Justice Committee
Oral evidence: Victims and Prisoners Bill, HC 1340
Tuesday 9 May 2023
Ordered by the House of Commons to be published on 9 May 2023.
Members present: Sir Robert Neill (Chair); Janet Daby; James Daly; Maria Eagle; Stuart C. McDonald; Dr Kieran Mullan; Edward Timpson.
Questions 1 - 85
Witnesses
I: Simon Creighton, Solicitor, Bhatt Murphy; Nicola Padfield KC (Hon), Emeritus Professor of Criminal and Penal Justice at Law Faculty, University of Cambridge; Professor Stephen Shute, Professor of Criminal Law and Criminal Justice at School of Law, Politics and Sociology, University of Sussex; Andrew Sperling, Solicitor, SL5 Legal.
II: Caroline Corby, Chair, Parole Board; Martin Jones, Chief Executive Officer, Parole Board; His Honour Peter Rook KC, Judicial Member and Vice Chair, Parole Board; Cassie Williams, Independent Member, Parole Board.
Witnesses: Simon Creighton, Professor Nicola Padfield, Professor Stephen Shute and Andrew Sperling.
Chair: Good afternoon and welcome to this sitting of the Justice Committee. Today, we have two panels of witnesses. Before we start with the evidence, there will be a few preliminaries. We are dealing today with evidence in relation to part 3 of the Victims and Prisoners Bill, which we think is shortly due to have its Second Reading in the House. We remember, for context, that we were asked to do pre-legislative scrutiny of the original part of the Bill relating to victims, and we offered to do the same in relation to part 3. That offer was not taken up, but we thought it would be helpful to have these evidence sessions in any event. We are very grateful to everybody for coming to help us.
Members must declare their interests at the start of each meeting, so I had better do that. I am a non-practising barrister and former consultant to a law firm. Perhaps I ought to say that Professor Padfield and I are fellow Benchers of the Middle Temple, and we know each other there. His Honour Judge Rook will give evidence, and I should say as well that he and I are friends and professional colleagues from the Bar.
Maria Eagle: I am a non-practising solicitor.
James Daly: I am a practising solicitor and partner in a firm of solicitors.
Edward Timpson: I am a former Solicitor General with a current practising certificate at the Bar. I was the chair of CAFCASS, I was the chair of the national Child Safeguarding Practice Review Panel, and my brother is the chair of the Prison Reform Trust.
Stuart C. McDonald: I am a former solicitor.
Q1 Chair: Let us move on immediately to our panel of witnesses. Simply for convenience’s sake, we will start on the left-hand side and go across.
Simon Creighton: I am Simon Creighton. I am a solicitor and the author of a book on Parole Board procedure.
Andrew Sperling: I am Andrew Sperling. I am a solicitor advocate and I now work mainly in parole and prison.
Professor Padfield: I am Nicola Padfield, a recently retired professor of criminal and penal justice at the University of Cambridge. I am a non-practising barrister, but I did sit as a recorder for 15 years.
Professor Shute: Good afternoon. My name is Stephen Shute. I am professor of criminal law and criminal justice at the University of Sussex.
Q2 Chair: Thank you all very much for coming to help us.
Let me start on clauses 32 and 33 of the Bill, and what gives rise to them. I am sure you will all have had a look at the root and branch review of the parole system. You will remember that in the introduction to that review Mr Raab, the then Lord Chancellor, said that the statutory release test had “changed over time 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 suppose he was referring to the case law around Bradley, Watson and others and how that has developed from the original wording of the initial statute. Would you agree with that assessment? Is that a fair point to make?
I think you have agreed among yourselves that rather than everybody having a go, you have divvied up the answers, which is to be highly commended.
Professor Shute: I think the answer is that interpretations of the test have changed over time. To put that question in context, it is important to stress that the statutory test for release, which is often called the public protection test, is the foundation stone on which the whole parole system is built. It sets the parameters of how much risk is acceptable for society to take when deciding whether to release a parole-eligible prisoner and whether they are safe enough to release back into the community. There is no a priori answer to that question, in my view, so it is very important that the answer that is provided in the test is situated in primary legislation so that it gains its authority from Parliament and is forged through our democratic processes.
With that in mind, a question arises: is the existing statutory test fit for purpose? In one sense, I think it undoubtably is. The test operates both in relation to the release of prisoners who are eligible for initial release and in relation to the re-release of prisoners who have been recalled. The test’s longevity—it first found its place in statutory provisions in 1991—is an indication that the Victims and Prisoners Bill is right to stand by the wording.
On the other hand, the test is very brief: it is just 20 words, and fewer than 20 words in relation to the salient part. That brevity has probably been the key to its survival, but it has also allowed gaps in the test to develop. Those have had to be filled, partly by the courts, partly by individual board members making individual decisions and partly by the guidance that the Parole Board has issued to its members. In turn, that has produced interpretive overlay and differences of view that have flowed into the system, but what ebbs does flow back and, in 2017, we had a decision from the Court of Appeal in the King case. That was a significant moment.
The main judgment was given by the Master of the Rolls, Lord Dyson. In that judgment, Lord Dyson said that the public protection test involves simply safeguarding the public from the danger posed by the prisoner. He unequivocally ruled out a balancing test in that 2017 judgment. The balancing test would weigh up the risk to the public on the one hand against the benefits of release to the prisoner and to the public on the other. He said, in straightforward terms, that if the board concludes that the confinement is necessary “because there would be a (more than minimal)”—those words appear in the Bill, of course—“risk of harm” if the prisoner is released, “then confinement of the prisoner” is “required”—that is an important word—“to avoid that risk.”
Q3 Chair: It is an imperative, isn’t it?
Professor Shute: Indeed. Since King, that approach has been broadly accepted. It is certainly in line with the position set out by Dominic Raab in the root and branch review, which was fulfilling an election manifesto commitment. The King judgment did lead to the withdrawal of the board’s previous guidance, before King in 2017, which was thought to be at odds with it.
Although we have entered a period of relative stability—this is important—there are still differences of view regarding the proper interpretation of the King decision. An example of this is a judicial review case brought by the Secretary of State last year, in 2022, which involved a prisoner called Leslie Johnson, a sex offender serving an extended sentence. In that case, counsel for the board Nicholas Chapman suggested to the divisional court—this is quoted in the judgment itself—that “there may be scope for departure from the hard-edged focus on public protection imputed to Parliament in King.” He suggested that the preponderant weight test, which is a version of the balancing test, might be used instead. In the end, the board’s suggestion did not find favour with the divisional court, but the very fact that the board chose to make that suggestion is an indication that the King test has not put to bed every disagreement in relation to what its meaning might be.
There may even be—you can ask the board about this later on—differences of view within the senior ranks of the board. It is interesting to compare the submissions made on behalf of the board in Johnson with the letter that was written to the Ministry of Justice by the board on 10 May 2022, which has been made public as a result of an FOI request from the Prison Reform Trust. That letter sets out the “considered advice” of the board’s management committee—members of which you have here—on what the root and branch review proposed. In that letter, in marked contrast to what was put to the board in King, the board sought to argue that there was no need to make any changes to the statutory test because the judgment in King was “particularly strong”. That letter was sent at virtually the same time as counsel was making the presentation to the divisional court in Johnson. It is worth noting in passing that the Johnson case was an application for judicial review by the Secretary of State against a release decision.
Chair: And the Secretary of State can JR the board, can’t they?
Professor Shute: He can now. Of course, DSD was the first case to challenge a release—
Chair: I am conscious that this is very detailed. We are going to need to make progress.
Simon Creighton: I think that to say the statutory release test is still in a state of flux, judicially, is probably overstating it. Johnson very clearly affirmed King. It was recently affirmed again in the case of Dich and Murphy last week. The Secretary of State’s submissions were that this is the right test, and that is how—
Professor Shute: With respect, I did not say it was in a state of flux; I just said there was evidence that there were still differences of view.
Q4 Chair: Has that potential difference of view fed into any divergence or inconsistency in approach by the board currently? Can you give any help on that, either from academic study or from practice?
Andrew Sperling: I don’t see that at all. I do lots of hearings and my colleagues do lots of hearings. At the beginning of every hearing it is made very clear what the release test is. There is never any question that any members are explaining that there is a balancing test to be applied. On the ground, I don’t see that at all. It is a very clear test and is not a balancing exercise.
Chair: Okay. It is an important initial point, so I wanted to clarify that.
Q5 Dr Mullan: You mentioned that the King judgment was in 2017 but it was several years until the guidance from the Parole Board was changed—
Professor Shute: No, as soon as King came out in 2017, the board issued new guidance. I made that point just to show that the guidance changed—King did change things. The test has been in place since 1991, so it has taken a quarter of a century for that clarity to come.
Q6 Dr Mullan: Why do the witnesses who do not agree that there is confusion think that the counsel for the parole board made an argument that there should be a preponderance?
Simon Creighton: There were directions that had predated King that talked about a balancing exercise. The point in Johnson was a very small, technical point about a very small part of the sentence. It may be that the Parole Board thought that that old guidance should apply to that, but it was a very specific technical point and not of wider application to what is now known as the single statutory release test that is applied in every case.
Chair: Thank you—that is very helpful.
Q7 James Daly: Whether it is the statutory release test, or the proposed clause 32, which says “unless the decision-maker considers that there is no more than a minimal risk” that further offences would not be committed, my concern in respect of all this is that it means people with mental health problems are continually locked up. I do not know how somebody who is going through a very difficult health condition is able to answer these requirements. My concern is that, essentially, this means that people with mental health problems who do not pose a criminal risk to the public are being locked up because of what I have just read out.
Professor Padfield: We were asked about lack of consistency; I do not think any of us would necessarily say it is the right test. We are saying whether it is consistent or not. Your question is a really good one and I want to answer it, because I agree with you and it is not a good test. There are really big issues. I have been a tired record for years, talking about how the first declaration of incompatibility under the Human Rights Act was about the rights of people in mental hospitals—that the state had to prove the necessity of detention. I still don’t understand why that does not apply to post-tariff lifers or IPPs or recalled prisoners. We are not necessarily saying it is a good test.
Q8 Chair: That is helpful. Clauses 32 and 33 of the Bill update the statutory release test to the new public protection threshold and give a list of criteria. From your reading, Professor Shute, is it an exhaustive list of criteria? Or is it merely meant to be illustrative?
Professor Shute: The Bill makes it clear that it is not exhaustive.
Chair: So these are things inter alia.
