Response 832999712

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Questions on strengthening the voice of victims in the parole process

1. Do you think victims and their families should have a greater voice in the parole process?

Please select one item
Ticked Yes
If Yes, what more could be done to help victims and their families be heard? If No, why not?
In the interests of openness and transparency the Board supports the principle of victims and their families having a greater voice in the parole process. However, unless the intention is to change the legislative basis on which decisions are taken, which is currently solely related to risk, it will be important to ensure that victims are clear about what impact their voice can and will have. Within current legislative constraints therefore, proposals to increase the voice of the victim should focus on considering the information available to the victim, how representations are made, and the provision of support before during and after a parole consideration.

2. Do you think victims and their families should be entitled to attend parole hearings in person?

Please select one item
Ticked Yes
If Yes, what wider considerations would be necessary to manage this process, what support should be available and who should be responsible for providing that support? If No, why not?
The Board has no objections in principle to victims being entitled to attend parole hearings in prison. However, In anticipation of moves to allow victims to attend, the Board has already raised serious practical issues that need to be considered with the Scottish Prison Service and the Scottish Government. These include: -

Role of the victim – There would need to be clarity as to the role the victim would play in proceedings. The purpose of the tribunal is not to adjudicate between competing parties or to establish guilt or innocence, or to retry the case against the prisoner, but to consider the risk entailed in the prisoner serving the rest of their sentence in the community. For example: -

• Would victims attend only to observe, and if so, what part of the proceedings?
• Would there be a restriction on the number of family members able to attend?
• Could the presence of the victims inhibit others (such as the prisoner or professionals) from being entirely candid and providing full information to the Tribunal?
• Would they be allowed to read their victim statement?
• Would they be able to provide evidence?
• Would they be subject to cross-examination by the prisoner and/or their representative)?

The implications of victims playing an active role at the tribunal would need to be carefully considered. Will the victim be a party to proceedings or a witness only? If a party they will have access to all information in a dossier and access to legal aid. They would also be entitled to examine witnesses including the prisoner, prison staff and social workers. Whichever course is chosen clear Rules will have to be in place to control examination of victims who are witnesses and to restrict public disclosure by them of material from the dossier or evidence at a hearing.

Suitability of accommodation in the prison estate – Parole hearings take place across the prison estate and our experience demonstrates that in most establishments the current accommodation provided for hearings would be unsuitable for victims to attend. This is due to the size, facilities and location of allocated tribunal rooms, and the lack of suitable waiting areas. Many of the locations are currently accessed by walking long distances through the prison, passing other prisoners on the way. The provision of suitable accommodation across the estate would undoubtedly require significant capital investment.

Security – The safety and security of victims attending parole hearings needs to be paramount. The Scottish Prison Service is responsible for ensuring the safety of those in establishments including visitors. The attendance of victims would create significant additional security considerations for SPS in relation to escorting victims, ensuring there are safe waiting areas and ensuring safety during hearings (where the victim and potentially supporting family members, will be in the same room as the prisoner).

Support – Attending a tribunal hearing in a prison establishment is likely to be a traumatic experience for a victim. Adequate pastoral support would need to be provided to the victim before and after the process. Consideration would need to be given to the attendance of supporters including professionals and family members. It seems appropriate that the arrangements for victims should be in line with the vulnerable witness provisions contained in the Criminal Procedure (Scotland) Act 1995. This could involve evidence by video link, or the use of screens or a supporter. Consideration might also be required about the possibility of victims’ submissions being taken by commission in advance, and how this might be regulated and done.

Accessibility – Parole hearings may take place at establishments some distance from a victim’s home address and in areas where there may be limited public transport. Consideration would need to be given to the payment of travel and accommodation expenses where appropriate. Wider accessibility issues would also need to be considered for example in relation to disability or the need for interpretation/transalation services.

The Board has suggested two alternative ways forward. Firstly, the Scottish Government could consider designating one or two prisons as locations for parole hearings and ensuring that the required facilities are available in these locations. This may require some capital investment but would avoid the need for upgrading across the prison estate. The other significant cost in such an approach would be in moving prisoners to the designated prisons for hearings. Secondly, tribunals could take place in accommodation outwith the prison estate. Such accommodation could be provided for example in existing court buildings. This would not require the transfer of the Board’s functions to SCTS but could be done via for example, a service level agreement.

It is also possible that videolink technology could be used to facilitate victims and their families viewing or participating in proceedings remotely. Whilst this would address some of the issues above it would require significant investment for this to be feasible. It also raises further issues in connection with security, for example ensuring that those viewing or participating remotely are not recording the proceedings.

It should be noted that some prisoners are detained in secure hospitals. The practical considerations noted above are all also relevant to hearings that take place in these establishments.

There is little practical support at present for victims in the parole process and the Board would welcome the involvement of a dedicated support function, not part of the Board, particularly if victim involvement is to increase. Whoever takes on the support role should have as much expertise in the parole process as in other aspects of victim support.

Finally, we suggest the Scottish Government may wish to undertake research to establish the likely take up of the option to attend hearings. It is important that the scale and cost of any solution implemented be proportionate to the demand.

3. Do you think there should be clear criteria on the kinds of information the Parole Board should consider in relation to the safety and welfare of victims and their families?

