Parole: the Board as court

The concept of parole was first introduced by Scottish geographer and navy captain Alexander Maconochie. Appointed superintendent of the British penal colonies in Norfolk Island, Australia in 1840, his scheme was based on a system of rewards for good behaviour that could ultimately lead to freedom.

Parole has developed significantly since that time, into a system which is entirely based on an assessment of risk, with public protection at its centre. The Parole Board for Scotland celebrated its 50th birthday in 2019. It is now accepted that the Board is an independent, judicial body, and a court for the purposes of articles 5(4) and 6(1) of the European Convention on Human Rights. This status comes with responsibility, and the Board has taken great steps to embrace fairness and transparency in its operation. It now confidently asserts its role as Scotland’s parole court, and recognises the importance of public understanding and confidence in its operation.

“Worboys”

The case of R (on the application of DSD and others) v Parole Board for England & Wales [2018] EWHC 694 (Admin), concerning the offender John Worboys, has emphasised the importance of the public protection function in the Board’s decision-making. The Board has an inquisitorial role, and where information is lacking but potentially significant, it has a responsibility to obtain and consider this information.

Parole hearings will not consider cases where there is not enough information to make a fair decision, and practitioners may have noticed the significant increase in oral hearings under Part III of the Parole Board (Scotland) Rules 2001, and tribunals under Part IV of the Rules, where witnesses have been cited to give evidence. This is simply a consequence of the Board implementing its obligations to obtain and consider information.

Guidance

The Board has recently published its internal guidance to members, which can be accessed on the Board’s website. This guidance is kept under review, and is developed to take account of such things as victim attendance at tribunals and how rule 6 of the 2001 Rules (non-disclosure of evidence to the prisoner) can be best applied to ensure fairness. Its publication is intended to be a resource for the legal profession and the public, promoting understanding of how the Board will conduct proceedings and reach decisions.

Witnesses

The Board is also looking at how best to require and secure the attendance of witnesses and the production from third parties of documents relevant to risk. An example of this might be information in relation to outstanding or unproved charges, or an ongoing criminal investigation. In light of Worboys, it is clear that the Board must get this information, and it is engaging in ongoing discussions with other agencies to ensure that it does so in a way which allows it to act in accordance with the need to give priority to public protection.

Amendments to the rules

Registered victims

As practitioners may be aware, the Parole Board (Scotland) Amendment Rules 2021 (SSI 2021/4) came into force for all cases referred to the Board by Scottish ministers on or after 1 March 2021.

The amendments enhance the rights of registered victims. Rule 2(2) of the 2021 rules defines a “registered victim” as “a person who has intimated under section 16(1) of the Criminal Justice (Scotland) Act 2003 that they wish to receive information about the release of an offender”. Essentially, a registered victim is a victim who has opted in to either part 1 or part 2 of the Victim Notification Scheme which is administered by Scottish Prison Service.

The amendments also add a new para (e) to the existing rule 8 (matters to be taken into account by the Board), which reads: “(e) the effect on the safety or security of any other person, including in particular any victim or any family member of a victim, were he or she to be released on licence, remain on licence, or be re-released on licence as the case may be”.

Paragraph (e) relates to all victims, not just those registered under the Victim Notification Scheme. In practice, the Board has always taken this into account, and its inclusion in the rules simply makes this a legal requirement.

Rule 9 of the 2001 Rules, which deals with the confidentiality of the proceedings, is amended to allow publication of decision summaries produced in terms of rule 28A.

Rule 28A introduces a requirement for the Board to publish a summary of all release decision minutes. Before doing so, the Board must send a copy of the summary to any registered victim unless the victim has intimated that they do not want to see the summary. It should be noted that the requirement to publish and to send a copy of the summary to the victim before publication relates only to decisions to release. The Board has a discretion to publish where it has declined to direct release, and the requirement to send a copy to the victim still applies in such cases. The rule also requires that the summary is anonymised to remove information which could identify any person concerned in the proceedings.

Attendance of victims at tribunals

Importantly, the rules are also amended to expressly permit the attendance of victims at a tribunal. Rule 26A permits a victim registered under the Victim Notification Scheme (parts 1 or 2) to attend a hearing with the authority of the Board. The presumption is that the attendance will be by live link, and rule 26A also permits the victim to be accompanied by a supporter or supporters.

In fact, the Board permitted the attendance of victims at tribunals under the previous incarnation of the rules. The Board’s experience is that it requires careful planning and risk assessment, and is resource intensive. However, there is no doubt that the new rule will be welcomed by some victims.

Review of Board decisions

Practitioners who regularly carry out parole work will know that for many years the Board has operated an informal process whereby a prisoner may apply to the Board for reconsideration of a Board decision on procedural grounds. Review on the merits was reserved for judicial review.

Where, for example, information has come to the Board in good time but is not placed before a panel, or the Board has declined to order an oral hearing in breach of its own guidelines, the Board may, at its own hand, convene a fresh hearing to consider the case as of new.

This was not an appeal, as the Board only has power to make decisions at first instance. It was simply a mechanism to cure administrative irregularities or a failure to comply with the Board’s procedure.

