Gavin Drake

Journalist

It is time to end the secrecy and infallibility of the Parole Board

Professor Nick Hardwick is chair of the Parole Board.
© gov.uk

The Parole Board has come in for a lot of attention in the past few days, after its decision to release serial predatory rapist John Worboys was announced on Thursday afternoon. But despite this attention, its work is shrouded in secrecy. Unlike any other aspect of the criminal justice system, the Parole Board’s work is both secret and infallible – nobody can appeal its decisions, and nobody is entitled to know how it reached a decision in any particular case.

News reports on Friday suggested that the chairman of the Parole Board, Professor Nick Hardwick, had been summoned to appear before the Justice Select Committee of the House of Commons to explain the Parole Board’s decision. He hasn’t.

Instead, the Select Committee chair, Bob Neill MP, issued a statement saying: “I shall be recommending to the Committee that we ask [Hardwick] to give evidence to the Justice Committee about what has happened, in particular the failure to inform victims of Worboys’ release, for which he has rightly apologised. . .

“We will also want to ask about how the Parole system can be made much more transparent, something Nick Hardwick himself has rightly called for. In my view it is ridiculous that the current rules prevent the Board making public the reasons for their decisions.”

The Rules that he is referring to are The Parole Board Rules 2016 – a UK Statutory Instrument which sets out the rules by which the Parole Board must operate under. As a Statutory Instrument, it is a piece of law which has been approved by Parliament. Statutory Instruments are what is known as secondary legislation. They are prepared by ministers and presented to Parliament but do not go through the same scrutiny as Acts of Parliament.

Which is a pity: because if MPs wanted the Parole Board to be more transparent they could have asked the government to think again about Rule 22(3), which states: “A hearing must be held in private; and Rule 25(1), which states: “Information about proceedings under these Rules and the names of persons concerned in the proceedings must not be made public.” The Rules go on to say that any contravention of that requirement “is actionable as breach of statutory duty by any person who suffers loss or damage as a result.”

Fortunately, Professor Hardwick has been championing the need to open up the Parole Board even before the furore over Worboys. Now, MPs from across the political divide are calling for change; and this morning it is reported that Justice Secretary David Lidington has ordered a review into this aspect of the Parole Board – although no such announcement appears on his department’s website at the time of writing this.

In his statement, Bob Neill begins by stating that “The Parole Board . . . can only deal with cases for which a prisoner has actually been convicted, rather than where there may be suspicion.” This is not correct, as a read through the Parole Board Rules makes clear. A Parole Board’s panel is entitled to “ask any question to satisfy itself of the level of risk of the prisoner” (Rule 23(2)(b)); and “may produce or receive in evidence any document or information whether or not it would be admissible in a court of law” (Rule 23(6)).

This means that the panel were perfectly entitled to take account of the findings of the High Court Judge who found that Worboys had committed offences against more than 100 women. One question that the Select Committee might want to ask Professor Hardwick, is whether the panel were aware of this finding. Or, to put it more starkly: did the Secretary of State make the panel aware of the extent of Worboys’ offending behaviour?

But there is more: when a person is imprisoned for sexual or violence offences, section 35 of the Domestic Violence, Crime and Victims Act 2004 places an obligation on the Probation board to “take all reasonable steps to ascertain whether a person who appears to the board to be the victim of the offence . . . wishes to make representations about . . . whether the offender should be subject to any licence conditions or supervision requirements in the event of his release.”

A quick reading of that section would suggest that the “victim” relates to the specific offence for which an offender was convicted. But this would be wrong. The Act doesn’t state that. It states whether a person “who appears to the board to be the victim of the offence.”

And individual clauses of Acts of Parliament should rarely be read in isolation. Section 32 of the Act places an obligation on the Secretary of State to “issue a code of practice as to the services to be provided to a victim of criminal conduct by persons appearing to him to have functions relating to . . . any aspect of the criminal justice system.” Section 32(6) states: “it is immaterial that no person has been charged with or convicted of an offence in respect of the conduct.” That sub-clause relates solely to section 32, though, and has no direct bearing on section 35.

