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Parole System: Public Protection

Volume 820: debated on Tuesday 5 April 2022


The following Statement was made in the House of Commons on Wednesday 30 March.

“Today I am publishing the root and branch review of the parole system, and copies have been deposited in the Library.

I start by paying tribute to the chief executive officer and the chair of the Parole Board for England and Wales, Martin Jones and Caroline Corby, and to all the staff who work so tirelessly to discharge their important responsibilities. They are dedicated and committed public servants.

Before I address the detail of the Statement, and with your forbearance, Madam Deputy Speaker, I will update the House on this morning’s news. In the light of the Parole Board’s direction to release Tracey Connelly, and having carefully read the decision, I have decided to apply to the Parole Board seeking its reconsideration.

More generally, the role of the Parole Board in deciding on the appropriateness of releasing a criminal offender from prison, including many convicted of very serious violent and sexual offences, is clearly of paramount importance to protecting the public and to maintaining and sustaining public confidence in our justice system. It is the first duty of government to protect the public.

In recent years, a number of decisions to release offenders who committed heinous crimes have led to disquiet, concern and, regrettably, an erosion of public confidence. Take the case of John Worboys, who is serving a discretionary life sentence for rape and other sexual offences. The Parole Board’s decision in January 2018 to release him on licence caused deep concern among his victims and the wider public. It was subject to a successful legal challenge, after which the Crown Prosecution Service successfully prosecuted him for attacking four further women.

I know that honourable Members on both sides of the House have raised the case of Colin Pitchfork, who was convicted of the rape and murder of Lynda Mann and Dawn Ashworth. The Parole Board decided to release Pitchfork in 2021, and it rejected the challenge by the then Justice Secretary, my right honourable and learned friend the Member for South Swindon, Sir Robert Buckland. The understandable public anxiety was further compounded when Pitchfork was recalled to prison just two months after release for approaching women in breach of his licence conditions.

I make a broader point that in these kinds of cases, and in many others that do not attract the same level of media attention or public interest, victims feel their trauma and raw fear are neither recognised nor understood. Likewise, the public inevitably begin to question the reliability of decision-making when serious offenders are recalled to prison for breaches of their licence or for committing further offences on release.

To give the House a sense of scale, in 2020-21 the Parole Board’s annual report stated that 27 offenders went on to be charged with a serious further offence following release directed by the Parole Board panel. There were 40 cases of serious further offences being charged in each of the preceding two years. Placed in context, it is fair to say this is only a fraction of all cases, but more than once a fortnight an offender goes on to commit a serious offence while subject to supervision.

At present, victims who wish to challenge a decision by the Parole Board to release a prisoner have the option of asking the Justice Secretary to apply for the decision to be reconsidered, which is an important innovation that I exercised today for a person convicted in the harrowing case of Baby P. There have been 39 interventions since the challenge mechanism was set up two years ago, with four leading to a change in the release decision.

Following the review published today, I believe the case for reform is clear and made out. In arriving at this conclusion, it is worth pausing to acknowledge the shift in the Parole Board’s approach over time. The statutory test was established in 1991 and states:

‘The Parole Board must not give a direction’—

for release—

‘unless the Board is satisfied that it is no longer necessary for the protection of the public that the person should be confined.’

It is clear from this that the overriding test focuses on public protection. However, in the absence of further guidance from Parliament, the way in which the release test has been interpreted and applied over time has shifted, moving away from Parliament’s original intention. In fact, as early as the Bradley judgment in 1991, the High Court concluded:

‘The Parole Board have to carry out a balancing exercise between the legitimate conflicting interests of both prisoner and public.’

To summarise, the statutory test has morphed over time from a strict public protection test to a balancing exercise between, on the one hand, the responsibility of the state to protect the public and, on the other hand, the rights of the prisoner. Whatever the rights and wrongs, that was palpably not the original intention of Parliament.

I make it clear that I am not criticising the courts, which have sought to apply a generic statutory test without more prescriptive guidance from Parliament, nor am I criticising members of the Parole Board, as I hope I have made clear. It is worth saying that, contrary to public perception, it is often fiendishly difficult to come to a reliable assessment of an offender’s risk many years after their original crimes. Although psychiatric assessments and social science can offer guidance, risk assessments in such cases are inherently uncertain and imprecise. We need to be more honest and open about that in our public debate.