Professor Shute: There is also a provision that says that those seven things are all things that the board “must” take into account.
Chair: And there are other things that they can. It sets out some core things.
Professor Shute: There are lots of other things that they can, and maybe should.
Chair: And maybe should, as you fairly say.
Professor Padfield: I would add three very short comments on clause 32. First, Stephen is obviously right that it is a non-exhaustive list. Of course, if what you want to do is check that there is no more than a minimal risk that the prisoner would commit a further offence, the most important thing to do is ensure that the Prison Service and the Probation Service are equipped to help people move through their prison sentence. I wanted to mention the Bail and Release from Custody (Scotland) Bill currently going through Parliament in Scotland, which is trying to do similar things but from such a different angle. It is really important that the Committee is aware that there are many ways to skin a rabbit, to use a foul and horrible expression.
It is also important that we notice that clauses 32, 33 and 34 are not very short, two-line tests. They are crazily long. If I could make one point it would be that I implore you to suggest this: if you want a system that prisoners and prisoners’ advisers understand, you would not have what this Bill has—a lack of transparency, with paragraph (aaza) and sections 256AZBC, which go into earlier statutes. There is a lot of amending of earlier statutes. It is really obvious, but it needs to be said: we need at the very least codification or consolidation, but better than that we need a new code on release. This is a real dog’s dinner.
Chair: The clauses seem to go over two to three pages with various sub-clauses.
Professor Padfield: It is not helpful.
Professor Shute: Clearly, building on an accretion of law over a long period of time is a complicated matter. I do not dispute the point that a codified system would improve matters, but that would take a long time. We are not in the position, through this Bill, to codify. The provisions relating to risk are not all that complicated, I do not think. There are a lot of other things that are complicated, but the provisions relating to risk are not complicated. What’s more, in my view they are needed, because there needs to be further statutory elaboration of the test. That is because it is so essential.
Chair: Okay. Any other observations on those points?
Simon Creighton: What is in the elaboration to the test has previously been in directions to the Parole Board, which are far more flexible because they allow new matters to be brought in and matters to be changed. Codifying them in this way leads to confusion and greater room for difference of interpretation, and it makes it inaccessible, as Nicola was saying, to people trying to work in the system. The test should be far simpler and clearer.
Q9 Chair: I can understand your inaccessibility point, having looked at the Bill, but I wonder why you think codifying it might make it less consistent.
Simon Creighton: It might make it less consistent because as soon as you start making these statutory requirements, there are different interpretations that can be placed on the wording of each clause and how it will be applied in practice. It would just lead to satellite litigation while all that is played out. You see with Parole Board members that when they are having to apply tests of this length, there is far greater room for them to err and make technical errors in law that clog up the system and leave their decisions vulnerable to challenge, which would otherwise not be the case.
Q10 Chair: Do you as practitioners envisage the clauses as they stand making any significant difference to the Parole Board’s approach in practice?
Andrew Sperling: No. I am not sure what this is trying to solve. It is a simple test: does the prisoner need to be confined for the protection of the public? That is the current test. I am not quite sure what the need for the change is. It does not have any significant difference with the test, other than it makes it a lot longer and a lot more complicated.
Q11 Maria Eagle: A core aim of the Bill seems to be to enhance Executive oversight and enable ministerial involvement in release decisions. I can remember when we put a stop to ministerial involvement in release decisions, and we were all very relieved when it happened.
According to the impact assessment, we are looking at 1,932 cases of these top-tier prisoners, as defined in the legislation, per year. That number of decisions a year is an awful lot of work for the Secretary of State. That is an awful lot of work for the Secretary of State. It is not something I would like to take on in addition to my job as Secretary of State, if I were such. Where are we at the moment? What role does the Secretary of State currently play—I will not say “current Secretary of State” because they change every five minutes—in the parole process, without this Bill?
Simon Creighton: The Secretary of State is a party to the Parole Board proceedings. It is really important in the context of the Bill to understand that there are only two parties. It is set out in the Parole Board Rules that it is the Secretary of State and the prisoner. The Secretary of State effectively has responsibility for the entire system. The parole review can only be commenced by a referral from the Secretary of State—that is in Parole Board rule 16—and the Secretary of State is under a duty to prepare all the reports and information for the Parole Board. The content of that is set out in the schedule to the Parole Board Rules.
The Secretary of State also has the ability to apply to the Parole Board to withhold material. Apart from the prisoner, the Secretary of State is the only other party who can apply for decisions to be reconsidered. So it is not as if the Secretary of State is some sort of interested observer. He is a party and has an extremely active role from start to finish.
I think what is concerning constitutionally from our perspective is how a party to the proceedings can ultimately be a decision maker. It seems constitutionally to offend against the very basic principle of common law that no one can be a judge in their own cause. I urge the Committee to have a look at the speech of Lord Hope in the Pinochet case; I can send extracts afterwards, if that would help. He sets out the very lengthy history of common law, which makes being a judge in your own cause objectionable. He says, in terms: “Public confidence in the integrity of the administration of justice is…important, perhaps even more so, in criminal cases”, which these effectively are. So it is not that the Secretary of State is a neutral observer; the Secretary of State is the other party.
Q12 Maria Eagle: Clauses 35 and 36 would allow the Parole Board to refer a decision to make a public protection decision about a top-tier prisoner to the Secretary of State instead of taking the release decision itself. In what circumstances might the Parole Board decide to refer a decision to the Secretary of State in this way? I am getting shaking heads.
Professor Shute: I will have a go at that. It is clear that it is going to be extremely rare. The accompanying documents to the Bill explain that. It is mentioned in those accompanying documents that, during the construction of the Bill, the Parole Board was consulted on that and was asked how often it might use the power, and it expressed the view that it would use it very rarely. I think that is absolutely right. Indeed, it might never be used, but it certainly will not be used very frequently.
The accompanying documentation sets out an example of when it might be used, and that relates to a complicated terrorist case that has multi-agency implications. The suggestion is that that might be a case. If this Bill is enacted, it is clear that there will be secondary legislation, a statutory instrument, that sets out the procedures and the processes, and probably the circumstances and the point in the process at which a referral might be made, which the primary legislation would not have covered.
Q13 Maria Eagle: I don’t know whether anybody can help me with this. I notice that the explanatory notes say at paragraph 419: “The Board may also refer a case to the Secretary of State to take the decision where it considers it appropriate to do so, including when it is unable to adequately assess the prisoner’s risk to the public.” Does anybody know how come the Secretary of State would be able to do that if the Parole Board cannot?
Professor Shute: I wondered about that, too. My only thought was that it might perhaps relate to concerns about there being fundamental disagreement between members of a panel. Currently, the Parole Board Rules stipulate that a unanimous position has to be adopted, irrespective of whether a three-person panel is fundamentally split. On the surface of the decision, you won’t know that that disagreement was present. If a two-member or a four-member panel splits, the board will tell the prisoner that it could not agree, and a new panel will consider the case. A three-person panel would fight it out, and a unanimous view would be delivered. I wondered whether this was an oblique reference to that, which after all is an issue that has been rumbling for some time. In 2006, when there was another ruction in the parole system, John Reid said he was going to introduce measures to make unanimity a requirement, but that didn’t happen. I wondered about that.
Simon Creighton: There is one other possible option of where that might happen. I am sure the Parole Board will have a better answer than we do. There are provisions where, if the Secretary of State wants to withhold material from the prisoner and the Parole Board does not agree, the Secretary of State will withdraw the material altogether. The Parole Board might think, in those circumstances, that it is being deprived of material that it should consider.
Professor Shute: It may be that that was partly lying behind the terrorism example.
Q14 Maria Eagle: Right. You are perhaps getting close to an explanation there. Thank you.
Clauses 35 and 36 also enable the Secretary of State to direct the Parole Board to refer a decision to release a top-tier prisoner to the Secretary of State, and enable the Parole Board to decide to do that itself. Do you have any views on the effect that this power would have on the Parole Board’s approach to release decisions? You referred to John Reid, and I remember the impact of what he said on release decisions. They effectively stopped happening for a while after he said what he said. Do you think these powers coming in and being used will have an impact on decision making?
Andrew Sperling: I think the more important issue is the wider one about the independence of the Parole Board. What you have here is a system being set up that says that there needs to be a three-tier system, and that the Parole Board should not be capable of making decisions in the most serious cases. There isn’t any evidence of the need for that change. That is perhaps the fundamental problem of this process: this is another solution to a problem that doesn’t appear to exist. The point that Simon made is that you have a fundamental point about the separation of powers. It is important that judicial decisions are made separately from the Executive. There is a body of case law that says that the Parole Board is a court, and that it should make decisions about liberty. The Secretary of State is trying to subvert that by introducing a new scheme whereby the Secretary of State makes those decisions. The other thing that there does not appear to be any evidence of is that the Secretary of State will have a better ability than the Parole Board to make those decisions.
Q15 Janet Daby: Good afternoon. In the same vein, how would the Secretary of State’s process for deciding release differ from the process used by the Parole Board?
Simon Creighton: We think that that is quite a shocking omission from the Bill, which does not contain a process or a procedure. The one thing we know is that the common law requires extremely high standards of procedural fairness in relation to decisions concerning liberty. Much of the modern parole system can be traced back to a case about lifers’ tariffs called Doody back in 1991, in which standards of administrative fairness were set in decision making. To have a Bill that says that there is now effectively a second parole review process with no consideration as to what that will be seems to be a shocking omission. One would expect that, at the very least, it would have to operate to the same standards of fairness as the Parole Board. You would effectively have a Parole Board review followed by a Secretary of State’s Parole Board review, which would have to meet the same standards, otherwise it is impossible to see how he or she could reach a different decision than the Parole Board did in a fair manner.
Q16 Janet Daby: I incline to agree with you. Why does clause 37 specify that the Secretary of State would not be bound by the Parole Board’s findings of fact?
Simon Creighton: I rather suspect that that is in response to a High Court decision that said that the Parole Board, having heard all the evidence orally, is better placed to make findings of fact than the Secretary of State, who then looks at its decision on paper. That was in cases where the Parole Board has an advisory power, rather than a directive power. The courts established the doctrine where it was pretty much always unlawful for the Secretary of State to reject findings of fact made by the Parole Board, unless something new had emerged.
It seems to be a response to that line of judicial authority. What is very worrying about that is it then leaves you to wonder that if the Secretary of State wants to reject findings of fact made by the Parole Board—this takes us back to what’s missing—what is in place to ensure that a new finding of facts will be as fair as the Parole Board’s one? There is simply nothing there at the moment.