Please select one item
Ticked No
If Yes, in your view what should that criteria be? If No, why not?
Rule 8 of the Parole Board Rules state that the Board may consider inter alia –

(c) the risk of that person committing any offence or causing harm to any other person if he or she were to be released on licence, remain on licence or be re-released on licence as the case may be;

The Board does not consider that specifying criteria relating to safety and welfare of victims and their families would be helpful as each case is considered on its merits and a prescribed list may not cover all eventualities. The Board would support a rewording of the provision in the Rules to clarify that safety and welfare of victims and their families should form part of the consideration. In this respect the Board would also support a strengthening of Rule 8 to require the Board to do so as, in practice, this currently happens.

4. Do you think more could be done to strengthen the Parole Board’s current use of licence conditions (including conditions to exclude individuals from certain areas, or from certain individuals)?

Please select one item
Ticked No
If Yes, what would the implications be of extending this and how could this be managed in the community? If No, why not?
Section 12 of the 1993 act is wide ranging and general in relation to the conditions that can be imposed. The Board can currently impose any licence conditions that they consider (in accordance with Convention rights) to be lawful, proportionate and necessary to manage risk. This can and does include conditions that exclude individuals from certain areas or from contact with certain individuals (or certain classes of individuals such as children).

It is not clear what is meant by ‘strengthen’ in this question. To specify in legislation that such a condition could be imposed (or indeed to introduce a presumption that such a condition should be imposed) begs the question as to whether other types of licence condition should also be specifically referenced. Any move to presumption may be subject to challenge in relation to convention rights. For these reasons the Board does not believe it would be necessary or appropriate to include such a reference in legislation.

The Board do believe that there is a lack of information and understanding in relation to licence conditions and their management, both about exclusion conditions and more widely. The Board believes this is best addressed by providing more information to victims about the parole process and specifically what victims may wish to consider when formulating any representations they provide to the Board. Whilst the Board can facilitate some of that, for example by providing more information on the Board’s website, this should be part of a wider set of considerations about how victims are best supported generally, and not just through the parole process. Currently there are many agencies involved and there is a strong argument for simplification and rationalisation.

The Board would also support rules which recognise the legitimate interests of victims to live their lives free of anxiety or fear arising from the mere presence of a released prisoner in the community regardless of the intentions of the prisoner or assessments of the risk they may pose.

There may be some merit in extending the role of the Board to include some more formal oversight of compliance with licence conditions in the community much as a Sheriff oversees performance under a Drug Treatment and Testing Order.

We note that existing Scottish Government plans to introduce electronic monitoring with GPS technology have the potential to strengthen conditions which relate to exclusion or the need for monitoring.

5. Do you think that victims and their families should receive information on the reasons for the Parole Board’s decisions in their case?

Please select one item
Ticked Yes
If Yes, what kind of information would be most helpful and how should that be provided? If No, why not?
The Board supports the principle that victims and their families should receive information on the reasons for Parole Board decisions. Victims and family members regularly contact the Board to request more information. The Board acts as a court and believes that its operation should be as transparent and open as possible. For this reason the Board is considering plans to produce a ‘publication minute’ that ensures that these various interests are protected. There are significant issues about what information should be provided and how the interests of victims, witnesses and prisoners can best be balanced and protected. These are covered in some detail in our response to Q.8. The Board considers that this can be done within the context of the current Parole Board (Scotland) Rules.

While the Board is considering plans to enable the publication of summaries of decisions, the discretion currently lies with either the Chair of the Board or of the Tribunal and the present structure of the Rules makes confidentiality the default position. The aim of greater openness would be supported by a presumption of publication subject to a discretion to decline to publish in whole or in part. It may be helpful to know that there is a range of opinions amongst individual Board members about publishing decisions. Some members believe that the impact of such an approach, for example in relation to potential challenges by victims, warrants significant further consultation before implementation.

The formal position of the Board is that reasons, so far as they can be given should be available but the Board has to maintain a level of judicial independence which might make it difficult to provide a special service to victims. A dedicated support function should provide support and explanation, if needed, for the decision and reasons.

Questions on ensuring transparency

6. Should others be routinely entitled to attend parole hearings?

Please select one item
Ticked Yes
If Yes, who should be able to attend, in what circumstances and for what part of the proceedings? If No, why not?
The Board supports the attendance of observers at parole hearings providing there is clarity in relation to their role and appropriate confidentiality agreements are in place to safeguard the interests of victims, witnesses and prisoners where necessary, with sanctions for breach. The Board currently regularly welcomes observers from the social work profession and Scottish Prison Service staff to attend tribunal and casework hearings for professional development purposes. The Parole Board Rules currently do not allow observers to attend Oral Hearings and we would support an amendment to the Rules to allow this to happen.

We would welcome opening up attendance to a wider group of observers. This may include academics, journalists, and members of the public with an interest in the process. We question the term ‘routinely entitled’ as we believe there needs to be a formal application process and that the chair of a tribunal or hearing should be able to refuse requests where there is good reason (for example in the interests of fairness, or public safety, or simply to restrict numbers). The Parole Board for Canada operates a system whereby anyone can apply to attend a hearing. We would support, with the caveats above, the introduction of a similar arrangement in Scotland. Such an arrangement would however need to be subject to the same considerations set out in our response to Q.2 above. Current accommodation and facilities will not be sufficient for the purpose.

