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February 2014 — Robin Corbett Award and Parole Board

Robin Corbett Award

Lord Ramsbotham opened the meeting by welcoming everyone to the annual presentation of the Robin Corbett awards.  However before that he had a very sad duty to perform. Over the Christmas recess, his Co-Chair, Paul Goggins MP, had died. He could think of few people who had enjoyed so much respect, throughout the House, for being a very decent, humane and courageous man. He recalled Paul as a very caring Prisons Minister. A monument to Paul might be his interventions during the passage of the Offender Rehabilitation Bill through the Commons. Each one had been thoughtful, humane and sensible.  He hoped they could be enshrined in what happened in the future. Members of this group would miss Paul hugely. He invited members to stand for a moment’s silence in Paul’s memory.

The meeting then moved to honour the late Robin Corbett, his predecessor, in whose name a prize had been inaugurated by his widow.  Selectors sought to identify organisations working on prisoner rehabilitation. Each year the selection had seemed more difficult, and this year was no exception.  He handed over to Lady Corbett.

Lady Corbett emphasised Robin’s passionate interest in rehabilitation, and deplored the failure of the media to report on the many projects doing such amazing work. She was glad to say that Robin’s whole family was present, and his spirit was still alive: his grand-daughter was working with offenders, and his grandson worked for many years in the Visitors’ Centre at Wormwood Scrubs.  She had recently seen a commemorative plaque on a bench: ‘You only live once, but if you live it right, then once is enough’.  She thought that summed up Robin, and also the spirit of this award.  Those supported by such initiatives had a chance to ‘live their lives right’.

Lady Corbett wanted to thank the Worshipful Company of Weavers for their support for the awards. She invited David Perry, Upper Bailiff of the Company, to accept a copy of the book she had written about Robin, in appreciation of that support.

She described the difficulty of the award panel in making their selection.  In the end they agreed the award should go to an initiative called PrisonWorks, operating in the Isle of Man Prison. Both this project, and the Forgiveness Project (the runner up) were working on restorative justice. One of the prisoners they interviewed, a drug dealer, had told them of the impact of meeting a mother whose 18-year-old son had been killed by someone high on drugs. She invited a round of applause for two volunteers, who had been working with prisoners for 15 years to get them to accept some responsibility for what they had done.  Lady Corbett invited Marcia Brabbs from PrisonWorks, to collect a cheque, certificate, and a copy of the book.

The runner up was RESTORE, which had been running in HMP/YOI Parc since 2009, and was one of the most requested programmes by prison staff and prisoners.  It also used real stories of victims and perpetrators of crime to explore ideas around forgiveness and conflict resolution. She was very keen that such ideas should be taken up by many more prisons.  She invited Marina Cantacuzino to collect the cheque, the certificate and the book, on behalf of RESTORE.  She finished by saying that Robin was living on in this award, and for that she was very grateful.

Lord Ramsbotham thanked Lady Corbett, adding that thanks were also due to the Barrow Cadbury Trust, fellow parliamentarians and friends of Robin, all of whom had contributed to this award.

The Parole Board: Meeting the challenges of an ever changing criminal justice system

Lord Ramsbotham thenintroduced Sir David Calvert-Smith, Chairman, and Claire Bassett, Chief Executive of the Parole Board. He could think of few organisations under greater pressure, and they had a hugely important job to do.  The meeting looked forward very much to this presentation.

Sir David Calvert-Smith began by saying what a privilege it was to be invited on the day of the presentation of these awards. He had always been a great supporter of restorative justice initiatives.

We really appreciate the opportunity to tell such an important audience about the Parole Board and the work we do.  As you know, I am David Calvert-Smith and  I have been Chair of the Parole Board since October 2012. Joining me today is Claire Bassett, Chief Executive since April 2012.  We are hoping to do two things today; firstly to tell you about the role the Parole Board plays in the modern criminal justice system and a little bit about how we have ended up where we are today, and secondly to outline for you some of the challenges we are currently facing.

