Who Pulls The Parole Board Strings?

With the public being enthusiastically encouraged to watch the new BBC2 fly-on-the-wall series about the workings of the Parole Board, I note the Prison Reform Trust are doggedly continuing their investigation into recent 'reforms'. One result has been a dramatic drop in moves to 'open' prison conditions. Political involvement in criminal justice matters should concern us all and the PRT should be congratulated on this work. 

Parole – the plot thickens

In our recent blog of 10 February we said we would ask why officials started rejecting almost all Parole Board recommendations for open conditions before new rules came into force on 6 June. We’ve received a very interesting response.

"To be clear, you are working to the current policy, but with a more precautionary approach.”

Note sent internally to staff responsible for considering open recommendations made by the Parole Board.

On the central issue of what guidance officials were working to before the new rules came into force, it’s clear nothing was issued to caseworkers beyond the procedural note disclosed in this latest response. Instead, the ministry tells us in its covering note that “the change in approach was brought about through the intentions outlined by Government in the publication of the Root and Branch review“ (published on 30 March 2022). The relevant section of that document reads as follows:

110. As this review has set out, it is the perpetrators of the most serious offences which require greater scrutiny in the parole process. This applies not only to release decisions, but also on recommendation to transfer a prisoner to an open prison. Through reviewing the current process, it is the government’s view that any recommendations for moves to open conditions for indeterminate sentenced prisoners (explained in Annex B) in the following categories, should be subject to greater ministerial scrutiny. These categories are: cases where the offender has committed murder; other homicide; rape; serious sexual offences or cruelty against a child.

111. There will be direct ministerial oversight of decisions on whether to move offenders in the above categories to open conditions. This greater scrutiny will create a stronger parole system, further ensuring the public are protected.

Needless to say, nothing was issued to prisoners, the Parole Board or prison staff to explain what “greater scrutiny” or “direct ministerial oversight” would actually mean or when it might come into operation, but the response to our FOI request now shows that from 4 May last year, something curiously entitled a “slightly interim process” was brought into operation.

“The response doesn’t tell us who this all-powerful individual is, nor their job title or position in the ministry (or elsewhere in government). It certainly doesn’t tell us what qualifications or expertise they might have to overturn 19 out of 20 recommendations made by the Parole Board. And it doesn’t tell us what instructions or guidance they have been working to in doing so.”

We already know from the previous FOI response that no minister has been personally involved in any of these decisions so far. What the latest response shows is that “greater scrutiny” and “direct ministerial oversight” appear to have been delivered by requiring all decisions in the “upper cohort” (that is, for offences of murder, other homicide, rape, serious sexual offences and cruelty against a child) to be taken by a specific individual. This also appears to apply to any cases in the “lower cohort” (everyone else) where junior officials think it necessary to do so. There’s no guidance on when this would be, but it seems safe to assume that it might be if they were tempted to agree to a Parole Board recommendation.

The response doesn’t tell us who this all-powerful individual is, nor their job title or position in the ministry (or elsewhere in government). It certainly doesn’t tell us what qualifications or expertise they might have to overturn 19 out of 20 recommendations made by the Parole Board. And it doesn’t tell us what instructions or guidance they have been working to in doing so.

“Should we take this to mean that Dominic Raab is taking instruction from someone else…rather than giving that steer himself? That seems so unlikely that we assume this is a drafting mistake, but the recipients of the email or note within the ministry must have been a little confused too.”

The ministry tells us that there is an absolute exemption under the Freedom of Information Act from disclosing personal information, but the redaction of names from this document leaves a mystery about the chain of command as well as the identity of the person concerned. It is very strange that the document says that “the Secretary of State is clear xxx wants to take a more precautionary approach”. Should we take this to mean that Dominic Raab is taking instruction from someone else about the approach to be taken rather than giving that steer himself? That seems so unlikely that we assume this is a drafting mistake, but the recipients of the email or note within the ministry must have been a little confused too.

As for the policy to be applied, the document says to caseworkers making recommendations to the mystery decision maker that “To be clear, you are working to the current policy” (the ministry’s underlining), but immediately qualifies that by saying “but with a more precautionary approach”.

So it really matters that we try to clear up the confusion this latest FOI response leaves unresolved.

