Parole Board
Oral Hearings Guide
Updated: August 2014
Parole Board – Oral Hearings Guide – August 2014
Oral Hearings Guide
Contents
Chapter
1
1
Pre-Hearing Issues
Updates
The Parole Board Rules
Jul 2014: Added 2014
amendments
2
2.1
2.2
2.3
2.4
2.5
Intensive Case Management (ICM)
Decision of the ICM Member
ICM directions
Reports
Disclosure/withholding information
Witnesses
2.6
3
3.1
3.2
3.3
3.4
Other directions
The Role of the Panel Chair
Directions and case management
Reports
Other documentation
Victim attendance
3.5
3.6
3.7
4
4.1
4.2
4.3
4.4
4.5
Witnesses and observers
Preliminary hearings
Other directions
Disclosure/withholding information
Withholding material
Disclosing material to prisoner representatives
Directions (Rule 10(2)(c))
Directions hearings
Withholding material from the prisoner and his
representative
Withdrawing material from the Board
Mental Health cases
Mental Health Review Tribunals
4.6
5
5.1
5.2
6
6.1
6.2
Jul 2014: Info added re
CRC and NPS
Jul 2014: Victims code
duties added
Jul 2014: Further info
added
Panels at secure units/hospitals
Deferrals
Pre-hearing applications for deferrals
Examples of deferral requests that would not
normally be granted
Examples of deferral requests likely to be granted
Directions
Jul 2014: Section added
Chapter
2
1
1.1
Roles and Responsibilities
Updates
1.2
1.3
1.4
1.5
The Secretary of State’s representative
The prisoner’s representative
Witnesses
Observers
Chapter
3
The hearing/procedural issues
6.3
6.4
Participants in the hearing
The Case Manager
Parole Board – Oral Hearings Guide – August 2014
Jul 2014: info added re
note takers
Updates
1
2
Inquisitorial or Adversarial
Panels
2.1
3
4
The missing panellist
Privacy
Order of evidence
5
5.1
5.2
6
6.1
6.2
6.3
6.4
7
Admissibility of evidence
Hearsay
Disclosure at the hearing
Other Matters
Questioning of witnesses
Note-taking
Dealing with disruptive behaviour
Children and young persons
Facilities
Chapter
4
1
The decision
Updates
Decisions
Jul 2014 – entire chapter
re-written to reflect LASPO
release test, victims’ code
duties and changes to
Licence Conditions
1.1
1.2
2
2.1
2.2
3
4
4.1
5
5.1
5.2
5.3
6
6.1
6.2
6.3
6.4
7
The panel’s remit
Helping the prisoner to progress
Release Tests
Indeterminate sentenced prisoners
Determinate sentenced prisoners
Secretary of State’s directions
The Resettlement Plan
Release “subject to”
Licence conditions
Additional licence conditions
Extremist Offenders
Licence conditions requested by victims
Reasons
Framework for reasons writing
Preparing reasons
Closed reasons
Timescale for promulgation to parties
Foreign National Prisoners subject to
deportation
Chapter
5
1
Equal treatment/diversity issues
Updates
Introduction
Jul 2014: Entire chapter
re-written with additional
sections added
2
3
4
4.1
Prisoners with physical disabilities
Prisoners with learning disabilities
Children and Young People
Treating children and young persons differently to
adults
Entitlement to Oral Hearing
Directions
4.2
4.3
Parole Board – Oral Hearings Guide – August 2014
Jul 2014: info added re PB
Rule amendments and lifer
cases
Jul 2014: Section re notes
& McIntyre added
Jul 2014: New section
added
Aug 2014 – section added
on SofS exclusion of FNPs
from open
4.4
4.5
4.6
5
6
7
7.1
Annexes
Annex A
Annex B
Annex C
Annex D
Annex E
Annex F
The hearing
Risk Assessment
The decision
Female prisoners
Transgender prisoners
Foreign language speakers
Welsh Language Scheme
Parole Board Rules 2011 (as amended by the
Parole Board (Amendment) Rules 2014)
Directions pro-forma
Pro-forma CJA 2003 licence
Guidance to Members on LASPO tests for
release (December 2013)
Practice Guidance for referring cases to Oral
Hearings (December 2013)
Guidance on setting directions for Oral
Hearings
Annex G
Guidance on drafting reasons
Annex H
Practice Guidance on Duties towards Victims
(February 2014)
Policy on open conditions
PB Guidance to replace SofS Directions and
SofS Directions on open
Annex I
Annex J
Annex K
Good Practice Guide for Oral Hearings
(November 2013)
Parole Board – Oral Hearings Guide – August 2014
Updates
Jul 2014: amended to show
2014 amendment Rules.
Jul 2014: New ICM and
Panel Chair Directions forms
added
Jul 2014: Dec 2013
guidance added
Jul 2014: Post-Osborn
guidance added
Jul 2014: Guidance updated
incorporating recent PBMs
and information
Jul 2014: Guidance updated
to pull together existing
guidance from PBMs. NOTE:
this guidance will be further
updated shortly.
Jul 2014: New Victim
participation guidance added
Jul 2014: Updated following
withdrawal of SofS
Directions on release in Jul
2013.
Jul 2014: Nov 2013
guidance added
CHAPTER 1
__________________________
PRE-HEARING ISSUES
Parole Board – Oral Hearings Guide – August 2014
1.
The Parole Board Rules
The process for post-tariff and recalled lifer/IPP hearings is governed by the Parole
Board Rules 2011, as amended by the Parole Board (Amendment) Rules 2014 (set
out in full at Annex A).
2.
Intensive Case Management (ICM)
For a complete guide to ICM, see the ICM Member Manual. What follows here is a
summary for panel chairs of the ICM process to give an idea of what they can expect
to have been done before the dossier arrives for an oral hearing.
2.1
Decision of the ICM Member
The ICM member is a single member of the Board who is authorised to make
decisions based solely on the papers in the dossier.
Under the Rules, the ICM member must make one of two decisions:
a.
b.
The case should proceed to an oral hearing
The prisoner is unsuitable for release
2.1.1 Proceed to an oral hearing
Parole Board policy states that a prisoner will not normally be recommended for a
transfer to open conditions without an oral hearing. The Rules require an oral hearing
in any case where release is a possibility. ICM members will accordingly send to an
oral hearing any case where there is a realistic chance of either outcome.
The ICM member may also have identified other factors justifying examination of the
case before a full oral panel. The Supreme Court case of Osborn, Booth and Reilly
[2013] UKSC 61 established that there is now a far wider range of circumstances in
which oral hearings should be directed. The overriding consideration is fairness to the
prisoner. If the prisoner has relevant evidence to give about his/her risk, or there
would be value in him/her being given an opportunity to participate in proceedings,
an oral hearing should be directed, even if he/she has little or no prospect of
succeeding in an application for progression to open conditions or release. For further
information please see the Practice Guidance for Referring Cases to Oral Hearing
(Annex E).
The ICM member will give brief reasons for the decision to progress the case to an
oral hearing and make directions for case management.
2.1.2 Unsuitable for release or open conditions
The ICM member will give full reasons for deciding that a prisoner is unsuitable for
release or open conditions. The prisoner will be notified of the decision and shown
the reasons. He/she may accept the decision (which then becomes final) or apply at
that stage for an oral hearing.
Any application for an oral hearing must be supported by reasons. These will be
considered by an ICM member, who must not be the same member who issued the
Parole Board – Oral Hearings Guide – August 2014
negative decision, and who will give reasons for directing an oral hearing or refusing
the application.
If the prisoner’s oral hearing request is refused the review is concluded. He/she may
however challenge the decision by way of judicial review if he/she considers there
are grounds to do so. If the Board concedes or loses any judicial review application,
the Secretary of State will be invited to re-refer the case and the ICM member then
requested to set directions for an oral hearing.
2.2
ICM directions
Where an ICM member sends a case to an oral hearing, directions will be given to
help progress the case. The power to make directions is contained within Parole
Board Rule 10. This provides for the ICM member or the panel chair to give, vary or
revoke such directions as they think proper to enable the parties to prepare for the
consideration of the prisoner’s case or to assist the panel to determine the issues.
ICM directions have the force of panel chair directions but do not bind the chair when
he/she comes to make directions. However, early directions are useful as they can
give the parties more time to fill gaps in the dossier and write any further reports
that are required, and they give prospective witnesses more notice of the hearing
and likely evidence required. This helps avoid unnecessary deferrals.
Directions should not be made in relation to the management of the prisoner’s
sentence, including but not limited to: security or transfer issues; re-categorisation;
treatment needs and sentence planning. For example, directions that would be
considered outside the Board’s remit include requirements that the prisoner:
a.
b.
c.
d.
2.3
Has home leave to his release address;
Attends a particular course;
Be transferred to another establishment for the purposes of completing
particular offending behaviour work; or
Be transferred to a psychiatric hospital for treatment, or assessed for such a
transfer.
Reports
2.3.1 Mandatory Reports
These are the core reports which must be available for the oral hearing. If any of
these are missing at the time of the receipt of the dossier the ICM member should
direct they be provided.
The core reports are as follows:
a.
b.
c.
PAROM1 (Offender Manager report)
OASys assessment
SPRL (Offender Supervisor report)
In addition to these reports, the dossier will normally include the following, where
available:
a.
Secretary of State’s terms of referral
Parole Board – Oral Hearings Guide – August 2014
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
l.
