Blog: How three words have turned parole on its head

On 28 February I gave evidence to the House of Commons Justice Committee as part of its current inquiry into the prison workforce. Following that meeting, its Chair, Sir Bob Neil MP wrote to the justice secretary for further information on the recent changes to the eligibility for transfer to open conditions for prisoners serving life or IPP sentences.

Whilst that letter provides some new numbers, they confirm what our earlier Freedom of Information request revealed — a dramatic change in the likelihood of prisoners being approved for transfer to open conditions by the Ministry of Justice following a positive recommendation by the Parole Board; and that the change pre-dates the formal alteration to Parole Board rules on 6 June last year.

We think that’s important because the policy basis for such a dramatic change before the new rules came into force seems to us to be pretty meagre. It really boils down to the justice secretary using three words — a “more precautionary approach” — in the Root and Branch review and in public statements.

The letter also confirms what we had assumed from earlier FOIs — that the secretary of state has only been involved personally in cases where officials have suggested that a Parole Board recommendation should be accepted. Given that so few cases have produced that result, it seems that responsibility for deciding how to interpret what a “more precautionary approach” actually means may have been left very largely to the senior official with the delegated authority to reject cases without reference to the secretary of state in person.

The aspects of this that cause us concern are:

• On the face of it, a very substantial change in practice has been made on the basis of just a three-word description of the policy, and before a change in Parole Board rules which fleshed out and gave statutory force to what those words might mean.
• As far as we can see, the interpretation of those words leading to that change in practice has been left to a senior official.
• All of this has happened without the knowledge or involvement of either the Parole Board or Parliament.
• And all of this has happened out of sight of the prisoners concerned or their representatives, who will have imagined that their case was being considered under the Parole Board rules then in force, and interpreted in the way the Parole Board panel hearing the case also believed to be correct.

The letter also confirms that the Ministry of Justice has no information about whether the very issue that these changes in criteria are designed to prevent has even taken place. If public confidence is so seriously undermined by a prisoner serving a life or IPP sentence going on to commit a serious further offence while unlawfully at large from an open prison, one might expect ministers to know how often that had happened.

With the prison service in the midst of an acute capacity crisis, and police forces being asked to provide their cells for use, it was perhaps surprising that almost 700 places were available across the open prison estate at the end of February. These are places which ordinarily would be occupied by those life and IPP sentence prisoners who had been recommended for transfer by the Parole Board, and previously approved by the Ministry of Justice in nine out of 10 cases.

The most recent figures shared by Dominic Raab show that the prison service has been moving heaven and earth to get those spaces filled now that they are so much less likely to be used for the rehabilitation of people serving indeterminate sentences.

In our view this could increase the risk to the public, given the much lower level of scrutiny that is possible for cases where the Parole Board plays no part, and the absence of incentives for prisoners with a fixed release date to comply with the requirements of living in an open prison. Only time will tell.

Peter Dawson
Director

New Parole Board guidance

In response to a separate FOI request, the Parole Board has helpfully supplied us with all the guidance that has gone to panel members about the revised tests for open conditions and how panels should approach consideration of those cases.

The new guidance follows fresh directions from the secretary of state which make it clear that the Parole Board is not expected to assess impact on “public confidence”.

It makes clear that a panel must consider risk as a first step, but that it is then free to conclude that a period in open conditions may be “essential” rather than merely “beneficial”. This passage from the guidance may be of particular interest to anyone preparing for a hearing where a move to open is to be considered: