that had the Parole Board had before it all the relevant material, it would have been bound to ask further questions to test whether Worboys really was taking full responsibility for his actions, or whether he was minimising his behaviour and spinning lies in an effort to manipulate the decision makers. As it is, the Parole Board did not seek any further information before embarking upon the hearing and reaching its conclusions. 

But the other allegations weren’t proven, were they? Can the Parole Board take into account complaints that have not been proven in court? 
Here the Court descended into the kind of distinction which leaves even some lawyers scratching their heads. The Court said that while the Parole Board cannot determine whether a prisoner has committed other offences, it is still allowed to consider evidence of wider offending when determining the issue of risk. The Court rejected the submission by the Parole Board’s QC that this distinction is artificial, and suggested that the details of the (alleged) wider offending could have been used “as a means of probing and testing the honesty and veracity of [Worboys’] account”. I shall confess that I struggle to get my head around how this might be so. If Worboys denied committing any other offences, then the only way that the evidence of other offences could be used to “probe his honesty” would be if the Board formed the conclusion that he had committed the other offences, and was now being untruthful. In any case, the Court maintained that there is a distinction there, if you look hard enough. And importantly, what Worboys had to say about the offences of which he was convicted, and the circumstances of his Damascene conversion, by themselves gave rise to obvious questions, none of which were explored, and which could have been undermined had further inquiry been made by the panel. 

Wasn’t it also the case that Worboys was refused a transfer to an open prison because of his risk as recently as August 2017? 
This is correct, although it’s fair to point out, as did the Court, that this was a determination made by the Justice Secretary, rather than the Parole Board, and involves a different test. Nevertheless, it’s an unattractive background detail for the Parole Board. 

What about the privacy of Parole Board Decisions? 
The Court held that the Parole Board Rule 25 was ultra vires – unlawful – as it offended the principle of open justice and of a victims’ right of access to the court. There was no objective necessity for a rule which stifles the provision of all information relating to Parole Board proceedings. Sometimes information will have to be kept out of the public domain for good reason; but this shouldn’t be the default. It is now for the Secretary of State to decide how to reformulate Rule 25 in light of the judgment. 

What happens next? 
A different panel of the Parole Board will make a fresh determination as to whether Worboys meets the test for release, requesting and taking into account (one hopes) the various information outlined in the judgment. The Court expressed a strong opinion that the Chair should be a serving or retired judge, no doubt with an eye on a rigorous cross-examination of Worboys at the hearing. The outcome may still be the same, but the new panel will treat Worboys’ declaration of transformation with far more scepticism than the first. 

Why has Nick Hardwick, chair of the Parole Board, resigned? 
The short, official answer is that the failings of the Parole Board exposed in the judgment were so serious that his position was considered untenable by Justice Secretary David Gauke. A longer answer would meander through various ponderables, including why, given that numerous Parole Board decisions not to release prisoners have been the subject of successful judicial reviews over the years, this case requires a forced resignation whereas those many others did not. Mr Hardwick was, after all, not directly involved in any of these decisions. It seems that the distinguishing feature is that all those other cases involved the Parole Board making erroneous determinations on release that adversely affected prisoners, who, one infers, are of significantly less worth to the Justice Secretary than adversely affected victims.

One might also observe that Mr Hardwick has been calling for greater transparency in Parole Board hearings, only to be ignored by the very politicians who are now celebrating his downfall. 

Should Justice Secretary David Gauke resign too? 
Mr Gauke has been criticised for refusing to institute proceedings for judicial review, leaving the legal action to be pursued by the victims. In his defence, he pleads that he was following legal opinion which advised that he was unlikely to succeed as a claimant in judicial review proceedings. That the legal advice may have been shown by subsequent events to be overly pessimistic is nothing new; we have all had cases where we have solemnly advised a client of the impossibility of their case and later enjoyed the client’s glee upon an unexpected victory. Nevertheless, there appears, to my eye, absolutely no reason why, if Nick Hardwick has been deemed sufficiently culpable for forced resignation, the Justice Secretary’s head should not be next on the block. What is good for the sacrificial goose and all that. 