Pro-forma case summary
Details of offence(s)
Trial Judge’s sentencing remarks
Trial Judge’s report (only in MLP cases sentenced prior to December 2003)
Pre and post sentence reports
List of previous convictions
List of previous locations
Summary of reports of progress in prison
Previous Parole Board decisions
Reports from any offending behaviour work undertaken
List of adjudications since last review
2.3.2 Optional Reports
The dossier may contain other reports to assist the panel in determining the issues.
The ICM member may decide to direct addition of reports to the dossier.
2.3.3 Prisoner’s Reports
Issues in respect of prisoner’s reports will rarely arise at the ICM stage. However, if it
is apparent that the prisoner or his representative has requested a report; for
example, where the prison psychiatric report raises contentious issues which the
prisoner wishes to challenge, then it may be appropriate to make a direction
regarding the timescale for the service of such evidence.
2.4
Disclosure/withholding information
The ICM member may occasionally receive an application from the Secretary of State
to withhold a document from a prisoner under Parole Board Rule 8. Normally this will
occur later in the review process and will fall to the panel chair to decide.
Where any non-disclosure direction has been made at ICM stage the panel chair
should check carefully what has been directed. Further directions may be required to
ensure compliance, or information may remain within the dossier which should have
been removed.
2.5
Witnesses
In order to prevent hearings being ineffective through the unavailability of witnesses
the ICM Member will identify essential witnesses for the oral hearing. Those
witnesses will then be informed of the direction for attendance and asked to provide
dates of availability. The usual witnesses required will be the Offender Manager,
Offender Supervisor and, if applicable, author of the most recent psychological report
where it is evident that this will have a bearing on risk assessment.
The ICM member will also provisionally determine applications by the parties for
additional witnesses at this early stage in the proceedings. The following types of
application are likely to be received from the parties:
a.
Report writers and any other witnesses identified by documents in the dossier
who are favourable to the prisoner and not likely to be in dispute – the ICM
member should approve only if it appears that the witness can materially add
to the report in the dossier.
Parole Board – Oral Hearings Guide – August 2014
b.
Witnesses who give contrary or unfavourable evidence to the prisoner on
material facts or issues – it is expected that the ICM member will approve.
c.
Witnesses who are needed to make further contributions on risk assessment –
these will always be approved.
The panel chair will need to review any directions for witnesses and make further
directions as appropriate and necessary.
2.6
Other directions
In addition to issuing evidential directions, the ICM member will give a time estimate
for the hearing.
The ICM member will also assess whether the case is suitable for a video-link
hearing. The case is unlikely to be suitable where, for example, there are a large
number of witnesses, particularly complex psychological issues or the prisoner has
particular needs or vulnerabilities.
If the ICM member considers that the panel is likely to require psychological or
psychiatric input a direction will be made for the panel to include a specialist
member. If a specialist panel member is not directed, the panel chair should review
upon receipt of the papers whether he/she considers one is required: this will avoid
deferrals at a late stage.
If time is needed for directions to be fulfilled, the ICM member will state that no
hearing date should be set until directed material has been received; or, where
documents should be readily available, that a date can be set pending fulfilment of
the directions.
3.
The Role of the Panel Chair
3.1
Directions and case management
The power to make directions is contained within Parole
that the chair of the panel may at any time give, vary
he/she thinks proper to enable the parties to prepare
prisoner’s case or to assist the panel to determine the
guide for setting directions is at Annex F.
Board Rule 10. This provides
or revoke such directions as
for the consideration of the
issues. The detailed practice
Although the Rules provide for directions to be made by the panel chair it is regarded
as good practice for this to be done in consultation with other members of the panel
where appropriate.
Directions will generally relate to those matters contained within the Directions proforma (at Annex B), namely:
a.
b.
c.
d.
e.
Timetabling of proceedings
Service of documents
Witnesses
Submission of evidence
Disclosure
Parole Board – Oral Hearings Guide – August 2014
Directions must be confined to the purposes of the Rule and must therefore relate to
the preparation of the case or assist in the determination of the issues. Directions
should not be made in relation to the management of the prisoner’s sentence,
including but not limited to: security or transfer issues; re-categorisation; treatment
needs and sentence planning. For example, directions that would be considered
outside the Board’s remit include requirements that the prisoner:
a.
b.
c.
d.
Has home leave to his release address;
Attends a particular course;
Be transferred to another establishment for the purposes of completing
particular offending behaviour work; or
Be transferred to a psychiatric hospital for treatment, or assessed for such a
transfer
The panel will ordinarily receive the dossier a few weeks prior to the oral hearing.
The case will, however, have been subject to case management review prior to that
date as the ICM member will have identified directions at an early stage in the
proceedings. These directions will primarily relate to missing reports and the
identification of witnesses who are likely to be required to give evidence at the
hearing. The panel will be provided with a copy of the ICM directions in order to
ensure that they have been complied with, to consider whether witnesses put on
notice are indeed required to attend and to ascertain what further directions, if any,
are required.
The purpose of the Directions pro-forma is to provide the panel chair with a
checklist/prompt when considering what directions are required. In many cases, if
the ICM directions have been complied with none will be necessary beyond
confirming the witnesses who are required to attend. In others, directions may be
necessary where there is an obvious gap in the evidence, where the ICM directions
have not been complied with or on application from the parties. In all cases it will
rarely be necessary to make directions outside of those areas identified on the proforma. If in doubt please seek advice from the Legal Advisor.
3.2
Reports
3.2.1 Mandatory Reports
The core reports which must be available for the oral hearing are listed at 2.3.1
above. Ordinarily these will have been identified during the ICM process; however, if
any of these reports are missing, a direction should be made for service before the
oral hearing.
3.2.2 Optional Reports
This includes any other reports which will assist the panel in determining the issues.
In general, psychiatric/psychological reports should be required where there has
been input from specialists but no report has been provided. Course reports should
be current and relate to courses which have either been undertaken or will be
completed by the date of hearing.
Parole Board – Oral Hearings Guide – August 2014
3.2.3 Prisoner Reports
Such a direction will usually only be made where the prisoner or his representatives
have requested a report; for example, where the prison psychiatric report raises
contentious issues which the prisoner wishes to challenge.
3.3
Other documentation
Directions for other documentation should only be necessary where there is a gap in
the information contained within the dossier which is not adequately addressed by
other reports/documents.
Panel chairs should be alive to potential practical difficulties in obtaining specific
documents. Old documents may have been destroyed under the Data Protection Act
and it can sometimes take a long time to obtain documents from official sources.
Chairs should consider setting directions in broad wording, such as:
“The Board directs that the Secretary of State supply any document(s)
available that provide(s) details of …..”
3.4
Victim attendance
The full Practice Guidance on Duties towards Victims (February 2014) is at Annex H.
The Rules make no provision for a victim of an index offence to attend an oral
hearing. However, it is the Board’s practice, in recognition of the victim’s role in the
criminal justice system, to permit a victim to submit a written personal statement in
advance of the hearing. Victims will also usually be allowed to attend hearings to
read their statement to the panel should they ask to do so. The victim will not be
allowed to add anything at the oral hearing to the content of the written statement.
The prisoner has a right to be present while the victim reads their statement at the
oral hearing; however, if the victim does not want the prisoner present, the panel
chair must ensure that the victim’s wishes are made known to the prisoner and
where possible reach an agreement that the prisoner does not attend.
The panel chair should normally allow the prisoner to be excused if they do not want
to be present while the victim reads their statement.
This practice does not detract from the panel chair’s right to run the hearing or allow
such persons as he/she thinks fit to attend to take part in the hearing (Rule 25 (2)
and (3)), but in the interests of consistency and good practice, chairs are advised to
follow the Practice Guidance, and make appropriate directions where asked to do so.
3.5
Witnesses and observers
In order to prevent ineffective hearings through the unavailability of witnesses the
ICM member will have identified those witnesses who are likely to be required to
attend the oral hearing. Those witnesses will have been provisionally notified of the
date of hearing and advised that they may be required to attend.
The panel chair will need to confirm which witnesses are required at the hearing and
determine applications from the parties. If an application for a witness is refused
then the panel chair must give written reasons for that decision.
Parole Board – Oral Hearings Guide – August 2014
When considering the attendance of witnesses, the panel chair must have regard to
the substance of the evidence, the requirements of fairness and the length of the
hearing. Detailed guidance is included at Annex F.
Applications for observers are usually granted subject to numbers. However, should
a prisoner object to someone observing, the chair will need to consider the
requirements of running a fair hearing and putting the prisoner at his/her ease. The
final decision is for the chair.
3.5.1 Wording for witness directions and witness summonses
In general witnesses attend hearings voluntarily unless they have a good reason for
not being able to. However, the Board does occasionally encounter difficulties with
witnesses who are reluctant to attend or do not appreciate the importance of the
hearing. To that end, chairs are advised to consider using the following standard
wording for requiring the attendance of witnesses:
“The Board directs that ……. shall attend the hearing to give
evidence. The
witness should note that the proceedings will be as informal as possible, but
that the Board will nevertheless sit as a
court.
Non-attendance is only permitted in compelling circumstances and the Board
does have the power to enforce attendance if necessary by way of a witness
summons. Full reasons must be given by anyone unable to attend.”
In cases where primary evidence is required as opposed to hearsay, or where a
crucial witness is reluctant to attend, the Board may make a direction to the
Secretary of State to issue a witness summons (Civil Procedure Rule 34.4). This
power should not be exercised lightly. Some general principles:
a.
