Hard Case, Bad Law? Puzzles about Worboys

The Divisional Court Judgment on the Worboys case raises a number of puzzles. The Court ruled that the Parole Board’s decision to release the serial sex offender was not irrational on the information it considered but the Board was irrational not to have sought more. To a non lawyer , that looks like a distinction without a difference. As Nick Hardwick put it in his resignation letter “we were wrong”. The two women who brought the case deserve great credit for doing so, although I am not so sure about the Mayor of London.

What surprised me most was the fact that the Parole Board decided to release Worboys while he remained a Category A prisoner. The Prison Service must have considered him a person “whose escape would be highly dangerous to the public or the police or the security of the State and for whom the aim must beto make escape impossible”. The court heard that direct release is ordered on Cat A prisoners a handful of times a year.  Shouldn’t it be prohibited altogether?

There also a mystery about why more of the complaints against Mr Worboys were not prosecuted. Was it because they did not reach the evidential threshold as the CPS claimed earlier this year. Or was it that the CPS thought a small sample of offences would be enough to reflect the overall criminality and result in an appropriate sentence.

The Code for Crown Prosecutors says that Prosecutors should select charges which: a) reflect the seriousness and extent of the offending supported by the evidence; b) give the court adequate powers to sentence and impose appropriate post-conviction orders; and c) enable the case to be presented in a clear and simple way. One of the prosecutors reportedly told victims that “there are dangers in putting too many charges on an indictment as the trial can be too long and complicated.” Had more cases against Worboys been proved, the IPP tariff would have been higher and his release would not have been an issue until much later. IPP may have gone but the fundamental issue is still present.  Should the Code be amended to make this clear?  

As for sentencing, the Divisional Court was critical of the fact that the Parole Board did not consider the judge’s remarks made when Worboys was sentenced in 2009. I haven’t seen these but wonder how much weight they should be given. Parole Board decisions are about future risks and are predicated on the idea that people can change. How relevant are remarks made many years in the past? 

Last month at Liverpool Crown Court, in another dreadful case, the judge sentencing paedophile football coach Barry Bennell described him as “the devil incarnate”. What will the Parole Board- if it still exists- make of that when they consider his case in 2033 or thereabouts?

Finally, there’s the vexed question of the extent the Parole Board should take account of offending behaviour alleged but not proven. In their summary of the case, Matrix Chambers say that “should there be…attempts to deploy before the Parole Board extensive sub-conviction information, then they will likely be met by an argument that this case {ie Worboys} should be distinguished. The material in this case was readily available, the Board had been told of its existence, and it was particularly powerful. Those circumstances are quite unique”. But are they? Justice Secretary David Gauke told Parliament yesterday that in response to the judgement  “all relevant evidence of past offending should be included in the dossiers submitted to the Parole Board, including possibly police evidence, so that it can be robustly tested in each Parole Board hearing”.Presumably this includes “sub-conviction” information. And what about offences of which people have been acquitted?  Reasonable doubt may prevent a conviction but doesn’t always extinguish risk.   

There are no easy answers here but I wonder whether the future lies in handing these complex decisions over to the courts. The abolition of Rule 25 prohibiting information about parole proceedings being made public could well be a game changer. It will have a chilling effect on the Board and could lead to an upsurge in litigation one way and another.  Maybe it’s better to have these release decisions made by judges sooner rather than later.