Q17 Janet Daby: There are quite a few questions to be asked.
Simon Creighton: Yes.
Q18 Janet Daby: Finally, is it your view that the Secretary of State is equipped to make release decisions?
Simon Creighton: What is really bizarre about the Secretary of State wanting to take this power is that the Parole Board has been found on numerous occasions to be a highly skilled body at making those decisions. If you go back to the Worboys case, the divisional court’s judgment talks about the multi-factorial, complex risk assessment. What is really unusual is that in every legal case that the Secretary of State has been involved in since the Worboys decision, his starting point has been, “The Parole Board is a specialist tribunal, and you, the courts, should not be interfering with it.”
It is impossible to understand what the Secretary of State would bring, other than, dare I say it, an overtly political role. Unless you are talking about locking people up because the public do not like them, there is no expertise that the Secretary of State can bring. That was something that was exposed quite graphically in the Bulger case, where the Secretary of State increased the boys’ tariffs on the basis of petitions from popular newspapers, and the House of Lords said, “You just can’t do that. That is not a judicial process”. It is very difficult to see what expertise is there, given the recognition that the courts and the Secretary of State himself have given to the Parole Board’s highly specialised degree of risk assessment.
Q19 Chair: I will raise another point on that, if you will forgive me. Under clause 37, proposed new section 239A refers to the Secretary of State taking evidence. It says that, in dealing with referred cases, the Secretary of State must consider “any documents given to the Secretary of State by the Board” and “any other oral or written information obtained by the Secretary of State”. Do you have any idea how they are going to obtain that information?
Professor Shute: There is a clause there that says they can appoint somebody to interview the prisoner. So they could take further oral evidence.
Q20 Chair: But of course the Secretary of State would not have taken the evidence.
Professor Shute: Correct.
Q21 Chair: But the clause enables them to substitute their judgment on a transcript of an interview for the judgement of the Board, which will have heard the oral evidence. Is that right?
Simon Creighton: That is right. Interestingly, the old Parole Board practice was to send a Parole Board member to interview people, but that was done away with because it was not seen as being fair or efficient. Bringing back another version is very bizarre.
Professor Shute: There were quite a number of reasons why prisoner interviews were halted. I wrote a report with Roger Hood in the late 1990s that looked at those interviews and argued that they should not continue in the form that they operated in then.
Chair: That is very helpful.
Q22 Edward Timpson: Continuing our systematic canter through the clauses, we are going to move on to clauses 38 to 41 in relation to the appeal process, which came out of the root and branch review. In particular, we are looking at the ability for prisoners to appeal to the Upper Tribunal against decisions made by the Secretary of State that a prisoner should remain confined. Having looked at how it has been set out so far within the draft legislation and at how it is now being worked up as potential legislation, what are your observations or potential concerns as to how this appeal mechanism will work in practice?
Simon Creighton: I was nominated to answer this, so I will start. There were three concerns that jumped out immediately. The first is, why is that mechanism there? The only possible reason for that mechanism is to save the Bill from incompatibility with article 5 because it is giving a final say to an independent decision maker. There is one problem with that: in those circumstances, the referral by the Secretary of State where he overturns a decision should be automatic. The European Court jurisprudence on this is quite clear that it is not good enough to just leave a right of appeal from an Executive decision on release as a possibility. The final decision has to be taken by a judicial body, so in all cases it should be automatic.
The second problem is that it is an ill-thought-out provision, because the first half of it deals with an appeal to the Upper Tribunal on traditional judicial review grounds, for which you require permission from the Upper Tribunal, but the second is effectively a merits appeal that the statutory release test has been met. There is no filtering mechanism for that; there is no permission stage. If you were a prisoner whose release had been denied, you would always make an application under those grounds because they would have a full appeal as a right. That effectively means that for every case the Secretary of State decides negatively, the prisoner will have a full appeal before the Upper Tribunal. No consideration has been given to how the Upper Tribunal will deal with that. For example, at the moment, under the Parole Board Rules, proceedings are in private unless Caroline decides that a public hearing is necessary.
There is a whole range of skills and abilities on the Parole Board and a whole set of procedural rules, so what is this appeal to the Upper Tribunal going to be? What is the procedure that governs it? How is it going to be heard? Will they be hearing oral evidence? Are they quick to do it? Are there sufficient judicial members to do it? Who will sit with the judges in the Upper Tribunal? They do not have psychiatrists, probation officers and police officers in the Upper Tribunal. It seems to be a spectacularly ill-thought-out provision that is purely there to try to preserve the Bill from falling into contravention of article 5, but doing so in a very poorly thought-out way.
Q23 Edward Timpson: In essence, is what you are seeing here an attempt to retrofit an idea to make it compliant with the European convention on human rights? Is the inclusion of the full merits review an attempt to do that?
Simon Creighton: Yes.
Q24 Edward Timpson: In your view, is it successful in doing that?
Simon Creighton: I don’t think it is successful legally because any decision in which the Minister has refused release is in breach of article 5, and that is that. There is no getting away from that. Even in the old mental health case of Benjamin and Wilson, where the Secretary of State simply rubber-stamped tribunal decisions and always accepted them, the European Court said, “You can’t have that. It’s a matter of both form and substance. You can’t have a member of the Executive making release decisions in article 5 cases,” so it is purely designed to address that. But it does not address it properly; it creates a system that is ill-thought-out and cannot cope with what it is designed to do.
Professor Shute: I am less certain as to whether it would be struck down by an article 5 challenge. I am slightly at variance with what has just been said, but, leaving that to one side, the serious problem must be that it is going to the Upper Tribunal. Presumably it will go to the administrative appeals chamber, although that is not mentioned in the Bill—I had thought it might be. The decisions will be taken by judicial members of the administrative appeals chamber, whereas the Parole Board has expertise drawn from a variety of different statutory categories.
The Parole Board trains its members in risk assessment. Unless we have a programme of training for the judges and the administrative appeals tribunal, they will not have the same expertise that the board had in its first instance decision making. I think there are some serious questions to ask about how that will work. Clearly there will need to be some detailed statutory instruments setting out a lot of the process and procedure.
Simon Creighton: Could I add one more thing? One more article 5 issue is about timing. One thing about Parole Board reviews is that they have to take place speedily and before the end of people’s tariffs: that was endorsed by the Court of Appeal and is built into the system. If we are now having a system with a six-month parole review, then the Secretary of State’s review, then an appeal, the whole system will have to be designed to start that much earlier to cope with the article 5 demands on it.
Q25 Dr Mullan: Some of you have mentioned previous cases in which Parole Board decisions have gone before a court and been overturned. Where would that take place? In what court and in what setting? If there were a judicial review of a Parole Board decision, I assume—well, you tell me—that it would be done by judges in courts. Do they typically deal with those types of decisions? How would they tend to approach them if it were a novel area of decision making, compared with if it were a specialisation?
Professor Shute: They are considering it not on the merits, but according to the judicial review principles: irrationality, procedural unfairness, error of law. The Upper Tribunal will be considering it on those grounds, too, and the route to judicial review through the Secretary of State’s conclusion is closed off: you have to go to the Upper Tribunal—
Dr Mullan: That’s the second bit of it, which is different from the irrationality bit.
Professor Shute: The courts in a judicial review are not doing the same thing. They are not asking the question ab initio, on the merits.
Q26 Dr Mullan: Thank you. I want to ask about clauses 42 to 44, in relation to the Human Rights Act. Essentially, the Bill is seeking to disapply section 3 of that Act and to require the courts to “give the greatest possible weight to the importance of reducing the risk to the public”. Do any of you think that that will make a significant difference? Are there cases that go before the ECHR and are overturned? And to what extent does the Parole Board take that into account in the decisions that it makes at the moment?
Professor Padfield: Isn’t that an interesting question? We cannot really know how it will work. The Government are absolutely clear in their European Convention of Human Rights memorandum: “Courts will continue to use orthodox principles of statutory construction to interpret legislation. Disapplication of section 3 HRA does not remove the common law presumption that the legislator intends to legislate compatibly with the ECHR, unless expressly indicated otherwise.”
Of course, they are right in the sense that the common law runs deep. We have had loads of cases about the common law standards of fairness, which are often referred to. We could all come up with loads of cases—Osborn and Booth, Lord Reed, all sorts of people—really emphasising the importance of the common law in this area.
However, I would certainly say that section 3 has proved very useful. Section 3 says: “So far as it is possible…primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” If it goes, what will be the impact? Well, we can all guess. One impact will be more costly litigation. More people will try to go for declarations of incompatibility; if the section 3 route is closed off, we will have to go down the section 4 route.
You have quoted from clause 45(3) of the Bill, which is really interesting: “The court must give the greatest possible weight to the importance of reducing the risk to the public”. What does “the greatest possible weight” mean? Is there still some inherent balancing act with justice and common law principles of fairness? I don’t think we can really tell. From where I sit, I think it might make it harder for the courts to protect convention rights, but will they be cowed? It encourages a chilling effect.
It also seems to me to be a deeply worrying message, really: it looks as if the Government are trying to tell the courts not to apply rights in certain ways. Do we see here a threat to the separation of powers, the rule of law, the independence of the judiciary and whatever constitutional principles you want to raise?
I cannot help returning to the fact that we have recently had a string of really depressing reports from the chief inspector of prisons, which I hope you have all read: Bristol, Whitemoor, Long Lartin, Cookham Wood. If it did not make you weep, it was really, really scandalous. When our prisons are like that, to have a Government saying, “Everyone has these rights, but the courts aren’t to protect them at the instance of prisoners”—that is a really terrible message to give. I find it very worrying.
Q27 Dr Mullan: Does the phrase “as far as is possible” push people to go beyond what might be ordinary decision making? What is the comparison in non-legal language? Or do you think that it should not push people to go beyond logical decision making in that regard?
Professor Padfield: We are going into the area of the Bill of Rights Bill. If we go into the consultation, the Government said a lot of curious things, as far as I was concerned, about the dangers of section 3.
R v. A (No. 2) is the classic case about whether you can ask complainants in sex cases about their previous sexual experience. They saw that as a high water mark of dangerous expansionism. It seems to me—it is a contested area, of course—that it has been quite a pragmatic solution to a very real problem. We can all argue about how this will work in practice.
Q28 Dr Mullan: You say it is a contentious area. Are there other views?
