On parole: a victim-centred approach
Alec Samuels considers how the victim has become central to Parole Board considerations
Sentencing used to be the exclusive domain of the judge, the lawyers and the defendant, carried out in public. However, with the introduction of the victim impact statement (VIS), the victim has become involved in the sentencing process.
Parole used to be the exclusive domain of the executive, the minister and officials. Gradually, the parole board has become largely independent and judicialized and judges have extended the scope of judicial review to cover parole decisions.
Over time, victims have successfully pressed for the right to participate in the parole process. Increasingly, legal services are required, though not so easily obtained from the public purse.
Necessity
Parole is only relevant for life prisoners, indeterminate prisoners and prisoners serving extended determinate sentences – not for those serving fixed term sentences, who are eligible for automatic release at the halfway point.
Parole is not concerned with punishment and deterrence, unlike sentencing, but with whether it remains necessary to detain the serious criminal for the protection of the public – is the prisoner still a danger? See, for example, the Parole Board Rules 2019 and McCourt v Parole Board [2020] (EWHC 2320).
The parole board must consider all representations made by the victim, read the VIS and allow it to be read out at the hearing. An application by the victim to attend must also be considered. A summary of the decision must be provided under the Code of Practice 2020 (paragraph 11.8).
The victim may ask for the decision to be reviewed. They may also suggest conditions for release, such as a prohibition against presence in a certain town or for non-contact.
We now also have a victims’ commissioner, Dame Vera Baird QC, and a victims’ minister, Chris Phillips MP. The justice secretary and lord chancellor may ask the parole board to review a release decision, and has previously done so.
Victims’ rights
The new code of practice for victims of crime in England and Wales, published by the Ministry of Justice (MoJ) in November 2020, confers 12 specific rights upon the victim. The victim’s solicitor (if any) will ensure these rights are available and utilised.
The prisoner’s solicitor (if any) will know the prisoner’s reservations and objections to release, and they may be called upon to respond to these on the prisoner’s behalf. Since the case of Worboys, the London black cab serial rapist, obtaining release, or avoiding deferred release, has become even harder than previously.
The rights conferred on the victim are:
- To be able to understand and to be understood;
- To have the details of the crime recorded without unjustified delay;
- To be provided with information when reporting the crime;
- To be referred to services that support victims and have services and support tailored to your needs;
- To be provided with information about compensation;
- To be provided with information about the investigation and prosecution.
- To make a victim personal statement;
- To be given information about the trial, trial process and your role as a witness;
- To be given information about the outcome of the case and any appeals;
- To be paid expenses and have property returned;
- To be given information about the offender following conviction. If eligible, the victim has the right to be automatically referred to the victim contact scheme, which provides information about the offender, their progress in prison and if/when they become eligible for parole or release;
- To make a complaint about your rights not being met.
Time limits
These rights apply from the original report to the police up to present day. However, only right 11 specifically deals with the situation leading up to and including the parole hearing.
The rights indicate the spirit in which the victim is to be treated – namely, supplied with all relevant information and outcomes, shown every consideration and given proper support throughout (though legal aid is not expressly mentioned).
For example, the victim must be informed when the prisoner is being considered for release, given ample opportunity to make a VIS and allowed to reduce the chances of an encounter. They must be given a summary of the parole board decision and informed of the right to ask for reconsideration.
Oral hearing
Following a consultation in October 2020, prisons minister, Lucy Frazer, announced on 8 February 2021 that the MoJ will further consult on oral hearings in public (and a root and branch review of the parole system), with a view to issuing new regulations and guidance in summer 2021.
Under the proposed new regime, the parole board chair would have discretion as to whether the parole hearing would be public and about what may be reported. The victim and the prisoner will be consulted.
A public oral hearing will be comparatively rare, usually only in high profile cases and where the interests of justice require (a Worboys-type case would be a likely candidate).
The chair will have regard to the sensitivities of the case, the medical features, any graphic elements in the crime, the privacy rights of the prisoner and the need to protect the victim from harm or from suffering or significant distress.
At the oral hearing, the victim will be permitted to make a VIS, but will not generally be permitted to otherwise participate.
The purpose of the proposed changes is to create better transparency and scrutiny and decision-making and to improve public confidence.
Standing
The victim, or any third person seeking to be involved in the hearing, must have standing – namely a sufficient, real and genuine interest in the matter.
In the case of R (DSD) v Parole Board [2019] QB 285, the rape victims and their families clearly had sufficient interest, but the mayor of London, an important public figure and no doubt sincerely concerned, did not.
Innocent
A problem over parole arises where the convicted person continues to deny responsibility and claims to be innocent – the victim of a miscarriage of justice.
The convicted person has shown no remorse and has refused to go on rehabilitation courses. They will not engage in any way with the victim and the family and so are less likely to obtain parole.
In these cases, the parole board will listen to the victim or the deceased’s victim’s family. The convicted person would appear to be unsuitable for parole and their chances of obtaining parole are unlikely to be good. Indeed, some convicted persons have positively refused to accept parole even when offered. They will not admit or even infer responsibility even in exchange for liberty.
The parole board must accept the fact of the conviction. Any challenge to the conviction is a matter for the criminal cases review commission and the court of appeal.
Location of body
It is possible that the criminal has forgotten where they left the body or, in other cases, they may genuinely be unsure.
Myra Hindley and Ian Brady murdered five children and buried them on the moors. Eventually, they agreed to disclose their victims’ whereabouts. But the moors lack landmarks, the waterlogged peat of the moors moves over time and bodies decompose. One of the bodies has never been found, despite extensive searches.
In the McCourt case, Ian Simms was convicted of murdering Helen McCourt and given a life sentence subject to a minimum of 16 years before consideration for parole. After 16 years, he has made repeated unsuccessful applications for parole.
He refuses to reveal the whereabouts of her body, which has never been found. The issue for the parole board is whether the refusal to disclose is a relevant factor in determining whether he be released.
Her family argued parole should be refused unless and until he disclosed the whereabouts of her body. The parole board took this into account and the judges refused to intervene.
Parliament has passed a new law, known as Helen’s Law, in memory of Helen McCourt (Prisoners (Disclosure of Information about Victims) Act 2020 amending sections 246B and 246C of the Criminal Justice Act 2003).
Now, the failure to disclose is relevant in considering suitability for release, regardless of when the sentence was imposed. Public protection is a fundamental issue and an element in the risk assessment in the context of a release decision.
The subjective motive of the criminal for the non-disclosure is likely to be relevant. For example, were they genuinely claiming innocence? Had they forgotten the location or were they trying to be helpful? Were they maliciously heaping misery upon the family, being vindictive, seeking to exercise power over the family? Did they suffer from a psychological or psychiatric problem?
Although obliged to consider the matter, the parole board retains discretion. The law does not say, ‘No disclosure, no body, no parole’.
Alec Samuels is a barrister
