This paper is not a formal submission of evidence to the Justice Select Committee. The Committee has not called for evidence for the Work of the Parole Board session.
Introduction
This paper has been prepared in advance of the Justice Select Committee’s evidence session, The Work of the Parole Board, scheduled for 18 October 2017.
The Committee has not called for evidence from parties other than the Parole Board and the Ministry of Justice.
We would welcome the opportunity to provide evidence to the Committee and to provide short case studies to illustrate some of the points we raise.
This paper is intended to highlight some of the issues we would like to see explored in greater depth by the Committee.
1. Background
1.1 I am a Solicitor-Advocate, admitted as a Solicitor in 1996 and granted Higher Courts Civil Advocacy rights in 2010. I have extensive practical experience of the parole system and the work of the Parole Board. I have represented prisoners before the Parole Board for almost twenty years.
1.2 Between April 2014 and December 2015 I was commissioned by the Parole Board of England and Wales to work on governance and stakeholder projects.
1.3 I am the Managing Director of SL5 Legal which works in partnership with Tuckers Solicitors. SL5 is a ‘chambers-style’ practice of advocates who specialise in prison law and parole advocacy. We provide training to lawyers and other professionals working in similar fields.
2. Submission
We have highlighted five broad areas:
2.1 Imprisonment for Public Protection
2.1.1 I wrote an article for The Guardian newspaper in July 2016 entitled 'Liz Truss should be brave and release prisoners on indefinite sentences'. It was intended as a call to action to the new Justice Secretary in light of advice which had been offered by the Chairman of the Parole Board.
2.1.2 She wrote to the Justice Select Committee in August 2016:
“You will however be aware already of the work being undertaken to increase opportunities for prisoners serving IPP sentences to reduce their identified risks and progress through their sentences towards release. This includes enhanced case management for IPP cases where it has been identified that they are struggling to progress and a Progression Regime for IPPs and others who are ineligible for open conditions. This specialist regime is designed to re-introduce the responsibilities, tasks and routines associated with daily life in the community and to allow the prisoner to pursue activities and relationships which support rehabilitation. I can confirm this work, the details of which have been provided by my predecessor in earlier correspondence, will continue. You have asked also for information on the number of places on offending behaviour programmes that have been available to IPPs for the last 5 years. I have provided this information below. Accredited programmes however are not a mandatory requirement for IPP prisoners. There are many ways in which prisoners may reduce their risks, e.g. through accessing the Progression Regime as outlined above, education, vocational work, one to one work with psychologists etc. Completion of a programme does not automatically mean that risk has been reduced."
2.1.3 The Ministry of Justice has continued to refer to a new unit which is assisting IPP prisoners to make progress. We would encourage the Committee to scrutinise a little more closely the claims which have been made about enhanced case management. We have not detected any material change in the quality of case management of IPP cases. There has been an increase in the release rate of IPP prisoners but we believe this to attributable to:
a. a willingness by some Parole Board Members to be bolder in their decision-making
b. the tenacity of a dwindling group of experienced advocates who assist their clients to build viable release plans or commission independent expert evidence
2.1.4 We have not detected any increase in the resources made available to better manage cases in the community. The reference made by the previous Justice Secretary to many ways in which prisoners may reduce their risks does not accord with the institutional approach to IPP (and other life sentence) cases within HMPPS. It is still rare for witnesses at parole hearings to refer to evidence other than accredited ‘offending behaviour’ courses’ to show a reduction in the risk posed by prisoners. This is particularly the case for prisoners convicted of sexual offences.
2.1.5 Offending behaviour programmes have been treated as a linchpin for IPP and other life-sentence prisoners for many years. Many prisoners have been kept in custody for several years because they have been told that a particular programme is an essential prerequisite for their progression. Recently published research into the Sex Offender Treatment Programme (SOTP) – which has been the dominant approach to sexual offending for two decades - has entirely discredited this intervention. There is a great deal of confusion and uncertainty about how HMPPS will manage prisoners convicted of sexual offences now. There are a significant number of IPP prisoners who are affected by this.
2.1.6 We believe that the current approach to IPP prisoners is inadequate and that there is no substitute for decisive action by the Secretary of State. There has been a familiar pattern of Home Secretaries and Justice Secretaries speaking out about the unjust nature of the sentence but only after they have left their post.
