Wednesday, 4 April 2018

Future of Parole

Thanks go to the reader for pointing me in the direction of this recent LSE blog:-

After Worboys: what next for the parole system in England and Wales?

A fair, transparent, and robust process for the termination of prison sentences is critical to the effective operation of our criminal justice system, writes Thomas Guiney. In light of the Worboys case and the attention drawn to the parole system as a result, he explains what reforms are necessary in order to build a modern parole process that is fit for purpose.

In 2009, John Worboys was found guilty of 19 sexual offences against 12 victims. He received an indeterminate sentence of Imprisonment for Public Protection and ordered to serve a minimum tariff of 8 years imprisonment before he could be considered for parole. Following a review of his case by the Parole Board it was announced in January 2018 that he would be released from prison and supervised under licence in the community for the rest of his life.

In accordance with Parole Board rules the conditions placed upon his licence were not made public. However, in a subsequent statement the Chairman of the Board revealed that the Worboys case had been considered by a three-member panel, was chaired by an experienced female member, and included representation from a psychologist. The panel considered a dossier of 363 pages and heard evidence from four psychologists as well as prison and probation staff.

The decision to release John Worboys has generated significant media interest, while Secretary of State for Justice, David Gauke announced a review of the ‘Law, Policy and Procedure Relating to Parole Decisions’. In parallel, a number of parties were granted leave to pursue an application for judicial review against the Parole Board. On 28 March 2018, the High Court quashed the decision to release Worboys and upheld legal challenges against: a) the rationality of the decision given the failure to undertake further inquiry into the circumstances of his offending; and b) the prohibition against disclosure of information as set out in the Parole Board Rules 2016.

On the same day, Nick Hardwick stood down as Chairman of the Parole Board. His resignation letter made clear that following a meeting with the Secretary of State his position had become untenable and expressed serious concerns about the independence of the Board moving forward.


The parole system at present

The Worboys decision will be re-considered by the Parole Board in light of the judgement of the court, but the perfect storm now enveloping this case has far wider policy implications for the parole system and the risk-appetite of the Board. Taken that even small changes in law, policy and procedure can have unintended consequences, it can only be hoped that recent history will serve as a warning against the perils of a knee-jerk response.

Overall, the Parole Board has a strong track record of protecting the public from serious harm, with the relevant statutory test requiring it not to give a direction for release unless it is satisfied ‘that [confinement] is no longer necessary for the protection of the public’. Accordingly, in 2016/17 the Parole Board concluded 5,184 cases, of which 872 were recommended for moves to open conditions (17%), 1,825 cases were refused (35%), and 2,468 were recommended for release (48%). In the last four years less than 1% of the total number of decisions made by the Parole Board have resulted in a serious further offence being notified to the Board.

Moreover, it is increasingly clear that while the Board has become a lightning rod for public anger, the case has far wider implications for the administration of justice in this country. Since the offences committed by John Worboys first came to light, criticism has rightly been levelled at historic police failures in responding to allegations of sexual assault, the evidentiary challenges of successfully prosecuting complex sexual offence cases and the overall experience of victims at each stage of the criminal justice process. Reform of the parole system cannot allay these wider concerns and nor should it.

How to strengthen the system

So, what should happen next? It is 50 years since a parole system was first established in England and Wales, and expectations are now far higher. If the Parole Board, and the institutions it relies upon, are to operate effectively in this demanding climate they must be equipped with the right tools for the job:

First, the overuse of indeterminate sentences should be ended as a matter of urgency. In England and Wales, more than twice as many people are serving indeterminate sentences than in France, Germany and Italy combined. For this growing cohort of prisoners, the burden of proof in parole decision-making has been almost completely inverted and this has resulted in a significant number of individuals being held far beyond their tariff expiry dates. Our over-reliance on prison as a place of containment has undermined attempts to build a stronger strategic focus on sentence progression and the community infrastructure needed to support individual desistance in the long term.