What’s the takeaway from this case? 
Not much positive. One is left with enormous sympathy for the victims, who have had to endure a catalogue of errors in the way their attacker has been dealt with, from a thoroughly botched police investigation, through to a decision not to prosecute seemingly-viable cases by the CPS, resulting in a custodial sentence which many feel does not reflect the gravity of the offending, and culminating in a lackadaisical Parole Board panel which appeared every bit as naïve and unquestioning as campaigners had feared. This case, to put it lightly, does not show the criminal justice system at its finest. Whether this will precipitate a flood of challenges by victims to other Parole Board decisions relating to dangerous offenders remains to be seen.

Secret Barrister


Hard Case, Bad Law? Puzzles about Worboys

The Divisional Court Judgment on the Worboys case raises a number of puzzles. The Court ruled that the Parole Board’s decision to release the serial sex offender was not irrational on the information it considered but the Board was irrational not to have sought more. To a non lawyer, that looks like a distinction without a difference. As Nick Hardwick put it in his resignation letter “we were wrong”. The two women who brought the case deserve great credit for doing so, although I am not so sure about the Mayor of London.

What surprised me most was the fact that the Parole Board decided to release Worboys while he remained a Category A prisoner. The Prison Service must have considered him a person “whose escape would be highly dangerous to the public or the police or the security of the State and for whom the aim must beto make escape impossible”. The court heard that direct release is ordered on Cat A prisoners a handful of times a year. Shouldn’t it be prohibited altogether?

There is also a mystery about why more of the complaints against Mr Worboys were not prosecuted. Was it because they did not reach the evidential threshold as the CPS claimed earlier this year. Or was it that the CPS thought a small sample of offences would be enough to reflect the overall criminality and result in an appropriate sentence.

The Code for Crown Prosecutors says that Prosecutors should select charges which: a) reflect the seriousness and extent of the offending supported by the evidence; b) give the court adequate powers to sentence and impose appropriate post-conviction orders; and c) enable the case to be presented in a clear and simple way. One of the prosecutors reportedly told victims that “there are dangers in putting too many charges on an indictment as the trial can be too long and complicated.” Had more cases against Worboys been proved, the IPP tariff would have been higher and his release would not have been an issue until much later. IPP may have gone but the fundamental issue is still present. Should the Code be amended to make this clear?

As for sentencing, the Divisional Court was critical of the fact that the Parole Board did not consider the judge’s remarks made when Worboys was sentenced in 2009. I haven’t seen these but wonder how much weight they should be given. Parole Board decisions are about future risks and are predicated on the idea that people can change. How relevant are remarks made many years in the past?

Last month at Liverpool Crown Court, in another dreadful case, the judge sentencing paedophile football coach Barry Bennell described him as “the devil incarnate”. What will the Parole Board - if it still exists - make of that when they consider his case in 2033 or thereabouts?

Finally, there’s the vexed question of the extent the Parole Board should take account of offending behaviour alleged but not proven. In their summary of the case, Matrix Chambers say that “should there be…attempts to deploy before the Parole Board extensive sub-conviction information, then they will likely be met by an argument that this case {ie Worboys} should be distinguished. The material in this case was readily available, the Board had been told of its existence, and it was particularly powerful. Those circumstances are quite unique”. But are they? Justice Secretary David Gauke told Parliament yesterday that in response to the judgement “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”.Presumably this includes “sub-conviction” information. And what about offences of which people have been acquitted? Reasonable doubt may prevent a conviction but doesn’t always extinguish risk.

There are no easy answers here but I wonder whether the future lies in handing these complex decisions over to the courts. The abolition of Rule 25 prohibiting information about parole proceedings being made public could well be a game changer. It will have a chilling effect on the Board and could lead to an upsurge in litigation one way and another. Maybe it’s better to have these release decisions made by judges sooner rather than later.

Rob Allen


  1. I too found it astounding that Worboys still a Cat A prisoner should have been even considered for parole so soon after tariff expiry given what he was convicted of. I've known people on IPP's who had to go through decreasing levels of secure prisons to open conditions to "prove" themselves before being considered for release and they had lesser tariffs than Worboys for much less heinous offences. But then again the Baby P mother was released from Holloway before her tariff expired and there have been a few other similar cases, some of which have ended up being recalled so probably shouldn't have been released. I know one woman with learning difficulties who had an 8 month IPP tariff who spent 8 years inside before she got released and who wasn't really a danger to anyone had she received the help she should have been getting in the first place. Yet Worboys does a few months over tariff and bingo up for release! Mind you it's the same sort of headscratcher as sentencing where people committing say fraud for roughly the same amount can get wildly differing sentences.