A bit of history: since it came into existence in 1968, the Parole Board has played an increasingly important role in our criminal justice system.  Created in the wake of the abolition of the death penalty, the role of the Parole Board was to advise the Home Secretary upon the question of whether, and if so when, to release life sentenced prisoners. Since then it has gradually emerged from its status as a small group of people within the Home Office with no directive power to the status of a “court” with directive power over some 20,000 prisoners per year. Its evolution over 45 years to its current status and role is due both to legal and political decisions and, I believe, to a growing confidence that it can be trusted to make fair decisions.

While at any given moment, in those 45 years, it has been possible to take a snapshot of the Board and its role, it may also be instructive to look back and see how various events have helped form the Board as it is today and from that to get an idea as to how things may develop in future.

At least five motives have, at various times, influenced the development of our parole system.  In no particular order, these are:   Firstly, ensuring, so far as possible, that dangerous offenders are only released when they no longer represent a significant risk of serious harm to the public. Increasingly since 2003 punishment is devised not just to fit the crime committed but the criminal who committed it.

A second motive is to help with the rehabilitation of offenders and their reintegration into society by advising on their suitability for a move to open conditions and imposing some control over their movements and behaviour when released.

The third motive is to save money. Keeping offenders in jail is more expensive than supervising them in the community.   Fourthly, we are helping to keep order and security in prison by giving offenders an incentive to behave themselves and thus earn their release.

Finally, we satisfy the need for a “court”, independent of the government of the day, to decide whether the continuing detention of a prisoner beyond the period fixed as punishment by a court is justified. This need, though frequently attributed to Strasbourg and the ECHR and Article 5 in particular, is one that, as the Supreme Court has recently emphasised, has been part of English law since the 17th Century and the invention of habeas corpus to curb the arbitrary power of the monarch.

All five of those motives have been in play at various times as Parliament has – regularly since 1991 in particular – changed the sentencing system. Almost every such change has increased the work of the Parole Board and thus it has gradually become a more and more important part of the way this country deals with offenders who have been sentenced to imprisonment.

In particular, three major changes in sentencing, as well as many smaller ones, have had significant impact on the Board. These were: the introduction of automatic release on licence of almost all prisoners after half their sentence has been served (from the Criminal Justice Act 1991 onwards); extended sentences which lengthen the period during which a released prisoner is on licence up to a maximum of five years for violent, and eight years for sexual offenders, both of which, as I am sure you will understand, result in more people being recalled to prison, and thus coming under our jurisdiction; and finally the development of the assessment of “risk” as the key element in parole decisions, and, with that, the Indeterminate Sentence for Public Protection (the IPP sentence).

How do we work? I had better described the categories of work we do.  We have three functions, the first two of which are statutory.

The first is to decide whether to release certain types of prisoner; in particular, all indeterminate sentence prisoners, that is to say, life sentence prisoners and prisoners given IPP sentences, after the minimum term set by the sentencing court has expired. Although the IPP sentence was abolished by Parliament, in the Legal Aid, Sentencing and the Punishment of Offenders Act 2012, effective from December 2012, those serving IPPs will continue to serve their sentences in the same way, and will need a decision from the Parole Board before they are released. They remain, like life sentenced prisoners, on licence for the rest of their lives, subject to their ability to apply to the Minister for the licence to be terminated after 10 years.  The numbers needing to be considered has not yet peaked. In June 2013 – I draw the figures courtesy of the PRT Bromley Trust Report – there were 5,620 people serving IPP sentences in prison, of whom 63% (3,549) had passed their tariff expiry date . So there are still some 2,000 prisoners working through their tariff period before they first come to us for consideration, albeit that the sentence has now been abolished. The IPP has been replaced partly by a new form of extended sentence, with a release date within that sentence and a cut-off date for the licence, and partly by automatic life sentences for certain offenders which will in due course produce more work for the Parole Board.