2.1.7 When the IPP sentence was abolished the Secretary of State was given the power to change the release test for IPP prisoners. There are a number of options for him to do this. The Chairman of the Parole Board has set this out. The Secretary of State could begin planning immediately to release the remaining IPP prisoners, beginning with those who have already served more than the maximum determinate sentence they could have received. He could convert the cost of keeping IPP prisoners in custody into ‘enhanced case management in the community’. In practical terms this would mean equipping the Probation Service, local authorities and NHS with the means to provide the kind of support and supervision that some IPP prisoners will need to enable them to cope and resettle in the community.
2.1.8 The average annual cost of a prison place in England and Wales is £36,259. The cost of keeping 3,200 IPP prisoners in custody for another two years is more than £230 million. That sum could pay for a lot of much-needed community resources and would create 3,200 less prisoners in the creaking prison system.
2.2 Recalls 2.2.1 The recent National Audit Office (NAO) report contains the following, astonishing statistic:
The number of recall prisoners in the prison population has continued to increase, from just 150 in 1995 to 6,600 in June 2016.
2.2.2 Recalling a released prisoner to custody is dealt with as an administrative action in England and Wales. We have seen very little evidence of decisions to recall being scrutinised by the Secretary of State’s representatives. Recalls are sometimes made on spurious grounds, on the basis of factual inaccuracies or insufficient consideration being given to alternatives. Decisions to recall are frequently made by officers who do not have a personal relationship with the person supervised, for example when the supervising officer is on leave, and taken without adequate investigation.
2.2.3 They take a long time to unravel. Many prisoners wait several months for their cases to be reviewed by the Parole Board. This may result in their re-release but they will usually have served a significant period of time back in custody.
2.2.4 A stark case study from one of our own cases:
We acted for a client who had been released on licence. The licence he was given when he was released from prison stated that he needed to report to an Approved Premises by 00:00 on the same day. He took that to mean that he had to be there by midnight. It transpired later that an error had been made on his licence. His Probation Office wanted him to report by 15:00. This had not been communicated to him.
He arrived at the Approved Premises at 23:00 (an hour before he was required according to his licence). He was arrested shortly afterwards as a request had been made for his recall. He was returned to prison. His supervising officer stated in a report prepared a few days later that there had been no information to suggest that his risk of serious harm had increased in the few hours he had been on licence.
It took ten months before his case was finally reviewed by the Parole Board. His behaviour in custody had deteriorated, largely due to his anger and frustration at having been unfairly recalled. The Parole Board did not direct his re-release.
2.2.5 The NAO report confirms that in 2015-16, 13% of completed recall oral hearings were of IPP cases. Reviews by the Parole Board of recalls of IPP and other life-sentenced prisoners take several months to conclude as they almost always require an oral hearing. In our experience many of these cases end up in re-release. The scrutiny of recall decisions comes at the end of the process.
2.2.6 We believe that the Secretary of State should have to apply to the Parole Board if they have grounds to seek to remove a person’s liberty. The Parole Board should act as a court, providing due process for decisions concerning liberty. This would entail more care being taken over decisions to recall and allow scrutiny at a much earlier stage. This is not a radical proposal. A procedure like this is already followed in Scotland and in other European jurisdictions. It should incorporate a statutory requirement for alternatives other than a recall to custody to be considered. This has the potential to achieve a significant reduction in the prison population without putting public protection at risk.
2.3 Deferrals and Case Management by the Parole Board
2.3.1 We welcome the efforts by the Parole Board to reduce its case backlog and the steps that have been taken to increase the number of cases it is able to list. One of the areas which has not been addressed sufficiently is the prevalence of cases which are deferred or adjourned. 2.3.2 The NAO report notes (paragraph 1.19) that thirty-four per cent of oral hearings were deferred once listed in the year to September 2016 and more than half of these were deferred or adjourned on the day.
2.3.3 The most common reason for deferrals is identified (at paragraph 1.20) as related to reports (such as psychiatric or psychological reports) not being available, or further information being required before a case could be heard. This accounted for 50% of all deferrals (both paper and oral) before the hearing and for 69% of deferrals on the day.
