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.

Why our new Justice and Security project is needed

The Project for Modern Democracy is launching a new research project this year on justice and security. In keeping with the work that we already do, this new research will focus on defining the most important modern policy challenges and the new thinking that is needed to meet them. 

A new research programme

Why are we expanding our work into this new domain?

First, there is growing concern that the justice system in the UK is degrading, and that major agencies within it are dysfunctional, or simply failing to deliver for the public. Even before the recent Worboys parole case, many parts of the system had come under renewed scrutiny, whether it was stubbornly high reoffending, or a major escalation of prison violence. Add to this the recent and unprecedented review of rape cases in response to chronic failings around disclosure in the trial process, and the perception of a system in crisis seems justified.

Second, crime is coming back as a dominant political issue – as the threats are evolving, old crime problems are returning, and public concern is returning. According to Ipsos MORI, crime has been dropping down the list of voter priorities consistently for ten years – from 37 per cent of people naming it as the top issue facing the country in December 2007, to just 12 per cent in December 2017. This has reflected a genuine reduction in volume crime, and less victimisation. But this trend may have bottomed-out, as police recorded crime is steadily rising again. The poor state of prison regimes is just one area where a lot of public attention has resurfaced. The multiple Islamist attacks in 2017 refocused public and political concern about the new terrorism. Given the breadth of the problem and the millions of people directly affected, the escalating threat of cyber crime and online fraud are also becoming mainstream concerns.

Third, and in response to this picture, some longstanding institutional problems are beginning to ossify – like poor prison regimes, the quality of the court process, the police’s ability to tackle online offending, and the treatment of victims – and so naturally the political heat is returning. And with it, will be a demand for new policies that can actually be adopted, and not just an unwinding of changes already made. There is a need for innovative policy thinking, and much greater experimentation than is currently happening, and this means an emphasis on more reform, not less.

And, last, the perspective we intend to bring – drawing on new innovations around the world and the best international policy experience – is sorely needed in the UK in order to design and implement the best approaches, especially at this moment of geopolitical detachment.

The justice system today: new pressures, old problems

The word crisis is overused but there are signs – in official statistics, or in rare judicial outbursts, or from practitioner groups and watchdogs – that the criminal justice system is under severe pressure. 

Some of these problems are not new. The system has struggled with delays for many decades. Violence has regrettably always been a feature of prison life. The police have always had to play catch-up in response to new technology-enabled offending. Probation was never adequately funded to meet public expectations.

But new pressures are growing, and old arrangements seem to be falling short. Sexual offence cases are at record levels and keep rising, and yet attrition remains a massive problem. Online fraud has exploded, but the offenders are often undetectable, let alone pursuable. Social media, crypto currencies and encrypted apps are burdening law enforcement and offering many new channels for crime. Synthetic drugs are fuelling organised crime and prison violence, but new laws are not managing to do any better than previous prohibition efforts. London and other cities are seeing a rise in stabbings and other serious youth offending. The quality and health of the forensic science market is being exposed. Private probation providers are struggling to deliver basic services, or even to stay in business.

Many of these new pressures on the system are societal, and have come from outside, but some are borne of failures within the system – both operational and policy. Some reforms meant to improve outcomes have failed to deliver, or are now not fit for the current criminal justice environment. These include policies that were only recently implemented, like the radical changes to probation. Others have had some impact, like the new national policing landscape for organised crime, but have simply been overtaken by the scale and pace of today’s cyber threats.

There are also other policy issues that are suddenly topical, like those posed by the need to maintain international security cooperation after Brexit – from data-sharing, foreign national offenders and border security, to extradition arrangements. All will become more salient in the next few years as current EU arrangements are replaced.

Going forward

In response to perceptions of crisis, the common argument is to seek a return to previous funding levels and repeal the changes that have taken place – an attitude typical of the legal community – or simply abandon certain reforms, like the new system of elected Police & Crime Commissioners, before they had even had time to bed in. But even if the public finances allowed the current Government to take this approach, it would be the wrong path to follow now. 

Changes to probation, policing and legal aid have all been controversial. But no reform of a public service is ever painless, or perfect in design, or simple in implementation. The policy-making profession has its own blind-spots and is no less fallible than many other experts.  But it is simplistic to argue that these big changes were inherently defective, destined to fail, or have delivered no benefit at all. 

Take probation. The current model is clearly broken and many local services are in a bad state, but the previous setup of probation trusts was flawed too – it was inefficient, lacked accountability, and made little progress in reducing reoffending. Not to mention that today’s providers have actually delivered some basic but tangible benefits for staff and offenders on the ground that trusts somehow failed to do for years. 

A return to the status quo ante would be undesirable even if it was affordable. The world has changed and the justice system must reflect that. Where policies are not delivering the outcomes the public expect – especially in critical areas like probation and the criminal courts – then some sober second thought is needed and reform plans should be revisited. But a system under this much pressure needs a forward-thinking strategy that addresses today’s problems by adopting policies that are designed to put it in a better place tomorrow. It cannot do that if the interest groups and those working in the sector believe the only thing required is to spend more money or go back to the way things used to be.