  2. Secret Barrister appears to be suggesting that all the professionals were recommending release. It is my understanding that the OM, OS and prison psychologist were not and it was only Worboys' psychologists who were recommending release.

    Another point which I am surprised no one has commented on before is the matter of Worboys being denied a move to open conditions in August 2017. I may be wrong on this one but I regularly review the categorisation status on Lifer and IPP prisoners. These cases never progress to open conditions as HMPPS doesn't have the power to grant such a move. Even though it is something of a pointless exercise this happens to lifers and IPPs on an annual basis. I suspect the same happened in Worboys' case.

    1. Secret Barrister has said "Yes, his release was opposed by his offender managers but supported by psychologists instructed by his solicitors and by NOMS. My piece is not clear about that - I’ll amend. Thanks."

  3. A great deal is being made of Worboys being a Cat A prisoner. It is unlikely due to his notoriety and nature of his crimes that he will (for his own safety) be allowed out of the High Security Estate and will therefore, if release is ever granted again, go straight from Cat A to an AP.

  4. I think there's a distinction to be made about being housed within the catagory A prison estate and actually being a Category A prisoner. There's a big difference, both in legal terms and security arrangements.
    There's a couple of things the Warboys case has made me think about, and they haven't really been spoken about.
    I think firstly moving away from the legal issues, there was a general feeling that he just hadn't served long enough for the offences he committed. I think that was the primary driver for legal action and the legal arguments were easy to find to present a case for JR.
    Secondly, his release challenged many assumptions that people hold about the CJS that may not be actually correct.
    The CPS assumed the number of cases he was charged with would be sufficient to put him away for a far longer period then 10 years, that too I believe was an assumption by the police, and indeed alluded to by police to at least one victim.
    I think too that when the public and press hear a sentence being imposed of IPP they assume the person receiving that will be in prison for far longer then the minimum period set by the judge.
    I don't know the answer, but was there an appeal by the state or prosecution or any of the victims when Worboys was sentenced about the leniency of the minimum term imposed? Perhaps there's assumptions being made in legal quarters there if no appeal was made?
    People (including myself) think they know things about the CJS, and they perhaps do know much, but the Warboys case has challenged what people really know, what's fact what do we assume, what protocols and processes within the CJS that aren't found in legal text do we rely on and expect, perhaps sometimes wrongly expect, to keep the wheels turning?



    2. The Telegraph article: It's interesting but a bit tabloidish:

      If nothing else is learnt from the Worboys debacle, let it be the need for less secrecy across policing, the criminal justice system and public services generally. There is a bias against sharing information even between public bodies, never mind with the public itself. It must change.
      Secrecy runs from top to bottom. In the Worboys case, not only was the Parole Board hearing that decided his release held in secret, but his victims learnt of it only through the media – and without their crowdfunded legal challenge they would not have got to the truth and Worboys would be out. Basic accountability shouldn’t depend on the ability to raise money.
      Nor is it right that those living in high-crime areas have the Data Protection or Human Rights Acts cited as reasons they cannot find out what happened on their street the night before. As a bobby on the beat, I’d often find myself asked by residents what had happened when police, ambulances, and crime scene tape littered their estate in the morning, and find it hard to answer satisfactorily. Overbearing interpretations of these laws too often fail to properly recognise the public interest in favour of disclosure.
      Basic accountability shouldn’t depend on the ability to raise money
      Secrecy breeds mistrust. Even as knife crime rises, most stabbings go unreported: the lack of transparency, in part, preventing the issue from becoming one of widespread and public outcry. But the outcry is seismic when that knife crime happens to take place in front of a local primary school at home-time, with parents witnessing a 14- or 15-year-old boy literally running for his life, before being stabbed repeatedly and run over.
      It’s not just the public who find themselves shut out from knowing what is going on. The judiciary rarely – if ever – discover what happened to those they sentence, having little or no insight into the effectiveness of the punishments they dish out, or whether deportation orders for serious foreign national offenders are ultimately fulfilled.
      The issue is exacerbated by the decline of local media and a post-Leveson suspicion of contact with journalists. On the one hand, for local newspapers, public services – like policing – are the bread-and-butter, a fact recognised by John Whittingdale MP, who has argued that the decline of local media is bad for justice. On the other, a lack of transparency and unwillingness to talk to journalists hinders public understanding and the effective functioning of a free press.
      By the same token, David Lammy’s recent review of race and criminal justice flags up the huge value and importance of publishing sentencing remarks and opening up closed decisions to public scrutiny, echoing US Supreme Court Justice Louis Brandeis’s famous remark that “sunlight is the best disinfectant”.
      There were attempts at encouraging more openness earlier this decade, with the launch, for example, of the crime mapping website. But it remains underexploited, failing to adequately fill the public appetite for information or to close the gap between public perception and the reality of crime – never mind the wider criminal justice system.

