Who should we release: a matter of public confidence?

Professor Sir Duncan Nichol
Thursday, 14 December 2006

For this evening I thought I would focus on the public’s confidence in the reasonableness of Parole Board decisions, at a time when that confidence has been damaged by the Chief Inspection of Probation enquiries into the case of Hanson and White and of Rice.

But first a reminder of what we do

For discretionary release cases, DCRs we consider release of determinate sentenced prisoners serving 4 or more years and we consider their recall and representations against recall due to breach of licence conditions or offences. DCR prisoners are eligible for release at the half way point of their sentence and if parole is refused they are released at the two thirds point, the so called parole window. The licence lasts up to the three quarters point. Under the Criminal Justice Act 2003, this now no longer applies to offences committed after the 4 April 2005, which provides for automatic release at the half way point, although a recent ‘Making Sentencing Clearer’ consultation document is proposing some possible amendments to that position.

For determinate sentenced prisoners the Board considers the risk to the public of a further offence being committed and whether that risk is acceptable during the parole window. Risk is balanced against the benefit to the public and the offender of early release in the community under supervision to aid rehabilitation and lessen the risk of re-offending in future. Last year we handled 7,500 DCR cases, the release rate was 49% down from 52% in the previous year and is continuing to fall this year, which might well indicate a more cautious approach by panels following on from recent high profile cases. 6.4% of determinate sentenced prisoners were recalled from parole following an allegation of a further offence, slightly down from previous years.

For lifer cases, offenders are subject to an indeterminate sentence and will remain in prison until they no longer present a risk of harm to the public. The main purpose of an indeterminate sentence is therefore preventative. For lifers whether serving a mandatory life sentence, a discretionary life sentence or one of the new indeterminate sentences for public protection created by the Criminal Justice Act of 2003 and applying to offences committed on or after the 4 April 2005, the Board considers directing release after tariff expiry, directing release after representations made against recall, making a recommendation to the Secretary of State about transfer to open conditions, and variation or cancellation of licence conditions. We also consider recommendations for release on compassionate grounds. For lifers the risk assessment determines whether having regard to the life or limb test it remains necessary for the protection of the public for the lifer to be confined. This test applied by the Parole Board stems from case law now codified in the test for dangerousness and comprises two parts: the likelihood of further offending must be significant, ie more than minimal and the consequences of any anticipated further offending must be such as to cause serious harm to members of the public. Serious harm is defined as death or serious personal injury whether physical or psychological, known as the ‘life and limb’ test. 270 or 23% of lifer cases considered at oral hearings were released last year. In that same year, 87 prisoners on life licence were recalled following allegations of further offences, this is out of a total of approximately 1500 life sentence prisoners under active supervision in the community or 5.8%. In recent years about 3% of lifers have committed serious offences within 5 years of release.

So at the heart of the matter is the process of risk assessment and public confidence that this process is there primarily to protect the public from the dangerous offender. Modern risk assessment is relatively new, developed within North America in the 1990’s. It is not an exact science. Unfortunately some prisoners released will go on to re-offend. Our duty is to ensure that we have done everything possible to make our processes as tight as they can be to minimise this risk and to have procedures in place to learn when things go wrong and to try and improve our decisions. Risk assessment looks to answer 3 questions:

  • First how likely is an offender to re-offend and how seriously
  • Second what has been done in custody or can be done under supervision in the community to reduce the risk of re-offending and;
  • Third, when is it safe to release someone

On the one hand actuarial risk scales address static or historical risk factors including age, age at first offence and previous convictions. They are reasonably accurate in predicting recidivism but only at the level of a group of offenders who share similar characteristics. Dynamic factors are complimentary in that they address the specific risks of an individual offender and look at changes in risk over time such as, developing social and thinking skills or the abuse of drugs and alcohol. Static and dynamic risk factors are combined in the Correctional Services assessment system, (OASys). The nature of the index offence, the judge’s sentencing remarks, previous history of offending, the risk assessment reports of psychologists and probation officers, the OASys reports, any victim impact statement, behaviour in custody, evidence of cognitive behavioural changes, employment skills, supportive personal relationships and a robust release plan are amongst the key pieces of information which the Parole Board considers. The task is about weighing the probabilities and coming to judgements. There will always be prisoners who present as models of behaviour in custody, who apparently do well on offending behaviour programmes, and where warning signs of future re-offending behaviour are not evident, who go on to commit further and sometimes grave and serious offences on licence. So what can go wrong? Our main practical problem is our reliance on others to provide us with timely and complete information on which to base our decisions. Good information is the oxygen of our business and any risk assessment is only as good as the information on which it is based. As the Rice enquiry has recently demonstrated, there can be gaps in information which we are not in a position to identify and over optimistic reporting by those close to the offender in custody. Our own internal Review Committee has pointed to paying too little attention to static risk factors.

What are some of the other issues facing the Board?

