Questions arising from the release of John Worboys

8 January 2018

There have been a number of questions arising from the release of John Worboys which have caused great public interest. In this blog Garden Court North Chambers’ Matthew Stanbury, a specialist in criminal law and prison law, answers some of those questions.

Why are Parole Board decisions not published?

Parole Board proceedings have always been seen as particularly sensitive, and Rule 25 of the Parole Board Rules 2016 provides that: “Information about proceedings under these Rules and the names of persons concerned in the proceedings must not be made public”.

An exception to this rule is where a prisoner brings a claim for judicial review of a parole decision, as those proceedings will usually be in public. There are therefore hundreds, if not thousands, of parole decisions which have found their way into the public domain in the guise of court judgments, which can be found on the usual sources such as Bailii (for those interested, simply type “parole board” into the search bar).

The Chairman of the Parole Board, Professor Nick Hardwick, has expressed his support for parliament changing the law so as to make parole proceedings more open.

Are victims entitled to participate in the parole process?

Yes. The statutory Victim Contact Scheme is offered to those who have been the victim of sexual or violent offences resulting in a sentence of 12 months or more. It entitles them to be kept informed of key stages of the offender’s sentence such as any transfer to open conditions or release. It also permits them and to make representations about the offender’s licence conditions.

The Code of Practice for Victims (“the Victims Code”) gives victims certain rights post-trial. These include an opportunity to make a victim personal statement (VPS), to be considered by the Parole Board. Whilst the Code itself applies to those who have made a complaint (complainants), rather than just those who have made a complaint resulting in a conviction (victims), it is almost certainly impermissible for complainants to make a VPS, and any such statement would surely be excluded by the Board.

It is the responsibility of the National Probation Service, not the Parole Board, to ensure that victims who wish to provide a VPS can do so and that complainants are kept informed.

Can somebody be prosecuted for offences where they have previously been told that they will not be prosecuted?

It depends. The leading case on this is R v Abu Hamza [2007] 1 Cr. App. R. 27, in which Lord Judge CJ said:

“… circumstances can exist where it will be an abuse of process to prosecute a man for conduct in respect of which he has been given an assurance that no prosecution will be brought. It is by no means easy to define a test for those circumstances other than to say that they must be such as to render the proposed prosecution an affront to justice.”

How this applies to cases will therefore depend on lots of different factors, and it would be very difficult to second-guess how it might apply to a particular case. But the fact that a person has been told he will not prosecuted is certainly not an absolute bar to that decision being revisited, and this regularly happens with historical sex cases.

Who can bring a claim for judicial review against a decision of the Parole Board?

It will usually be the offender who does so, and I am not aware of any case where the Secretary of State has sought to challenge a decision of the Parole Board in the Courts. This is no doubt because the Board is independent of the Secretary of State, and in seeking to challenge its decisions he might be seen to be trespassing on that independence.

A victim could, in theory, bring a claim for judicial review, but the first difficulty would be that the victim will not know the reasons for the decision, and you cannot begin to challenge a decision by way of judicial review unless you know what it says (this may be another reason favouring more openness in terms of publishing decisions).

Another difficulty facing victims is establishing that they have “standing” to bring the claim. This is an untested area, and Simon McKay has published a thoughtful piece about it in The Justice Gap.

Is it unusual for someone to be released directly from a high security prison?

Yes. Prisoners are categorised according to four categories: A to D. HMP Wakefield is a dispersal prison, which holds category A and B offenders, who are considered to be the most dangerous. The usual expectation is that “lifers” (those serving an indeterminate or life sentence) will have a “staged” progression through the categories, and release will often take place from a category D (open) prison. That said, there is no reason in principle why an offender cannot be released from a closed prison, and in recent years there has been a move away from the “staged progression” model.

How does a sex offender demonstrate to the Parole Board that they are safe to be released?

The usual expectation is that offenders will complete “mainstream” sex offender treatment programmes. These have proved controversial, and it was last year revealed that the programmes were not not effective at reducing offenders’ risk. There is now a new “suite” of programmes being introduced, but these are untested. Other risk-reduction “pathways” include treatment in a democratic therapeutic community (DTC), or in a severe personality disorder (SPD) unit, which have also proved controversial. In the end the Parole Board must look at all the evidence about an offender’s behaviour and progress and behaviour in prison and decide whether it is necessary for the protection of the public that he should continue to be detained.

Matthew Stanbury is a barrister at Garden Court North Chambers.

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