In any case, I believe the focus in this critical decision-making has become adrift from its original moorings. This Government will again anchor Parole Board decision-making on the cardinal principle of public protection. When it comes to assessing the risk to victims and public safety, we will introduce a precautionary principle to reinforce public confidence in the system. In cases involving those who have committed the most serious crimes, we will introduce a ministerial check on release decisions, exercised by the Justice Secretary.

The package of reforms published today will strengthen the focus on public protection at every stage. First, we will revise the statutory test for release and replace the current approach that balances the rights of dangerous offenders against public safety with an overriding focus on public protection, by providing in primary legislation further detailed criteria for the application of the statutory test.

Secondly, we will make sure that the Parole Board is better equipped to make credible and realistic assessments of risk. It is striking that, as of last year, only 5% of all Parole Board panel members come from a law enforcement background. Again, I make no criticism of the current panel members, but that is a significant deficit. I believe the deficit is wrong, and our reforms will ensure that the people we charge with making finely balanced assessments of future risk have greater first-hand operational experience of protecting the public from serious offenders. We will change this imbalance by mandating the Parole Board to recruit more members with operational law enforcement experience, and the Ministry of Justice will run a recruitment campaign to bolster its numbers. Critically, in Parole Board cases involving the top-tier cohort of serious violent and sexual offenders, we will require by law that at least one of the three panel members has a law enforcement background.

The third key reform is that, for the top-tier cohort of high-risk offenders who have committed the most serious offences, we will introduce ministerial oversight of Parole Board decisions to release such offenders back into the community, based on our assessment of the dangerousness of the offender, the risk of serious further offending and public confidence. These top-tier offenders will comprise those serving sentences for murder, rape, terrorism and causing or allowing the death of a child. In those cases, we will make two specific changes. The Parole Board will be able to refer a case to the Justice Secretary if it cannot confidently conclude whether, on the evidence, the statutory test for release has been met. In addition, we will introduce ministerial oversight over any decision to release any offender in the top-tier cohort of serious offenders. Under our reforms, in that top tier of cases the Justice Secretary will have the power to refuse release, subject to judicial challenge, on very clearly prescribed grounds, in the Upper Tribunal. I believe that is warranted as an extra check and safeguard to protect the public. I have not yet ruled out entirely an alternative model that could establish a three-person panel chaired by the Justice Secretary with the same power to refuse release, subject to judicial review in the normal way. We will consider further detail of the mechanism in order to strike the most effective balance.

We are making these reforms because the concept of risk is notoriously difficult to assess in these kinds of cases. We are doing it because the public expect their safety to be the overriding consideration and because, ultimately, it involves a judgment call about public protection, and the public expect Ministers to take responsibility for their safety. Let me be equally clear that there is no such thing as a risk-free society; we cannot guarantee that no one released from prison will go on to commit a serious crime. Let us be very clear about that as we have a more honest debate about the assessment of risk. Nevertheless, I believe that these measures are necessary to reinforce public safety and public confidence, and we will legislate for them as soon as possible. I should also say that we will do so alongside our proposed Bill of Rights, to ensure that the will of Parliament and that focus on public protection is not undermined by the Human Rights Act. Indeed, our reforms to parole yet again highlight the compelling case for a Bill of Rights.

Our fourth reform will increase victim participation in parole hearings, thereby delivering on this Government’s manifesto commitment. I recognise that parole decisions will be immensely and acutely traumatic moments for many victims, as they are forced to remember, go through and revisit the ordeal and suffering that they have already been through. Some will not wish to be involved, whereas others will want their voices to be heard, and I believe they should have that right. So we will give victims the right to attend a parole hearing in full, for the first time, should they wish to do so. In addition, we will require the board to take into account submissions made by victims and allow victims to ask questions through those submissions. The voice of victims will be at the centre of the process, not just some lingering afterthought.

Finally, although separate from parole decision-making, similar considerations of risk and public concern have arisen in the context of decisions to transfer prisoners to prisons in open conditions. That is why in December 2021 I changed the process to introduce a ministerial check on such decisions, guided by similar principles to those that I have already set out. That is what led to my decision this month to reject the Parole Board’s recommendation to move Steven Ling, who raped and killed a woman, to an open prison. I declined the move in the interest of public protection and public confidence.