First, we need to know more about who the unidentified decision maker is. Are they appointed by the secretary of state, or, bizarrely, superior to him in some way?

We need to know if a “precautionary approach” amounts to anything more complicated than an instruction to “just say no”. Does the repeated assertion (in this and in a previous response) that officials should consider recommendations for open under the same policy as the Parole Board (i.e. the policy applying before new Rules came into force on 6 June) actually mean anything? On the face of it, the application of a “precautionary principle” appears in reality to represent a radically new policy, quite different from what the Parole Board was applying in those cases.

So we will start by asking for the job title and qualifications of the mystery decision maker, and what instruction or guidance they received from (or, improbably, gave to) the secretary of state.

The outcome of all this doublespeak has been anything but confusing: a 95% rejection rate of Parole Board recommendations. It doesn’t take much to predict what the impact of a similar “precautionary approach” procedure might be if the secretary of state is allowed by parliament to insert himself into decisions on release as well as transfers to open conditions.

Peter Dawson
Director

--oo00oo--

The FOI response letter:-

Dear Sir or Madam

Freedom of Information Act (FOIA) Request – 230130004 

Thank you for your request dated 30 h January 2023 in which you asked for the following information from the Ministry of Justice (MoJ): 

Further to the data supplied in response to FOI request 221220023 concerning decisions taken by the secretary of state (or his officials) following Parole Board recommendations for transfer to open conditions, I would like to request the following information under the Freedom of Information Act.

• Copies of any guidance under which officials acting under authority delegated by the secretary of state were operating in relation to the 123 decisions taken under the policy in place prior to 6 June (109 rejected and 14 accepted). 

• Copies of any correspondence, email or other communication requiring a change in approach by officials considering the 123 cases in which those decisions were taken by comparison with their previous practice. 

Your request has been handled under the FOIA. I can confirm that the MoJ holds all of the information you have requested and I have provided some of it below and attached. 

In response to your first question, when considering whether to accept or reject a recommendation from the Parole Board for a prisoner to move to open conditions, in the cases you refer to, the Secretary of State (or his officials) will refer to the policy and guidance in place before 6 June 2022. I attach a copy of the Generic Parole Process Policy Framework which contains the policy and guidance. When considering whether to accept Parole Board recommendations for open conditions, each case is considered on its own merits, against the terms of the policy, taking into account all of the information provided. 

Turning to the second part of your question, I attach a copy of a note sent internally to Public Protection Casework Section (PPCS) staff responsible for considering open recommendations made by the Parole Board, which explained the change of approach in the context of which cohort prisoners were in. There was no further communication in relation to the consideration of Parole Board recommendations. 

Please note, some information within the attached documents has been removed as it constitutes personal data. 

Section 40(2) and section 40(3A)(a) of the FOIA taken together mean that personal data can only be released if to do so would not contravene any of the principles set out in Article 5(1) of the General Data Protection Regulation (GDPR) and section 34(1) of the Data Protection Act 2018. 

Individuals have a clear and strong expectation that their personal data will be held in confidence and not disclosed to the public under the FOIA. Also, although s40 is an absolute exemption, we have considered whether there is a wider public interest in disclosing this personal information, that would override the fundamental rights of those concerned. We have concluded there is no such public interest in this instance. 

We believe releasing the requested information into the public domain would be unlawful; the personal information is therefore exempt from disclosure under section 40(2). 

This is an absolute exemption and does not require a public interest test under the FOIA

Outside the scope of the FOIA and on a discretionary basis, I can inform you that the change in approach was brought about through the intentions outlined by Government in the publication of the Root and Branch review. The Root and Branch Review report is available on the following link: http://www.gov.uk/government/publications/root-and-branch-review-ofthe-parole-system.

Appeal Rights 

If you are not satisfied with this response you have the right to request an internal review by responding in writing to one of the addresses below within two months of the date of this response. data.access@justice.gov.uk You do have the right to ask the Information Commissioner’s Office (ICO) to investigate any aspect of your complaint. However, please note that the ICO is likely to expect internal complaints procedures to have been exhausted before beginning their investigation. 

