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The parole system of England and Wales
What is parole?
'Parole', a word originally meaning 'word of honour', is used in modern-day England and Wales to describe the release of a prisoner on licence by the Parole Board while his or her sentence is still ongoing. 'Conditional' release occurs in circumstances where the sentence is still ongoing and the prisoner can be recalled to prison if licence conditions are broken or if he or she commits a further offence. The decision to release 'lifers' (prisoners serving life sentences) and indeterminate sentence prisoners (those serving sentences of imprisonment for public protection or detention for public protection under ss225-226 Criminal Justice Act 2003) is always taken by the Parole Board. 'Determinate' or fixed-term prisoners sentenced today will be released automatically halfway through their sentence under the Criminal Justice and Immigration Act (CJIA) 2008 (ie those given an eight-year sentence will automatically be released after four years). The Parole Board takes decisions as to the release of certain prisoners sentenced to fixed-term sentences before the 2008 Act came into force.
What is the Parole Board?
The Parole Board was set up in 1967 to advise the Home Secretary, who was then responsible for the release of prisoners on licence and their recall to prison. Offender management is now the responsibility of the Ministry of Justice. Since 1967 the Parole Board has been transformed from an advisory body, which usually made decisions 'on the papers' about a prisoner, and which did not have the final say as to release, to a judicial body determining the length of time that a large number of prisoners will spend in custody. It holds a large number of oral hearings at which prisoners are present and legally represented, although some decisions are still made 'on the papers', sometimes by a single member of the Board. The vast majority of Board members are part-time. They include judges; psychiatrists; psychologists; probation officers; and independent lay members. The Board has the status of an executive non-departmental public body (NDPB). This means that although it receives its funding from central government (the Ministry of Justice) its day-to-day operations are independent from the Ministry. However, importantly, the Secretary of State for Justice appoints members of the Parole Board and is able to issue guidance to the Board about how it should make its decisions.
Why is parole a human rights issue?
As can be seen from the description above, the parole system of England and Wales is now determining the length of time spent in custody by a large number of prisoners. As well as those serving life sentences and older determinate sentences, there is a growing number of 'indeterminate sentence' prisoners sentenced under the 'dangerous offenders' provisions of the Criminal Justice Act 2003. The sentence of imprisonment for public protection (IPP) under s226 of this Act has been enthusiastically taken up by sentencers - so much so that the government had to limit its application in the CJIA 2008. Under this sentence the length of time spent in prison is indefinite; after the minimum custodial term or 'tariff' set by the judge expires, the prisoner can only be released if the Parole Board determines that the risk they pose to the public has been sufficiently reduced to do so. They are therefore entitled to regular reviews by the Parole Board of their case.
The Parole Board's decisions therefore determine the liberty or continued incarceration of the individual and therefore directly engage the right to liberty under Article 5 European Convention on Human Rights. Article 5 includes certain procedural rights in Article 5(4), which states that:
Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
The jurisprudence of the European Court of Human Rights and more recently, of domestic courts under the Human Rights Act 1998, has resulted in major changes to the parole system in England and Wales. These are focused in three areas: the need for the Board to be independent; the need for prisoners to be afforded procedural rights, including oral hearings; and the need to avoid excessive delay in considering cases.
Why is parole topical at the moment?
The Ministry of Justice is currently consulting on the future of the Parole Board. Options include, amongst others, making it officially a court - part of HM Courts Service - and making it a Tribunal, part of the Tribunals Service. Either option would render the Parole Board a wholly independent, judicial body. There are advantages and disadvantages as to both - one key advantage of the Tribunals Service is that while courts are comprised of judges and/or lay people, tribunals - for example in areas such as mental health - are often multi-disciplinary (judges/lawyers sit with other experts). This would mirror current Parole Board practice and is most suitable for making decisions as to the risk presented by an offender.
What does JUSTICE think?
JUSTICE believes that the current status of the Parole Board is incompatible with the idea of an independent judicial body making independent decisions about the release of prisoners without government influence. We believe that the Parole Board should become a Parole Tribunal - part of the Tribunals Service. The Secretary of State should not issue guidance to the new tribunal and should not appoint its members - they should be appointed by an independent body such as the Judicial Appointments Commission. We also believe that the Tribunal should have the powers and resources that it needs to make timely and informed decisions as to release, and to afford full procedural rights to prisoners, avoiding the use of 'on the papers' decisions.
However, in addition to reform of the parole system we believe that the category of indeterminate sentences for public protection (IPP) and detention for public protection (which, shockingly, applies to children and young people under 18) should be abolished. These sentences have created undue pressure on the parole system and the prisons service, and have serious psychological impact upon offenders. Life sentences should be reserved for sexual and violent offenders who have committed very serious crimes. Where a life sentence cannot be justified, indeterminate sentences are not justified either.
In October 2009 JUSTICE published A New Parole System for England and Wales. This report is the culmination of a research project led by Tia Sedley. JUSTICE is grateful to the Nuffield Foundation for funding the research project and report.