Following the case of Dickins v Parole Board for England & Wales [2021] EWHC 1166 (Admin), the Board can no longer carry out internal reviews: the court concluded that the Board is functus after the decision is made and steps are taken to intimate it. At that point, the only remedy is judicial review.

The Board is working with Scottish ministers to find an administrative solution. It is anticipated that there will be a review of the 2001 Rules, and amended rules may include a formal review process.

Authority to present evidence

It is perhaps not as widely appreciated as it might be that prisoners need to apply to the Board for permission to cite witnesses and/or produce documents. This applies both to oral hearings under Part III of the 2001 Rules and tribunal hearings under Part IV.

Applications for such authority should be made by way of a motion using the approved form, giving reasons and relevant authorities. Applications which lack reasons are likely to fail.

Applications for postponement or other orders

The Board not infrequently receives applications to postpone hearings for various reasons. The most frequent is to await the outcome of outstanding criminal proceedings.

The Board will consider such applications in light of circumstances prevailing at the time, its duty to proceed expeditiously, and authorities which permit it to make decisions on the basis of the existence of outstanding charges which have not been disposed of.

Any application for a postponement or other order should be made by way of a motion using the approved form, giving reasons and relevant authorities. Applications which lack reasons are likely to fail. The Board is unlikely to find merit in applications to adjourn due to a solicitor’s unavailability, or for the prisoner to conclude ongoing work in prison. In the case of the former, the solicitor should make other arrangements for representation, and the latter case can be addressed in submissions in relation to an appropriate review period.

Form for applications to the Board

In order to achieve some consistency in form and content, the Board has produced an approved style form which should be used in all applications.

The Board expects that use of the form will achieve consistency and direct the mind of the drafter to the relevant rule(s). Practitioners may expect to attract adverse comment from the Board if the application is not submitted using the form, which can be found on the Board’s website.

Form for submissions to the Board

The nature and content of submissions by practitioners are not always made by reference to rule 8 and the matters which the Board must take into account. The Board, whether sitting as a tribunal or as a casework meeting panel, is required in every case to take into account the matters set out in rule 8 of the 2001 Rules. There is no suggestion that solicitors’ submissions must be made on each and every matter referred to in rule 8. Where submissions, written or oral, are to be made, it will be extremely helpful to members of tribunals and casework meetings if they are grouped together to follow the paragraphs of rule 8. Such groupings will make for a logical structure and better allow members to identify and note how the submissions relate to the matters which must be taken into account.

In order to achieve some consistency and to allow drafters to formulate submissions, both oral and written, around the matters which the Board must take into account, the Board has produced a standard template which it expects will be used for written submissions but will also inform oral submissions. This can also be found on the Board’s website.

The Board expects that submissions will address the templated matters as relevant to a specific case.

Failure to provide any written submissions in advance may attract adverse comment from the Board or, in some cases, necessitate adjournments, which might delay an individual’s release.

Rule 6

The 2001 Rules provide that the prisoner should receive a copy of the dossier and documents which are before the tribunal or panel. Rule 6 provides an exception to this general rule, where Scottish ministers or the Board are satisfied that disclosure to the prisoner would be damaging on one or more of the grounds set out in rule 6(1)(i)-(v). 

The Board has previously taken the view that where Scottish ministers have provided information in terms of rule 6, the Board could not look behind that. However, the Board’s status as a court, and recent developments, have altered that view, and the Board now considers that it has the power to disclose some or all of the information to the prisoner or other parties, subject to careful consideration of whether this is appropriate. In practice this will be among the most anxious decisions that the Board will make, and it must attach weight to public protection, and fairness to all parties, including the prisoner, the information provider, and the subject of the information. The Board has developed and consulted on guidance for Board members on how to approach such issues, available with the other guidance on the Board’s website.

The Board’s status as a court

It is now accepted that the Board sits as a court for the purposes of articles 5(4) and 6(1) of the European Convention on Human Rights. On that basis, the Board is entitled to be treated as a court by practitioners who appear before it, and have a professional responsibility to it. Practitioners are asked to bear this in mind; the Board expects solicitors to attend timeously, and be properly prepared. Unnecessary delays or postponements are discourteous, costly, and can result in offenders spending extra time in prison.

The vast majority of solicitors understand this, but there are some who may not comply with their professional responsibilities. In such cases the Board will seek an explanation from the solicitor. It is to be hoped that it never becomes necessary to refer matters to the SLCC.

The future of parole

The Board has moved a long way from the system envisaged by Alexander Maconochie. It is now a forward thinking and dynamic parole court, well equipped to balance the rights of the individual with the importance of protecting the public. It is committed to a fair, efficient and transparent system of parole, which has the confidence of those using the system and the general public.

This has been demonstrated by the Board’s response to the COVID-19 pandemic. The Board quickly moved to conducting tribunals by teleconference and, where necessary, by video link. It has conducted over 1,000 hearings in this way since the first lockdown in March 2020. In doing so, the Board has avoided any backlog in cases, and has reviewed prisoners’ detention in accordance with statutory timescales.

The Board will continue to adopt a dynamic and innovative approach to working, with fairness and public protection at heart, in order to carry out its crucial role within the Scottish justice system.