Second, the government should re-visit the case for reconstituting the Parole Board as an independent (and inquisitorial) tribunal. A two-tier tribunal structure would create a clear legal pathway for the appeal of parole judgements (where leave is granted by the lower tribunal) and in many cases, this would dispense with the often time-consuming, and prohibitive costs associated with the judicial review process. Administration by the Majesty’s Courts and Tribunals Service would bring the Parole Board into line with comparable bodies but above all else, a tribunal structure would help secure its independence and insulate the system from any semblance of political interference.

Third, the parole system has always operated on the basis of public trust; the renewal of this contract demands that victims and the general public have a far better understanding of how decisions are made. A wide-ranging transparency agenda is long overdue but this must be delivered in a way that is consistent with the overarching aims of the parole system. There is little sense in publishing detailed licence conditions, such as place of residence, if this undermines supervision and licence compliance, or encourages vigilantism. In seeking a more appropriate balance, the government should:

  • place far greater emphasis upon improving public understanding of the parole process, and the sentencing pathway more generally;
  • publish a parole compact that sets out what victims, prisoners, and the general public can expect from the parole system;
  • follow the example set by the New Zealand Parole Board and publish concise 1-page public statements summarising parole decisions where these are requested by the public;
  • establish a publicly accessible information management system that provides access to select, and quality assured information, held by the Parole Board.
Fourth, it must be recognised that transparency and accountability are mutually inter-dependent. Recent inspectorate reports reveal a penal system that is overcrowded, under-resourced, and in many cases failing short of basic standards of care. This pervasive operational fatigue has impacted upon parole decision-making. In 2016/17, approximately a quarter of all parole cases were adjourned or deferred. Furthermore, the system does little to prepare prisoners for their eventual release.

Fifth, the fallout from the Worboys case will have significant resource implications for government who should now implement a standardised system of recall for offenders serving fixed-term prison sentences. In the past three decades the caseload of the Parole Board has been re-orientated towards the most serious offences and the complexity of these cases has necessitated far greater use of automatic release for the majority of prisoners serving fixed-term sentences. In this policy context, the growth of determinate recall cases must be considered anomalous and should be removed from the Parole Board caseload. This would entail a fixed recall period (not exceeding a certain percentage of the overall sentence) with the emphasis upon preparing the individual for release and ensuring robust risk-management systems are in place to actively manage individuals in the community.

Conclusion

A fair, transparent and robust process for the termination of prison sentences is critical to the effective operation of our criminal justice system. The overwhelming majority of men and women sent to prison will return to the community at some point in their lives and the Worboys case has demonstrated why far greater strategic focus is needed on the ‘back door’ practices of release, recall and resettlement. The changes outlined here represent an important first step in that direction if we are to build a twenty-first century parole system that is fit for purpose in this rapidly changing environment.

Note: the above draws on a recent paper prepared for the Prison Reform Trust.

About the Author

Thomas Guiney is a Visiting Fellow in the Mannheim Centre for Criminology at the London School of Economics and Political Science. His first book ‘Getting Out: Early Release in England and Wales, 1960-1995’ is forthcoming with Oxford University Press (Clarendon Studies in Criminology).

22 comments:

  1. Sensible suggestions that mean the government, who seems to be completely averse to any sort of sense, will completely ignore them

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  2. Its amazing how the demand for transparency with regard to the parole board is such an urgent priority, whilst all the failures of privatised probation services can be hidden away under the guise of corporate confidentiality.
    Transparency should be essential to all public services.

    'Getafix

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    1. Getafix. I wish you had a job like Gen Sec of Napo or SofState. You reliably speak with insight & great sense!

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  3. Too much process and too many involved. The Worboys and the many other judicial challenges of parole board decision show that the parole board is not fit for making release decisions. Excepting whole life sentences, there should be fixed release dates for every prisoner. Recall periods should be in proportion to the sentence with a fixed release date, eg automatic release after a third of the remaining sentence period Simple as.

