The Parole Board. Working with others to protect the public.
About the Parole Board
As the Board enters the new financial year, the number of judicial
reviews has reached new levels. One noticeable fact that reflects the
increasing strain on Parole Board resources is that there are nearly as many challenges to our processes as to our decisions. Of 74 cases
ongoing at 31 March 2008, 30 were seeking a declaration that the Board has breached prisoners rights under Article 5(4) of the ECHR
because their review had not yet been completed. Breaches of 5(4)
attract subsequent claims for compensation and the Board has
found itself subject to an increasing number of claims, both through the High Court as part of judicial review, and through private actions in the County Court.
In order to help cope with the growing number of legal challenges, the Board is to create an additional Deputy Head of Casework post.
The most significant judicial review by far has been Brooke and others, in which the Boards very existence as a judicial body able to decide on Article 5 issues was challenged, on the basis that the nature of its sponsorship by the Ministry of Justice created a perception that it is not an independent body. The Board had said publicly before Brooke that it felt itself insufficiently independent, and in the case itself we adopted a formally neutral stance submitting evidence to inform the Court. The Secretary of State was also a Defendant.
The case was decided by the Court of Appeal in January following the
hearing in November. The ruling was that while the Secretary of State may not have sought to unfairly influence the actual decision in any case, the nature of the sponsorship arrangements had helped create a perception that the Board was not sufficiently free of Executive interference. There had been two particular instances of inappropriate interference by theMinister and sponsorship department. The future of the Board as an NDPB will need considering in the long term, but the Boards change of sponsor from the
National Offender Management Service to the Access to Justice
Directorate in the Ministry of Justice, will address matters in the
short term.
The case ties in neatly into a situation that has presented itself
to the Board in respect of its legal representation. Normally the Board
instructs the Treasury Solicitor to act for it. In a great many cases the
Board and the Secretary of State are Defendants in the same
proceedings (Brooke being the most high profile example) and,
where there is no insurmountable conflict between us, the Treasury
Solicitormay act for both. Even if conflict does arise it is sometimes
possible to erect a Chinese wall to protect each partys interests.
Occasionally, however, that is not appropriate and it has become
increasingly apparent that the Board needs its own independent
representation.
A case in point is that of a private action brought against the Board
and others by the family of Naomi Bryant, who was murdered by
Anthony Rice following his release on life licence. The Treasury Solicitor was unable to act for the Board and as a result, the Board has instructed the firmof Bircham Dyson Bell to represent us in the Bryant case, and a number of compensation claims arising out of late Parole Board reviews. It is a new experience for the Board to have private legal representation.
A delay case where the Board's 55 day target for hearing lifer recall cases was criticised. Mr Justice Collins said that while the definition of speedy will vary from case-to-case depending on the circumstances, in the majority, 55 days is unlikely to be warranted.
The Court of Appeal confirmed that Article 5(4) is engaged at the half way stage of a Determinate Sentence for those sentenced under the discretionary conditional release scheme, at least in so far as timeliness of the parole review is concerned.
Another appeal case. The Court of Appeal confirmed that in considering a licensee recalled to prison, the Board is not restricted
to considering the circumstances that led to the Secretary of State's
decision to revoke the licence. The Board is entitled to consider
other matters and may, indeed probably must, look at the wider
issue of risk of further offending.
While not a Defendant, the Board was granted leave to engage in the proceedings as an interested party. The challenge was to the Secretary of State in respect of two prisoners serving Indeterminate Sentences for public protection who had served their tariff. The basis of the applications was that where the Secretary of State had failed to provide them with courses/programmes to enable them to
demonstrate to the Board that the risk they presented to the public
was acceptable for release then continued detention was unlawful.
The Board successfully sought a ruling from the Court of Appeal
that any such decision about unlawfulness of detention would
not impinge on the statutory duty not to direct release unless
satisfied that the risk to the public is sufficiently reduced. In other words, if not satisfied that risk is acceptable, the Board may not direct release regardless of an alleged unlawful omission to act by the prison authorities.
This case was considered by the Court of Appeal alongside Brooke. The prisoner, serving an extended sentence for public protection claims that the test for release should be one of serious harm, similar to the life and limb test applicable to lifer cases. The Court decided it need not make a ruling since the panel that refused early release had applied such a test anyway. The case is heading to the House of Lords after an appeal by the Secretary of State. The Board remains involved as an interested party.
A relatively new case in the early stages, Pilgrim seeks to
persuade the courts that a serious harm test should also be applied to DCR cases. This would have quite serious implications should the
Board continue to consider non dangerous offenders for parole, in
that it would appear that prisoners sentenced for example, for offences involving drugs or dishonesty, would have an almost automatic entitlement to parole even if the Board considered them likely to commit further such offences on licence.
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