Simon Creighton: I think we would all agree. What is interesting is that the explanatory notes to the Bill say that the Government thinks that the Bill is convention-compliant, but it wants to future-proof it against the risk of a court finding otherwise or jurisprudence developing in a way that challenges compatibility. It seems strange to suggest that you want to future-proof a Bill against a judicial finding that you have got it wrong, which is what underpins the whole principle of separation and balance of powers.
Chair: Yes. I was brought up on the view that if the Government does not like a decision of the courts and thinks that there is a gap in the law, it should legislate to fill the gap, rather than the other way round.
Simon Creighton: Exactly.
Chair: Maybe I’m old-fashioned.
Q29 James Daly: I am looking at clause 46. Please tell me if I understand what it is saying: in effect, it is suggesting that in certain cases including members with a law enforcement background is the right and proper thing to do, and that they bring to the table a skillset that others do not. Have I understood that correctly?
Andrew Sperling: I think that is the point, yes.
Q30 James Daly: Just to draw it out, what is the point of it?
Andrew Sperling: I think it is difficult for us to answer that. There is a real problem with this. It is perfectly reasonable for someone to identify a category of people who might be good members of the Parole Board, but there is a significant difference between having that and saying that one particular type is better than another. There is an even bigger problem with saying that panels in certain cases should include a particular type of member.
The last time that a Justice Secretary tried to interfere with the composition of the Parole Board in this way was in a case called Brooke in 2009, in which a Labour Justice Secretary wanted to appoint members to the board who were victims of crime or involved in victim support. The Court of Appeal found that that was an impermissible interference with the Parole Board’s independence. It said: “We are in no doubt that the Divisional Court was correct to identify the Minister’s decision to procure the appointment of victims or those involved with victim support…as intended to affect the decisions taken by the Board and it was not appropriate for him to act in this way.”
Again, I am not sure what the evidence of need is here. Is it being suggested that there is a deficiency in Parole Board decision making that will be corrected by importing more police officers? There are police officers already.
Q31 James Daly: Well, it’s the reverse of that, isn’t it? It could be argued—I am not saying that I honestly believe this—that the Parole Board is full of left-of-centre liberal academics who are letting everyone out of prison. If there is not that evidence, I suggest that this is not necessary, but I could be wrong.
Professor Padfield: The academics have disappeared, I’m sorry to say.
James Daly: There we go—a purging of the academics.
Andrew Sperling: The evidence just does not exist. There are already some police officers on the board. There is a wide variety of skills that police officers have. In the same way, there are differences between lawyers, probation officers and psychiatrists. It is quite reductive to judge someone just by their job title and just presume, because somebody is a grizzled police officer—I think that is the expression—that they will arrive at a certain type of decision.
Q32 James Daly: I think I agree with that. May I make one further point, which I think is hugely significant and which I touched on in my opening question? In everything I read about how mental health is dealt with, not just in this respect but in any part of the system, I constantly seek guidance on how the Parole Board or the police deal with the relationship between people with mental health difficulties and how to assess the risk of harm to the public as a result of that condition, if I may put it that way. Can you help us on how that is dealt with? Is there a prescribed form in which Government or anyone else has set down how those cases should be dealt with?
Andrew Sperling: No, there isn’t, because we have the same risk tests and release tests for everybody. I think the more important issue is how somebody who has a history of mental health problems is managed within the prison system to enable them to recover and to return to the community. One particular problem is that somebody might well benefit from or meet the criteria for being transferred to hospital, which might enable them to have a better chance of being released ultimately, but at the moment the Parole Board will treat someone with a mental health problem in the same way as anybody else in how it applies the release test. That might mean that the hearing itself has a lot more input from medical professionals, but ultimately the Parole Board is being asked to assess what risks that person poses.
James Daly: It is not covered in this Bill, clearly.
Andrew Sperling: Not in any way.
Q33 James Daly: May I ask one more brief question? There is probably a debate about what should and should not be in the Bill and about how we approach such matters. Mental health challenges sometimes mean that behaviour is unpredictable and that there is perhaps not the stability that there might be in other circumstances. Is there any way of telling? Unpredictable behaviour does not mean that somebody will go out and commit a criminal offence or be a risk to the public. I wonder how you feel the Parole Board is dealing with that challenge.
Simon Creighton: I am often struck by the difference between the Parole Board and mental health tribunals in how they deal with this. In mental health tribunals, there is not necessarily a prior history of offending, but one of the grounds for detention is still risk to others. What is concerning is if the Parole Board does not properly implement policies that understand that people being difficult, truculent or argumentative is not the same as people being dangerous. That probably goes back further, but the Parole Board, in fairness to it, appears to have a greater understanding of that than it might have done in the past. You have to have a lot of sympathy with the people in the probation service, where the problem starts, because they are on the frontline and are next on the line if things go wrong. But if they have somebody who does not respond to them in a set way, they will put in negative reports, which makes the Parole Board’s job more difficult and creates the cycle.
Chair: Professor Shute, would you like to come in?
Professor Shute: There are two things I want to say. First, the point that has just been made goes back to some of the early discussions about the release test. I think it would be very unsatisfactory if we allowed the release test to be shaped or moulded through Parole Board guidance rather than in a legislative format. The Parole Board, in its guidance, has shied away from issuing practice directions as the court does. Its guidance does not even bind members in that way. I wanted to make that point.
On clauses 46 and 47, particularly clause 47, I think a little bit of a misunderstanding might have crept in. When the Board was set up in 1967, four statutory categories for its membership were laid down in the legislation. They were non-exhaustive—members could be appointed from other walks of life—but they were the four statutory categories. The provision in clause 47 adds a new, fifth statutory category, for law enforcement.
If it is objectionable to have statutory categories, we should get rid of all of them. If it is sensible to have statutory categories, we need to argue whether, in addition to the judges, the probation officers, the psychiatrists and the criminologists, it is worth having a further statutory category. For me, there is a good argument for having one, and maybe some others as well, because “independent” members have now dominated the board. There are more so-called independent members not laid down in the statute in a category than there are so-called specialists. The psychologists are not even a statutory category, yet they outnumber the psychologists.
Professor Padfield: The psychiatrists.
Professor Shute: Sorry, the psychiatrists. The psychologists are not a statutory category, but they outnumber the psychiatrists.
That is the first question. There is then the question—it is not in clause 47, but in clause 46—about the directions through the Parole Board Rules about the composition of panels. There are two different issues at play.
Q34 Stuart C. McDonald: Another aspect of clause 47 that engages some pretty fundamental constitutional principles is this idea that the Secretary of State can sack the chair of the Parole Board if it is in the interests of, or deemed necessary to, the maintenance of public confidence. First of all, is there any sort of precedent elsewhere for that sort of power? Can a Government sack any other chair of a judicial body on similar grounds? Secondly, can you envisage the circumstances in which any Secretary of State might want, or may have wanted in the past, to use such a power?
Professor Shute: I do not know of any other examples, but there have been cases in which Ministers have sought to remove public appointees over the years. I am just not familiar enough with the law on that to comment.
There needs to be a process for dismissing the chair. Public confidence in criminal justice organisations is essential: they cannot operate effectively unless they have that confidence. We have been through a time, post 2018, when significant damage was done to public confidence following the release decision in the Worboys case. For me, the problem in this provision is that the quid pro quo for introducing a power of dismissal and giving that to the Secretary of State is that the judicial functions of the chair are going to be excised.
I would argue that it is very hard to lead the board unless you have experience of sitting on panels, but the chair will not be allowed to sit on panels. As a matter of practice, the last two chairs of the board—Caroline, who is sitting behind us, and Nick Hardwick—did not sit on any panels at all. The last chair to sit on a panel was Sir David Calvert-Smith. I think it is helpful, if you are going to lead the board, to have first-hand experience of sitting on panels, but this provision is going to prohibit a chair from doing so.
There are quasi-judicial or judicial functions that the chair carries, such as listing, such as decisions on whether public hearings are made and such as the referral process, if it is enacted, which are contained within the Bill. The chair of the board also has responsibility for the training of board members. Doing all of that, if there is no longer a judicial function, will presumably have to be passed to the vice chair—the vice chair is sitting behind us as well. I think the quid pro quo for all this is—
Q35 Stuart C. McDonald: Too costly? You almost begin to wonder what the chair will be doing after all that.
Professor Shute: My own view—Caroline may disagree—is that there is benefit in the chair being a judicial appointment: a senior judge. Many of our parole systems in common law countries require that. If not, the vice chair will need to be a judge, and a senior judge at that, in my view—preferably a High Court judge.
Q36 Stuart C. McDonald: Professor, you seem to be defending the test that could be used—the necessity to maintain public confidence—but quibbling with the fact that the power lies with the Secretary of State. Who do you think should have that power instead?
Professor Shute: I am being a bit more agnostic, or at least atheistic, on the first point. I think that there needs to be a power to dismiss the chair—
Stuart C. McDonald: In some circumstances, yes.
Professor Shute: It cannot be a post from which nobody can be dismissed. That would be wholly unacceptable.
Simon Creighton: Could I contribute one alternative proposition? I think one of the problems with this concept is that the Parole Board is a court that is not a court. All the judicial determinations of Parole Board decisions say that the Parole Board is a court, but the Parole Board is not a court.
One of the arguments put forward in the root and branch review that has resulted in this, and which had a lot of support, was that the Parole Board should be moved into the tribunal service. That has been very much resisted politically because of the wish to have more ministerial control. What the Bill does not really address is resolving the tension, which has gone on for the last two decades, of the Parole Board being a court without a court’s powers. With that, there have been a series of judicial decisions about the Parole Board that have found ministerial interference with judicial independence. It is a problem that is not resolved by the Bill. The great irony is that despite the Parole Board not being moved to the tribunal service and not being made a court, its decisions are ultimately going to end up in the Upper Tribunal.
Q37 Stuart C. McDonald: Are there things that we can learn? I do not know the circumstances in which a tribunal judge could be dismissed or removed, but I take it that they are incredibly limited and that it would be a senior judge who would do that. Would that be a better model here?
Andrew Sperling: Yes.
Professor Shute: While we are on the tribunal system, the accompanying documents do make it clear that in relation to the ministerial power to have influence over who sits on those tribunals, there is a power that gives the Lord Chancellor that right.
Chair: Some people have said that it is either one or the other: either it is a political body, as it was when the Secretary of State took the decision with advice, or it is a proper court and acts as a proper court. For historical reasons, it falls between the two. You could make a case for either. That seems to be the gist of what people are saying.
