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01 April 2022

Blog: Review of the parole system

In this article for the Fairness Foundation, Prison Reform Trust director Peter Dawson sets out why the proposed reforms to parole, published this week, sacrifice fairness for political expediency.

The Government has published a root and branch review of the parole system, meeting a manifesto commitment. It’s no accident that it did so on the day the Deputy Prime Minister announced that he was challenging the Parole Board’s decision to allow the release on licence of the woman convicted in 2009 of causing or allowing the death  of “Baby P” in a case that would lay bare many failings of child protection practice.

This is about the fair fundamentals. Prisons really crystallise issues of fairness. Do we owe a duty of fairness to people who have murdered? Does stigma matter if enough people think it’s deserved? Should anyone care about prisoners while the victims of their crimes are suffering more than they are?

The headline change that this review trumpets is that the Secretary of State personally will decide whether some prisoners can be released once the period set by the court for punishment has expired. At the moment this decision is taken by the independent Parole Board acting in a quasi-judicial capacity.

The review is very hazy about just which prisoners it wants to be affected. In theory it could be hundreds of decisions each year, each with supporting documentation that can run to hundreds of pages. In practice, no one is in any doubt that ministers are interested in the cases that make the news. This all started with a Parole Board decision to release John Worboys, the so-called “black cab rapist”. That moniker in itself explains a lot about the issue. His offending was dreadful, though sadly not the worst that the Parole Board will consider. But we trust black cab drivers.

So it probably shouldn’t have been a surprise that the promise of a review of the parole system should earn a line in the Conservative party manifesto in 2019. No-one would deny that public concern is real. But on any objective measure, the Parole Board operates more successfully than most parts of our dysfunctional criminal justice system. With reconviction rates generally at around 50% for people released from prison, fewer than 1 in 100 people released through the parole system go on to commit a further serious offence.

However, what has emerged from the review is unfair in several different ways.

In the 1980s, ministers had the final say on the release of many people serving what are known as “indeterminate sentences”, where a person can only be released both once a minimum term for punishment has been completed, and where they are no longer considered to pose a risk to the public. That changed because the courts – including the European Court of Human Rights – concluded that decisions on a person’s liberty required both independence and procedural safeguards which decisions taken by a politician couldn’t guarantee.

It’s still unfair to let an individual’s future – however grave their crime – be sacrificed to the electoral calculation of a member of the executive. The separation of powers is a bastion of fairness.

It’s unfair because notoriety is random. Some serious crimes attract more attention than others. The degree to which public attention is then maintained can be driven by any number of different factors, from a striking photograph, to particularly memorable details, to the involvement of well-connected individuals. It often has little to do with comparative severity of the offence, and nothing to do with the calculation of future risk – the basis on which the law requires that parole decisions should be made. So as a prisoner you could find that your chance of ever being released is determined by something you can’t possibly change. By the same token, as the relative of a murder victim you might find your voice went unheard because there wasn’t any media interest. Fairness in criminal justice isn’t about who attracts the most public disgust or sympathy, or a competition between prisoner and victim – it’s about the just treatment of both.

The review is unfair because it assumes that the difference between success or failure at a parole hearing for a prisoner is determined by their own commitment to change. In other words, if you don’t get parole, it’s your fault for not doing enough to show that you’re not “dangerous”. But this is a system that is constantly failing to provide the opportunities to allow a proper judgement about future risk to be made. The same review will make it harder for prisoners to go to open prisons, where they get the opportunity to spend time in the community, and have trust placed in them. It’s a classic Catch-22 – you need to show you can be trusted, but we’re not prepared to take the risk of trusting you in the first place.

And it’s unfair because there is another purpose to this – to bolster the government’s view that fundamental rights should be earned, not assumed. Look at the recent government consultation on the future of the Human Rights Act, and its lazy assumption that people will be shocked because prisoners have used that Act to insist on receiving the necessities of a civilised daily existence. Or the refusal to extend any of the long-awaited assistance on legal aid to prison litigation or even to prisoners alleging a miscarriage of justice. In January this year, the pressure group Justice published a detailed set of proposals for a parole system that would be fair, and would guarantee the rights of people who ministers clearly believe least deserve them. Previous official reviews of parole have reached similar conclusions. But this latest review, with its “they deserve what’s coming to them” attitude, couldn’t be less concerned with fairness fundamentals.

Peter Dawson