Where observers currently attend hearings the prisoner is asked whether they have any objections and their views will be taken into account by the chair when deciding whether to accede to a request to attend. We support this approach continuing to be applied if attendance is widened.

7. Should information be routinely shared with others?

Please select one item
Ticked Yes
If Yes, what level of information should be shared or what more could be done? If No, why not?
Whilst this question appears to relate to the sharing of information regarding decisions, there are wider considerations in relation to information sharing between agencies to inform effective decision making. In this respect there is a need to review the existing information sharing protocol for parole. Q 10 is also relevant in this context. That said, the Board is a Court and cannot restrict what information it may require. The Board has concerns about the term ‘routinely’. Any mechanisms for the sharing of information need to be developed in the context of the impact that sharing that information may have.

Whilst we have answered yes to this question, we have some concerns about the term ‘routinely shared’ as there needs to be appropriate protocols and safeguards in place.

8. Do you feel that some information regarding parole decisions should be published proactively?

Please select one item
Ticked Yes
If Yes, what level of information do you feel should be published? If No, why not?
See also response to Q.5 above.

The Board considers that there are significant constraints in relation to what should be published.

There are a set of issues about rights to privacy. Many parole hearings will hear substantial evidence about the prisoner' mental health and will often deal with personal information about victims and other parties too. Privacy rights should be respected and this will be particularly true where there are issues about the age or capacity of the prisoner, the victim or others involved.

Every parole hearing will cover the prisoner's attitude to the original offence in some detail and a prisoner who is refused parole is entitled to a review at least every two years in life cases and annually in other cases. It cannot be right for example, for lurid details of sexual abuse of young children to be reported at every review as that child moves into adult life.

Parole hearings are designed to encourage candour. A sex offender needs to talk honestly to their psychiatrist or psychologist about their offence and their sexual feelings. A psychiatrist's, psychologist’s or social worker’s report to the Parole Board will be based on those interviews and at the parole hearing the panel may question the prisoner in detail about that. That process cannot happen if a prisoner thinks there is a risk that what he says will become a media headline or start trending on Twitter.
Psychiatrists, psychologists, social workers and others should give an honest, independent opinion. An opinion about likely future behaviour – not a factual description of past events. Care must be taken to ensure that those experts do not face being hounded by politicians, the press or in social media, with severe personal and professional consequences, because the opinion they express is unpopular.

Then there is the question of the rehabilitation of the prisoner to consider. Once a prisoner has served their punishment and is considered safe to release, they should be supported in their rehabilitation in the community. That in itself surely requires a degree of privacy and would be part of a prisoner’s Article 8 ECHR rights. There must be an obligation to do nothing that will endanger their safety from vigilantism. Convention Rights do not fly off because an offender is on licence in the community.
The Board must also be realistic that some victims are themselves offenders, sometime seriously so. For example information that enables one gang member to take revenge on another who stabbed him by providing information about where the attacker will be required to live after release should not be published. Information which might enable vigilante style attacks should also remain confidential.

The Board must exercise a balanced judgement respecting and protecting the legitimate rights of parties and witnesses while explaining what the decision is and how it was reached. It is difficult to see how such a complex set of considerations can be reduced to a set of rules other than to have a presumption in favour of publication with discretion to restrict the information given in order to protect the rights of those involved.

9. Do you think the work of the Parole Board is sufficiently visible?

Please select one item
Ticked No
If Yes, why do you think that? If No, what more could be done?
Feedback from stakeholders indicates that the work of the Board is not widely understood, and that there is a confusion between parole and other types of release that are the responsibility of SPS and not the Parole Board. The Board has taken steps to increase its visibility through commissioning a new and more accessible website, engaging proactively with organisations that we work with and on occasion meeting with victims to answer their questions about the parole process. The Board has also been engaging with the academic community, SPS and the Scottish Government to highlight and address the current dearth of research on parole.

Such outreach which has taken place has predominantly been on the initiative of the Board which would welcome a greater and more regular, structured and formal involvement in the training of social workers and SPS staff.

The Board does not however currently have funding to support outreach, training or communications activity. Feedback from the work we have undertaken within existing resources has been positive but, given additional resources, there is much more that the Board could do.

Questions on Improving Support for Decision Making

10. Do you think that consideration should be given to widening the information available to the Parole Board by establishing a function to investigate and collate information from other bodies?

Please select one item
Ticked Yes
If Yes, who should provide that function and in what circumstances? If No, what other options are there to improve information gathering?
The Board considers that there are two key issues here. Firstly, there is a need to ensure the quality of the information provided to the Board. Quality is currently variable and this can lead to postponements or adjournments where there is a need to question information that has been provided or to seek supplementary information. Such delays impact on victims, prisoners, and professionals involved in the parole process, and often incur a cost to the public. Scottish Ministers are responsible for the submission of dossiers and the Board believes that this is a matter for the Scottish Government and would like to see the establishment of a rigorous and documented quality control mechanism with oversight at a sufficiently senior level. Dossiers are currently provided, on behalf of Scottish Ministers, to the Board by SPS and it would seem sensible that effective quality control functions at a senior level would be an agreed part of their remit in the parole process.

The second issue is more complex. From time to time the Board will consider cases in which it is apparent that more information is required to inform the Board’s decision and that information will necessitate investigatory work being carried out to establish further facts. This was a feature of the Worboys case where the judgement in the judicial review was that information relating to previous allegations should have been considered by the Board.

