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.

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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

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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