No witness should be summoned in this way unless their oral evidence is
fundamental to the outcome of the case. Where a witness is reluctant to
attend the panel chair should first consider the alternative of written evidence.
b.
It is not appropriate to compel a minor to attend.
c.
Panels should be slow to pursue a witness summons unless one of the parties
has applied for a direction to do so.
d.
The panel should consider the effect on the outcome. A vulnerable witness can
be compelled to attend but cannot be compelled to give evidence. If it is
unlikely that the witness will produce any worthwhile evidence it will probably
be pointless in directing the Secretary of State to compel attendance.
3.6
Preliminary hearings
Each party has the opportunity to make written representations on directions made
by the panel chair or sought by the other party. Where the panel chair considers it
necessary, oral submissions may be made at a preliminary hearing. Such hearings
tend to be exceptional and usually relate to complex issues which require input from
the parties.
The Rules require that unless the panel chair directs otherwise he/she shall sit alone
and the prisoner shall not attend unless unrepresented. The panel chair should
Parole Board – Oral Hearings Guide – August 2014
consider whether a directions hearing could take place via the parties’ telephone
attendance.
3.7
Other directions
Any additional directions made by the panel chair should be submitted on the
Directions pro-forma to the Case Manager.
4.
Disclosure/withholding information
The prisoner has the right to see all the material that the Board considers. However,
the Parole Board Rules allow, under certain circumstances, for evidence to be
submitted by the Secretary of State to the Board but not to the prisoner.
4.1
Withholding material
Rule 8(1) lays out the criteria that must be met for a panel chair to direct that
material be withheld from a prisoner.
The panel chair must be satisfied that non-disclosure is necessary and proportionate,
and that disclosure would adversely affect one or more of the following:
a.
National security (most likely to arises in cases where the prisoner is convicted
of terrorism offences or other extremist offending)
b.
The prevention of disorder or crime (for example ongoing police investigations
that may be put at risk, information given in confidence by another prisoner
whose safety could be threatened, information given by an acquaintance that
contributed to the recall of a licensee etc)
c.
The health or welfare of the prisoner or a third party (for example medical
information that could have implications for the prisoner’s mental health or
representations by a victim or potential victim)
The Secretary of State must give grounds for any application he makes for a
direction to withhold material. The panel chair will need to consider the above criteria
and issue a direction under Rule 8(2)(d).
Before issuing any non-disclosure direction, the chair must consider whether a ‘gist’
of the material or a redacted version might be acceptable for disclosure to the
prisoner.
4.2
Disclosing material to representatives
Rule 8(3) requires that material withheld from the prisoner must be disclosed to his
representative, provided that representative is:
a.
b.
c.
A barrister or solicitor; or
A registered medical practitioner; or
A person whom the chair directs is suitable by virtue of his/her experience or
professional qualification.
Parole Board – Oral Hearings Guide – August 2014
The Rule requires that the representative must not disclose the material to the
prisoner either directly or indirectly. Normal practice is for the representative to be
required to give a written undertaking to the Secretary of State before they are
provided with the material, although there is no requirement in the Rules for any
such undertaking.
4.3
Directions (Rule 10(2)(c))
Where the chair makes a direction to withhold material, the following wording may
be appropriate:
“The chair directs under Rule 10(2)(c) that the material submitted by the
Secretary of State will be withheld from the prisoner on the grounds that it is
necessary and proportionate in the circumstances of this case and that its
disclosure would adversely affect…
“…It shall be served by the Secretary of State on the prisoner’s representative
who is directed that it may not be disclosed either directly or indirectly to the
prisoner or any other person without the express direction of the chair. Within
7 days of receiving this direction, the prisoner may appeal against it in writing
to the Chairman of the Parole Board. The Secretary of State may make
representations and the Chairman’s decision will be final.”
Where the chair concludes that there are insufficient grounds for withholding the
material under Rule 8(1) the following wording may be appropriate:
“The chair directs under Rule 10(2)(c) that the material submitted by the
Secretary of State should not be withheld from the prisoner on the grounds
that it is not necessary and proportionate in the circumstances of the case to
do so and that its disclosure would not adversely affect …
“…The Secretary of State should re-consider whether he wishes to rely on this
evidence and if so, he must make full disclosure. Within 7 days of receiving
this direction, the Secretary of State may appeal against it in writing to the
Chairman of the Parole Board. The prisoner’s representative may make
representations and the Chairman’s decision will be final.”
4.4
Directions hearings
If the chair feels that he needs to hear verbal arguments from the parties before
deciding on the direction to make, a directions hearing can often assist. Rule 11
provide for a directions hearing to be held to determine any issue and describes the
procedure. The chair will need to make sure that enough time is allowed between
any directions hearing and the substantive hearing itself.
4.5
Withholding material from the prisoner AND his representative
The Secretary of State may seek to withhold material both from the prisoner and his
representative. This may be permitted where the representative does not fall under
the categories described in Rule 8(1). In any other case, there may be scope for
withholding material from an authorised representative, but only in very exceptional
circumstances. Chairs presented with a submission from the Secretary of State to
this effect must seek advice from the Legal Advisor.
Parole Board – Oral Hearings Guide – August 2014
4.6
Withdrawing material from the Board
The Secretary of State has the power under Rule 8(5) to withdraw information if the
Board directs disclosure against his wishes. Where this occurs, anyone who has seen
the material in question will be unable to sit as an ICM member on the case or on the
oral hearing panel.
5.
Mental health cases
5.1
Mental Health Review Tribunals
Occasionally, an offender will have been initially sentenced to a term of
imprisonment but then later sectioned under the Mental Health Act and transferred
out of the prison estate for treatment. Once an offender has been sectioned, the
Board has no jurisdiction until a Mental Health Review Tribunal (MHRT) discharges
the offender back to prison.
However, there are two sets of circumstances where the Board may conduct a review
in respect of someone still detained under the Mental Health Act:
a.
The MHRT decides that treatment is no longer necessary but a transfer back to
prison would so adversely affect the patient’s mental health such that it would
be better for him to serve any remaining sentence time in hospital; or
b.
The MHRT decides that, had the patient been sentenced under the Mental
Health Act, he would now be discharged under the same Act.
Panels should note that the MHRT criteria for discharge is based around the nature
and degree of the mental disorder; they do not apply the same release test based on
risk as the Parole Board. Similarly, the MHRT may consider what licence conditions
would have been necessary the prisoner will not be subject to any such conditions
unless they are included within the life licence.
5.2
Panels at secure units/hospitals
Panels will sometimes, therefore, visit secure units or special hospitals to conduct
hearings. Every such panel will include a psychiatric member and consultation
between the panel chair and the psychiatric member is recommended.
The principles for review and release apply as they do to prisoners but the dossier
will be different. Typically, members can expect to receive:
a.
b.
c.
d.
e.
f.
g.
the dossier that went before the MHRT
the MHRT decision letter that triggered the parole process
any additional current psychiatric/psychological reports
a report by the Responsible Medical Officer (RMO)
a report from the Offender Manager
a social circumstances report from a social worker
documentation relating to the care plan
The panel chair will need to check that these documents, and any additional other
documents required (such as a report from a substance misuse worker or
Parole Board – Oral Hearings Guide – August 2014
occupational therapist, reports on home leaves
programme reports), are covered in the directions.
taken,
offending
behaviour
In respect of witnesses, it is likely to be essential for the panel to hear from the
RMO, a social worker and a member of nursing staff.
Panels should be aware that such reviews are quite rare for the mental health
community and so there may be a lack of familiarity among the professionals as to
procedural requirements.
6.
Deferrals
6.1
Pre-hearing applications for deferral
There are three stages at which a request to defer from one of the parties may be
made pre-hearing:
a.
b.
c.
Before the review has begun
After the review has begun but before the case has been allocated to a panel
After the case has been allocated to a panel
In all cases, it is essential that a deferral, if granted, is granted where possible
before the hearing rather than on the day of the hearing. Unnecessary delay and
expense to all parties should be avoided.
6.1.1 Before the review has begun
Any application made by the prisoner to defer his hearing before it has been referred
to the Board under section 28 of the Crime (Sentences) Act 1997 will be considered
by PPCS on behalf of the Secretary of State.
6.1.2 After the review has begun but before allocation to a panel
These will be dealt with by the ICM member. The following will be considered:
a.
b.
Whether additional information is required and will be available within a short
specific timescale; and,
Whether the information is materially likely to affect the outcome.
If a deferral is granted the ICM member will make directions for further case
management.
6.1.3 After the case has been allocated to a panel
These will be dealt with by the panel chair as part of the directions, considering the
matters above.
6.2
Examples of deferral requests that would not normally be granted
a.
Where the prisoner is about to commence a course, or wishes to complete a
course, and a report is unlikely to be available within 6 months. The panel
chair may take into account that a successfully completed course may not be
Parole Board – Oral Hearings Guide – August 2014
of use without a subsequent period of monitoring to see if lessons learned are
being put into practice.
b.
Where a prisoner is approaching the end of a course but where the outcome is
unlikely to be a material factor, for example, where multiple risk factors are
present and it is clear to the chair that the course report will have little effect
on the panel’s decision.
c.
To enable a transfer to another establishment to take place for courses or
therapy to begin. Timescales here are very uncertain and are likely to delay
the case for many months, or even years.
d.