There are also some, though a rapidly diminishing number of, determinate sentence prisoners: a scheme called Discretionary Conditional Release (DCR) prisoners, whereby prisoners could be released after between one third and two thirds of their sentence, under an old sentencing regime; and some extended sentence prisoners, as I’ve just described, either sentenced since the new Act – they will not come on stream for some time probably – or under old extended sentence regimes.

The second category: the Parole Board  decides, based on an assessment of risk, whether to re-release prisoners sentenced to more than 12 months who have been recalled to prison for breach of their licence conditions.

Thirdly, it makes recommendations to the Secretary of State for Justice as to the suitability of indeterminate sentence prisoners for transfer from closed to open conditions, and in rare cases, on the question of release on compassionate grounds.

The second of these categories, the review of recall cases, is by far the largest part of our work. In these cases the role of the Board is not to review the decision to recall, but purely to decide whether continued detention is lawful based on assessment of the risk posed by the individual prisoner.

The review of indeterminate sentence prisoners at and after the expiration of their tariff, or minimum term, is our traditional and best known statutory function. In these cases a panel decides whether “it is no longer necessary for the protection of the public that (the prisoner) be confined”.  The test we must apply is therefore one of public protection and it is worth remembering that this is the primary function of the Parole Board – the protection of the public.

It is axiomatic that, both as a result of the development of English/Welsh law since habeas corpus and the development of European law, that if the state wishes to detain people after the end of the punishment term handed down by a court, an independent body such as the Parole Board must make the decision on custody or release.  Our panels can make, I believe, balanced, fair and rigorous decisions because they are not subject to influence, whether political or as a result of operational or resource pressures.  The Board’s independence also adds some, perhaps considerable, credibility to the process in the eyes of those subject to it, namely the prisoners themselves.

In order to fulfil this function a panel must make an assessment of risk based on the inquisitorial process that our hearings follow. This is a very different process from many other courts and tribunals, which use an adversarial process and focus on making findings of fact.  In order to assess risk properly – and I am sure a great number of you know this – a panel is provided with a dossier about the prisoner they are considering. All dossiers contain the same core documents including risk assessments and release plans. In addition, the panel chair may request additional information or assessments to aid its decision making.

The third area of our work is advisory. In these cases, although we may have later to review a prisoner’s case as part of our statutory function, we will make a recommendation to the Secretary of State rather than a decision. These are mainly cases where a panel is asked to recommend whether a prisoner moves from closed to open conditions. The Executive makes all other categorisation decisions and this area is an exception. It is a very important one however since for almost all indeterminate sentence prisoners the move to open conditions is a crucial part of their progression to release.

It is therefore arguable that, although the Minster’s decision (closed or open) does not affect the liberty of the subject in the same way as our directive decisions do, it has such a powerful influence over the prisoners’ eventual release that the Parole Board could be entrusted with the actual decision. Indeed, the recent review by HM Prisons Inspectorate of the Antony Rice case said in terms that a move to open conditions was a critical factor as it created a “momentum” towards release which made release after a period of acceptable prison behaviour almost inevitable.

Who are we?  The Parole Board currently has 231 members who carry out parole hearings. All except two members are part-time (including a part-time Chairman and Vice-Chairman) and combine their work on the Parole Board with work in another profession. The membership of the Board includes judges, consultant psychiatrists, forensic psychologists, probation officers and independent members. The mix of knowledge, skills and expertise ensures a fair but rigorous analysis and assessment of risk. Parole Board members are appointed by the Lord Chancellor and can serve for a maximum period of ten years, made up of two, five year, terms.

Our secretariat consists of approximately 90 staff, all based in London. Their work focuses upon supporting members and ensuring that dossiers and witnesses are complete for hearings. To achieve this they work with colleagues in prisons, probation and NOMs as well as legal representatives and others.

