Being turned over by the police must be a curious experience for the occupants of Downing Street, bringing the reality of the justice system rather too close to home. Perhaps there is no better time for the government to consider whether the parole system is fit for purpose—something that JUSTICE, the legal reform charity, considers in its new report, published in late January.
Parole is how the state decides when offenders—primarily those who have either been given indeterminate sentences, or determinate sentences after being convicted of more serious crimes—should be given a second chance. The Parole Board reviews their conduct in prison and their attempts at rehabilitation, and decides if they are ready to once more become part of society's throng.
These decisions are among the most important made by the state. The Parole Board must balance the need to keep the public safe against the principle that someone should not be unjustly deprived of their liberty. If the purpose of the punishment has been achieved, the right to punish falls away.
Such a simple assertion, however, belies the challenge facing members of the Parole Board. How do you tell if the purpose of punishment has been achieved? How do you identify an ex-offender who is no longer a danger to society? When travesties such as the John Worboys scandal rip across the front pages, erring on the side of caution can seem understandable. Better to risk further harm being done to a prisoner kept unfairly behind bars than to risk innocent members of society being harmed by a paroled prisoner going rogue.
But the easy choice may not be the just one. Keeping prisoners locked up may avoid headlines and public outcry, but devastates the dignity and the prospects of those who have earned a second chance. This is the overall conclusion of JUSTICE's report, A Parole System fit for Purpose, which shows the need for wholesale reform. Too often the Parole Board takes the path of least resistance, rather than helping offenders to “author a different and better future.”
If such stories are to be written, work needs to be done to shift the mindset of the Parole Board and the governments it serves under. It too frequently operates on the assumption that the best—if not the only—way of keeping the public safe is to keep offenders in prison. Rather than being the cornerstone of the penal system, the rehabilitation of offenders is left to languish in a dusty corner, swept away with other unpopular, but still democratically vital, policies.
Part of the problem here is that the Parole Board is wrongly considered part of the executive by both members of the government and by other public bodies. It is not seen as a quasi-judicial body whose decisions are sacrosanct, invulnerable to everyday political pressures.
Little shows this political susceptibility and lack of respect more than the Worboys scandal. In the aftermath, ministers were quick to pin blame on the Board and heap pressure on its chair, Nick Hardwick, to resign—something that they would not have done if Hardwick had been a judge. (The convention that members of the government do not criticise judicial decisions may have fallen away in the aftermath of the Supreme Court's Miller judgments on the Brexit process, but Jacob Rees-Mogg still drew the line at asking for Brenda Hale, then president of the court, to hand in her notice.)
Is it surprising that ministers treat decisions of the Parole Board with disrespect? Even if the Board theoretically has the “characteristics of a court,” these are all too often skin deep. As JUSTICE notes, the relevant secretary of state has significant power over almost all levers controlling the parole process. And even though ministerial meddling is a longstanding concern, the trend has actually been for more power to be ceded to the secretary of state, with the "reconsideration mechanism" introduced in response to Worboys giving them the power to ask for parole decisions to be re-examined.
The rehabilitation of offenders is left to languish in a dusty corner, swept away with other unpopular policies
In theory, the existence of such a mechanism is a good thing, with reviews of decisions only otherwise possible through the laborious process of judicial review. But as reconsiderations happen through a simple ministerial request, every decision of the Board is vulnerable. There is no hurdle to be cleared other than filing the paperwork, with the decision then examined for irrationality or procedural impropriety. This, coupled with the general lack of respect for the board’s decisions and for the principles underlying the system, risks further politicising the granting of parole, even if the standard for overturning a decision is high. Ministers may intervene for wider political reasons rather than out of genuine concern with the case before the Board. The finality of the Board decision is replaced with a pervasive sense of doubt.
JUSTICE's solution to this is to elevate the status of the Parole Board, making it a part of the Tribunal system and so imbuing it with a stronger judicial, rather than administrative, character. As well as promoting it in the eyes of the government, public bodies and ordinary citizens, this would give the Board more effective and direct control over parole hearings. It would be able to summon witnesses to give evidence, rather than having to turn to the High Court for a judicial order. No longer would the Board have to sit on its hands, waiting for applications to wind their way through the corridors of the Royal Courts of Justice; it could demand cooperation itself.
A further principled reform would be to reverse the burden of proof, requiring the government to prove the need for continued detention. While there is currently no clear burden on either side—with the Parole Board working under an inquisitorial, rather than adversarial, process—the government clearly believes it is for the prisoner to prove they deserve freedom. In its 2020 Tailored Review of the Parole Board, the justice secretary wrote that it is for “offenders to clearly demonstrate that they no longer pose a threat...” This inverts the presumption, which should be—much like in a criminal trial—that a prisoner who has served the custodial part of their sentence is entitled to their freedom. Should the government believe that an offender is still a threat, the burden should be on the minister to “justify the continued detention,” reflecting, as JUSTICE argues, that they are “no longer serving the punitive element of their sentence.”
It is also still too difficult for offenders to effectively participate in the parole process, with prisoners feeling “anxiety, powerlessness, voicelessness, frustration, disengagement and a deep sense of 'irrational justice.’" Rather than languishing in prison, prisoners would benefit from more active engagement with the Board. This need not be only in the final weeks and months of their sentence. Regular visits from Board members would give the members a greater sense of the reality of prison and give prisoners a more substantial understanding of the parole process. This, in turn, would enable prisoners to more effectively participate in their hearings and so more effectively advocate for their freedom.
While JUSTICE’s proposals are commendable in and of themselves, enhancing the dignity of prisoners, they merely tinker at the edges of a penal system in need of a fundamental overhaul. At the very least, more must be done to rehabilitate prisoners and to ease their transition into free society. The purpose of the justice system must be turned towards rehabilitation.
While JUSTICE acknowledges this, it does not recognise the true scale of such a challenge for any liberal-minded candidate for prime minister. With British society becoming ever-more tribal, vulnerable and isolated groups like prisoners are painfully exposed. They are the perfect foil for politicians of all political stripes trying to win easy, risk-free votes on a “tough on crime” ticket. The public’s hostile attitude towards offenders means that those pushing reform might as well put a bullseye on their back. In the absence of politicians willing to take a stand, it is vital that charities like JUSTICE beat the drum for penal reform, showing how it benefits all of society, not just its “wretched refuse” found behind bars.