Where a prisoner recently arrived in open conditions wishes to be assessed
for, and complete home leaves and/or undertake booster work. Prisoners in
open conditions will not be permitted to take unescorted leave until they have
been assessed by the Prison Service. Unless evidence is available to say that
reports will be written within a short period of time, the process is likely to
take at least 6 months.
e.
Where a prisoner wants to await the outcome of criminal proceedings. The
chair should consider the available reports and decide whether sufficient
material is there about the alleged incident(s) to enable the panel to reach a
decision, with the benefit of oral evidence, as to whether the risk of further
offences is acceptable, regardless of whether a crime has actually been
committed. Remember, the Board is not required to adopt the criminal
standard of proof. However, where the prisoner is pleading not guilty to an
offence and court case is soon to be concluded it would be advantageous to
defer for the outcome as this is likely to affect the proposed risk management
plan and recommendation of the Probation Officer.
6.3
Examples of deferral requests likely to be granted
a.
The prisoner is about to complete offence related work and the report will be
available soon and the information is likely to affect the outcome of the
review.
b.
A material witness is unable to attend on the date of the panel. This type of
request will require the chair to consider the excuse given by the witness and
decide whether it is reasonable or not.
c.
The prisoner needs more time to obtain legal representation. Indications are
that the courts will afford the prisoner a lot of leeway in this area.
d.
A prisoner in open conditions has completed most of what is required but is
nearing the end of a crucial course or needs to complete a limited number of
home leaves, or where the release plan is not yet in place but is likely to be
soon.
6.4
Directions
Where a deferral is granted, a formal direction must be issued by the panel chair.
Where a deferral request is rejected, reasons must be given.
Parole Board – Oral Hearings Guide – August 2014
When issuing a deferral notice further directions will also normally be required for
case management. Any directions for provision of missing information should state
who should provide the material and give a deadline for submission. The deferral
notice should additionally state which witnesses should attend the next hearing and
estimate a timescale for the hearing.
Chairs should resist where possible issuing a direction for the hearing to take place
on or before a specific date as the Board may not be able to fit the date into existing
listing commitments, particularly in light of the Osborn judgment.
It is good practice to direct that the Secretary of State or the prisoner’s
representative (depending on who is to commission the report or has asked for a
witness) must ensure that a copy of the deferral letter is sent to anyone required to
submit a report or to attend as a witness.
Parole Board – Oral Hearings Guide – August 2014
CHAPTER 2
__________________________
ROLES AND RESPONSIBILITIES
Parole Board – Oral Hearings Guide – August 2014
1.
Participants in the hearing
The participants in an oral hearing are generally as follows:
a.
The panel - members of the Parole Board appointed to hear a case
b.
The Case Manager - a member of the Parole Board Secretariat, responsible for
administrative duties before, during and after the hearing
c.
The prisoner
d.
The prisoner’s representative - normally a solicitor or barrister
e.
The Secretary of State (SofS) representative - a lay advocate presenting the
Secretary of State’s case; normally a senior prison staff member or a Public
Protection Advocate. An SofS representative is not routinely present at the
oral hearing. They are most likely to attend when there is an issue relating to
immigration, victim attendance, or if it is a High Profile Case.
f.
Witnesses - persons called to give oral evidence at the hearing
g.
Observers - persons granted permission to attend the hearing and observe the
proceedings while taking no active part
h.
The victim – the victim or family member of the victim of the index offence
attending to read a personal statement
i.
The Victim Liaison Officer – someone appointed to assist a victim in presenting
a personal statement, and who often accompanies them at a hearing to give
support
The Good Practice Guide (at Annex K) sets out the expectations of those contributing
to an Oral Hearing.
1.1
The Case Manager
When members receive the dossier they will be told the name and contact details for
the Case Manager at the Secretariat. The Case Manager is responsible for ensuring
that all administrative requirements are handled so that the case reaches the hearing
in accordance with the timetable. The Case Manager is also the panel’s pre-hearing
link to the Secretary of State and the prisoner/representative.
All directions and requests for information before a hearing must be routed through
the Case Manager or another member of the Secretariat in their absence. A panel
must not make direct enquiries to either party except at the hearing itself.
Where the Case Manager offers advice on procedure it should not lightly be
discounted. However, under NO circumstances may a Case Manager be asked or
permitted to make any comment whatsoever on the outcome of the review.
All decisions following the hearing must be sent to the Case Manager for
dissemination to the parties.
Parole Board – Oral Hearings Guide – August 2014
Exceptionally, a Case Manager may attend the hearing and take a note of
proceedings. Resources are scarce, however, and normally the panel chair will take
the note. As determined by the judgment of McIntyre (2013), the notes taken by the
chair constitute the official record of the hearing so it is important that these are full
and legible. When the panel chair is asking questions of the witnesses it will be the
responsibility of the other members to make full notes of the answers given as the
panel chair will most likely not be able to do this effectively.
1.2
The Secretary of State’s Representative
The Parole Board Rules do not require the Secretary of State either to:
a.
b.
be represented at the hearing; or
provide a view.
It would be very rare, therefore, if ever, that a panel should decide to defer the
prisoner’s right to a prompt hearing for either to be provided.
Where the nominated Secretary of State’s representative has written a report for the
dossier and his/her view does not agree with the Secretary of State’s official view (as
stated in the dossier), then he/she would not normally present the case at the
hearing. The representative should check the Secretary of State’s view on receipt
and, if it differs from his/her own, consider another senior member of the prison staff
to act as the representative.
Where the Secretary of State’s representative is also a witness he/she is not
automatically barred from presenting the case but the panel chair should consult the
parties and decide whether the hearing is capable of going ahead. Where neither
party objects and the panel has no overriding reason to disagree, the presumption
will be that the hearing can proceed. If it is decided that the Secretary of State’s
representative cannot play both roles, another senior member of the prison staff will
normally be found to act as the Secretary of State’s representative.
1.2.1 Lifers/IPPs
For a regular review, the Secretary of State will normally be represented by the Lifer
Manager or other senior prison officer. There may not be a representative at every
hearing but while there is no power to direct that the Secretary of State be
represented a request can be made if considered necessary. At a recall hearing the
representative may be a Public Protection Advocate (PPA).
1.2.2 Extended Sentence Prisoners
For an annual review, there will normally be no Secretary of State’s representative
and no Secretary of State’s view. At a recall hearing, a PPA may represent the
Secretary of State unless he regards the case as low priority (for example where the
prisoner has been convicted of further offences or where recall was due to missed
appointments). Accordingly, representation will be provided only as a matter of
priority at the Secretary of State’s discretion.
Panels may have two cases in a day where a PPA represents the Secretary of State in
one case, and a prison Governor in the other. It is entirely a matter for the Secretary
of State to decide who represents him at each hearing.
Parole Board – Oral Hearings Guide – August 2014
1.3
The prisoner’s representative
In most cases the prisoner will have legal representation at the hearing although the
Board may, with the prisoner’s agreement, appoint someone to act on his behalf.
Alternatively the prisoner may choose to be unrepresented or to have a non-legal
representative.
The Rules provide that a party may be represented by any person who he has
authorised for that purpose with the following exceptions:
a.
b.
c.
d.
any person detained or liable to be detained under the Mental Health Act 1983
any person serving a sentence of imprisonment
any person who is on licence having been released
any person with a previous conviction for an imprisonable offence which
remains unspent under the Rehabilitation of Offenders Act 1974
1.4
Witnesses
A witness is not a party to the proceedings and may only answer questions put by a
party or the panel. He/she may make additional statements if the panel believe it will
help its deliberations. The normal procedure is to allow all witnesses to remain for
the duration of the hearing but they may be given leave to depart once evidence has
been given, provided the panel are content that no further input will be required.
1.4.1 National Probation Service (NPS) and Community Rehabilitation Company
(CRC) Officers
It should be noted that determinate recall cases may well have involvement of a CRC
officer as well as an Offender Manager. Where a standard recall is initiated and the
matter referred to the Parole Board, an NPS Offender Manager will be allocated to
the case. Only an NPS officer may provide evidence relating to the assessment of
risk. However, you may wish to call the CRC officer to provide factual information
regarding the circumstances of recall and while the offender was in the community.
PSI 30/2014 on determinate recalls provides the following information:
“Section 4 of the Offender Management Act 2007 precludes CRC staff from
advising courts or court like bodies such as the Parole Board. Therefore, if the
Parole Board refers a CRC case (ie a case managed by the CRC before recall
and which will remain with the CRC should the offender be re-released) to oral
hearing and directs the attendance of the Offender Manager responsibility falls
to the NPS to attend the oral hearing and give evidence. The NPS can request
that the PPCS perform this role on their behalf. Where PPCS does take on this
function it will generally deploy NPS staff who are working in PPCS on loan.
Although CRC staff cannot advise the Board on the question of release, they
can be called to a Parole Board hearing in those cases where the Board is
seeking to establish the facts that led to the request for recall being made.
In CRC cases where either the NPS or PPCS are attending in order to advise
the Parole Board on the question of release, the CRC must assist the
representative and provide any relevant material.”
Parole Board – Oral Hearings Guide – August 2014
1.5
Observers
Anyone wishing to observe an oral hearing needs to apply in writing for permission
from the panel chair. This includes any family members or friends that the prisoner
wishes to attend. Any such request should give the full name and occupation of the
prospective observer, and reasons for making the request. Applicants should be
aware that the prisoner will be consulted and has the right to object. While the final
word on observers lies with the panel chair, it is essential for an effective hearing
that the prisoner is at his ease and chairs would normally refuse an observer where
the prisoner objects to their presence.