Yours sincerely 

Public Protection Operational Policy & Support (PPOPS)

--oo00oo--

That procedural note referred to:-

Dear all, 

As of today, Wednesday 4th May, can we please begin progressing those cases highlighted in Green on the attachment. I have highlighted six for each Team. This is admittedly, a slightly interim process, as there are further matters to iron out but we do need to progress some cases. In addition, any cases where you are regularly being chased by Legal Representatives can be progressed, but via the following process. 

You will need to place specific consideration on which cohort the case falls into and then follow the guidance below prior to progressing. 

To be clear, the Upper Cohort includes anyone sentenced for the following offences: - 

- Murder  

- Other homicide  

- Rape 

- Serious sexual assault on a child/causing or allowing the death of a child 

The lower cohort covers all other offences. 

Upper Cohort 

• With all upper cohort cases, the proforma must be fully completed by both a Case Manager and the responsible Team Leader. 

• The Open Recommendation needs thorough and robust consideration and attention to detail. Please consider the defensibility of your recommendation from a public protection perspective. Remember this is your key priority. 

• In addition, the Secretary of State is clear xxx wants to take a more precautionary approach and you should bear this in mind when considering the recommendations. To be clear, you are working to the current policy, but with a more precautionary approach. 

• Once reviewed by the Team Leader, it needs to be sent direct to xxxx who will prepare a summary and provide the evidence to xxxx for him to reach a decision. Please cc’ your Band 8 when sending over. 

• Xxx will then return the decision to you, for you to draft the final decision letter and finalise the process. xxxx will set out clearly for you what the decision is and why. The letter will need to be approved by xxxx via your Band 8. 

• Once the letter is finalised and approve you will need to ensure it is issued imminently. 

Lower Cohort 

• With all lower cohort cases, the proforma will need to be fully completed by both a Case Manager and the responsible Team Leader. 

• The Open Recommendation needs thorough and robust consideration and attention to detail. Please consider the defensibility of your recommendation from a public protection perspective. Remember this is your key priority. 

• In addition, the Secretary of State is clear he wants to take a more precautionary approach and you should bear this in mind when considering the recommendations. To be clear, you are however, working to the current policy, but with a more precautionary approach. 

• Once reviewed by the Team Leader, it needs to be sent direct to the Head of PEC, or in xxx absence, the Head of PPCS who will either take a final decision and/or prepare a summary and provide all of the evidence to xxx for xxx to reach a final decision. 

• The decision will then be returned to you, for you to draft the final decision letter and finalise the process. I will set out clearly for you what the decision is and why. The letter will need to be approved by xxx via your Band 8. (Although we are working to agree a process where these can be agreed by the Head of PEC or PPCS). 

• Once the letter is finalised and approve you will need to ensure it is issued imminently.

Please note: You will notice the new process to be followed is driven by the offence cohort that the case is within, there is no differentiation between those cases where the report writers agree or disagree. In addition, the above process must be followed regardless of whether you are recommending an acceptance or a rejection. Please ensure you and your staff are clear that decisions going forward cannot be taken without xxxx’s agreement (for upper cohort), regardless of the consensus on report writers views. This is a significant change for us all.

 Please note: 

• A new Policy on Open Recommendations will be issued around 9th May. It will change the test we apply significantly and we are working on communications for the Teams. 

• We do need to discuss with the DPM whether he is content for Senior PPCS Managers to take decisions on lower cohort cases. xxxx will take this forward, but in the meantime, we will proceed as above.  

• We need to confirm with xxxx whether xxx is content to allow us to draft and issue our letters without xxxx approval in certain cases. xxxx is taking this forward. However, until we have xxxx agreement, please follow the process as per above. 

• A new proforma will be devised ready for the new test going live, but for now please utilise the current one. 

We will be required on a monthly basis to report to the DPM all of the recommendations we have considered in upper cohort cases, and the decisions taken. xxxx will lead on this with my input. 

Adverse Developments and Pre-Tariff Sifts 

Please note this guidance refers to Open Recommendations only. Pre-Tariff Sifts and Adverse Developments cannot be progressed without my oversight unless: 

• We are refusing a Pre-Tariff Sift. 

• Taking a decision for them to remain in closed. 

There will be changes in the future to both of these areas too, but how this will look remains to be seen at this stage. 

I hope this is clear but happy to answer any questions as they arise, and if need be, arrange a discussion. Thank you also for your patience. 

Thanks 

xxxx