In sum, our reforms will ensure that those offenders who present the highest risk to public safety are reviewed more rigorously, with additional ministerial oversight. Protecting the public is the Government’s top priority. The proposals in this review will reinforce public safety. I commend this Statement to the House.”

My Lords, I am commenting on the Statement in the House of Commons on the parole system and public protection. The Government have said that they will legislate for a new precautionary approach to the release of a top tier of the most serious offenders. They have said that there will be a more proscriptive release test. In the Labour Party, we support this approach in a broad sense but we have some questions.

First, who did the Government consult and what evidence are their proposals based on? Having looked at it, there seems to be very little, if any, citation in this report, which calls itself a root-and-branch review of the parole system. The Parole Board will be required to apply a precautionary approach in the top-tier cases, meaning that if it cannot conclude that the release test is met, it must either refuse release or refer the case to the Secretary of State. What is the estimate of the number of extra cases which the Secretary of State is likely to receive? What are the cost implications for legal aid, the cost of the new Upper Tribunal appeal model and the cost of internal civil servant resourcing to review the top-tier offender cases?

Another resource question is around the likely increase in time served by this group of prisoners. What modelling has been done on this increased cost? These proposed reforms may well increase prisoner discontent due to the increased difficulties in obtaining parole in a timely manner and the perceived unfairness in the way in which different prisoner categories are treated. Has this potential problem been modelled?

Proposed changes in legislation will increase the number of Parole Board members from a law enforcement background and ensure that such members sit on panels in top-tier cases. Can the Minister confirm that these new members could be serving or retired police officers? Does the Ministry of Justice anticipate any recruitment or retention problems with this new model?

The proposed new Parole Board rules will make it possible for public parole hearings in some cases and, for the first time, will allow victims to apply to attend hearings in full, if they wish. In general, we support this too, but it needs to be very carefully handled.

What about special measures for victims and/or prisoners, or remote attendance via a video link? In my experience of remote and hybrid hearings, they can be effective but need to be managed very carefully. A possible unintended consequence is that the Parole Board may not have a full and frank discussion with the prisoner at the hearing about their likelihood of release if the victim is present. Is this something the Ministry of Justice has factored into its thinking?

There are proposed new processes for the transfer of life and other indeterminate sentence prisoners to open prison conditions. This would deliver greater ministerial scrutiny of cases where prisoners have committed the most serious offences. As the noble Lord will know, there are recent examples where serious offenders have absconded from their open prison, which has been of great concern to the local community. Nevertheless, open prisons can be an important part of an offender’s rehabilitation, especially at the end of a long sentence. Does the Minister agree that transfer to an open prison should be seen as a privilege and not a right? Does he have an estimate for the number of extra prisoner transfers which would be considered by the Lord Chancellor?

Finally, I question whether the Ministry of Justice has sufficiently thought through the implications of a system that has the Secretary of State as the public face of parole and the ultimate arbiter in decisions. One could argue that there is a significant reputational risk to the Government, the Secretary of State and the Ministry of Justice from being put in this position. Does the Minister agree that this is a risk?

My Lords, the Statement says that

“there is no such thing as a risk-free society; we cannot guarantee that no one released from prison will go on to commit a serious crime. Let us be very clear about that as we have a more honest debate about the assessment of risk”.—[Official Report, Commons, 30/3/22: col. 831.]

Well, let us have an honest debate. In 2020-21, the Parole Board conducted over 6,000 oral hearings and considered over 20,000 paper applications. A record 16,443 cases were concluded, and 4,289 prisoners were released, while 11,437 remained in prison for the protection of the public.

Who made these decisions? The Parole Board consists of over 300 members: 169 independent members from all backgrounds, all jobs and all parts of the country; 61 judicial members such as Crown Court judges or retired judges with a lifetime experience of the criminal justice system; and 68 psychologist members and 35 psychiatrist members with active careers in the prison system. It is, you may think, an experienced pool of people to assess risk.

What percentage of prisoners released by the Parole Board have committed further serious crime? The Parole Board itself said in an earlier report that the percentage of offenders who committed serious further offences in 2018-19 following a release decision or a move to open conditions was 1.1%. Can the Minister give a more up-to-date figure? If that is correct, it suggests that the professional and experienced Parole Board gets it as right as you would expect in its assessment of risk. As the Statement says,

“there is no such thing as a risk-free society”

and it cannot be guaranteed that no one will reoffend.