Parole Board – Oral Hearings Guide – August 2014
CHAPTER 3
__________________________
THE HEARING/PROCEDURAL ISSUES
Parole Board – Oral Hearings Guide – August 2014
1.
Inquisitorial or Adversarial
There has been much discussion about the degree to which the proceedings should
be adversarial or inquisitorial. The Rules say that formality should be avoided and the
panel should make its own enquiries where possible to satisfy itself about the level of
risk, but that the proceedings may be conducted in such a way as the panel
considers most suitable to deal with the issues. The European cases and the House of
Lords, however, speak of the need for adversarial proceedings in order to satisfy the
requirements of Article 5(4) of the European Convention on Human Rights.
In reality, most reviews and hearings contain elements of both adversarial and
inquisitorial practices. The Board has an important inquisitorial role; it may call
witnesses, make directions about evidence it requires and ask questions at the
hearing. There may be cases, however, particularly at recall hearings where there
are disputes over fact that will justify parties taking a more adversarial stance
leaving the panel more in the role of independent arbiter.
Notably, the Secretary of State is required to submit all written evidence to the
Board that he considers relevant, while the prisoner may elect not to rely on a report
he has commissioned and the Board has no power to force him/her to disclose it.
This discrepancy may be offset to some extent by the power of the Secretary of
State to withhold material from the prisoner under Rule 8.
The panel will wish to take account of the need to have witnesses, particularly the
prisoner, to be at their ease. The crucial consideration is that the panel wishes to
hear all the material evidence and witnesses should feel comfortable enough to give
it. The chair should not allow a representative of either party to badger a witness.
Once a question has been answered clearly and satisfactorily the chair should ensure
that the representative moves on to the next question. Similarly, the panel should
treat witnesses with respect.
2.
Panels
The Rules permit the Board to proceed with 1-3 members on panels. At present, all
ISP review and recall cases are normally listed for 3-member panels.
On 1 April 2014 the Parole Board (Amendment) Rules 2014 came into effect. These
removed the requirement that ISP oral hearings be chaired by a judicial member.
There is therefore now flexibility to list lifer/IPP oral hearings (including recalls) with
an independent chair.
2.1
The missing panellist
Sometimes a member is unavoidably detained or ill and cannot attend. The
remaining members should immediately discuss and decide whether they are
satisfied that the hearing can go ahead. The following should be borne in mind:
a.
If the appointed chair is missing and one of the remaining members is a
qualified chair the case may go ahead provided the members are satisfied they
can determine the issues.
Parole Board – Oral Hearings Guide – August 2014
b.
Where the missing member is a ‘specialist’, for example a psychiatrist or
psychologist, and the crucial issues turn on that member’s expertise the
presumption will be that the hearing will not go ahead.
c.
Where a hearing goes ahead with two members, and following the hearing
they are unable to reach agreement on the decision, then the entire review
must be deferred and the Board will re-list the case for a fresh panel.
3.
Privacy
Rule 24(4) provides that hearings shall be held in private. However, in addition to
witnesses and observers, the panel chair may admit to the hearing such other
persons on such terms and conditions as he considers appropriate.
4.
Order of evidence
It is important to remember that the chair has wide discretion over how the hearing
is conducted. Although the following part of this guide can be taken as the norm,
proceedings are nevertheless subject to directions the chair, in discussion with copanellists, may make to the contrary.
Although the panel has a judicial role, it will try to keep the proceedings informal. It
is likely that the proceedings will be more formal if there is strongly contested
evidence (for example regarding the circumstances of a recall). However, witnesses
are not required to give evidence on oath.
Unless one of the parties applies for the chair to direct otherwise, all participants can
expect to be present during the entire hearing.
The proceedings are not recorded verbatim and participants who require a full record
should take notes. However, McIntyre (2013) held that it is the Board’s responsibility
to ensure that a proper record is made of each hearing, and the panel chair’s notes
constitute the Board’s official record of proceedings. When the panel chair is asking
his/her questions they will be reliant upon the other panel member/s to take full
notes of the answers received.
The panel may manage the hearing as it thinks best in order to apply itself to the job
in hand. A pre-hearing discussion with the members of the panel is essential to
establish the way the hearing will be run, including the order of witnesses, who
should question them, and in what order. A suggested procedure is as follows:
a.
The chair will direct his/her opening remarks to the prisoner, introducing all
the participants and outlining how the hearing will proceed. The prisoner may
be asked whether he/she objects to the presence of any of the observers (and
if so, why) and whether he/she intends to give evidence. Should the prisoner
decline to give evidence, the chair should remind him/her that before directing
release, the Board must be satisfied that the risk to the public is acceptable
and that the prisoner’s evidence will be likely to assist.
b.
The chair will invite the Secretary of State’s representative (if present) to give
the SofS’s view on what the outcome of the case should be. This will normally
entail reading the official view contained in the dossier, expanding where
necessary. Although the SofS’s representative will not normally give formal
Parole Board – Oral Hearings Guide – August 2014
evidence about the prisoner, he/she may be asked general questions about
sentence management issues. It is very rare to have an SofS representative
now, mostly in cases where there is an immigration element or if it is a high
profile case.
c.
The chair will invite the prisoner’s representative, or the prisoner if he is
unrepresented, to state what decision and/or recommendation he/she will be
asking the panel to make. This should be a short statement of fact. Time will
be given at the end of the hearing for a closing argument.
d.
The chair will invite one of the parties, normally the SofS’s representative if
present, to call his/her witnesses. The witnesses will be asked questions,
usually in the following order:
i.
ii.
iii.
iv.
by
by
by
by
the SofS’s representative;
the prisoner’s representative;
each Panel member in turn;
the SofS’s representative on re-examination.
e.
Once all the SofS’s representative’s witnesses have been heard, the prisoner’s
representative will be invited to call his/her witnesses. Normally the prisoner
will be invited to give evidence first. The procedure then follows as above, with
the SofS’s representative and prisoner’s representative changing places in the
order.
f.
Normal procedure without an SofS representative is that the panel will lead
the questions, beginning either with the Offender Supervisor and Offender
Manager and then the prisoner or the prisoner first depending on the issues in
the case.
g.
Once all the evidence has been heard, the chair will invite the SofS’s
representative to sum up in light of all the evidence presented.
h.
The chair will then invite the prisoner’s representative to sum up in the same
way. It is required to allow the prisoner’s representative to have the final
word.
i.
The chair will advise all present that a decision will be made and conveyed to
the prisoner, his/her representative, the prison Governor and the SofS within
fourteen days.
j.
All participants will be asked to leave the room and wait nearby while the
panel discuss whether any further contributions are needed. Provided the
panel is satisfied that it has all the evidence it needs, the participants can be
given leave to go.
k.
The panel will then deliberate and make its decision. A decision may be taken
by a majority but will be presented as a decision of the entire panel. Parties
will be notified in writing. The post-panel discussion is crucial and is the point
at which the panel evaluates the evidence and agrees the main bullet points
for the reasons. It is essential that a full discussion takes place, even where
each panel member has the same view on the appropriate decision.
Parole Board – Oral Hearings Guide – August 2014
5.
Admissibility of evidence
The Board is not bound by criminal rules of evidence. Under Rule 25(6), the panel
may consider any relevant document or information. This means that the panel may
allow either party to submit evidence that would be inadmissible in a court of law.
This has particular application when considering hearsay evidence (see below).
The interpretation of this Rule will be for the panel chair. Where doubt exists, the
chair should consult the Legal Advisor.
5.1
Hearsay
The Board frequently receives evidence that would not be admissible in a court of law
because it amounts to hearsay.
It is well established in the courts that the Board may entertain hearsay evidence.
However, weight given to such evidence will need to be considered carefully, and
there may be cases where the evidence is so fundamental to the main issue before
the panel that fairness requires the attendance of the primary source of that
evidence. Normally, second hand evidence would be the limit of acceptable hearsay
but each case is different and panels will need to balance the need to assess the
facts and risk, against the right of a prisoner to a fair hearing.
5.2
Disclosure at the hearing
Panels will frequently arrive at the hearing
not previously been submitted. In almost all
copies are available for all parties and that
start time as possible, after the panel has
potential problems that could arise:
and be provided with papers that have
cases, it will be sufficient to ensure that
the hearing goes ahead as near to the
read the material. However, there are
5.2.1 The other party objects to the late disclosure
This will often happen when the SofS submits an expert report that the prisoner
would want to challenge, but could also happen the other way round. Where the
prisoner submits an expert report to rebut one the SofS has submitted earlier, there
may no problem and the panel may feel it appropriate to reject any application by
the SofS to defer – the prisoner is entitled to have the last word. If, however, the
late report is submitted by the SofS and the prisoner applies to defer in order to
commission his own report it will be for the panel to decide as a matter of fairness.
The panel will take into account the effect of the report on the case as a whole. For
example, where the report is negative to the prisoner whereas the bulk of the other
reports are positive, a deferral request will be hard to resist. If the panel decides to
defer, it should ask the prisoner for a timescale and make a direction for a date by
which the report should be received.