The issue facing the Board will often relate to criminal charges where the Crown has chosen not to proceed or where there has been an acquittal and the Board needs full information including witness statements and productions.

The Board currently does not have the resources or arguably the amount of expertise to carry out investigative work and in any event, that is likely to have been done already by the police or Crown. It is also arguable that as a court the Board should not be carrying out investigations and that its primary function should be to consider the information or evidence placed before it.

If some other body were to be tasked with this work there would need to be clear procedures for the referral of requirements for further information. Our initial view is that the Board should make that referral to Scottish Ministers who would then commission a relevant body or bodies to provide it. If the Board were to make such a referral directly to another body there may be complications around independence and accountability.

Questions on information for prisoners on the parole process

11. Do you think that prisoners currently receive the information they need to enable them to participate in the parole process?

Please select one item
Ticked No
If Yes, why do you think that? If No, what information or help do you consider should be provided to help prisoners understand the parole process and their licence conditions?
The position at the moment is variable and depends on individual officers in SPS providing the information and support required to prisoners but generally, prisoners have little practical support available to them We would like to see a more rigorous and consistent approach. The Board is willing to provide training to SPS staff and has offered to do so. In addition, the Board believes support materials should be provided to prisoners to enable them to prepare. These could be in the form of a written guide or a DVD or interactive training module. As indicated in Q.9. above the Board does not currently have funding to support a communications facility but with the provision of such funding would be keen to lead on, or participate in, the production and dissemination of such materials.

It is important to note that the Board will not consider a case if they believe the prisoner has not had adequate information and that this may prejudice the outcome. Whilst this provides reassurance about the integrity of the process, adjournments and postponements related to this have an impact on the public purse and may delay release. It would be far better to ensure that the appropriate information is made available at the start of the process.

It is also worth noting that in the 1993 Act there is provision in Section 21 for the appointment of ‘parole advisers’ as follows

Parole advisers.

(1)The Secretary of State may appoint under this section persons (to be known as “parole advisers”) to give advice to prisoners, or former prisoners, who wish to make representations to the Secretary of State or to the Parole Board as regards any matter concerning their release on licence under this Part of this Act or their return to prison or detention by virtue of this Part of this Act.
(2)The Secretary of State shall pay to parole advisers such remuneration and allowances as he may with the consent of the Treasury determine.

This may be a further option for Scottish Ministers to consider. There are a number of ways this could be delivered and the Board is open to discussing the suggestion that the function could be managed as an add on to the Board’s current functions (but would not be delivered by members of the Board) if appropriate protocols and boundaries were observed.

The Board’s understanding is that, at present, a prisoner receives two copies of the dossier from SPS and is expected thereafter to administer the dossier, including any late papers, contact and instruct a solicitor, get a copy of the dossier to the solicitor and give the solicitor instructions. The prisoner is, arguably, the person least able to do all of these things easily. A dedicated resource to assist the prisoner would reduce the risk of delays and better prepare prisoners for their parole hearings.

What is important is that a solicitor acting for a prisoner has easy and quick access to the dossier before they visit the prisoner to advise and take instructions. At present the solicitor must attend the prison to get a copy of the dossier and talk to the prisoner. Without being able to consider and digest the dossier the solicitor cannot provide advice at that stage but must either visit again or advise on the day of the hearing which gives rise to the potential for waste if a hearing does not go ahead.

From the Board’s point of view dedicated support for the prisoner and electronic availability of dossiers to solicitors (as happens in criminal cases) would lead to a better understanding by the prisoner of what is happening, fairer procedure, greater efficiency and a reduction in wasted hearing days. It may even reduce Legal Aid costs.
Finally, it should be noted that some prisoners are detained in secure hospitals. If services are developed to provide information and support to prisoners these services should also be available to those detained in secure hospitals.

12. Do you think that more could be done to make sure that prisoners understand their licence conditions and the consequences of breaching them?

Please select one item
Ticked Yes
If Yes, what do consider is the best approach to ensure prisoners understand the terms of their licence and who is best placed to provide information? If No, why not?
Offenders who breach their licence conditions often plead that they did not understand the licence conditions. For example, there are prisoners who think that the licence conditions are set by the supervising officer and that they are, somehow, negotiable if they do not like them.

The Board considers that the supervising social worker continues to be well placed to explain licence conditions to the prisoner and subsequently to monitor adherence to those conditions.

However, the Board considers that there may be merit, in some cases, in having a formal hearing, before release at which licence conditions can be explained, and reinforced if need be. We suggest that the starting point for exploring whether this option is appropriate is a discussion with Social Work Scotland (SWS). We believe that SWS are best placed to provide information about whether licence conditions are understood and, if not, the relative merits of potential solutions to that problem. It may be appropriate to conduct a trial in one or two local authorities to test the impact of any new arrangements.

In addition to explaining licence conditions and reinforcing the importance of compliance a dedicated release hearing could also provide a mechanism for confirming that risk management plans are in place and that the supervising officer is ready to receive the prisoner. . This may reduce breaches of licence conditions and the number of recalls caused by misunderstandings. The presence of the supervising officer at such a hearing would be valuable.

Licence Conditions are closely tied to Risk Management Plans which are developed to deal with risk posed by a prisoner in the community and these two aspects of release should perhaps be considered together.