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    1. We have to accept that the Worboys decision was erroneous, but the Board generally do a good job. Some tinkering maybe around transparency and around allowing Boards to be chaired by lay people only under certain circumstances. That said judges can make erratic chairs also. I know one who appears to sleep through most of proceedings. As much as despise what as happened to legal aid I fear that too much was used in paying so called 'independent psychologists' in this case.

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    2. It was very erroneous, and frankly I’m not surprised.

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  4. Fundamentally, the parole board must be doing a good job in evaluating risk if there is only a 1% chance of a parolee committing a further serious offence.

    The Worboy's case was more about the history of police failures to investigate at the outset and for Worboys to be charged by the CPS to adequately reflect the extent of his offending. Probation was also criticised over victim contact, but in fact all those who wanted to be kept informed were kept informed and those who did not wish victim contact had their wishes respected. The only mud thrown at probation related to some poorly drafted letters.

    But as with other notorious cases – Harry Roberts with a parole tariff of 30 years spent 48 years in prison, released aged 78 – the reality is that the public would be quite content to see Worboys die in prison. It's not about future risks, it's about an enduring retribution. That's the irrationality at the heart of this case and no amount of tinkering with the parole board will prevent similar moral outrages in the future.

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    1. And that's the truth!!

      http://metro.co.uk/2018/04/04/james-bulgers-mother-wants-a-review-into-decision-to-free-jon-venables-7439817/

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    2. James Bulger’s mother has called for an investigation into the decision to free Jon Venables following the John Worboys parole row. Denise Fergus, 49, feels Venables poses a risk to public safety after he was released from jail for distributing child porn.

      Ms Fergus recently tweeted: ‘So Nick Hardwick has resigned and the parole board have now to look over the Worboys case. Let’s hope they do the same over the flaws in Venables release over his rehabilitation #JusticeForJames.’ The mum is unhappy with the decision to free Venables after the child porn offences. He later went on to commit similar crimes.

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  5. The reconviction rates for serious offenders is low so Parole Board releases on the whole will always look like they’re “doing a good job”. There’s been many successful challenges of parole board decisions to not release. Worboys is the first challenge of a decision to release I think. It shows in too many instances Parole Board members are not suitably qualified to make release decisions. You really tell the difference when former judges, probation officers or psychologists are on the panel instead of the local butcher, baker or candlestick maker. An audit of paroled prisoners over the past 5 years would show there have been many many dodgy parole board decisions, inc with illogical rationale and lack information. This highly subjective process can be disbanded if every prisoner has a fixed released date. Not every country has a parole board.

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    1. If you abolished indeterminate sentences, it would be compensated for by increasing the length of determinate sentences and we end up, like the US, imposing sentences of hundreds of years. Do you know of any country that does not make use of indeterminate sentences? How do they deal with heinous crimes?

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    2. The IPP sentence was a move towards a ‘risk-based penal strategy’, with proportionality taking a back seat to public protection and future risk prediction. It is partly based on the US ‘3 strikes’ policy and its heavy use of life sentences for a wide range of offences. So to the commenter above, we’re already following our friends across the pond. If the Parole Board system worked we wouldn’t have thousands of IPP’s languishing in prison many years over tariff. Indeterminate type sentences, quite legal under European law, could have fixed release dates and I question whether sentencing judges are happy knowing 15 years later flawed risk assessments will undermine the tariffs they set. There is not much point in parole and early release process when we have a prison system that can’t prepare people for release, a parole board that hasn’t the expertise and capacity to release, except serial rapists apparently, and a probation system that isn’t resourced to assist once released. We once abolished the death penalty, we ended the pre-90’s ‘one chance’ at parole, we did away with IPP sentences, and whole life sentences are now under scrutiny. There is an argument for an end to early parole and sentences without fixed release dates.

