Challenging Times

Justice Secretary David Gauke has announced his plans for decisions made by the Parole Board to be challenged and looked at again. He should really have made a statement to Parliament about it - the Ministerial Code says that the most important announcements of Government policy should be made there in the first instance. But Gauke preferred the Sunday papers and Today programme for the latest episode in a saga stretching back to his first few days in office just over a year ago.  

In the media, Gauke was able to spin the plan as solely about giving victims the right to challenge release decisions and to gloss over the chance prisoners will have to ask for parole refusals to be reviewed too. In the new scheme, applications for a decision to be reconsidered will be open to the prisoner and the Secretary of State – the two parties to the Parole hearing- with victims able to make their representations for reconsideration via the Secretary of State. The Ministry of Justice estimates between 1% and 5% of release decisions will be challenged compared to between 13% and 16% of decisions to remain in custody which prisoners will ask to be reconsidered.

It’s anybody’s guess how many challenges will prevail on either side; and whether the possibility of review will make initial Parole Board decisions more conservative. Rightly, there’s no change planned to the grounds for the Board’s decision-making.  As the MoJ put it “Any detention beyond the minimum term imposed by the {sentencing} judge is not about ongoing punishment for the offences committed but about the offender’s current risk to the public by the time that stage of the sentence is reached – often many years after sentencing”.  

In the great majority of  cases, however strongly they may understandably feel about an offender’s release, victims have to accept that their views will have limited weight in assessing that risk. Welcome improvements to the arrangements for keeping victims informed and supported and the (limited) increases in transparency Gauke has introduced, cannot and should not, alter that central fact.    

Gauke has wisely resisted the temptation to allow members of the public or the media to apply for parole decisions to be reconsidered. The Government say they looked at the proposal to do so carefully, rejecting it as impractical, unworkable and unachievable without primary legislation.  Almost as an afterthought they make the principled point that “challenges should come from those with a standing and involvement in the case rather than from the public at large”.

This is a principle that arguably should be applied to the Unduly Lenient Sentencing Scheme which  was introduced 30 years ago last week.  It seems odd that in any case of an eligible offence, at the request of a single person, the Attorney General must decide whether the Court of Appeal should reconsider it. In 2017, 943 requests were received, of which 137 eventually had their sentences increased. 

When the ULS scheme started, a handful of cases a year were anticipated but its scope has gradually been extended down the years. It may be preferable to a generalised Prosecution right to appeal. But if  sentences for a yet wider range of offences are brought within the remit of the ULS,- as the current Attorney General seems to think desirable- there's an argument that only those who can demonstrate a sufficient connection to a particular sentence should be able to challenge it.   

As for Parole, after two MoJ reviews, a third is on its way, looking at the case for more fundamental reforms to the powers and responsibilities of the Board. If that case is made and accepted, and the Parole Board becomes more like a fully fledged court, the reconsideration mechanism announced today could turn out to be something of a short term expedient.