2.3.4 We do not believe that all deferrals or adjournments are problematic. There are occasions in which requests for deferrals are made by prisoners or on their behalf. However, we believe that the number of cases which need to be deferred or adjourned could be reduced significantly by:
a. more effective case management by the Parole Board b. an extension of the powers available to the Parole Board c. a reduction in the reliance upon unnecessary psychological reports
2.3.5 The most common reason for on-the-day deferrals is, in our experience, a failure by the Parole Board to ensure that cases are prepared adequately in advance. We would like to see far more extensive use of directions hearings. These can usually be conducted by telephone or videolink. They enable issues which might cause a case to be ineffective to be aired and resolved at an earlier stage. Most courts have case management hearings or procedures which concentrate the minds of the parties to ensure that cases are ready to be heard.
2.3.6 Panel members need to find effective ways to communicate about cases in advance of the day of the hearing. Far too often we are informed that the first opportunity members of a panel have had to exchange views about a case is the day of the hearing. Many cases are deferred on the day because a panel has belatedly decided that a psychological report is required. Deferrals or adjournments for a psychological report will usually add four to six months to a hearing. It should usually be possible to identify at the Member Case Assessment (MCA) stage that a case needs specialist psychological input. We believe that some members call for psychological reports when they lack confidence about making decisions. Good psychologists are a comparatively scarce resource and should be reserved for cases that really need them.
2.3.7 Some cases end up in deferral or adjournment because a witness has failed to comply with a direction made by the Parole Board. We would like to see far more robustness from the Parole Board in these situations.
2.3.8 The Board is hampered by a lack of powers to manage its work and to enforce its directions. There are potential solutions to this which require political will. The Board was provided with judicial support to tackle this by the Court of Appeal in a 2015 case of Vowles but this has not been followed up. The court made the following comments about case management by the Board:
The determination by the Parole Board is a judicial process. It is self-evident that the obligation to make a speedy determination under Article 5(4) cannot be realised without active case management by the Parole Board. The Parole Board has therefore adopted a process called "intensive case management". However the procedure so adopted, on the evidence before us, does not comply with its obligations, as active case management does not begin at the point of time at which the case is referred to the Parole Board, but only when the dossier of evidence is provided to the Parole Board by NOMS. In cases such as the present where there has been a determination by the FTT, the obligation of the Parole Board is to undertake active case management from the moment of referral, in the same way as it is the duty of a court actively to manage its cases from the time cases are commenced before a court. That is a duty that rests on the Parole Board; it is not dependent on an offender making the running on case management.
There is another aspect in which the Parole Board is further disabled from complying with its obligations to make a speedy determination, as it has no specific statutory powers to enforce its case management directions. It is difficult to see how it can properly and actively manage cases without such a power. A party can of course apply for a witness summons to the High Court or County Court under CivPR 34.4, but that is of very limited relevance in enforcing compliance with directions, such as the service of reports. It is plainly essential that the Parole Board be given such a power. In the interim, as a significant number of the directions of the Board require action by the MoJ or NOMS, there is no reason, pending the introduction of such a power, why the MoJ and its agency NOMS cannot give an undertaking to the Parole Board to comply with its directions and appropriate administrative or disciplinary action taken by the MoJ and NOMS against employees who do not comply with the directions of the Parole Board.
2.3.9 The Parole Board could be given powers which are consistent with its role as a court. Consideration could be given to incorporating the Parole Board within HMCTS, arming it with the powers which are inherent in other courts and tribunals and reducing the role of the Public Protection Casework Section. This could achieve economies of scale, avoid the duplication of work between different agencies and also ensure that the ongoing court reform and modernisation programme embraces the parole process.
2.4 A Wider Role In Sentence Planning for the Parole Board
2.4.1 The terms of referral by the Secretary of State to the Parole Board still routinely direct the Parole Board to avoid commenting upon any aspect of sentence planning for prisoners. This is in our view a missed opportunity. The parole process involves the examination by an independent, expert, court-like body into the ongoing detention of prisoners. There is no logical reason why this should not incorporate sentence planning advice in appropriate cases. Sentence planning plays is inextricably linked to progression towards release. Poor, inappropriate or rigid sentence planning keeps prisoners in custody longer than they might otherwise be.