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  6. The recommendations in the article have been made previously.

    http://www.nuffieldfoundation.org/sites/default/files/A%20New%20Parole%20System%20for%20England%20and%20Wales.pdf

    The question for me is whether the parole board is qualified to make release decisions. It’s function is merely to make a risk assessment on the most serious and long term prisoners. They are not required to be legally trained in law and sentencing as judges are, and they are not required to be trained in the risk assessments they’ll be processing as psychologists and probation officers are. To not release, and to not have a release date is fundamentally a breach of human rights.

    5. Parole Board Member eligibility and criteria
     
    Eligibility
    Applications are welcome from anyone aged 18 or over.  There are circumstances in which an individual will not be considered for appointment. They include:
    • People who have received a prison sentence or suspended prison sentence of three months or more in the last five years;
    • In certain circumstances, those who have had an earlier term of appointment on the Parole Board terminated;
    • Current employees of Her Majesty’s Prison Service and;
    • If you have not been resident in the UK for three years preceding your application for Parole Board Member.  
     
    Essential criteria
    The essential criteria below will be tested throughout the recruitment process.
    • Demonstrable experience of and ability to conduct effective evidence-based decision making, weighing facts and evidence, analysing and critically evaluating large volumes of complex information and identifying key issues, within tight deadlines and working on your own initiative.
     
    • Demonstrable independence of mind and sound judgement, with the ability to make evidence based decisions that are accurately documented.
     
    • Excellent interpersonal skills: the ability to gain respect and maintain rapport through effective communication and influencing skills – with the confidence to challenge opinions where necessary, work collegiately and resolve differences to reach sound decisions.
     
    • Excellent communication skills, both written and oral: the ability to communicate sensitively and effectively with a wide range of individuals, varying your approach as necessary and treating others with respect, to listen actively and evaluate replies in order to probe issues.
     
    • Excellent written skills: the ability to draft well-formed written accounts which summarise evidence in support of a decision or recommendation.
     
    • Demonstrable high standards of corporate and personal integrity and conduct, such as a strong commitment to equal opportunities, and the ethos of supporting the wider public or community good through your contributions.
     
    • High levels of time management, organisational and administrative skills, together with strong personal motivation and commitment to professional self-development.
     
    • Evidence of experience of any aspect of the criminal justice system and an understanding of the importance of the victim’s perspective.

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    1. Whether it's the parole board, courts or some other body, there has to be something that's independent.
      In a not very widely reported announcement yesterday, Cressandra Dick of the Met said this,

      http://www.scottishlegal.com/2018/04/03/england-metropolitan-police-scraps-policy-believing-rape-complainants/

      I thought it a pretty odd thing to do whilst the Warboys case is still making headlines.

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    2. It’s the right move. There must be evidence to support prosecutions and all involved must remember its ‘innocent until proven guilty’ not the other way around.

      “Speaking as a cop, opposed to a citizen, I’m interested in crime. If it’s a long time ago, or it’s very trivial, or I’m not likely to get a criminal justice outcome, I’m not going to spend a lot of resources on it.

      “And what might be a misunderstanding between two people, clumsy behaviour between somebody who fancies somebody else, is not a matter for the police.”

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    3. Unless it results in spousal assaults and/or sexual assault under a banner of misunderstandings. This woman is dangerous in her trivialisations and has obviously never been a victim. No wonder London crime rates are out of control when the governor tells her officers to dismiss sexualised behaviours. D.V used to be termed 'a civil matter' until the law got wise. Shame on u Cressida

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    4. I agree with evidence based prosecution and the presumption of innocence until proven guilty, but the timing of this policy is astounding.
      It was not taking the allagations of some of the victims (perhaps a presumption of misunderstanding or clumsy behaviour???) that has been the real root of the controversy surrounding the Warboys case.
      Perhaps its an attempt of some sort to distance the Met from its failings with Worboys, but its not the first contraversial comments she's made in her short time in charge.
      Unfortunately, the devolution of justice issues to London will give her a far freer hand to impose her own ideology on the people of the capital.
      I think we'll be hearing a from Cressida (and about her) on a pretty regular basis.