5.2.2 The SofS seeks to withhold the material
In these circumstances, the panel should clear the room of everyone except the SofS
and prisoner representative. If the SofS has no formal representative, and the
material is being presented by a state witness (e.g. the Offender Manager), the panel
may wish to give that witness some time to telephone the Public Protection Casework
Parole Board – Oral Hearings Guide – August 2014
Section to seek their authority to make the non-disclosure application on the SofS’s
behalf. The SofS should be asked why the application was not made ahead of the
hearing and in line with the Rules and on what basis the information should be
withheld. The panel should afford the prisoner’s representative the chance to read
the material and make submissions on its disclosure. It must be explained to him/her
that under no circumstances may the material be disclosed to the prisoner until the
panel chair has made a direction.
The panel should then ask both parties to leave the room while it makes a
determination. The criteria under Rule 8 should be applied and the two
representatives only called back for the direction under Rule 10(2)(c) to be
conveyed.
Depending in whose favour the direction is made, the other party must be given the
chance to apply to defer in order to make an appeal under Rule 10(3). If such an
application is forthcoming, the chair has no option but to defer so that the appeal
procedure can run its course.
Where the prisoner’s representative refuses to accept service of the material under
these circumstances, it is likely there will be no other option than to defer for a
formal application to be considered in writing.
6.
Other matters
6.1
Questioning of witnesses
The panel may find it advantageous to lead the questioning of the witnesses, but this
will depend on circumstances that will become clear at the outset of a hearing,
especially should a prisoner have special needs or is clearly anxious.
The questioning of witnesses by the panel should always be fair, polite and relevant
with the aim of assessing risk and establishing the viability of the release plan. So
long as there is no bias or undue influence there is no reason, where it is necessary,
why the panel’s questioning should not be firm and penetrating. It is important that
the questioning is relevant, concise and focused. Do not enter into a fishing
expedition or rehearse previously clarified information without good cause.
6.2
Note-taking
It is the responsibility of the Board to ensure that a proper record is made of each
hearing and in particular the evidence given at it. The record of the proceedings and
evidence before the panel may be required for judicial review and it can also be
essential if the evidence given is relied on at a further hearing.
The judgment of McIntyre (2013) held that the chair’s note constitutes the Board’s
official record of the proceedings. It is therefore essential that panel chairs make full
and legible notes of evidence heard. It is also essential that panel chairs do not
destroy their notes of the hearing.
The chair’s notes are a document belonging to and controlled by the Board. It may
be necessary to make the notes available as the record for use in the further
proceedings. If the prisoner disputes the version of evidence given in the Board’s
decision, the chair must consult their notes and his/her version will prevail. Chairs
Parole Board – Oral Hearings Guide – August 2014
are encouraged not to include personal opinions about witnesses or the case within
their notes, or if this is necessary as part of the judicial decision making process,
make it clear such notes are separate to the notes of evidence. This will be relevant
for any future decisions that may have to be made about disclosing the notes.
6.3
Dealing with disruptive behaviour
The Rules provide that the chair of the panel may require any person present at the
hearing who is, in his/her opinion, behaving in a disruptive manner to leave and may
permit him to return, if at all, only on such conditions as the chair may specify. The
panel has no power to hold any person present in contempt.
6.4
Children and young persons
Occasionally children and young persons may be present as ‘prisoners’ and particular
care needs to be taken to ensure that their evidence can be adduced as effectively
and fairly as possible.
When hearing evidence from a child, the panel should have regard to the key
principles of the Practice Direction issued by The Lord Chief Justice in relation to
trials of children and young persons in the Crown Court (see Members’ Handbook,
Section B, Chapter 14 – “Children and Young People”). The over-riding principle is
that the hearing itself should not expose the child or young person to avoidable
intimidation, humiliation or distress and that all possible steps should be taken to
assist the young person in understanding and participating in the proceedings. So far
as possible, the ordinary hearing process should be adapted to meet those ends.
Modifications to the hearing process may include:
a.
Ensuring that the young person has had the opportunity to have legal
representation
b.
Enabling the young person to see the hearing room prior to giving evidence in
order that he can familiarise himself with it
a.
Permitting the young person, if he wishes, to sit with members of his family in
a place which permits easy informal communication with his legal
representative and others
b.
Explaining the proceedings to the young person in terms he can understand
c.
Conducting the hearing according to a timetable which takes full account of a
young person’s inability to concentrate for long periods (for example,
facilitating frequent and regular breaks)
d.
Taking a more informal approach to the proceedings, including addressing the
young person by his/her first name
e.
Restricting observers to a minimum (for example, family members may be
appropriate but others may not)
Additional guidance in respect of hearings concerning children and young people may
be found in Chapter 5.
Parole Board – Oral Hearings Guide – August 2014
7.
Facilities
Each oral hearing will be unique to the establishment in which it is held. However,
whilst facilities will vary, all establishments are required to provide the following:
a.
A private and quiet room for the hearing, with a table large enough for 9 or 10
people and space around it for witnesses and observers to sit
b.
A room for the legal representative to speak privately with the prisoner
c.
A waiting room for the Secretary of State’s representative (if from outside the
prison), witnesses and observers
d.
Water and a box of tissues in the hearing room
e.
Male and female toilets nearby
f.
Photocopying facilities
g.
If possible, access to a networked computer
h.
A member of staff on hand, although not in the hearing room, throughout
i.
Refreshments (tea and coffee) for the panel, and lunch where more than one
hearing is being conducted
Panel members should be escorted to the hearing room immediately on arrival,
without waiting for witnesses or the legal representative.
Where facilities do not meet the standard, panel chairs are entitled to ask why not. If
a satisfactory explanation is not given, an e-mail should be sent to the Director of
Business Development, who will take up the matter with the prison Governor.
Parole Board – Oral Hearings Guide – August 2014
CHAPTER 4
__________________________
THE DECISION
Parole Board – Oral Hearings Guide – August 2014
1.
Decisions
There are four potential options for the panel dependant on the type of referral:
a.
b.
c.
d.
1.1
direct the offender’s immediate release on licence
fix a date for the offender’s future release on licence, within a year of the
Board’s decision (determinate/extended sentence recall prisoners only)
give advice on the prisoner’s progression to or continued suitability for open
conditions (indeterminate sentence prisoners only)
make no direction as to the offender’s release and advise only on what
outstanding risk factors exist
The panel’s remit
Prisoners will, from time to time, ask the Board to advise the SofS on matters that
he has not invited the Board to give advice on. Such applications must be resisted.
Typically these matters include:
a.
b.
c.
d.
the necessity of specific offending behaviour courses
the necessity or value of specific forms of treatment (for example, one-to-one
psychology, therapeutic treatment in the form of TC or DSPD etc)
suitability for transfer under the Mental Health Act
re-categorisation within closed conditions
The Board does not have power to give advice on any matters outside the remit of
the SofS referral. Such applications must be turned down and the chair must refuse
to entertain evidence relating to them.
1.2
Helping the prisoner to progress
This is also not the Board’s role. In the case of a life sentence prisoner, the sentence
imposed implicitly acknowledges that the prisoner may remain in detention for the
rest of his/her natural life where release would not be commensurate with public
protection.
Panels may be in the position of assessing a prisoner whose progress has ground to
a halt or who is becoming so institutionalised that release may never be an option if
action is not taken to help him/her move towards release. Panels must remind
themselves of the overriding statutory requirement to protect the public. While a
prisoner’s interests may be a factor, a panel must never put the public at risk by
directing release or recommending open conditions where the risk is too high to do
so. When assessing whether to direct release, the prisoner’s interests are secondary
to public protection.
2.
Release Tests
The following is a brief summary of the release tests in force.
2.1
Indeterminate sentenced prisoners
The statutory wording under section 28(6)(b) of the Crime (Sentences) Act 1997 is
clear: the Board must not direct release unless it is satisfied that it is no longer
necessary for the protection of the public that the prisoner be detained.
Parole Board – Oral Hearings Guide – August 2014
It has been argued by some prisoners’ representatives that this creates an unfair
burden on the prisoner to show that he/she is safe to release, whereas it should be
for the state to show he/she is still dangerous. The Board’s position, however, is that
both parties are free to submit whatever evidence they want within the constraints of
the panel’s remit; the Board assesses that evidence and applies the statutory test.
There is no presumption in favour of release where recalled lifers/IPPs are
concerned. The Board is still required to be satisfied about risk before directing
release. However, whilst this is correct under current case law it is nevertheless
controversial in view of the test for extended sentences (see below). If possible,
panels should make a positive finding of risk in lifer/IPP recall cases. Where this is
done, there can be no argument about whether the test in law is fair or not.
There is no requirement in recalled lifer/IPP cases that the Board make any finding
about the appropriateness of the recall.
2.2
Determinate sentenced prisoners
LASPO harmonises the statutory test for the first release of all determinate
sentenced prisoners, including the new Extended Determinate Sentence (EDS). The
applicable test is set out at section 125 (which amends section 246 of the CJA 2003):
the Board must be satisfied that it is no longer necessary for the protection of the
public that the offender should be confined.
This is a ‘risk-only’ test, and the Board’s view is that it is the same test as that
applied to indeterminate sentenced prisoners. Panels must therefore make public
protection the over-riding consideration, focusing on identifying and managing risk,
and should no longer balance the risk of any type of offending against the benefits of
early release.
While this is a statutory test, it is for the Board to interpret it in light of any existing
case law. In respect of lifers/IPPs, the Board is required to protect the public from
the risk of serious harm (risk to life and limb) and it is strongly advised that panels
take the same approach in respect of determinate sentenced prisoners. This
approach has been considered and accepted by the High Court in the case of King.