But it does have an indirect bearing: because paragraph 6.26 of the code states that victims are “entitled to be informed by the National Probation Service if a Parole Board hearing is to take place” and can “make representations about licence conditions to the Parole Board” and “be provided with an explanation if a licence condition you have requested is not included on the offender’s release licence.” Remember, the law setting out the requirement on the Secretary of State to produce this code of conduct states that “it is immaterial that no person has been charged with or convicted of an offence in respect of the conduct.”

Unfortunately, the code of conduct, although required by law, and laid before Parliament, is not law. It is merely a code; and section 34 of the Act specifies that “If a person fails to perform a duty imposed on him by [the code of conduct], the failure does not of itself make him liable to criminal or civil proceedings.”

In other words, the code is a nod to victims of crime; but it has no teeth.

Now, back to John Worboys: in a Parole Board hearing, there are two parties: the prisoner and the Secretary of State. We may not be entitled – under the law as it stands – to know about the proceedings; but surely there is nothing to stop the Secretary of State letting us know whether the government had opposed or supported Worboys’ release?

Professor Hardwick and the Parole Board are facing the flack. And the law as it stands prohibits them from putting up a proper defence. If, at the hearing, the government didn’t put up much of a fight – or a fight at all – to keep Worboys in prison, then we are entitled to know this. The blame must then be put on the government rather than the Parole Board. But if the panel were aware of the 100+ victims, then we surely need to know the basis on which a person who has committed so many carefully planned rapes and sexual assaults is now deemed to be safe. John Worboys is an exceptional offender. And exceptional offences require exceptional approaches.

The Justice Select Committee must probe Hardwick properly to ensure that we are told why Worboys is now considered to be safe. He may cite the secrecy requirements of the Parole Board Rules to say he is unable to answer them. But Parliament is supreme. It was Parliament who approved the Rules and Parliament can set them aside. Besides, when giving evidence to a Parliamentary committee, Hardwick will have full immunity for anything he says.

But he won’t merely have the benefit of common law parliamentary privilege. Section 54 of the Act states that a person “may disclose information to a relevant authority” if it is for a purpose “connected with” compliance under the Code of Conduct, or with victims’ rights to make representations and receive information. The Act doesn’t define what a “relevant authority” is; but I can’t see how Parliament’s Justice Select Committee cannot be considered to be a “relevant authority”.

The Select Committee hearing shouldn’t be used as an opportunity to blast the Parole Board. Nor should it simply be a platform for MPs to grandstand on the Worboys case. Instead, it should gather information which is then used to build a new open and transparent approach to the working of the Parole Board.

I began by explaining that no other aspect of the criminal justice system is treated so infallibly and so secretive – even where there are concerns for privacy which are rightly covered by reporting restrictions. Journalists, for example, are entitled to sit in juvenile courts, family courts, and even hearings in judges’ chambers. There are no reasons why journalists should be refused access to parole hearings. Nor are there any reasons why the findings of Parole Board panels are not routinely published. They could be redacted, if necessary, so that particular conditions on the release of a prisoner do not reveal the identity of victims who are legally entitled to anonymity; or do not place victims, or others, in any danger. But that is no excuse for the complete secrecy that is currently imposed.

Nor is there any reason to treat the Parole Board as infallible. Every other aspect of English justice is appealable and subject to review. Why should the Parole Board be treated differently?

The Parole Board doesn’t always stick to secrecy in its working. In 2010, under different rules, one panel member told Guardian reporter Amelia Hill: “The problem is that if we release someone and something goes wrong – if an offender we release kills someone – the buck stops with us. It was our decision. It was our call.” But the buck doesn’t stop with them – not if nobody knows who they are or on what basis a decision was made.

Those comments were made as part of a feature in which Hill was given access to a panel as it deliberated on a number of cases.

Because the Parole Board Rules are a statutory instrument, they can be simply amended by the publication of new Rules by the Secretary of State and laid before Parliament. They can come into force in less than a month.

The chairman of the Parole Board and MPs all seem to be in agreement that change needs to happen. Well, Parliament, stop talking about it. Just do it.

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© Gavin Drake 2017