2.4.2 Other jurisdictions (eg the French legal system) retain an oversight role for the judiciary in the ongoing management of sentences. A wider sentence management role would enable the Parole Board to exercise a more robust role in ensuring that prisoners do not get lost for years in the system and to challenge decisions about their sentence management in an appropriate forum.
2.4.3 We would welcome the opportunity to explore this in greater depth.
2.5 Vulnerable, Disabled and Unrepresented Prisoners
2.5.1 For understandable reasons, it is not easy for prisoners who have committed serious offences to persuade the Parole Board to release them. It often requires years of treatment, developing insight into the reasons for their behaviour then planning and building release plans which manage their risk. This is easier for prisoners who have a reasonable level of education, access to programmes they can understand and the ability to provide instructions to lawyers acting for them. Prisoners with learning disabilities or significant communication difficulties have far more obstacles. It is not easy to negotiate with staff and local authorities when you do not understand who they are or what their roles are. It is not easy to explain a ‘risk management plan’ when you do not have the faintest idea what that is.
2.5.2 Prisoners who are on the autistic spectrum, even those without a learning disability, are likely to find the parole process difficult to navigate. They may have a particular way of understanding the world and interacting with it. This may contribute to patterns of behaviour which can be very problematic in a prison environment and create serious barriers to progress.
2.5.3 In 2013 the government implemented cuts to legal aid for prisoners. Prisoners can no longer have legal aid for help with sentence planning. They can only get legal aid for parole hearings which might lead to their release. We are aware of a number of hearings which Parole Board members have deferred – often more than once - because they did not feel the prisoner could get a fair hearing without any representation.
2.5.4 The Parole Board does not have power to order that a prisoner should have legal aid for representation. All they can do is to flag their concerns and hope that something is done. In April 2017 the Court of Appeal found that some of the legal aid cuts, including those which related to representation at Parole Board hearings, were unlawful. The Secretary of State has still not restored legal aid in these areas and many prisoners remain unrepresented at parole hearings. These hearings routinely fail to meet minimum standards of procedural fairness.
2.5.5 In those cases where legal aid and representation is available, prisoners with communication difficulties still encounter very serious disadvantages. Professionals who work with prisoners need to have some knowledge about learning disability and autism so they can recognise it. There are individual pockets of good practice within the system. This means that fair treatment is a matter of luck.
2.5.6 There is a raft of legislation (including the Care Act, Autism Act, Equality Act and Mental Capacity Act) and accompanying guidance which create rights for individuals and duties on public bodies. There is a comprehensive Prison Service Instruction on Adult Social Care which sets out clearly how prisons and local authorities should work together to help prisoners with care and support needs. This legal framework needs to be understood. It is of real value only if it is complied with or there is an effective means to secure compliance.
2.5.7 The Equality Act requires public bodies to make ‘reasonable adjustments’ to avoid discrimination against disabled people. The Parole Board need to make adjustments to enable prisoners who have learning or communication difficulties to participate in their own hearings. This must include changing way the hearing is conducted, particularly the way questions are asked. This requires patience,skill and the willingness to change and adapt practice.
2.5.8 The ‘reasonable adjustment’ duty could in certain circumstances extend to requiring that the prisoner is provided with someone to support them leading up to or even at their parole hearing. The Care Act requires local authorities to provide care and support services for prisoners with eligible needs. When a local authority is made aware that a prisoner may have care and support needs they have a duty to assess them. Independent advocacy support must be provided by the local authority if it is needed for assessments.
2.5.9 There is an absence of a co-ordinated strategy within the Ministry of Justice and the Parole Board. It is not enough to hope for a trickle-down of good practice. Failure to act creates not only unfairness but is costly too. Prisoners with these kind of problems are incarcerated longer than they need to be. Their cases are endlessly deferred or litigated until someone finally seizes the mantle. What is needed is a strategy which joins the dots and drives change rather than one which relies on luck and good intentions. 2.5.10 Physically disabled prisoners are also routinely disadvantaged and discriminated against. Several prisons have parole hearing rooms which are on the second floor and are inaccessible. Very little prior thought is given to adapting hearings and facilities to enable those with visual or hearing impairments to participate properly in the process.
Andrew Sperling
SL5 Legal Email: SperlingASL5@tuckerssolicitors.com