We are currently subject to the government’s Triennial Review process. We have been heartened by responses to that review which have highlighted not only the importance of the existence of a Parole Board in some form, but also the importance of that body’s independence. In particular, contributors have highlighted the efficiencies we have managed to achieve in the last two years,  and the focus that we give to risk assessment and public protection.

I’d like to say something now about some of the challenges we are currently facing. All these challenges are also opportunities for the Parole Board, and both Claire and I are confident that we are well placed to use these to improve the way the Board works, and engages with those who use it.

The first challenge is our workload.  This is not a new challenge. In 2008 the Board was faced with a crisis. Its resources had not been increased to cope with the huge increase in its work, largely as a result of the introduction of the IPP sentence. An injection of funds enabled the recruitment of many new members and the generic parole process helped to increase the speed with which cases were reviewed. Intensive case management allowed the Board to identify those cases where it could make its final decisions on paper, thus reducing the average cost to the public purse of dealing with them.

More recently a drive, led for the past two years by Claire, to improve the efficiency and effectiveness of hearings led to a 25% drop in the backlog despite the fact that we had been dealing with more cases during that period.  This was achieved in part by the creation of an electronic case management system developed jointly with NOMS to ensure it was fit for purpose, which delivered essential efficiencies such as the creation of electronic dossiers – which reduced the time taken to prepare a dossier from half a day to half an hour.

These changes, together with tremendous efforts both by staff at the Parole Board and its members, have succeeded in reducing the backlog of work dramatically.  However, all this has now started to change as the result of the Supreme Court’s recent decision in the case of Osborn, Booth and Reilly [2013] UKSC 61. I give you the citation because it is well worth reading – even if you only read the first four pages.

The decision in this case will mean that many more prisoners will be able to obtain an oral hearing than have hitherto. Current estimates suggest that the impact could be an increase in the number of oral hearings each year from 4,500 to over 14,000. In short, in any case in which a prisoner raises an issue, whether or not the resolution of that issue could affect the decision to release, fairness dictates that he/she should have the right, if he/she chooses, to raise that issue in an oral hearing. Even in cases in which no such issue is raised, factors such as the length of time in custody post-tariff may also operate in favour of an oral hearing.

In response to this decision, the Parole Board is working closely with colleagues in NOMS and the main department to put in place a range of measures to deal with its impact. Although felt most directly by us at the Parole Board, the case has substantial consequences for prisons, who are likely to have prisoners for longer; for probation, who will have to attend hearings on a far more regular basis; and for legal aid, since prisoners attending oral hearings will need legal representation.

Within the Parole Board we are currently working to redesign the parole process. Although some extra resources may be available to us, just doing more of what we do now will simply not be realistic. Indeed, we consider this a unique opportunity to challenge ourselves, and our partners in the parole process, and to think about how we can work differently in the future. For example, we are likely to consider changing the way we hold some hearings, how panels are made up and what is considered by them. It is still early days and we are currently developing these ideas so that we can consult more widely on them in the spring.

Litigation is an increasing part of our work, and in particular the application of Article 5(4) of the Convention. Recent judgments have influenced our work in terms of: independence; hearing types; compensation for delay; how we apply the test for release and what we say in our guidance to members. For a small organisation, this can be very resource intensive and, as Osborn and Others recently demonstrated, can have a dramatic impact on our work. Like courts, such as the Magistrates’ or Coroners’ Courts, we do not usually defend cases in which the decision of a panel is challenged but simply allow the court to consider the decision and decide whether it was reasonable or unreasonable.

As the Parole Board has evolved into a court-like body, the question of whether it is sufficiently independent and impartial   has been a consistent theme. This was first raised before the European Court of Human Rights (ECtHR) in the case of Weeks v United Kingdom in 1987, and following that, the Parole Board became a non-departmental public body as it is today.   Again in 2008, in the case of Brooke v Parole Board, the Court of Appeal upheld the declaration of the Divisional Court that the Parole Board failed to meet the requirements of Article 5(4) ECHR. This was because the Board did not demonstrate ‘objective independence of the executive and of the parties’, and thus violated a prisoner’s right to a fair hearing. The Court of Appeal stated that a court must be independent of the parties and of the executive ‘not merely because this is a requirement of the separation of powers but because the executive sometimes has an interest in the result of the proceedings’. The then Secretary of State for Justice responded to the judgment by transferring the sponsorship of the Parole Board from NOMS to the Access to Justice Group in the Ministry of Justice.