Current arrangements mean that release will normally take place within 24 hours of the decision being made. The Board is concerned that, on occasion, at the point of release into the community the risk management plan or at least parts of it, may not be in place or ready to be deployed or that the prisoner be released at a time when no support is immediately available for them.

It may well assist all concerned and enhance public safety if the Board was able to delay release for a period to allow for an orderly release at a time when it can be confirmed that supervision was immediately available and risk management arrangements were in place rather than anticipated.

This would mean that where a decision was taken to direct release on parole licence that may not take immediate effect but would be followed by what might be referred to as a dedicated release hearing where the Board can ensure that all aspects of the management plan are in place, and that licence conditions are fully understood.
A delay between the decision to release and the direction to release may also be necessary if the right of a victim to seek to judicially review a direction to release can be exercised effectively. Current procedure is that the prisoner receives intimation of a release decision on the day it is made or the day after and is released within 24 hours. A victim would have insufficient opportunity in that time to seek legal advice, probably obtain legal aid and set a challenge in motion in time to attempt to prevent release. A delay would not only allow for an orderly release but also protect the rights of victims to seek review.

Questions on supervision, review and recall

13. Is there a requirement for an additional review process (at least initially)?

If Yes, who should carry out that review and what would you see as the advantages or disadvantages of an additional review? If No, why not?
See also answer to Q.12 above

As section 6.5 of the consultation document states, there is evidence to demonstrate the effectiveness of a problem solving approach. A post-release review process would provide an opportunity to identify emerging issues and to address them, for example by amending, adding or removing licence conditions. This would be an important feedback mechanism for the prisoner. Where there are no issues it would also provide confirmation to the prisoner that they are on the right track which would have motivational benefits.

The Board presently has no role in supervision after release and it would not want to become involved directly in supervision. However, the success of specialist courts and drug treatment and testing orders in the Sheriff Court may suggest that some post release oversight by the Board might assist in managing risk in the community, help secure compliance with licence conditions and assist engagement with the supervision process.

It is self-evident that early success in supervision is likely to lead to longer-term success and delayed release and dedicated release hearings may well assist that.

As in our response to Q.12 we suggest that the starting point here should be a discussion with SWS who are best place to provide information on the utility of a review process and the likely effectiveness of different models that could be implemented. It may be appropriate to conduct a trial in one or two local authorities to test the impact of any new arrangements.

Hard-pressed social workers might welcome opportunities to have some post-release reviews of supervision conducted by the Board so that any developing difficulties in relation to compliance with licence conditions and the management plan can be dealt with and good conduct recognised and supported.

The flexibility of such reviews would allow the supervising officer, the offender and the Board to adjust and fine-tune licence conditions in good time to make a difference or to recall the offender promptly if risk has become unacceptable.

The Board would be well placed to conduct such post-release reviews, having the experience and knowledge to do so. The Board would recommend identifying examples of best practice from other jurisdictions in developing such an approach. Our initial thoughts are that such reviews could be carried out by a single member with significant input from the supervising social worker. Consideration would need to be given to whether victims are routinely, or on request, advised of the outcome of post release reviews.

Such a system would clearly have a resource implication and the Board would require additional funding to implement a post-release review process.

14. In relation to revocation of licence and recall to custody. Do you consider social workers should be able to refer directly to the Parole Board?

Please select one item
Ticked Yes
If Yes, what are the implications of this change and how could this be managed? If No, why not?
It is not entirely clear what is being proposed here. The 2017 consultation on parole reform asked:

"Do you agree that, for cases where revocation of a licence or re-release of a prisoner is being considered by the Parole Board, local authority social workers should be able to report licence breaches directly to the Parole Board for consideration and for suitably qualified professionals such as local authority social workers, officers from Police Scotland and NHS medical staff may also directly provide any additional papers requested to the Parole Board?"

Of 18 responses received 16 were in agreement. Our response, which remains the Board’s position, was as follows

In current revocation or rerelease cases the requirement for relevant parties to submit reports to the Board via Scottish Ministers does not in our opinion add value to the process; it potentially takes more time and increases the risk of administrative error. As these cases are necessarily urgent and the volume of supporting documentation required is less significant than for regular considerations of release, we believe it would be appropriate for reports to be submitted directly to the Board.

The Board, in collaboration with local authority social work and SPS, has made significant changes to the recall process over the last two years. This has involved greater collaboration at an earlier stage between police and social work and a revised operating model to allow for more frequent consideration of recall cases. This has resulted in a reduction in average timescales from identification of a potential breach to a Board decision from around 30 days to under 5 days. The Board’s revised operating model results in a normal turnaround of 48 hours or less from submission of a breach report to decision.

The Board believes that there are further options that could be explored whereby in certain circumstances the supervising officer could effectively suspend the licence without reference to the Board. This would result in the prisoner being recalled to prison immediately although the licence would not be revoked. This would also require the police to be given the power to detain the prisoner without warrant and would result in the prisoner being detained by SPS under the original sentence warrant. This would mean that the Board would only have to consider the case (and revocation of the licence) once rather than twice (recall and re-release) as at present.

As in our responses to questions 12 and 13. We suggest a starting point for the development of a new approach would be a discussion with Social Work Scotland, and in this case, SPS and Police Scotland. It may be appropriate to conduct a trial in one or two local authorities to test the impact of any new arrangements.

