Wider reforms to parole needed

The case of John Worboys has thrown a spotlight on how parole decisions are reached, and a new panel must now assemble to consider his application after the High Court blocked an earlier decision to release him after a judicial review – the first time in England that this has happened.  In response, the Justice Secretary made a statement to Parliament outlining a series of steps he intends to take to change the parole process, and to do so quickly.

The High Court ruled that the release should be stopped because of administrative failings, although it stopped short of saying their release decision was flawed.  The move to parole a Category A prisoner before first testing them in open conditions (the progression that the vast majority of offenders have to make) does look indefensible.  Nevertheless, the issues that the Worboys case exposed really go to the fundamental purpose of parole, and any reform plan should take the time to consider what sort of system we want. 

The problems with parole

As a gateway for release, parole was deliberately set up to be an independent and ‘quasi-judicial’ process, which over time came to replace the arbitrary decision-making power of the Secretary of State.  It was originally used for a small number of life-sentenced prisoners, and subsequent legislation and Rule 25 specifically made the adjudication itself a completely closed affair. 

Lay members – not unlike magistrates – are given limited training, and sit as three-person panels for oral hearings attended by the prisoner, where a bulky case dossier is considered.  As the remit for the Parole Board grew – to encompass a growing number of life prisoners and those serving new indeterminate sentences – parole became a more industrialised process, requiring more resources and departmental support to administer the system (one of the failings identified in the Worboys case).  But even as it became a permanent feature of the prisons system, parole was never opened up to wider scrutiny.

Backlogs steadily increased as the prison population grew, and prisoners would often wait years after a refusal to be considered for release again.  In recent months, the Board has made good progress on clearing the backlog, and it made some worthwhile investments, such as giving their members tablet devices and access to the parole dossiers electronically.  However, training remained limited and performance information was not routinely collected or shared.  As a result, panel members (again, not unlike magistrates) continue to get no regular feedback on the outcome of their decisions – unless in the exceptional cases when it is disastrous and a released prisoner commits a serious further offence.

So even though efficiency has improved and the paper-based parole bureaucracy is gradually giving way to digital working practices, fundamentally parole is a private, subjective assessment exercise, and the Parole Board is not a learning organisation – it does not know how well it performs, it doesn’t collect or publish individual outcome data, and even corporate policies or activity metrics are hard to find.  This was changing under the new chief executive and the leadership of Nick Hardwick as the Chairman, who has now been forced to resign, but radical reform to make the Board truly open was never on the political agenda before now.

Accountable to who?

Clearly as an arms-length-body designed to keep parole cases insulated from political influence, the Board cannot answer to the Ministry for every decision it takes, but with the lack of information given on parole outcomes, and because it operates with such limited transparency, it is hard to see in what way it is really accountable. 

Executive powers over prison sentences have been steadily curtailed by human rights challenges, and the Secretary of State no longer has even a veto power to overturn, in rare cases, an individual release decision (like governors in US states, for example).  Even a recommendation to move a prisoner to open conditions is so rarely declined by the Minister that civil servants took to considering it almost as an improper act (though previous Lord Chancellors have done so).

So, in the name of ‘independence’, any thread of formal democratic accountability for parole decisions has gone, and in its place we have a body that weighs evidence and decides on an individual’s liberty like a court, but without any of the openness or legal probity of judge-led due process.  The Worboys case may be untypical, but public awareness and media understanding of the parole system is so hampered by its opaque operation that it is unsurprising when such extreme cases are assumed to be representative of wider practice.  

For years, these sorts of criticisms have surfaced, but parole has continued unreformed.  Yet given the political consequences of a high-profile decision like Worboys, the body responsible ought not to operate as though transparency is an inconvenience.  Accepting this new reality, and the ruling that the secretive Rule 25 is unlawful, the Government is now promising some changes, but it appears reluctant to conduct any fundamental review.

Edging towards transparency

Some of the Government’s proposals to ensure proper victim notification are needed, though they fall short of giving victims the right to attend hearings in person, as they can in the Canadian parole system (along with accredited media).  But some other of the proposed changes could further undermine the current system rather than rebuild trust in it. 

Granting more transparency by sharing case summaries with victims is a step in the right direction, but this limited move might just unleash a flurry of new legal challenges, fuelling the judicial review culture and undermining trust in parole, unless there is a separate and robust appeals process.  This exists in New Zealand, but their parole agency also regularly publishes decisions. 

No changes are proposed to mandate that panels are chaired by retired judges or other legally-experienced members, as they are in other common law countries.  And as many have already argued, the recent reversal at the High Court could have a chilling effect, making lay panels even more risk-averse in future – not a good consequence for our overcrowded prison system.

The public need to trust that the parole system puts public safety first, and that parole makes well-evidenced and reasonable judgements that keep in custody those we need to be protected from, but also does not keep inside those we ought to release.  No process will get every decision right, but some will be better than others and a closed system, dependent on part-time, non-expert adjudicators that does not systematically monitor the outcomes of its own decisions, is probably less likely to get it right than a professional model that is transparent, and hence more accountable.  It is time we considered the alternatives.

Doing parole differently

Along with open hearings, there are wider lessons we could take from the Canadian system.  Their Parole Board is comparable – as a federal agency that uses panels that assemble for oral hearings to decide upon release – but the whole process operates much more transparently.  A mountain of performance information is collected and tracked, and even data on the outcomes for the board’s release decisions are published.  In addition to the performance statistics, an online registry of all their decisions is maintained, and even the official manual that guides panel members on how to make decisions is a public document

That data shows that the number of people attending parole hearings as observers has steadily increased each year – a sign that this degree of engagement meets a legitimate public and victim need.  As someone who has observed actual hearings in both jurisdictions, the openness and professionalism of the Canadian model has much to recommend it.  New Zealand goes further and publishes detailed case summaries which explain the context and names all the parties.

Open, accountable and professional

So there are options for how we can professionalise the parole process and do it more transparently at the same time.  Demystifying parole by publishing aggregate (de-personalised) performance data would be a first step.  Then using advanced algorithms to inform decision-making – not the current outdated Oasys probation risk assessments – would help reduce the number of flawed release decisions.  Both would help build confidence.  Then like Canada, instead of keeping hearings private and publishing summaries, we could just open up hearings, giving rights of access to the media upon request, and truly engage those victims who want to attend and participate.

If policymakers remain convinced that public tolerance for risk demands some formal discretionary release channel for the worst offenders in the prison system, we could go further and opt to turn the Parole Board into a public protection court – proposed a decade ago by the Conservative Party in Opposition – where judges chaired the hearings, cases were heard openly, legal aid was available for prisoners and a proper appeals process was created.  That system would be more expensive than the status quo, and could only apply to the most serious cases, but it would at least make parole a properly accountable moment, in line with the original sentencing decision. 

Wider reforms need consideration

After Worboys it is not clear that the English parole system of part-time lay panel members established decades ago in a very different political, media and societal context is still fit for purpose.  A wider consultation that examined the alternative international models, and the latest research on behavioural economics, desistance, algorithmic decision-making and reoffending pathways, might not lead us to retain a parole system like the one we have now at all. 

In reforming parole we could take several different paths, depending on what outcomes we are seeking and what role (if any) we want discretionary release to play in our prison system.  Openness and professionalism are the right objectives, but there are many possible ways to achieve them, and a sober consultation would likely generate new options.  Any quick patch for the current system will not prevent another Worboys case, and it will miss an opportunity for a more serious reappraisal.