However, each Parole Board panel is a judicial body in its own right; guidance has
been published by the Board in order to assist panels but it cannot legally fetter a
panel’s duty to interpret the statutory test as it sees fit.
2.2.1 Determinate sentence cases after recall
The Board directs the release of recalled determinate prisoners. This direction is
binding on the Secretary of State and he must give effect to it.
Although LASPO is silent on the test for release of recalled determinate prisoners, the
public protection test may be interpreted to apply to determinate recall cases and so
the Board’s position is that it is this test that panels must now apply, interpreting it
as they see fit. This was accepted as correct in the JR case of King. Panels should not
solely refuse to release based on a breakdown in the supervision of a licence.
However, where such a breakdown means that continued detention is necessary in
order to protect the public, then refusal to release is justified.
Parole Board – Oral Hearings Guide – August 2014
However, panels are required to reverse the test, applying a presumption in favour
of release and making a positive finding of risk. The case of Sim (2003) established
that this applies equally to extended sentence prisoners.
It should be noted that the exercise is a current risk assessment only. Panels are not
tasked to decide whether the recall was appropriate or not, although making findings
of fact about the recall incident(s) may be an integral part of the current risk
assessment.
3.
Secretary of State’s directions
The Secretary of State may make directions to the Board under his statutory powers.
In July 2013, the Secretary of State withdrew all Directions, other than those relating
to consideration of suitability for open conditions (issued August 2004). The Parole
Board issued its own guidance to replace the Directions on release, setting out
factors which panels should consider. Both the Parole Board Guidance on release and
the SofS Directions on open can be found at Annex J.
Panels should note that the SofS Directions on open are binding on the Parole Board.
4.
The Resettlement Plan
When considering release, the Board is assessing the level of risk that the prisoner
will present in the community. It is central to that assessment, therefore, that the
Board satisfies itself that the plan in place for supervision, monitoring and
management of any residual risk is acceptable – it is not a separate issue.
4.1
Release “subject to”
Panels are sometimes invited to direct release subject to an appropriate release plan
being prepared by the probation officer where that is the only issue outstanding.
There are occasions where this could be a valid approach but it is fraught with
danger and should not be used lightly.
Once such a direction is given, the arrangements put in place for managing the
prisoner in the community are effectively removed from the Board’s decision making
power. Since in most cases this issue is central to assessing the level of risk it is
rarely appropriate for such a course to be adopted.
In the vast majority of such cases the right thing to do, once all the evidence has
been heard, is to adjourn and issue a direction. An example of suitable wording
might be;
“The panel adjourns the hearing and directs that a suitable resettlement plan
be put in place, and a report submitted to the Board and the prisoner’s
representative by [date] at the latest. On receipt of the report, the panel will
decide whether a further oral hearing is required.”
If the plan satisfies the panel that release is now appropriate a further oral hearing
may not be necessary, and a decision with reasons can be sent to the Case Manager.
Panels should note the following:
Parole Board – Oral Hearings Guide – August 2014
a.
A decision not to release once the report is received may require a further oral
hearing to give the prisoner a chance to make a further case. This is a matter
for the panel to decide.
b.
In any case, adjourning for a resettlement plan should not be contemplated
unless the panel is satisfied that it meets the general policy on deferrals; i.e.
the release plan must be imminent. Where there is no prospect of a release
plan in the near future, refusal may be appropriate.
c.
When adjourning, the panel should not make a risk assessment. This should
never be done without all the material required, including the resettlement
plan. The adjournment letter will simply say that the case is adjourned, and
make directions.
5.
Licence Conditions
The Board sets conditions for release. The standard licence conditions for a life
licence are set out at Annex C. The panel must direct these. The Parole Board has
the power to direct licence conditions in determinate sentenced cases and
recommend in indeterminates (however, the SofS must accept these
recommendations and cannot amend without consultation with the Board, so in
effect they are directions).
Frequently, a panel will want to add additional conditions. In every case the panel
must first consider whether the proposed conditions are necessary and
proportionate. Article 8 of the European Convention on Human Rights gives a
qualified right to private and family life. Any condition on a licence has the potential
to breach that right unless it is both necessary to manage the risk AND proportionate
to the risk it is intended to manage.
Offender Managers should review offenders’ licence conditions on a regular basis and
may apply to the Board to remove or alter conditions if an offender is making
progress and their risk of harm has sufficiently decreased. As any such application
will necessarily be made some time after the hearing has concluded, it will be dealt
with by a Duty ICM member.
5.1
Additional licence conditions
The table below contains a list of additional conditions that may be added by the
Board to an offender’s licence. This list covers almost all eventualities. There is no
ban on panels imposing conditions not contained on the list, but caution is advised.
Where exceptionally a panel wishes to impose an ad hoc condition, they are
reminded that any condition must be both necessary and proportionate, and are
advised to seek advice from the Legal Advisor.
5.2
Extremist Offenders
Extremist offenders may pose specific risks which cannot be sufficiently managed by
the application of conditions designed for other offending groups.
A case must be made for the application of further additional conditions on each
individual offender. Any additional condition must be necessary and proportionate,
Parole Board – Oral Hearings Guide – August 2014
and where the sentence is an indeterminate sentence or an extended sentence must
have a causal link to the index offence.
5.3
Licence conditions requested by victims
If the panel decides not to impose on an offender a particular condition requested by
a victim they must explain why in their decision letter so that the VLO may inform
the victim accordingly (see the Victim Practice Guidance at Annex H).
6.
Reasons
Panels are required to give written reasons for all decisions and recommendations,
whether positive or negative. It is important that reasons adequately and accurately
reflect the consideration that the panel has given to the case and the basis of its
decision or recommendation. Even a sound decision may be quashed on judicial
review if the reasons given do not clearly show that the panel has considered the
case properly.
Every set of reasons should:
a.
b.
c.
b.
c.
focus on risk
address the test for release
address the Secretary of State’s directions
take full account of the important issues in the case
identify in broad terms the matters pointing for and against release
The courts have criticised the terseness of some reasons which leaves them open to
misconstruction and misunderstanding. Reasons should be focused and concise but
cover all the issues and leave the prisoner in no doubt as to how the panel arrived at
its decision.
It is open to a panel to make a decision or recommendation which differs from the
conclusion of report writers. However, the panel’s decision must be substantiated by
evidence within the dossier and heard at the hearing, and both the prisoner and the
report writers must be able to understand why a different conclusion was reached.
Where the panel’s decision/recommendation differs from those in the reports it will
be necessary to go into more detail in explaining why the panel has taken the
opposite view.
Where there is a dispute as to material facts, the panel should make a positive
finding wherever possible and record submissions made and relevant evidence
heard.
6.1
Framework for reasons writing
Full guidance notes are at Annex G. The following headings must be used:
a.
b.
c.
d.
e.
Introduction
Evidence considered by the panel
Analysis of offending
Risk factors
Evidence of change since last review and/or circumstances leading to recall
(where applicable) and progress in custody.
Parole Board – Oral Hearings Guide – August 2014
f.
g.
h.
i.
Panel’s assessment of current risk
Evaluation of effectiveness of plans to manage risk
Conclusion and Decision of the panel
Indication of possible next steps to assist future panels
6.2
Preparing reasons
It may be useful to save time and help the Board meet its targets for the panel chair
to draft undisputed parts of the decision letter ahead of the hearing; for example the
offence details, prisoner’s background and factual items such as recorded
adjudications, previous convictions etc. Provided this part of the reasons remains
open to amendment following any information received at the hearing there is no
legal problem in taking such an approach.
6.3
Closed reasons
Where material was withheld from the prisoner under Rule 8, and it is a relevant
factor in the panel’s decision, the panel should issue a separate set of reasons
dealing solely with that issue. These will be referred to as “closed reasons.” The
opening wording may say:
“This letter forms part of the Board’s decision letter addressed to Mr/Ms [the
prisoner] and should be read in accordance with that letter. It must not under
any circumstances be disclosed to the prisoner either directly or indirectly.”
The closed reasons will be copied to the Secretary of State and, where appropriate,
the prisoner’s representative.
6.4
Timescale for promulgation to parties
Rule 26 requires that the Board’s decision and reasons be provided to the parties
within 14 days.
In most cases it is not practicable to draft the final decision on the day of the
hearing. The decision will be drafted subsequently by the chair, and e-mailed to the
co-panellists. All drafts must have the approval of the other panel members.
The reasons must be received in the Secretariat no later than 10 days from the
hearing. The chair must e-mail the decision to the Case Manager.
7.
Foreign National Prisoners subject to deportation
Panels frequently encounter prisoners who have been served by UKBA with a notice
of deportation. However, excepting the Secretary of State’s powers under the Tariff
Expired Removal Scheme (TERS), a foreign national prisoner who is serving an
indeterminate sentence can only be released from custody and removed from the UK
if the Parole Board has directed his release. The existence of a deportation order
does not override the statutory requirement contained in s28 Crime (Sentences) Act
1997. The prisoner will remain in custody until the Parole Board directs his/her
release.
Panels should therefore be mindful of any existing deportation notice. However,
deportation has no impact on the appropriate test for release. An indeterminate
sentence prisoner may only be released if the Board is satisfied that the risk posed
Parole Board – Oral Hearings Guide – August 2014
by the offender to the public is such that he/she no longer needs to be confined. The
panel must consider risk to the public, and this includes the public in the country to
which it is proposed the offender be deported. There is case law determining that
public safety is not by definition limited to the British public but applies to any other
country outside the jurisdiction.