But the Parole Board, unlike a court or tribunal, is quasi-judicial. That means that politicians can interfere and get their hands on its decisions. That is what is happening here. The Government promise to provide

“further detailed criteria for … the statutory test.”

The statutory test is that the Parole Board

“must not give a direction”—

for release—

“unless the Board is satisfied that it is no longer necessary for the protection of the public that the person should be confined.”

So my second question is: what “further detailed criteria”? Why are we not told today if this is necessary? This Statement, I suggest, is all bluster with nothing thought through.

The Statement goes on:

“In cases involving those who have committed the most serious crimes, we will introduce a ministerial check on release decisions, exercised by the Justice Secretary.”

Well, there have been nine Justice Secretaries since 2005, with an average tenure of 21 months and two of them for less than a year. Five of the nine were non-lawyers. When justice was in the hands of the Lord Chancellor in this House, it was the pinnacle of his career; he did not need to look for further ministerial office. Today, Justice Secretaries move on from their comparatively small departments: consider Liz Truss or Michael Gove, for example, whose political ambitions may not even now have been fulfilled.

The current Justice Secretary is a lawyer. His page on the government website says:

“Dominic started his career as a business lawyer at City law firm Linklaters, working on project finance, international litigation and competition law.”

He later worked in Brussels. You might think that that was not the best training for the assessment of the risk of reoffending by an offender. Let us contrast that experience with that of the Parole Board members, which I have outlined. Has Mr Raab ever been in a criminal court—except to close it down or, if it is new, perhaps to cut the tape—or a prison? Is he the man to second-guess the decisions on risk taken by the highly experienced Parole Board? That is what is being thrust upon us.

The Statement declares that only 5% of the Parole Board come from “a law enforcement background”. Well, they do include a number of retired chief constables and prison governors. What is the Government’s intention? They say it is that members will

“have greater first-hand operational experience of protecting the public from serious offenders.”

The Statement also suggests that one such law enforcement person should sit with two other members on each hearing to form a tribunal. Does that mean that we can now expect a flood of police and prison officers to be appointed? Is the whole purpose of this alleged reform to skew the Parole Board towards negative decisions?

An alternative apparently being considered is that the Justice Secretary should sit as a judge with two assessors when he makes his decision. Is he serious? Personally, I think it would be an excellent use of his time to have direct experience of all the things that he is responsible for: the delays, the listing, the adjournments, the frustrations and the raw emotions of victims and the families of defendants. He would then discover that he is dealing with real people, mostly from disturbed backgrounds—people with problems and illnesses. I think he would then turn for help to psychologists and psychiatrists, and perhaps even to experienced judges. Perhaps he would create his own personal parole board to advise him. “Sit, sit”—I invite him to do so.

So the truth is that this Statement is not oven-ready. It aspires to be half-baked, but the central filling has not been decided on. Still, we are coming up to the end of the Session, and a few headlines for the Justice Secretary are very acceptable when his career has not finished.

Well, my Lords, I do not know whether my career has even begun, but I will respond to the points that were made, dealing first with the questions from the noble Lord, Lord Ponsonby of Shulbrede. I should say first that I am grateful for his broad support for the thrust of what we are seeking to do. As to consultation, the department has consulted extensively throughout the review. We had a public consultation on opening some parole hearings to the public, including discussions with a wide range of practitioners and experts. Round tables and individual discussions with stakeholders with in-depth knowledge and understanding of the parole process were held, and these informed some of the outcomes of the review.

Some of the consultation regarding the victims Bill was also relevant here because it went to the issue of victim participation. Regarding the number of officials who would be working on this, the cost thereof, and the resource points that the noble Lord made, I say that modelling and costs are to be worked through in detail as the legislation is developed. A full impact assessment will be published when the legislation is introduced.

So far as potential unfairness is concerned, a point which I will come back to when I respond to the noble Lord, Lord Thomas of Gresford, one of the issues here is that whichever of the two models to which he referred we end up putting in place, there is always court review. That is built in, to ensure that there is no substantive unfairness and that the system is compliant with our convention obligations, particularly Article 5.4.