Legal Aid reform:  many of you will be aware of recent changes to Legal Aid. These will have an impact on the Parole Board. We are very pleased that post-tariff reviews are still within the scope of legal aid but are concerned that changes to other areas of prison law, where a prisoner’s liberty may not be at stake, may result in increased cost to the prison system and us. For those parole cases which will now be out of scope, we have introduced a guide for prisoners, which we are hoping to produce in the Easy-Read format, and we hope to be able to assist them as much as possible.

Transforming Rehabilitation and changes to Probation: this is another major change which will have an impact on us. The creation of the National Probation Service means that the way we work with probation will be changing. These changes will be an opportunity for us to work with the NPS to improve the process and the quality of risk assessments. We are pleased that all high risk prisoners will be remaining with the NPS. However, we are nervous about the large population of less serious offenders who will be on licence and subject to recall at the behest of whoever has responsibility for their licence, and also what the relationship will be between the contractors and the NPS who will have ultimate responsibility for managing risk.

The Parole Board is already working with those responsible for designing the new structures and working arrangements within the National Probation Service including how they in turn work with the new Community Rehabilitation Companies who will be managing some of the cases which will be referred to us. It will be vital to ensure that all parts of the system can share information and work together effectively to ensure that the safety of the public is not jeopardised.

Victims: the parole process can be particularly difficult for victims of those who are being considered for parole. The nature of a parole hearing is that it is not reviewing guilt, punishment or other matters decided during the original trial, but looking at the risk the offender currently presents to the public at large, including of course the victim.   It is important that victims understand this and contribute their statements in this light. We have been working hard with Victim Liaison Officers in probation to improve victim’s experience of the parole process and we will continue to do so. Last year I met with the Victims Commissioner and was able to discuss this and the Victims Code with her.

Risk aversion:  because of a few – very few – high profile cases in which a dreadful crime has been committed by a person following release from prison whether on parole or on licence after automatic release, there can be a natural reluctance on the part of professionals to recommend, or panels to direct, release unless everything necessary to minimise risk has been put in place.  We are committed to ensuring that our consideration of every case balances fairness to all parties with the need to assess risk rigorously and make a decision with the protection of the Public as our first consideration.  In many cases, this involves a delicate balancing act and the Parole Board values highly the work of probation staff in the community who have the difficult task of safely managing those whom we release.

Review Committees investigate cases in which a released prisoner offends seriously following release on licence to see whether there are lessons to be learned.  A User Group containing, among others, representatives of the Youth Justice Board, the Association of Prison Lawyers, the Howard League, the Probation Service, the Prisoners Advice Service and the MoJ meets regularly, most recently yesterday, so that we are aware of concerns from any quarter and can do what is necessary to deal with them.

Hopefully during this short presentation I have set the scene for you about how the Parole Board works and some of the challenges we face. I would like to finish with a message about confidence. We have been through some challenging times over the last few years and we face more now, but I am confident the Board is equipped to meet these. Since I have been at the Board I have been struck by the commitment of our members. Being a member of the Parole Board is neither glamorous – as I found out recently when attending hearings on the south coast – or particularly well rewarded.

The expertise needed to be a member has also impressed me.  Our training and appraisal systems are vital because the important decisions affecting the lives of a prisoner and the safety of his/her victims and of wider society are not easy. Evidence can come from all directions, is often conflicting or unclear and sometimes hard to navigate.  Behind these members sits the secretariat. A small and dedicated team, they are meeting the challenges of the Osborn decision with focus and a determination to make the most of the opportunities this also offers.