    3. A Government committed to better public services should reboot the drive for transparency
      Some of the most effective police and crime commissioners have recognised the issue. Matthew Scott in Kent is working on plans to open up police data so that much more is available by default; Julia Mulligan in North Yorkshire is pushing to use data, that otherwise lies dormant or out of sight, to help keep vulnerable women safe and reduce crime. But there is so much more to be done.
      There is a compelling social justice dimension to this: we know that crime disproportionately affects the most vulnerable, and that they rely on public services the most. The lack of transparency makes it even harder to hold the authorities to account or to ensure the political system properly responds to their needs and concerns.
      So, in the wake of the Worboys judgment, a Government committed to better public services should reboot the drive for transparency. It may come at a short-term cost – in exposing areas of weakness, inefficiency or even incompetence – but the longer-term prize is worth having: more effective public services that are so vital for the poorest and most vulnerable in Britain today.

  5. Less than 1% of those released by the parole board go on to commit further serious offences. You wouldn't think the risk was so low given the agitation at the proposed release of Worboys. Worboy's notoriety puts him in the court of public opinion. The judicial review was not without its irrational aspects, though when judges are in a fix to justify something they will always cite exceptional factors. - and you can see the judicial review as another episode in a long series of incompetence which started with failures to investigate by the police and failures to prosecute by the CPS.

    Worboys will be kept in prison as further punishment for the offences that were never put before the sentencing court. I would have no confidence in risk assessment which is a blend of groupthink and pseudo science. As for the parole board considering sub-conviction information and police intelligence, Mappas have been doing this for aeons in reaching risk assessments. And such information can be withheld from the Mappa subject whose human rights are secondary to protection of the public considerations.

    If the statistics showed that 99% of those released on parole went on to commit serious offences, what chance of anyone being released? But the reverse is true and was true before before the shiny risk assessment tools arrived. Risk assessment is a tool for justifying incarceration whereas experience shows that it's safe to release in 99% of cases. And it's irrational to think we can ensure safety 100%.

    1. That %1 stat has to be qualified against the high recall rate

    2. Recalls cover a multitude of sins, real and imagined. The 1% relates to the actual commission of a serious sexual or violent offence.

    3. And the extent to which recall prevents SFOs will never be known precisely, but fair to say the 1% would be higher if not for preemptive action.
      High recall rates are, in my opinion, at least partly the price paid for release of IPPs who aren't yet ready to be back in the community.

    4. Pre-emption like pre-crime reminds me of Minority Report .

      The 1% statistic has endured for decades – it predates OASys and it predates the shift to aggressive recall policies by probation over the past 15 years or so. Risk assessment has become an industry of illusions and there is no evidence that it beats experienced professional judgment, common-sense and a belief that people mature and change.

  6. Meanwhile, tragically, it’s business as usual in the custodial estate . From Liverpool Echo Friday 30.03.18 A prisoner at HMP Risley died after a fire broke out in his cell.

    The man, who the ECHO understands was serving a five year sentence for burglary, was rushed to hospital last week after a fire broke out in his cell at the Category C jail in Warrington on Sunday, March 25.

    He was initially taken to Whiston Hospital which has a specialist burns unit for treatment to his injuries, however has since died.

    Today the Ministry of Justice confirmed the prisoner, 40-year-old Kevin Delahunty, died on Thursday March 29.