I am grateful to the whole panel. Thank you very much for your evidence, which has been very clear and very full.
Witnesses: Caroline Corby, Martin Jones, His Honour Peter Rook and Cassie Williams.
Q38 Chair: Welcome, everybody. Thank you for coming to give evidence to us. I ask each of you to identify yourselves for the record, and then we will get straight on.
Cassie Williams: Good afternoon, I am Cassie Williams. I am the independent member of the Parole Board. I am also a practising barrister from 33 Bedford Row Chambers.
Peter Rook: I am Peter Rook, vice chair of the Parole Board. I am also a judicial member and a judge sitting in retirement.
Caroline Corby: Hello, I am Caroline Corby and I am chair of the Parole Board.
Martin Jones: I am Martin Jones, chief executive of the Parole Board.
Q39 Chair: Thank you very much for helping us. A lot of the questions, with one or two exceptions, are going to be pretty much reruns of what has gone before. Perhaps I can kick off, though, with something a bit different. Let me start with the chair of the Parole Board, Ms Corby. Part 3 of the Bill sets out the reforms that were listed in the Government’s root and branch review. What engagement did you and the board have with the Ministry of Justice on these proposals?
Caroline Corby: I think it would be fair to say it has been limited since September 2021. I can give you a little bit of history.
Chair: Yes, please.
Caroline Corby: The root and branch review was announced in October 2020 by the former Lord Chancellor, Robert Buckland. Following that announcement, a root and branch review steering group was set up. That met monthly at official levels and was quite a collaborative process, but I think it is fair to say that when we had a change of Secretary of State in September 2021, the priorities for the root and branch review changed and those meetings stopped. The announcement of the root and branch review was made in March 2022. We had very little input into that announcement, but following it I wrote to the then Secretary of State to set out our views on the proposals. Subsequent to that, in July—
Q40 Chair: Did you get a reply from the then Secretary of State?
Caroline Corby: I think I did have an acknowledgment of our letter.
Q41 Chair: A substantive reply?
Caroline Corby: I don’t believe it was a very substantive reply.
Martin Jones: It was quite a short letter, I think.
Caroline Corby: That is my memory.
In July 2022, a parole reform programme board was set up again at the official level to meet monthly. Despite its name, it was not actually engaging with the reforms; it was dealing with other matters that were happening in parole at the time—for example, the change in approach to open conditions, with which you might be familiar.
In February ’23, Peter Rook, Martin and myself were taken through the highlights of the Bill before it was published in a meeting with officials, but we weren’t allowed to take any papers away. I wrote to officials following that meeting to set out my views on the high-level proposals, and then the Bill got its First Reading on 29 March 2023. It was only once the Bill was published that we could see in detail the proposals. Last week, I wrote to our new Secretary of State, Alex Chalk, to set out our view in detail on them.
Q42 Chair: Did the former Secretary of State ever pick up the telephone to you or offer to meet you or any of your members in person?
Caroline Corby: I met him in person once, quite soon after he was appointed but before we knew the outcome of the root and branch review.
Q43 Chair: And did you have any direct engagement with the then Secretary of State in relation to this major reform to probation and parole?
Caroline Corby: Martin, you had a couple more meetings, but I don’t think directly on the reforms.
Martin Jones: We had other meetings with officials, but nothing with the Secretary of State.
Q44 Chair: Nothing with the Secretary of State; okay. Let’s turn to clauses 32 and 33, which update the statutory release test—you heard us rehearse this with the practitioners and academic witnesses—by introducing a new public protection threshold. We accept that the list of criteria is non-exhaustive. Perhaps you can help me. What in practice would this change? How would this alter, if at all, the Parole Board’s decision-making processes?
Caroline Corby: We do not think it will alter them very much. Cassie might be best placed to answer that, as somebody who does this work day in, day out.
Cassie Williams: In terms of the criteria that we already apply, we have a decision-making framework that is published, which includes those categories that are on the list. I do many panels a month, and in terms of our day-to-day work, I cannot see any real difference. What has been detailed there is essentially the way we have interpreted the test, which has been confirmed recently in the cases of Johnson, and of Dich and Murphy.
Caroline Corby: So they are all matters that we would expect our members to take into consideration in any event. Martin, do you want to talk a bit about the training that we might have to do and the guidance we would issue if the test changes?
Martin Jones: We provide regular guidance and training to our members, and of course we will do that in the light of whatever is passed by Parliament to ensure our members are clear on that. We don’t think this sort of thing requires significant changes. There might be something about the weight that you give to particular issues that are picked out on the face of the statute. It is non-exhaustive, but clearly there is a stress that is put on it that members will take account of. In reality, these are things that we already take account of. We published our decision-making framework some three years ago to ensure that the public properly understand all the different factors that the Parole Board take account of. It is important that we have that transparency.
Peter Rook: May I clarify one small thing? Professor Shute mentioned the case of Johnson, where it was said that counsel for the Parole Board was not accepting the test, as had been set out in King—
Chair: Going back to a balancing—
Peter Rook: I just wanted to explain that. That is because there is one exception to the general test, which relates to extended sentences. Effectively, the traditional test is inverted, so the Parole Board must release someone unless it is necessary for the protection of the public for them to be confined. There is that one exception. As I understand it, counsel for the Parole Board, who wasn’t actually taking sides in the case, simply wanted that point clarified. We would welcome one test for everything. The extended sentence anomaly, as you will understand, goes right back to ’98 and one of the old extended sentences where dangerousness didn’t have to be proved.
Q45 Chair: So that particular submission in relation to the Johnson case is very fact specific. You would argue that it does not in any way represent a moving back towards the balancing test from King.
Peter Rook: Absolutely. That is one wrinkle that could be sorted. The test should be general and include extended sentences. The law in Sim should go.
Q46 Chair: Perhaps you can help with this as well. The Government’s position was that there was a need for a more consistent approach because of the case law. I get the sense from what you are all saying to me that there is not inconsistency. Everybody has adopted the test in King and Johnson, with that one specific exception. Am I right?
Witnesses indicated assent.
Chair: Thank you very much.
Q47 Maria Eagle: The referral scheme in clauses 35 and 36 of the Bill is based on the creation of a top tier of prisoners convicted of certain listed offences. We see in the impact assessment 1,932 cases being affected by this in any given year. Does that seem about right, from your point of view?
Caroline Corby: I can give you some figures. Obviously the numbers move around a little bit each year, but broadly speaking, we receive 900 referrals of people with convictions for murder, around 900 referrals for people with a conviction for rape, around 200 referrals a year for people with a terrorist act conviction, and just a very small handful occasionally of people who are convicted of allowing or permitting a child to be killed in their care. That comes to around 2,000 cases a year.
Q48 Maria Eagle: The composition seems slightly different there, but the numbers seem about right.
Caroline Corby: It moves around a little bit each year.
Q49 Maria Eagle: That is quite a hefty workload for the Secretary of State with all the other things he will be doing. Do you—
Caroline Corby: Sorry to interrupt, but my understanding is that he would only be dealing with release decisions. Of those 2,000 each year, we would release around 600 top-tier offenders.
Q50 Maria Eagle: I am sure he will be relieved to hear that. Do you have any concerns about how this top tier, as referred to in the legislation, has been defined?
Caroline Corby: In terms of whether the definition is clear?
Q51 Maria Eagle: In any way. Do you think it is picking up the right cases in respect of its own purpose? Do you think it is missing out cases where, if this kind of scheme were to go through legislatively, the Secretary of State ought to have some powers?
Caroline Corby: Are you asking whether it is necessary for this whole system to be introduced? Or whether it is a clear definition?
Q52 Maria Eagle: Is it a clear definition? If one assumes the policy intent—I know that is a big deal—in its own terms, is this picking the right definitions and the right cases?
Caroline Corby: They are certainly picking the most serious cases that we deal with. Martin, are there any cases that you would class as the sorts of cases that you think are missed out?
Martin Jones: I think it would be fair to say that the mainstream bulk of the work of the Parole Board is looking at those who have committed some of the most serious criminal offences. Clearly, that is the reason why Parliament wants us to look at those cases to review the risk. The difficulty in relation to picking out tier 1 is that what we are looking at is dangerousness and the risk to the public. It is sometimes a bit arbitrary. Some people might not have been convicted of a rape offence. If you are a serious child sex offender, you might not have committed a rape offence, but you might have committed all sorts of various serious offences. You might have concerns about the seriousness of that offence, but that is one of the things about defining it by means of four offence types.
The answer is that there is a whole load of complexity that Parole Board members see day in, day out in relation to risks to the public, and that is one of the problems with simply defining it. I do not have a problem with that. Clearly, these are cases that often will cause the public significant concern. In future years what you might see is the public getting very concerned about a particular sentence, but it might not fall within this sort of scheme because that was not the offence that they were convicted of.
Caroline Corby: Just to build on that a little, if I may. We have a serious further offence rate of about 0.5%. But if you break that down a little further, only a fifth of those would come from top-tier cases. Four fifths come from other routes—often people who have been recalled to prison who might be living quite a chaotic life. People who are convicted for the most serious offences spend a very long period of time in jail. Often they are much older. A lot of work has been done, so they have a different profile.
Q53 Maria Eagle: Clauses 35 and 36 allow the Parole Board to refer a release decision to the Secretary of State instead of making the public protection decision itself. Are there any circumstances that any of you can think of in which you would decide to do that?
Caroline Corby: I think it is extremely unlikely. Martin, do you want to talk about our history?
Martin Jones: Well, at the moment, we are making between 16,000 and 20,000 decisions a year, and in reality, if we are not satisfied that the test for release is met, we will make a non-release decision, to say we are not satisfied that the person can be safely released. So at the moment, we are not finding cases where the panel are saying, “We’re not sure.” If there are cases where the panel actually cannot make a final decision on the case—you have a two-member panel and one person is saying something slightly different—we re-panel the case; we put it to a new panel. It is incredibly rare that that happens. I cannot imagine, given the wisdom that we have on the Parole Board with people like Mr Rook and Ms Williams on the panels, that we cannot get to making a decision. Sometimes we might direct that further evidence be brought in, to ensure that we have the best possible information. But certainly in the seven years I have been in charge of the Parole Board, I have never seen a situation in which the Parole Board has said, “I can’t make a decision on this case.”
Caroline Corby: I just want to correct something that was said earlier and that I do not think was accurate. Where we have three panel members, if there is a majority decision, we can go with the majority; we don’t have to re-panel. So we issue a decision, but it is issued as a unanimous decision; we do not say, “Two thought this and one thought that,” but we do go with the majority.