The recall procedure at present is that the supervising officer prepares a licence breach report and submits that to Scottish Ministers. A Scottish Ministers’ official makes a judgement on whether the need for recall is sufficiently urgent that an immediate decision should be made or whether the report should be passed to the Board for a decision. The Board has a target of 24 hours from receipt to consider the report. Where further information is required there may be further delay.

This can create a delay of some days between the supervising officer concluding that the risks posed by the offender may have become unacceptable and a decision on recall being made. Where a decision to recall is made there is further delay for Scottish Ministers to prepare an instruction for the offender to be detained and returned to prison by the police and the police to complete the necessary detention. During this time, arguably, an offender is at large in the community while they are an unacceptable risk.

The Board is of the view that consideration should be given to changes to speed up the process of identifying when the risk becomes unacceptable and returning the offender to prison.

At present, when either the Scottish Ministers’ official or the Board considers the breach report and concludes that the offender should be recalled, the licence is revoked and the offender detained and returned to prison without the prisoner having an opportunity to make representations.

There is a review some weeks after recall where the prisoner can make representations but by that time the offender is back in prison and may have lost work and accommodation. Perhaps a more appropriate response might be to suspend the licence for a short period during which the offender may be returned to prison and a prompt and full hearing arranged.

The period would be short and Criminal Justice Social Work Departments may be best placed to suspend rather than revoke, if they had the power. Revocation would be a matter for the Board and only after the offender has had an opportunity to see a dossier and make representations.

The essential objective of removing an individual whose behaviour presents a risk from the community quickly would be achieved while allowing an offender an opportunity to make fully informed representations very shortly thereafter.

New powers for police officers to arrest without warrant where a licence has been suspended and to force open premises if need be would allow for prompt detention and limitation of risk.

Questions on independence and governance

15. Do you agree that a transfer to the Scottish Tribunals would enhance the independence of the Parole Board?

Please select one item
Ticked No
If Yes, what do you consider the advantages and disadvantages would be with such a transfer? If No, Why not?
The Parole Board celebrated its 50th anniversary this year and is a high performing organisation with a proud record of contributing to public safety in Scotland.

The consultation paper does not set out a compelling case for the abolition of the Board. It is light on detail and, once examined in detail, does not clearly identify what issue the Scottish Government aims to fix. Our response below examines the option in some detail. We are disappointed that this important question appears to have been included at the end of a consultation that focuses largely on victim’s rights. Whilst we agree that it is right that arrangements are reviewed regularly we believe that such a fundamental proposal, and the many questions it raises would warrant a separate full consultation that fully explores the benefits of the options available, including retaining the existing arrangements.

There is no question but that the Board is currently independent as confirmed at Section 7.1 of the consultation document. There is also no doubt, as stated in section 7.4 that the Board satisfies the criteria of a Court. This question is therefore presumably about enhancing the appearance of independence rather than independence itself (which is a binary issue – a body either is, or is not, independent).

The debate around the appearance of the independence of the Board in Scotland was prompted by a decision in an English case in 2007 (Brooke) that the Parole Board for England and Wales lacked the appearance of independence and its decisions were thus open to review.

Since then, the Board in Scotland has been the subject of veiled criticism, or comment from limited quarters that it might lack the appearance of independence. It is clear that the Board in Scotland does not have and has not had any of the features of the Board in England and Wales which caused the Court to hold that it lacked the appearance of independence. The Board in Scotland has been judged against parole controversies which have arisen in England and Wales. Those controversies have not arisen in Scotland due to the foresight of the Scottish Government and the Board in establishing structures that have avoided such controversies. It is worthy of note that no attempts have been made, in Scotland, to challenge the appearance of independence of the Board

The Board recognises the importance of the appearance of independence. Following representations by the Board the Management of Offenders Bill already contains provisions relating to the appearance of independence. In particular, these restate the Board’s independence and will create regulation-making powers relating to how the Board is managed and the governance surrounding that. Our belief is that these provisions are sufficient to address any concerns about the appearance of independence. These provisions were drafted by the Scottish Government specifically to address any such issues, and the conclusion must be drawn that they are also regarded by Ministers as sufficient. The proposals by the Board were made to attempt to deal with the misplaced criticisms of the appearance of the Board’s independence.

The question therefore is how the abolition of the Board and the transfer of its functions would further enhance the appearance of independence. It is our contention that the consultation paper does not make a case for this. It refers to “underlining the Parole Board’s independence as a quasi-judicial body” and “providing clearer lines of accountability” but does not detail either what issues exist in these respects or how abolition and transfer of functions would make a substantive difference. How would it underline independence when that is already clear? To whom would an independent Parole Board for Scotland be accountable – indeed, might such accountability fatally detract from the appearance of independence?

The rest of the reasons detailed are not related to concerns, whatever they may be and however they may have arisen, about the appearance of independence but to operational arrangements. In our view these either seek to address problems that do not exist or are proposals that could be achieved without the considerable expense, upheaval and risk that abolition and transfer would involve.

The first of these relates to leadership of the Board. The consultation states that “The Lord President, as head of the Scottish Tribunals and as the most senior judge in Scotland, bringing a wide breadth of experience to the leadership of the parole jurisdiction and to its members.” However there is no issue with leadership of the Board that has been brought to our attention – indeed we would argue that we are a high performing and agile organisation with a clear sense of direction and purpose. Nor is it explained how the Lord President would lead the Parole Board for Scotland without substantial policy and statutory change. Neither is it clear what benefits would accrue.