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    5. think what she says is eminently sensible and to attack her is hysterical. All she is saying is that she is only interested in behaviour that passes a criminal threshold, that actually breaches a law that's on the statue book. She rightly says treat all complainant with respect, listen to their complaint, investigate, gather evidence and then see if there is sufficient evidence to prosecute. An allegation only becomes a fact if it's corroborated by evidence. What would you prefer? Trial based on allegations, or trial by evidence? Some Valentine cards may be unwelcome, but more likely the result of a misunderstanding than stalking or harassment.

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    6. The UK’s biggest police force is to ditch a policy of believing all rape complainants following a series of embarrassing failures into alleged sex crimes, The Timesreports.

      Cressida Dick, the Metropolitan Police commissioner, has told officers to have an open mind when an allegation is made and countenance the possibility that a crime was not committed.

      “You start with a completely open mind, absolutely,” she said. “It is very important to victims to feel that they are going to be believed. Our default position is we are, of course, likely to believe you but we are investigators and we have to investigate.”

      A national policy was put in place in 2011, following the Jimmy Savile revelations, which instructed officers to believe alleged victims, with the intention of encouraging complainants to come forward.

      In 2016, however, Sir Richard Henriques, a retired judge who identified failings in Operation Midland, called for the policy to be withdrawn as it undermined the presumption of innocence.

      In response to the question of whether she was rethinking the policy, Ms Dick said: “Rethink? I’ve rethought. I arrived saying very clearly to my people that we should have an open mind, of course, when a person walks in. We should treat them with dignity and respect and we should listen to them. We should record what they say. From that moment on we are investigators.”

      She added: “Our job in respect of investigations is to be fair, to be impartial, and where appropriate to bring things to justice — and of course to support victims, but it isn’t all about victims.”

      The Met has also faced criticism following the collapse of a number of rape trials because of a failure to disclose evidence.

      Ms Dick noted that the MeToo movement had shed light on sexual abuse but said: “Speaking as a cop, opposed to a citizen, I’m interested in crime. If it’s a long time ago, or it’s very trivial, or I’m not likely to get a criminal justice outcome, I’m not going to spend a lot of resources on it.

      “And what might be a misunderstanding between two people, clumsy behaviour between somebody who fancies somebody else, is not a matter for the police.”

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    7. .. am I the only one that chuckles when a lesbian named Ms Dick comments on sexual behaviour?

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  7. Could be another storm on the horizon for the parole board.

    https://www.croydonadvertiser.co.uk/news/croydon-news/parole-board-says-notorious-croydon-1418983

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    1. The killer of Isabelle Lewis, who was shot in the head with an air rifle before her body was mutilated and dumped on a New Addington golf course, has been told he can be released from jail despite pleas from her family that life should "mean life", the Parole Board has confirmed.

      Keith Valentine was handed a life sentence at the Old Bailey in 2000 after the shocking murder of Mrs Lewis, who disappeared on September 1, 1998.

      A cross was carved into her forehead, her head shaved and some of her teeth pulled out before her body parts were dumped either loose or in plastic bags around Addington Court golf club, but some were never recovered.

      The jury heard Valentine, a neighbour of Mrs Lewis, had cut her body into nine pieces and carried them to the course, close to the New Addington block of flats in Lodge Lane where they had lived.

      Now, just months after Mrs Lewis's distraught husband made a public plea against the release of Valentine, the Parole Board has confirmed a decision has been made on the sick killer's release.

      A spokesman for the Parole Board told the Advertiser on Wednesday (April 4): "We can confirm that a panel of the Parole Board has directed the release of Keith Valentine, following an oral hearing in October 2017.

      "The decision to release is a matter for the Parole Board, which is independent. Once the Parole Board has directed the release of a prisoner, it is a matter for the Ministry of Justice to make the arrangements."

      The Advertiser has contacted the Ministry of Justice to clarify whether Valentine, who was 40 at the time of his conviction, has yet been released from jail.

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