Q54 Maria Eagle: I see. Can any of you think of any circumstances in which the Parole Board might be unable to make an adequate assessment of a prisoner’s risk to the public, such that they may then wish to refer the matter to the Secretary of State as a way of getting a decision made?
Caroline Corby: Peter, shall I come to you on this?
Peter Rook: Yes; we have been thinking very hard. When, despite the efforts of the chair, we have a dossier that is completely hopeless—one would hope that that would never happen. Beyond that, you did identify earlier, I think, the possibility of some closed information, but we find it very difficult to think of any examples.
Q55 Maria Eagle: Okay. Do you have any view among yourselves about who would make the decision to refer a release decision to the Secretary of State? It doesn’t sound like you are going to send him any, but none the less, if this regime were to be legislated for and had been brought in and commenced—can you think who would make the decision? Would that be something for the chair or for the—
Caroline Corby: I imagine you would look at it in the first instance, Martin.
Martin Jones: There are occasions when panel members have concerns about a case—for example, if information is disclosed very late to a panel, they may come to us and ask us for legal advice in relation to whether they can take that into account. I imagine that, under the scheme created in the Bill, it would probably go to the vice chair of the Parole Board, based on the fact that the chair couldn’t make that judicial decision to refer it. Ordinarily, the panel chair would say they had a concern and would refer it up the line into the secretariat, and ultimately it would probably fall to the vice chair to then make the referral.
Q56 Maria Eagle: My instinct is to think that, if I were faced with this, I would think I was admitting that I could not do my job. Is that really—you are all nodding; thanks. Clauses 35 and 36 would enable the Secretary of State to direct the Parole Board to refer a decision to release a top-tier prisoner to the Secretary of State. What impact do you think his exercising that power would have on your approach to release decisions? Would it make any difference at all to the way you do your job more generally?
Caroline Corby: Do you want to start, Martin?
Martin Jones: It is really important to be clear that when we are making decisions about whether to release somebody, that is a very serious decision that we take extremely seriously, both from the point of view of risk to the public, which is paramount to our decision making—the statistics are really bold, actually. Only one in four prisoners reviewed each year will meet the test for release. Generally speaking, for the majority of people reviewed by the Parole Board each year, the decision will be that the person needs to remain in prison for the protection of the public. But we go through hundreds and hundreds of pages of information about that prisoner. We will take hours and hours of testimony and witness evidence, to make the best possible decision that we can. One of the reasons for that is that, ultimately, that is the decision that will stand. That person, if we decide they are safe to be released, will be released—with licence conditions. And we will then be reviewing that very carefully. If there is an SFO, that is an extremely serious matter that will cause members and the Parole Board a huge amount of concern. If there is a serious further offence, we take it extremely seriously.
If that is not the final decision, is there a danger that we don’t take it as seriously? Certainly, all the evidence that I have seen since the 2003 Act came in and the final decision on mandatory lifer cases was passed to the Parole Board—I think that increased the amount by which the Parole Board was seen to be accountable for its decision making. Four years ago, we introduced the reconsideration mechanism, which provides a very clear mechanism to challenge whether decisions were irrational or made in a way that was fair. That was a really good way of challenging: actually, are we getting it right or not? It is something that we welcome. We have no problems with people challenging our decision—that is different from coming in afterwards and saying that actually our decision was not right—as part of looking at it, as part of the first instance.
Q57 Maria Eagle: Finally from me, what impact would this power, and the decision of the Secretary of State to direct a case to himself to decide on, have on the independence of the Parole Board?
Caroline Corby: I can start on that. I am concerned about the impact that could have on the status of the Parole Board, and its court-like status. I also think it could have an unintended consequence of making it more difficult for us to recruit judicial members. Judicial members might be reluctant to join the board in those circumstances. We value having a very broad range of members, and judicial members are a very important part of that. Is there anything you want to add, Peter?
Peter Rook: No. Those points are very sound.
Q58 Janet Daby: Good afternoon. I asked a similar question to the previous panel as well. What is your view on how the Secretary of State’s process for deciding release will differ from the process used by the Parole Board?
Caroline Corby: Do you want to start on this, Martin?
Martin Jones: I think the starting point is to understand the rigour with which the Parole Board makes those decisions. For a top-tier case—Cassie and Peter will have sat on many of those cases and may give their own perspective—there will be hundreds and hundreds of pages of evidence. What was the index offence? What was the offender’s life like when they committed their offence? Are there previous convictions? What progress have they made in custody? What has their behaviour been like in custody? What is the psychiatrist’s assessment of their mental health? What are the details of any work that they have done in prison? Has there been any bad behaviour and adjudications? Is there any intelligence about what they have been up to in prison?
We then take that to a hearing. Most of these cases will end up at an oral hearing, where we will probably take three to four hours of evidence from the professionals. We ask, “What do you know about this prisoner? What do you think about the risk they pose to the community?” That will end with us writing, probably, a 10 to 15-page judicial decision as to whether we think that person meets the test for release or not. The decision will then be passed to the prisoner and the Secretary of State, as the parties to the case, and it can then be challenged for reconsideration.
It is a really serious, drawn-out process. We put judges, solicitors, retired police officers and retired probation officers on those cases to make the best possible decision that we can. If the Secretary of State is making those decisions, after we have put all that effort in, he will, of course, have to match that in some way to ensure that he is making a decision that is just as robust. Perhaps it has to be even more robust, if he is going to substitute his judgment for that of the Parole Board and it is then going to withstand the subsequent, inevitable legal challenge if a prisoner has persuaded the Parole Board that they have met the test for release, as happens in 25% of cases each year, and there are reasons why the Secretary of State’s decision should be set aside. I would suspect that almost every prisoner who gets blocked by the Secretary of State will want to go to the Upper Tribunal and test the merits of that decision. Of course, in terms of good public law principles, the Secretary of State will have to set out cogent reasons as to why he has taken a different view to that of the Parole Board.
The other thing that I think is important in understanding the Parole Board’s decision—this is based on evidence published by the Ministry—is that 90% of Parole Board decisions that are made each year are entirely aligned with the recommendations, the reports and the risk analysis that are presented by report writers. Ultimately, if a prison, a probation officer and a psychologist say that a person is safe to be released, nine times out of 10, we will release them. If they say that they are not safe to be released, we will not release them. If you are seeking to set aside that decision, your starting point would be, “What would the professionals say about the risk that offender posed to the community?”
It is extremely unusual for us to be releasing somebody in these sorts of cases—a terrorism case, for example—where the report writers, who are the professionals who have spent a lot of time assessing that prisoner, say that person remains a significant risk to the public. In almost all cases—this comes through very clearly from both our summaries and our published reconsideration decisions—the answer is that the evidence that was presented to the panel was that that person had made significant progress in custody and could now be managed back in the community. The Secretary of State will need to set out the cogent reasons why that should not then be the decision of the tribunal.
Caroline Corby: Martin, is it worth you saying something about reconsideration, which we thought was a very welcome reform in July 2019, and how it has worked and how the Secretary of State has used it?
Martin Jones: Absolutely. Reconsideration applies to all Parole Board decisions, with the exception of a determinate recall prisoner. In that time period, both the prisoner or the Secretary of State can go and seek a reconsideration for that decision. It has been in place for four years.
I looked at the latest numbers last month, and, so far, in the four years since it has been in place, the Secretary of State has made 50 applications to seek to set aside a decision of the Parole Board. Of the 50 applications made, 12 have succeeded. That is quite important to place in the context of the Bill. If you look at those decisions, all of which are being scrutinised by his officials, in the last four years, the Secretary of State has been concerned about 50 of our decisions, of which, following reconsideration by a judge of the Parole Board, 12 have subsequently been set aside and then reheard.
Caroline Corby: The other benefit of reconsideration is that we always want to be very respectful of the victims’ role, and the victims have a role in reconsideration.
Q59 Janet Daby: Thank you. It all sounds very robust, as it should be. Why does clause 37 specify that the Secretary of State would not be bound by a Parole Board’s findings of fact? Also, what is your general view on the fact that the Secretary of State can take additional evidence?
Caroline Corby: I am going to hand over to Peter.
Peter Rook: We obviously don’t know the precise shape of what is envisaged. Although there is that power to carry out interviews and, as the Bill stands, the Secretary of State is not going to be bound by a Parole Board finding of fact, presumably that is because it is effectively going to be a rehearing. From time to time, there are very important issues of fact to be resolved by the Parole Board—say, in a recall case, whether the recall was appropriate and so on. This clause would enable the Secretary of State not to be bound by that, and they would effectively have to embark on a fresh procedure.
Martin Jones: There is one other instance that might be quite helpful to highlight. In last year’s legislation, the Government made a really welcome change, introducing a power to request the Parole Board to set aside a decision. Ultimately, once the Parole Board has made a decision, it has heard the evidence. It has issued a decision. That position is final. We are functus at that point. However, sometimes information may come to light after we have issued our decision, which might suggest that the decision is not safe.
Through legislation last year in Parliament, the Secretary of State introduced the power to apply to the Parole Board to set aside a decision if new information comes in. That would be a more elegant way, rather than the Secretary of State taking account of new information that was not before the panel. You could simply apply to the Parole Board to say, “You made the decision on this basis.” The classic example would be a Parole Board making a decision based on the fact that a prisoner has been on perfect behaviour and done really positive things in custody, and then, shortly after reaching that decision, something dreadful happens in custody. The prisoner may have had a dreadful fight in custody or be found, for example, to have written an inappropriate letter to a victim in some way. You can seek to set aside that decision. That is a new power that we have welcomed and indeed asked for previously. That would be a better way of dealing with it, rather than the Secretary of State considering evidence that was not before the Parole Board.
Caroline Corby: And that power is used, by the way. My latest figures are that we have had 46 eligible applications, 15 of which were granted.
Janet Daby: Thank you very much.
Q60 Chair: Judge Rook, in the recall case that you referred to as an example, I imagine that the Parole Board would have heard the recalled prisoner in person.
Peter Rook: In most cases, it would indeed, and possibly other evidence on the issue.
Q61 Chair: Indeed, and it would have had that evidence directly. It could have assessed the demeanour of the witness where appropriate, set that against everything else and heard submissions. It is envisaged in these clauses that the Secretary of State will be doing that second hand, in effect, based on the report of an interview by a nominated person.