The second category of reasons relates to there being a wider pool of experience to draw on through cross-ticketing and access to expertise. Again it is not clear what problem this is trying to fix. The Board has access to ample specialist expertise through the broad professional background and knowledge of its membership and there is no evidence presented in the consultation, or that we are aware of, which suggests this is not the case. While cross ticketing may be possible, it would also entail induction training for members of other Tribunals. This is time consuming and expensive especially for one or two individuals. Induction training currently involves 8 days of training and observing a number of parole hearings.

The final category of reasons relates to shared training and use of SCTS facilities. Our view is that, where this would be beneficial, it is achievable through cooperation and joined up working without the need for abolition and transfer.

The consultation paper goes on to discuss review and appeals processes and we have provided our response to these issues below under question 16.

Having considered the arguments given in the consultation paper for abolition and transfer we would like to turn to the arguments against which we believe are robust and convincing.

We do not believe that the Parole Board falls within the category of bodies that were envisaged as falling under the remit of the Scottish Tribunals. Section 27(4) of the Tribunals Act, which is the founding legislation for the Scottish Tribunals, enables bodies to transfer to its remit. Specifically it defines the type of body that may transfer as follows: -

(4) For the purposes of this section, a reference to a tribunal includes any body, office-holder or individual having decision-making functions that are exercisable as follows (but only as far as having such or other functions that are so exercisable)—
(a) as, or in the manner of, a tribunal, and
(b) with respect to the determination or resolution of legal, administrative or other disputes between parties of any kind.

The Board does not fall under this definition as it does not determine or resolve legal, administrative or other disputes between parties. The Board’s role is to assess risk and, on that basis, to determine whether it is safe for a prisoner to serve the rest of their sentence in the community. It is our belief that abolition and transfer would require the founding legislation, and the underlying policy aims, to be amended and consequently the statutory remit of the Scottish Tribunals to be expanded. Whilst this is undoubtedly possible, the founding legislation will have been drafted to give effect to intentions about the Scottish Tribunals remit. We contend that this means that the transfer of functions is not just an administrative act but one that would expand and change that remit.

We do not have access to all the documentation that surrounded the creation of the Scottish Tribunals but understand that the key documents that informed the development of the current system was the Administrative Justice and Tribunal Councils Scottish Committee discussion paper “Options for tribunal reform in Scotland” and subsequent paper “Tribunal reform in Scotland – A vision for the Future” These both list as Annexes the devolved Tribunals that are the subject of the papers. The Parole Board is not included or mentioned in either paper. Similarly, the Parole Board is not included in the extensive list of Tribunals designated as being considered for future transfer in the Schedule to the Act. . It is not at all clear to the Board why attempts are now being made to annex, at great expense, the Parole Board for Scotland which has up to now never been considered as apt or suitable for abolition and transfer to the Scottish Tribunals.

We understand that in discussions between the Scottish Government and SCTS in the past SCTS had identified a potential conflict of interest in having the sentencing function and the function that makes decisions on release within the same body. We agree that this presents an issue. In particular, if a significant driver for abolition and transfer is one of the appearance of independence this can be interpreted as independence from all influence rather than just political influence. At the moment, the Board operates on the basis that the sentence was a matter for the sentencing Court, and that the Board’s role is confined to the assessment of current risk. If the sentencing Court and the Board are part of the same body then this will be more difficult, and risks blurring these distinct functions. In fact, such a move is likely to undermine the appearance of the Board’s independence, rather than strengthen it.

It is difficult to see how a prisoner would see the Board being an independent judicial body if it was part of, and apparently led by the head of, a body which includes the sentencing court. It might reasonably seem that the decision to release or not is taken by the same court system which sentenced.

The basic argument is that the Board should not only be independent, and seen to be independent of the Executive but also of the sentencing court and the structure in which it sits.

We have looked at parole systems in other international jurisdictions and, whilst arrangements unsurprisingly vary, we can find no comparators that adopt the model proposed in the consultation. All of the parole bodies which the Board has looked at in Europe, Scandinavia, the United States, Canada, Australia and New Zealand deal with parole i as independent and separate organisations outwith the Court structure of the country concerned. We believe it would be instructive for Scottish Ministers to conduct further international research into models of parole as an important part of their considerations.

We anticipate significant operational risks in abolition and transfer. As a relatively small organisation with a flat management structure the Board is able to respond quickly and effectively to challenges. This was demonstrated in our response to the Worboys case where we were able to quickly identify and implement actions to ensure that the Board was not susceptible to challenge. We are also able to adopt a flexible approach in relation to, for example, meeting victims to explain more about the parole process and the way the Board works. We have significant concerns that moving into a much larger organisation would impact on that responsiveness and flexibility and even willingness to look for innovative solutions to problems. Hierarchies, especially large ones, tend to suppress individual effort.

The Board is fortunate to have a hugely experienced and motivated support team in Parole Scotland. The suggestion of abolition and transfer is already having an impact on the team’s morale. It is inevitable in our view that there would be a loss of staff who do not wish to transfer to a new body, with the associated risk of a reduction in the standard of service at a time when there is a considerable public interest in the process.