More reform, not less

We want this new programme to help meet the growing demand for new ideas, because not enough are on offer. This cannot be about reform for reform’s sake. Clearly, the system has already undergone significant change. Budget cuts and major reforms were enacted in the early part of this decade, most notably in policing and probation. Those were wide-ranging and contested, but public and media pressure on crime had eased off, and the need for budget constraints for the justice system were not seriously challenged. 

As a consequence, that benign political environment enabled some important and long overdue reforms to be instituted. But for whole parts of the system – like sentencing, youth justice, and the magistracy – reforms were never attempted, or as with the Crown Prosecution Service, cuts and the centralisation of services were misdescribed as reform, when the only thing fundamentally different about the service was that there was less of it.  

For the Government itself, while the bandwidth of the civil service might be more limited now, there nonetheless remains a need for ongoing policy development in this space. Not least because there is unfinished business – be it professionalising policing, or reforming courts, or modernising the prison estate – all of which were on a reform path at the start of the 2015 Parliament before most of the Government’s political capital got diverted by Brexit.

Putting all reform on the backburner, regarding it as a distraction, or just a luxury for calmer times, would be complacent. Justice and security are fundamental duties of a democratic State and where those conditions are not present, the whole political system can be corrupted. If no new reforms are driven by the Home Office or the Ministry of Justice in the next few years, the system will simply deteriorate further. And a system that continues to steadily retrench, just as public concern resurfaces and rates of crime begin to rise again, is not on a sustainable path. Such a scenario would be a major policy failure but it would also be politically hazardous. As the astute political commentator James Forsyth reported last week, a “well-connected Tory” recently warned that “crime could be to the spring and summer what the NHS was to autumn and winter”.

Why this programme is different

Given this backdrop, our programme of work will seek to have a more constructive focus. We urgently need to address the lack of good ideas on how to improve the justice system. But our research and writing will not seek out failure, or add to the analysis that exposes the system’s shortcomings. Our focus is different. We are interested in novel practices, fresh ideas, and constructive proposals for improvement, drawing inspiration from wherever there is bold thinking, especially from the international sphere.

We are interested in what makes the justice system and the challenges it faces comparable with other, similar jurisdictions, and how shared problems can inspire novel solutions. We want to highlight examples of innovation from overseas and explore how policy reforms happening in other countries – under similar pressures – might offer options for reform here in the UK.

Learning from afar

In the wake of the Brexit vote it is more important than ever that we do not become an island that is isolated from good policy ideas. The famous maxim attributed to Tip O’Neill – “all politics is local” – also applies to crime, with the local context usually explaining much of the variations we see, not great global trends. But despite this, the challenges facing the police, prisons and courts in the United Kingdom are very far from localised, and hardly unique to this country. The law and cultural context is often decisive in how policy is implemented, but the nature of the challenges are familiar in many places.

Victoria in Australia had to address a surge in sexual offence reports, in part due to the impact of a high-profile commission into historical offences. After drastically reducing legal aid, British Columbia in Canada pioneered new online court channels, but is still struggling to ensure access to justice. New Zealand is dealing with the pressures of a rising prison population and the over-representation of minorities. Ontario is pursuing wide-ranging reforms to control high policing costs and weak systems of oversight. Ireland has set up a commission to examine the country’s entire domestic policing and security landscape. After centralising to create a single national force, Scotland is now experiencing a crisis of police accountability. Italy has spent the last two years fundamentally restructuring probation services.

The policy responses that have been tried elsewhere are as least as instructive as the ones previously tried at home. Following a Supreme Court ruling, Canada has had to take controversial steps to cut excessive delays in criminal trials, and the impacts of that are still being felt. New Zealand has invested heavily in police technology and tied efficiency gains to more crime prevention efforts. States in Australia are modernising their prison estate and piloting new models of custody. How have these policies worked, why might they be worth exploring, and might a similar approach be applicable here? 

How we will work

The importance of the justice system makes the policy landscape inherently controversial and well contested by the main political parties. However PMD is non-partisan, and we hope that the ideas we highlight will be of interest to politicians from all parties. More than anything, we need policy that is evidence-based, fiscally responsible, and credible with the public – not the sort that is politically opportune or short-termist.

We will also operate differently. We are not planning to publish detailed research papers or host think-tank events at party conferences. There remain several good organisations doing this sort of activity and Westminster politics continues to draw upon that sort of output. For our part, this programme will blog on international developments that are not being considered in the UK, host guest contributors, and convene leading academics and senior practitioners for seminars and site visits. 

The shared ambition across all our work will be to expose policy innovation to those with decision-making authority, either in justice agencies or in government, so reform is possible on the ground, and to do so without political bias or a partisan agenda. Our work will be overseen by an advisory board of senior practitioners.

How you can contribute

More detail on our new areas of research will follow in the coming weeks. Future blogs will look at the current system in context, discuss the policy debate, and highlight the gaps where new policy thinking is most urgently needed – some of which we will look to address with the research that is funded to date. And we want to encourage input and engagement from anyone who has expertise to share.

Please subscribe to be kept informed of activity from this new justice and security programme in 2018, follow us on Twitter and consider supporting our research by donating.

Blair Gibbs is the Research Director for the Justice and Security Project at the Project for Modern Democracy.