Peter Rook: On the face of it.
Chair: Thank you.
Q62 Dr Mullan: Thank you. I asked a similar question to the previous panel in relation to the clauses on the ECHR. How do you envision those clauses impacting the decisions you are making, if at all?
Peter Rook: I’m not sure I can add much to what the previous panellists have said. You have the disapplication of section 3. It is obviously a selective disapplication for this Bill and I think the Migration Bill. However, section 4 is still there as far as the certificates of incompatibility are concerned, so you are still going to have that issue arising. There are, of course, points other than the European convention points anyway. Common law, as Professor Padfield said, runs deep. There are the points about being a judge in your own cause and so on, and bias in perception to bias. All I can say, because obviously I am limited as a judge in what I can add to the debate, is that it is full of points to be taken.
Q63 Edward Timpson: Just to go back a step, the first panel was asked about the proposed appeal process in relation to a decision by the Secretary of State. Having looked at what is proposed in the legislation, I am trying to imagine it in practice. What are your responses and potentially concerns about how it would work, as currently envisaged?
Caroline Corby: Do you want to start, Martin, and then I’ll hand over to Peter?
Martin Jones: Over the last four years, there has been significant reform of the parole system, and we have always welcomed that, whether it is reconsideration, introduction of summaries, the set-aside mechanism, which I talked about earlier, or the fact that the Parole Board now considers all terrorism cases before release. We have always welcomed that. It is entirely a matter for Parliament to scrutinise the legislation and decide how it wants to legislate on this.
One thing I would say is that I was in the Home Office in the ’90s when the Government at the time lost the Hussain judgment, which was on the final decision on the release of juveniles serving sentences of detention at Her Majesty’s pleasure. Of course, the fact that we had been struck down by Strasbourg was hugely unpopular, but the Government at the time decided that the right approach in responding to that judgment was to make the final decision a matter for the Parole Board—for a court—rather than to look at an alternative architecture. There is an attempt here to row back from that and get Ministers back to making the final decision.
My concern around this is the cost. If you look at the impact assessment, I think I am right in saying that it is anticipated that it may cost up to £32 million a year to run the new scheme—both in terms of the Secretary of State and the cost for additional prison places. I think the impact assessment suggests that 20% of top-tier decisions may subsequently be set aside by the Secretary of State. That is in stark contrast to the fact that over the last four years, they have sought reconsideration for only 50 decisions. I am not sure how you jump from doing 12 a year to seeking to set aside hundreds of our decisions each year.
Does the Upper Tribunal have the expertise needed to make these decisions? We have retired probation officers, retired police officers, solicitors, psychologists, psychiatrists, retired judges and retired High Court judges making decisions. That is an incredible amount of experience you bring to bear. Members such as Cassie make decisions in probably a couple of hundred cases per year. If you think about the experience you bring to bear in risk-assessing prisoners, there is a huge amount.
In the future, you are potentially asking a tribunal judge to make a decision. I question what additional value you get from doing that for a huge cost as opposed to an alternative arrangement. What you could do is simply provide a substantive right of appeal for either party from the Secretary of State if he disagrees with a Parole Board decision and thinks we have got it wrong. Provide a proper appeal mechanism and then test that—as happened in the DSD case. If you were to say, “Actually, the Parole Board have got this wrong”, and we could re-read that, it would be much less expensive than creating this complex process that I think is full of legal risk for the Government.
Q64 Edward Timpson: What about the point made earlier about how long this process would take and the impact that could have?
Caroline Corby: One of the questions we have is that there are no time limits set out. It is not at all clear how long the Secretary of State can take to make a decision or how long the appeal process takes. In comparison with a reconsideration, it is very tight; it is 21 days, whereas this has no timeframe. Before I hand over to Peter, to add a bit of context on the cost of these proposals, the entire budget of the Parole Board is £23 million a year. This will cost more than the entire budget of the Parole Board.
Peter Rook: First, on delay, article 5(4) is not just about a decision being made by a court. It has to be a speedy decision. If you interpose this body, that will clearly lead to substantial delay. Say one went for what Martin Jones has put forward—a right of appeal to the Upper Tribunal. Why not use the Court of Appeal criminal division? The Parole Board is not just an adjunct. It is part of the criminal justice system. We need a system where Parole Board members know more about sentencing, and sentencing judges need to know more about parole. It seems to me that the Court of Appeal criminal division would have skills much better suited to determining Parole Board issues than the Upper Tribunal or, dare I say it, sometimes a divisional court.
Q65 Chair: Is that something that has been floated with those who sit in that division?
Peter Rook: I have certainly spoken to one of the senior judiciary about it.
Q66 Chair: You don’t think there would be a complaint over workload.
Peter Rook: Well, there might be a leave provision.
Q67 Edward Timpson: Can I also ask about the Government’s position on the full merits review and whether its inclusion ensures that this scheme complies with article 5 of the European convention on human rights? Are you able to comment on that, or can you give a view as to whether that is a correct statement that we can take as read?
Peter Rook: Again, I must not enter the fray here. We have already heard that there would have to be an automatic right of appeal to achieve compatibility here. There are other arguments about whether just because you have this at the end of the line, it necessarily means that it is compliant at an earlier stage, so those points do arise.
Caroline Corby: Martin, is there anything you would want to add on that?
Martin Jones: No, I don’t have anything to add.
Edward Timpson: Thank you.
Q68 Chair: I wonder if we could come back to the questions that Mr Daly was asking the previous panel, which are about clause 46 enabling the power to prescribe that an additional class of person should be members of the board and that they should sit, in effect, on particular cases.
Caroline Corby: If I start with that, I think a real strength of the Parole Board is our membership. Just to give you a feeling for it, at the moment, we have 50 judges, 100 of what we call specialist members, who are psychologists and psychiatrists, and then 190 independent members. Overwhelmingly, they have a criminal justice background, so they could be ex-prison governors, probation officers or lawyers, such as Cassie. But we also have 20 members who are classified now as independent members, but who have a law enforcement background, such as retired police officers. We are currently recruiting for an additional 25 people with a law enforcement background.
We welcome all these skills, and I have no difficulty with having more members with a law enforcement background joining us. In fact, I have been very pleased with the process that is going on. We have had lots of applicants, so I am sure we can make some really good appointments. Clearly, they are ultimately made by the Secretary of State.
Q69 Chair: Is that a sledgehammer to crack a nut, then?
Caroline Corby: I have no difficulty with a fourth class of member. What I am concerned about is the Secretary of State specifying that particular types of members sit on particular types of cases, which is one of the proposals. I have concerns and reservations of principle, but also of practice.
In terms of principle, these issues were picked up by the previous witnesses, but I think this could be seen to be encroaching on the independence of the Parole Board. In some ways, the perception is that this seeks to influence the outcome of our decisions. As was referenced earlier, this sort of issue has come before the courts before, when John Reid was Justice Secretary, and it resulted in the Brooke judgment. So I have a concern under the heading of “independence”, but I also have a concern about practicality. As we said earlier, we deal with 2,000 top-tier cases a year. If we had to put a person with a law enforcement background on every single case, I think that could build delays into the system. It is not the way we currently do things—to put our newest members on our most serious cases. People tend to work their way into the cases, so I have these practical concerns.
But there is another issue, which is that when a case is referred to the Parole Board, the first time it meets a member is at a paper hearing. Every case referral starts with a paper hearing. That panel member—it is normally a single panel member dealing with a paper hearing—makes three choices: they can determine that the prisoner does not meet the test, so they are knocked back; they can send it on to an oral hearing, which happens in about 50% in cases; or they can release the person. So at the paper stage, any prisoner with any conviction can be released.
It would be very unusual for a top-tier prisoner to be released, but you can have circumstances where that would be the case. Say that somebody has a conviction for murder and has spent a very, very long time in person, and they are now frail and elderly. If they are going to be released, they are likely to go to a care home. For that kind of person, you could say, “The risk is likely to be very low. They might meet the paper test.” I am not clear whether this means that every paper hearing would have to have somebody with a law enforcement background. That would not be manageable, certainly in the short term, for us, and I think it would throw up issues. If we have a certain type of member looking at every single case, it raises other questions as well. Martin, is there anything else you would want to add on that?
Martin Jones: I think the other really important thing to say is, at the moment—my office really scrutinises the panelling of those serious cases in any event—quite often what we want to do is put a judge on the hearing, particularly if we think it is a case that is going to attract very significant public attention. We want to ensure that we have somebody who will adroitly handle the decision in that case and will ensure you have a strong judgment at the end. If our starting point is, “Okay, we want a judge. We want Peter chairing it,” and then you have to add a police officer to the panel as well, and in many of these cases you might need a psychologist or a psychiatrist, it actually limits the other experience you may need to bring to bear on that case.
The other thing I think is important is that we look at the decision making of members. I see no evidence at all, and it is completely false to suggest, that police officers do not release people. The police officers that we have on the Parole Board, from the evidence, follow the evidence and the law to make a correct parole decision in the way that our guidance and training suggests. The suggestion that somehow police officers are only going to release them in a tiny percentage of cases would be completely false.
The other objection you might have to this is the potential concern around the very rare number of cases where the victim of the offence is a police officer and there is the question of, “Okay, you have a police officer sitting on a case involving a crime committed against a police officer.” That might be an area that needs some careful scrutiny.
Caroline Corby: Cassie, do you want to say anything about working with members from lots of different backgrounds?
Cassie Williams: Every case is dealt with on its merits. Consequentially, when you are looking at applying the legal test that we have to apply, panels that include police officers or former police officers will inevitably, in applying the test, release some people and not release others. It is dealt with in the same way as any member would deal with it. I also want to highlight the level of training that goes into being a Parole Board member. The point was made a moment ago that when you join the Parole Board, you are not immediately chairing these types of cases. There is a considerable amount of training, and ongoing training, to ensure that we have the skills and knowledge, including the legal knowledge, to deal with these cases.
Q70 Dr Mullan: I have a couple of questions. I had not heard of the paper single board member test before. What proportion of people get released under that mechanism?
Caroline Corby: When a case comes into the Parole Board, it is first looked at on the papers. Fifty per cent. go forward to an oral hearing and 50% are determined at the paper stage. Overwhelmingly, those are knock-backs, but did we have about 300 paper releases last year, Martin? Is that the right figure?