A major concern is our lack of perceived independence resulting from our sponsoring arrangements with the Home Office. It is not credible to try to justify a process where a tribunal or court like body which is what we are when we conduct oral hearings, has it’s Members and Chairman appointed by one of the parties to the decisions and in circumstances where we must follow directions set by that same party. The arrangement is not sustainable if we really aspire to public confidence in the Board. The most obvious alternative sponsor would be the Department for Constitutional Affairs. Another issue is the Government’s determination to strengthen the voice of the victim. The Board welcomes this but there is a lack of understanding that our role is not about punishment but rather about risk into the future. Therefore there is a lot of work to do to agree the right level of involvement of victims in parole decisions and a concern that expectations might be raised unrealistically. We are working with victim groups to manage and develop this policy together so that there is real clarity and confidence about the Board’s role. We have taken steps already to ensure that the Government’s intention that all members of parole panels making decisions about serious, violent or sexual offender have direct or indirect experience of being a victim or can demonstrate a strong appreciation of victim issues. Another proposal which we believe would enhance public confidence in our decisions is the proposal that some or all of our decisions should be unanimous. As a matter of practice, it is right to record that the vast majority of our decisions are already unanimous.

Human Rights is another issue in the news for us. We have been dismayed at the inaccurate media reporting of human rights issues and in particular their alleged influence over Board members who took the decision in the Anthony Rice case. The concluding paragraph of the recent report of the Parliamentary Joint Committee on Human Rights which reviewed the Rice report as one of three contentious issues makes interesting reading:

‘We must, however, draw to Parliament’s attention the extent to which the Government itself was responsible for creating the public impression that in relation to each of the three highly contentious issues under consideration it was either the Human Rights Act itself or misinterpretations of that Act by officials which caused the problems. In each case, very senior ministers, from the Prime Minister down, made assertions that the Human Rights Act, or judges or officials interpreting it, were responsible for certain unpopular events when, as we have shown above, in each case these assertions were unfounded.’

In our view, public misunderstandings of the effect of the Act will continue so long as very senior ministers fail to retract unfortunate comments already made and continue to make unfounded assertions about the Act and to use it as a scapegoat for administrative failings in their departments.

The Board is quite clear and would hope to reassure the public that the unqualified rights in Article 2 are paramount, ‘everyone’s right to life shall be protected by law’. Public protection must be - and is - a given priority.

As we look forward our key challenge will be to respond effectively to the implications of the indeterminate sentence for public protection which as I said earlier was created by the Criminal Justice Act of 2003 and is available as a sentence where the offence is one specified in the Act and the judge considers the defendant to present a significant risk to the public of serious harm. The sentence is treated for the purposes of a Parole Board review in exactly the same way as a lifer. Some speak of this sentence as replacing the old ‘automatic’ life sentence, known informally as the ‘two strikes’ life sentence. However, the sentences are not analogous. The list of qualifying offences for an automatic life sentence numbered eleven, and it needed two before a life sentence was automatic. The list of ‘specified’ offences for an IPP numbers 153 and the sentence can be triggered by a first offence as long as the defendant is deemed dangerous.

Accordingly the numbers of IPP prisoners entering the prison system, and eventually coming before the Board, is very significant indeed. The population of IPP offenders in prison is projected to grow to about 12,500 by 2011.

Because the specified offence that led to the IPP sentence may not in itself be serious, very many such prisoners have unusually short tariffs. When imposing the sentence the judge must state the minimum period to be served before release can be considered (tariff). In doing so, he decides what sentence he would have passed had this not been an IPP case and halve it to take account of the fact that a non-dangerous offender would be released automatically on licence at the half way stage. He may give a further discount for a guilty plea and may take remand time into account. An example might be:

A defendant is convicted of affray in circumstances that would normally attract a 2 year sentence. The nominal tariff is therefore 1 year but the defendant pleaded guilty and spent four months on remand. The judge therefore gives a 6 month tariff. I understand that half of offenders recently sentenced to IPP sentences have received tariffs of 20 months or less and 20% under 18 months.

The effect of this is that he is entitled to be considered for release almost as soon as he is received into custody following trial. The practical effect can often be, therefore, that not only has the prison had no time to assess the individual for the purposes of writing reports, but that the Board’s role in assessing his risk to the public is rendered almost academic by the fact that nothing has changed in the very short period between the sentencing judge deciding he is a significant risk, and the Board considering his case. The Board must make up its own mind, regardless of what the judge said, but in practice there is very little to go on. Hence an enormous amount of resources are expended on what can sometimes appear to be a futile exercise.

The global impact of IPPs will be that prison overcrowding will increase; places on offending behaviour courses will be scarce; prisoners may spend more time in custody awaiting such courses when they might otherwise have been released earlier; crucial time will be spent writing parole reports by prison and probation staff who have other duties; and the Parole Board will need increased resources to deal with a quadrupling of our indeterminate case work.

The Parole Board celebrates its 40th birthday next year, created following the abolition of capital punishment in 1965. The Home Secretary originally decided both the length of the tariff for indeterminate offenders (which was not disclosed to the offender and when the offender could be safely released). Legal challenges, notably on compliance with the European Convention on Human Rights, have progressively eroded the Home Secretary’s role, while passing increasing responsibility to the courts and the Parole Board. The journey from a closed administrative process to an open and independent tribunal have progressed well, but, Ladies and Gentlemen, it is not over yet.