In summary the Board is recognised as independent and the Management of Offenders Bill will further enhance perception of that position. We believe that abolition and transfer is seeking to fix problems which have not been identified and which in the view of the Board do not exist.

We do not believe that the Tribunals Act as currently constituted provides a lawful mechanism for transfer of functions and have the gravest of reservations as to whether the Scottish Tribunals agreed remit is consistent with the functions of the Board. We believe the opposite and argue that the Board does not fit with any other Tribunal listed in the 2014 Act, its functions being fundamentally different. The decisions of the Board have serious and significant consequences which impact on the liberty of individuals and the safety of communities. The high stakes issues which arise in relation to consideration of the release of long-term prisoners and those serving life sentences and community safety are unique.

We believe there is a potential conflict of interest in accommodating sentencing and release functions within the same body.

We believe that operational benefits outlined in the consultation paper can be achieved through closer collaborative working and do not necessitate abolition and transfer.

For these reasons the Board does not believe that abolition and transfer would enhance the independence of the Board. We believe that it would have little positive impact on independence and instead create a number of avoidable risks.

We do not understand why annexation is suggested, nor do we understand why the Board, where it was never considered so before, is now thought suitable for annexation by SCTS and, it seems, ahead of bodies listed but not yet absorbed.

We also query whether such anxious and far-reaching change should be included with a range of other unconnected considerations which are largely focussed around the important role that victims might play in the parole process, rather than as a discrete issue for separate consideration. This would flush out further unintended consequences which there inevitably will be.

None of the given reasons for annexation will improve service to the public including victims, nor will they improve fairness or community safety or be better or more acceptable than the provisions already in place.

Importantly, as acknowledged by the Lord President, change will be very expensive and will in the view of the Board require primary legislation.

It may be argued with some force that resources should not be committed to unnecessary and unjustified, change but should be committed to greater transparency of the parole process and more and better support for victims and prisoners.

At the very least, the demise of the Parole Board for Scotland as we now know it, and the unilateral departure from international norms, deserves to be considered as a unique and individual issue and not simply as part of a wider unconnected consultation.

16. A review and appeal are available in the Scottish Tribunals. Do you consider these processes should be available for the Parole Board?

Please select one item
Ticked Yes
If Yes, what are the benefits of having these processes available? If No, why should these processes not be made available in the case of the Parole Board?
It is disappointing that the consultation document wrongly asserts at section 7.16 that no review mechanism currently exists. In fact the Board currently operates a review process directly analogous to the one in operation in the Scottish Tribunals in that it exists “to correct mistakes and quickly remedy them”. Where an issue of this nature is raised by a prisoner’s representative, the prisoner themselves, or a victim the Board considers whether this warrants any action being taken such as, for example, constituting an oral hearing. If the Board considers that such a hearing is necessary it will convene one. Where for example, inadvertently, victim or prisoner representations have not been associated with the dossier, the Board can, and has, convened a further hearing to reconsider the case.

Whilst this process has been in use by the Board it has not been publicised and therefore has been applied in a reactive manner. The Board now considers that it is appropriate to publicise information about the review procedure on its website and will do so in the near future. Equally, the Board would support amending existing legislation to make explicit that the Board may review its own decisions (it is already implicit in the power to regulate its own procedure).

The formal review process available to parties in a parole consideration is currently through judicial review. The Board believes the combination of an internal review process and the option to proceed to judicial review provides a sufficient and proportionate mechanism for challenging the Board’s decisions.

Public interest in parole appeals processes has largely been driven by the Worboys case and has specifically focused on the right of victims to seek to have decisions reviewed. We are picking up no pressure for different processes for prisoners.

It is important to note however that victims are not currently parties in parole proceedings and offering an appeal route to a second tier tribunal for victims is therefore not straightforward. Indeed, arguably, it is incompetent unless there is further statutory provision in relation to the status of the victim in the parole process or the range of those who can seek review by a Tribunal. Change is likely to open up review to third parties more generally. Even if, and it is not conceded, a prisoner post annexation could seek to review or appeal a decision of the Board, without change in relation to victims (and third parties) there would be two or even three possibilities. A victim would have to take a judicial review and a prisoner could seek review or appeal in the Tribunal system. It is possible that where, for example, a Hearing of the Board decided to release a prisoner at an advanced date, say, in 3 months, a victim could seek to have that reviewed by Judicial Review and the prisoner seek to review the forward date by Tribunal review. There are ways to resolve that but the proposal bring a range of unnecessary complications which improve nothing.

If Scottish Ministers regard the need for an appeal to an upper tribunal (whether for prisoners, victims or third parties or wider) as necessary we do not believe this would require the Board’s functions to fall under the Scottish Tribunals. We believe a mechanism could be developed for appeals to be referred to a second tier tribunal (perhaps constituted from within the Board) without the disruption, cost and risk of abolishing the Board and transferring its functions to another body. Worboys has clarified the law to be that victims may seek to review decisions of the Board, albeit this is currently done by Judicial Review.

The high stakes issues which arise in relation to consideration of the release of long-term prisoners and those serving life sentences and community safety are such that public confidence demands they be reviewed at the highest level.

About you

Are you responding as an individual or an organisation?

Please select one item
Ticked Organisation

What is your organisation?

The Parole Board for Scotland