Martin Jones: Yes, about 1% or 2% of the total number of cases referred to us will be a paper release decision. Most commonly, that will be a determinate recall case—perhaps a burglar who has been recalled to custody following the breach of their licence conditions. They come back before the Parole Board, and there is no concern about the long-term risk. That might be suitable and there is evidence that there can be re-release. But there are a number of cases in which we might release a more serious offender on the papers where the evidence supports that—where it is relatively straightforward in the sort of examples that we have. That is what the rules permit us to do.
Caroline Corby: Just to give you a feeling for the numbers, we get 16,000 referrals a year, so about 8,000 cases are determined on the papers and around 300—
Q71 Dr Mullan: It sounds like it is almost weighted towards cases where you feel it is black and white and very obvious. Is that written down in some way?
Caroline Corby: Cassie, do you want to talk about that? You must have done some paper releases.
Cassie Williams: There is obviously very full guidance, and you have to make sure you have sufficient information to make that decision. At the paper panel stage, there is also the option to adjourn to the papers again to receive further information. That is particularly important on recalls because the information you get there is very recent, but obviously as time goes on things change. For example, if someone is recalled because they have been arrested for a further offence, you may want a report from the police, from the Crown Prosecution Service, to understand the decision that may then have been made not to proceed. In those circumstances, it may be somebody who was originally convicted of a very serious offence, such as murder or rape. In those circumstances, we can release on the papers, but we can only do so if we have sufficient information to do so.
Q72 Dr Mullan: On my other question, you talked about how you determine panel composition in an almost organic way. I am curious to understand whether there is more to it. It cannot just be gut instinct. Is it just your experience and you choose a team that you think works, or is there guidance that says, “These types of cases would have people with x years of experience”? Is there more to it?
Martin Jones: Yes. Obviously, we have internal guidance in relation to how we decide that sort of top tier of cases. A particular focus over the last few years has been terrorism cases. You will only get on a terrorist case if you have gone through the relevant training and have the accreditation and the security clearance, because sometimes sensitive information is disclosed at those panels. We also know there are certain cases that are flagged to us as potentially being high profile in the future—perhaps a case where, for example, there was a previous legal challenge—and we want to ensure that, as it goes back around the system again, we have the right experience. Sometimes that might involve, for example, somebody with significant mental health difficulties and ensuring that they have the right psychiatrist on the case as part of that. We keep an eye on those cases and their progression in the system, but also so that we know when those decisions are likely to be issued, to ensure, for example, that we are informing victims well in advance of a decision, so that it does not come as a surprise—so that they do not read about the decision in the newspapers, but get it before its release to the media.
Q73 Dr Mullan: But is that written down in that way, as you have described it?
Martin Jones: Yes, and we have certainly have guidance, which I am happy to share with the Committee, if that would be helpful.
Chair: That would be very useful, thank you.
Caroline Corby: As chair, one of my responsibilities is ensuring that our panels have the appropriate people on them. That is a function that I largely delegate to Martin and the executive, but as you would expect, I take more of an interest in some cases than in others.
Dr Mullan: Thank you.
Q74 Stuart C. McDonald: Another provision that raises issues of principle and practice is clause 47 and the power of the Secretary of State to dismiss the chair of the Parole Board, if to do so is necessary to maintain public confidence. I do not know whether I should be asking the chair directly about that, but is that the appropriate test, and is it appropriate for that power to be with the Secretary of State?
Caroline Corby: I should start by saying that that does not apply to me, as the current chair. It will apply to future chairs, so I feel free to answer. My understanding is that the clause will be used to maintain public confidence in the board. That is a bit unclear, but it sounds to me as though it could be used if the Parole Board made an unpopular decision. It sounds like that. As I said earlier, 16,000 prisoners are referred to us each year. Many of them have committed really appalling crimes. In the most notorious cases, many people feel that somebody with that conviction should never be released. I do not think it is well understood by the public that that is a sentencing matter; it is not a matter for the Parole Board. The Parole Board has a narrow but very important role, which is that of considering risk once the period of punishment has been served. It would not be lawful for our members to say, "I think you’ve done a terrible thing and you should serve five years longer.” That is not part of our role.
I have been chair for five years now. Each year we get two to three release decisions a year that cause public disquiet. They result in quite lurid headlines, often radio phone-ins—that kind of thing. I do not wish to tempt fate, but in the five years I have been chair—though I do not take personal responsibility for this; it is just the period that I know—not one of those high-profile prisoners has gone on to commit a serious further offence. Not one. Given that record on public protection, which is always our primary concern, I do not think it can be right or fair that the chair could be dismissed following an unpopular decision. The nature of the work is extremely sensitive; the chair of the Parole Board needs more protection than pretty much any other chair of any arm’s length body. Also, there are other provisions in the Bill that move the chair away from a decision-making function, so it seems inconsistent with that move. I also think it is incompatible with the duty of the chair to protect the independence of the Parole Board.
To be clear—I think the answers you heard earlier perhaps did not pick up this point—I can be removed. There is the possibility of removing me: it is called a termination protocol, which was set up following the Wakenshaw judgment in 2018, which dealt with the issues arising out of the departure of my predecessor. Following that, a protocol was set up, which means that the chair of the Parole Board can be removed, as can any other Parole Board member. We think that the termination protocol works well; we think it is legally defensible and fair. By the way, it has been used: a member has been removed using the protocol, so it is not a theoretical protocol.
Q75 Stuart C. McDonald: The circumstances are quite confined: absence without reasonable excuse, bankruptcy and so on—is that correct?
Caroline Corby: In the protocol, if you behave in a manner that is incompatible with the role—I can be referred in by the Secretary of State and an independent panel can deal with the issue.
The last point I want to make on the clause is this. As I said at the start, this does not apply to me. My term as chair of the Parole Board finishes in October 2024. However, if there is a clause such as this, I think it could have an impact on the quality of people who would be prepared to apply for my role.
Stuart C. McDonald: That’s all very comprehensive, thank you.
Q76 Chair: Am I right in thinking that the one instance when the Wakenshaw protocol was used was for public comments that were not compatible, or was it a different one?
Caroline Corby: No, the termination protocol was used when I referred a Parole Board member because I did not think that she had done her job.
Q77 Chair: So basically it was a confidence issue?
Caroline Corby: Well, it was a conduct issue, actually. I don’t want to say more about it, because it is going through—
Q78 Chair: But you are trying to say that there are means of dealing with these things.
Caroline Corby: And before the Wakenshaw judgment, there weren’t, so it is a good thing that the protocol exists. We think it is legally robust. I can be removed from office, and I think it is right that anybody can be removed from office, whatever office they hold.
Chair: Thanks. That is helpful.
Q79 Stuart C. McDonald: You referred to the other aspect of clause 47 earlier. The earlier witnesses seemed to think that removing you from your role in individual cases would pretty much remove you from doing very much at all.
Caroline Corby: I wouldn’t say that. I do this job two days a week. I do not make decisions in individual cases, and I am certainly busy. I chose not to make decisions in individual cases, and that has now been adopted as our management committee’s policy. Nick Hardwick, my predecessor, also didn’t make decisions in individual cases, but our judicial vice chair does. In terms of staying in touch with the work, for the entire time I have been chair of the Parole Board, I have gone and observed hearings every six weeks. I feel very in touch with the work, and of course that is a fantastic opportunity to meet members.
Q80 Stuart C. McDonald: But the suggestion was, I think, that even something like your involvement in listing panel members for a particular case might be curtailed if that was seen to be influencing the outcome.
Caroline Corby: This is one of the areas where it is not entirely clear to me exactly what would be taken away and what would not be. For example, it was only last year that we had the change to allow public hearings, and it is very clear that the chair makes that decision. I don’t have a legal background, and whenever I am making legally complex decisions, I rely on Peter Rook. I always consult with Peter Rook. Of all the changes being made in here, it is not the one that I feel most strongly about.
Stuart C. McDonald: That is helpful. Thank you.
Q81 Chair: You made it very clear what your views are on some of the changes. You also made it very clear that you had precious little input in the changes proposed in the Bill. Had you been asked to provide your expertise and input, what would you have asked to have in the Bill?
Peter Rook: Case management is clearly the key to expeditious cases being done properly. We also need directional powers. Our case load has increased over the years, and we deal with very tricky cases, making decisions on the facts, so it is extraordinary to think that we have no directional powers. We cannot actually summons a witness. We can obviously direct that the witness should appear, but they might not. We are also very much aware that primary legislation for the Parole Board doesn’t come along all the time, so opportunities should be seized.
Q82 Chair: That would put you in the same position as the tribunals or any other body with practice directions.
Peter Rook: Indeed.
Caroline Corby: Martin, is there anything that you want to add?
Martin Jones: I completely agree on directional powers. The other thing that was part of the root and branch review, which the Parole Board is keen be established, is a parole oversight board. That would get the relevant parties together to ensure that the system is working as effectively as possible. As part of that, one of the things that will be crucial is the evidence that is provided. We are a court; we make decisions based on the evidence. One of the things that we have been working on over the past year is ensuring that, in every case, we see the judge’s sentencing remarks. The starting point for any Parole Board decision has to be the base upon which the judge sentenced. Until recently, we didn’t have effective processes to ensure they were received in every case. We have resolved that now. It seems like a classic thing of the system working together to ensure the Parole Board gets the evidence it needs to make the best possible decision.
Q83 Chair: Okay. Hopefully you get it now.
Martin Jones: Yes.
Q84 Dr Mullan: Judge Rook, you mentioned that an alternative might be a mechanism for the Secretary of State to appeal through a criminal judge. Are you suggesting that because you have to do something—you don’t really want to, but that would work—or do you genuinely think that might be a helpful mechanism to have in place?
Peter Rook: I think that is something that should be explored. Clearly, a lot of work would have to be done on it, but we all agree that it is a logical avenue for an appeal from the Parole Board.
Caroline Corby: We welcome safeguards in the system. We welcome reconsideration for exactly the same reason.
Martin Jones: When we responded to the consultation on reconsideration, one of the things that we suggested was a fully fledged appeals mechanism, but there wasn’t a legislative opportunity at the time. This is obviously a place where you can look at it again and carve out something bespoke for what we need. We think it would be a good, positive thing, in relation to public confidence in the system, for there to be a proper way for people to challenge our decisions. You would ultimately get a judgment from the courts that says that the decision stands or does not stand.
Q85 Dr Mullan: It makes me think of the unduly lenient sentence scheme, which is a similar idea.
Martin Jones: That’s exactly right.
Chair: Thank you all very much indeed. We are very grateful to you for your evidence, which has been most helpful. The session is concluded.