Remote hearings were raised by the noble Lord, Lord Ponsonby, and in particular the involvement of victims. During the pandemic, the Parole Board made extensive use of virtual hearings and has indicated that it will continue the practice. It has also resumed traditional oral hearings and it will be for the Parole Board to ensure that all representations can properly be made. For example, if there were representations, or the victim wanted to say something either with or without the offender there, it would be up to the Parole Board to ensure that the proceedings were substantively fair to all parties.

I respectfully agree with the noble Lord that being moved to an open prison is indeed a privilege and not a right. They are a valuable resource supporting successful and safe resettlement into the community of prisoners who have been suitably risk-assessed, but only those prisoners identified as being appropriate to hold in lower security conditions should be moved to an open prison. Although in this context the Parole Board makes a recommendation, the final decision is for Ministers. In December, the Lord Chancellor took the decision to require greater scrutiny of Parole Board recommendations on open prison moves and will now oversee the decisions in the most high-risk cases personally, those being offenders who have committed murder, other homicide, rape, and serious sexual offences or cruelty against a child, and in cases where officials do not reject a recommendation from the Parole Board, Ministers will consider the recommendation of the Parole Board.

The final point that the noble Lord made was of the Secretary of State being the final arbiter and whether that meant that there was a reputational risk for the Secretary of State. There are two points. First, as to the ultimate arbiter, this brings into play the fact that there is a court oversight to ensure that the system is procedurally fair, so to that extent the Secretary of State is not the ultimate arbiter as there is court involvement as well. However, I respectfully take the noble Lord’s point about reputational risk. The flipside is that ultimately, it is Ministers’ responsibility to ensure that dangerous offenders are not released on to the streets and so, if I may put it this way, it is quite right that the buck stops with elected Ministers.

I turn now to the points made by the noble Lord, Lord Thomas of Gresford. I accept, as the Lord Chancellor made clear in the other place, that the Parole Board has a great deal of experience and generally does a good job. The majority of parole decisions are unproblematic. That is why these reforms apply only to offenders who have committed the most serious offences. However, there have been cases involving the release of the most serious offenders which have given rise to significant public concern and undermined confidence in the system: Pitchfork, Worboys and others. Therefore, this is not a case of politicians interfering, which I think was the verb used by the noble Lord. As I said a moment ago, politicians have a duty to protect the public and it is quite right that they step up, so to speak, and ultimately take responsibility for the system and those very risky or higher-risk decisions.

So far as a test is concerned, the test in legislation was set out in the substantive Statement but is worth bearing in mind. It says:

“The Parole Board must not give a direction”

for release

“unless the Board is satisfied that it is no longer necessary for the protection of the public that the person should be confined.”

However, the courts have interpreted that and, to be fair, one can see why. In particular, in the case of Bradley in 1991, a court judgment stated that the role of the board is to

“carry out a balancing exercise between the legitimate conflicting interests of both prisoner and public”.

Therefore, the statutory test has changed to become a balancing exercise between the rights of the prisoner to be considered for release and the responsibility of the state to protect the public. I suggest that that was not the original intention of Parliament.

We propose to set out release test criteria. The noble Lord asked what they were. I could read them out, but, if he will forgive me, I will drop him a note setting them out, which will then be available, rather than read them all into Hansard, so to speak. I hope that is satisfactory.

Some Justice Secretaries may have political ambitions —I am responding as somebody with no political ambition and very little of a political career—but, as I said, the ultimate decision does not rest only with the Justice Secretary; there is court involvement. There are two models being looked at. The first would be for Ministers personally to take the decisions. In that case, there would be a route of appeal to the Upper Tribunal. The second would be to create a new review panel to take the decision, which would comprise the Secretary of State and two independent panel members. Decisions by this panel could be challenged through judicial review. Either option introduces ministerial oversight into the release decisions of the highest-risk offenders to keep people safe and to give public confidence in the system. Also, either alternative would be lawful under the convention, in particular Article 5(4), which says:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

We are confident that either model would be consistent with those obligations.

I hope that I have responded to all the substantive points made, but I will check the Official Report and when I write with the criteria, if there is anything I have not picked up, I will add it to that letter.

House adjourned at 9.19 pm.