In August 2014, the Secretary of State published a Prison Service Instruction
stating:
“Prisoners in closed conditions who have a Deportation Order against them and
who have either exhausted appeal rights in the UK or whose appeal rights must
be exercised from abroad: must not be classified as suitable for open
conditions; and, must not be granted temporary release (ROTL).
Prisoners in closed conditions who do not meet the criteria above but who are
liable for deportation or removal proceedings must be subject to a more
rigorous risk assessment prior to consideration for open conditions or ROTL.
Open conditions or ROTL will only be appropriate where it is clear that the risk is
very low.”
The SofS’s PSI does not take precedence over his binding Directions on the Board.
The Parole Board should continue to exercise its judicial discretion and apply the
binding SofS Directions, and, if appropriate, continue to advise that it considers such
offenders suitable for open conditions where the terms of referral ask it to provide
such advice.
Panels will need to consider carefully the risk of absconding, but this is true of any
case. Panels should take account of all available information, including the prisoner’s
attitude towards his deportation and the possible benefits that someone who is not to
be released in the UK may accrue from open conditions. Notably, such a prisoner is
unable to access public funds, undertake paid or unpaid employment or most forms
of study, and there is no release plan to test. However, there may still be
opportunities for offenders to demonstrate their ability to apply their learning from
offending behaviour courses in conditions of lower security.
There may be cases where the final decision on deportation has not been made; this
is particularly likely in pre-tariff cases as UKBA does not usually make a decision on
deportation until 18 months before tariff expiry. Panels should seek clarification from
UKBA via PPCS, and where the deportation process remains incomplete OMs should
both assess suitability for release in the context of no supervision being in place in
offenders’ home country and explain how they would manage the person if the
prisoner is released into this country at the last moment. In the unlikely event that
release is directed and the immigration status changes, the Secretary of State is at
liberty to refer the case back to the Board.
Licence conditions set by a panel cannot be legally enforced outside England &
Wales. There may be very rare occasions where a panel directs release, and, whilst
the offender is awaiting deportation he/she is released under immigration bail.
Panels may therefore wish to consider setting licence conditions if they direct release
with the understanding that these would only be enforceable whilst the offender
remains in England & Wales pending deportation, or if he/she later returns to
England & Wales.
Parole Board – Oral Hearings Guide – August 2014
REQUIREMENT
LICENCE CONDITION
ADVICE
Contact
(a) Attend all appointments arranged for you
with
[NAME],
a
psychiatrist/psychologist/medical practitioner
and co-operate fully with any care or
treatment they recommend
Where an offender manager requires an offender to attend a
session with a psychiatrist/psychologist/medical practitioner,
he or she must be named and must be willing to treat the
offender concerned.
This condition should only be used if the offender consents
(b) Receive home visits from [NAME], a to the treatment. Declining to co-operate with this condition
Mental Health Worker
means the offender is not addressing his/her offending
behavior and the possible consequence of this needs to be
explained to the offender.
Where consent is not forthcoming the expectation that the
offender
access
psychiatrist/psychologist/medical
intervention and treatment should be written in the RMP and
SP. If the objective is not complied with then inference can
be drawn that the ROH is not being addressed and the
purpose of supervision/rehabilitation undermined. It will
then be possible to recall under the relevant standard
condition. This should be explained to the offender and
recorded as the discussion having taken place.
Prohibited
Activity
(a) Not to undertake work or other organised
activity which will involve a person under the
age of [XX], either on a paid or unpaid basis,
without the prior approval of your supervising
officer.
(b) Not to use directly or indirectly any
computer, data storage device or other
electronic device (including an internet enable
Parole Board – Oral Hearings Guide – August 2014
The requirement that an offender attend a duly qualified
medical practitioner also includes any reasonable request to
undergo drug counselling.
These conditions should only be used where it is necessary
and proportionate to manage the risk (such as members of a
child sex offender ring who are known to use the Internet to
distribute indecent material). Consideration will have to be
given to practical exceptions, such as the use of a computer
in a work environment. Prohibited activity conditions should
always be subject to the clause “… without the prior approval
of your supervising officer”.
REQUIREMENT
LICENCE CONDITION
ADVICE
mobile telephone) for the purpose of having
access to the Internet or having access to
email, instant messaging services or any
other on line message board/forum or
community without the prior approval of your
supervising officer. You must allow a
responsible
officer
reasonable
access,
including technical checks to establish usage.
It is possible to include conditions which require offenders
not to access the internet or own a computer although these
are difficult conditions to monitor and can normally only be
achieved by setting a blanket restriction on the offender’s
access to computers. Similarly an additional condition may
prohibit offenders from owning or using a camera or mobile
phone with camera functions.
Conditions prohibiting the consumption of alcohol, either on
(c) Not to own or possess or permit in your or off the site of an Approved Premises are difficult to
address any computer without the prior enforce and there may be difficulties in arguing that limited
approval of your supervising officer.
consumption should always lead to recall. The standard
condition to be of good behaviour contains sufficient power
(d) Not to own or possess more than one to request recall in those cases where risk is unacceptable
mobile phone or SIM card without the prior after alcohol consumption or where an offender is ejected
approval of your supervising officer and to from an approved premises for consuming alcohol.
provide your supervising officer with details of
that mobile telephone, including the IMEI There is no statutory provision to allow offenders who are
number and the SIM card that you possess.
released on licence to be required to comply with an alcohol
test. Therefore, alcohol testing can only be conducted with
(e) Not to own or possess a mobile phone the consent of the offender, though complying with alcohol
with a photographic function without the testing can be made a condition of the Approved Premises
approval of your supervising officer.
rules which an offender is asked to sign on entry.
Residency
(f) Not to own or use a camera without the
approval of your supervising officer.
To permanently reside at [ADDRESS] and
must not leave to reside elsewhere, even for
one night, without obtaining the prior
approval
of
your
supervising
officer;
thereafter to reside as directed by your
supervising officer.
Parole Board – Oral Hearings Guide – August 2014
This condition is stronger than the standard condition to
reside as directed, which only requires the offender to notify
the Probation Service of his address. This condition can be
used where it is deemed necessary and proportionate to
direct that the offender live at a particular address. Court
judgments have confirmed that licence conditions formulated
in terms of ‘you must reside at’ have the clear effect of
REQUIREMENT
Prohibited
Residency
Prohibited
Contact
LICENCE CONDITION
ADVICE
requiring that the licensee spend EACH AND EVERY night at
the place in question. If the offender should spend just one
night away from the specified address they are in breach of
this particular licence condition.
Not to reside (not even to stay for one night) Please see comments under Residency. Such a condition will
in the same household as any child under the normally be more effective if combined with a Prohibited
age of [XX] without the prior approval of your Contact requirement (below).
supervising officer
(a) Not seek to approach or communicate with
[NAME OF VICTIM AND/OR FAMILY MEMBERS]
without the prior approval of your supervising
officer and/or the name of appropriate Social
Services Department.
(b) Not to have unsupervised contact with
children under the age of [XX] without the
prior approval of your supervising officer and
[NAME OF APPROPRIATE SOCIAL SERVICES
DEPARTMENT]
Licence conditions requiring an offender not to contact the
victim or members of the victim’s family should ordinarily
include the names of the individuals to whom the ‘no
contact’ condition applies. However, there may be
exceptional circumstances particular to a case where the
naming of an individual is not appropriate.
In principle there are no legal difficulties in also inserting
licence conditions requiring offenders not to contact or
associate with children. However, as with all licence
conditions, it should only be used where it is considered to
be both necessary and proportionate to the risk involved.
Even in those cases where it is considered appropriate,
consideration may have to be given to practical exceptions,
such as contact with family members under the age of
eighteen, although even refusing in this type of contact may
be justified in certain cases e.g. if the individual poses a risk
to her/his own children.
The use of such conditions is normally to supplement those
conditions which prohibit living or working with young
people. In terms of enforcement the wording of the condition
does allow for travelling on public transport or going to the
shops without breaching the condition relating to
unsupervised contact.
Parole Board – Oral Hearings Guide – August 2014
REQUIREMENT
Programmes
Curfew
LICENCE CONDITION
ADVICE
These conditions are usually considered in cases where other
conditions are insufficient to protect children. When
considering the upper age limit of the children to be
protected, Offender Managers will have to consider the
nature of the risk and there are no firm rules. For example,
if the only available approved premises accommodation
allows residents aged 17 and over, and if the supervising
officer is satisfied the offender presents an acceptable risk,
this might be the decisive factor.
(a) To comply with any requirements specified These conditions are routinely used to ensure offenders
by your supervising officer for the purpose of participate in offending behaviour programmes.
ensuring that you address your (eg)
alcohol/drug/sexual/gambling/solvent
abuse/anger/debt/prolific/offending behaviour
problems at the [COURSE/CENTRE].
(b) Participate in a prolific or other priority
offender project (PPO) [SPECIFY WHICH] and,
in accordance with instructions given by or
under the authority of your supervising officer
attend all specified appointments with your
supervising officer and any other agencies for
the purpose of ensuring that you address your
offending behaviour for the duration of the
programme.
(a) Confine yourself to an address approved
by your supervising officer between the hours
of [TIME] and [TIME] daily unless otherwise
authorised by your supervising officer. This
condition will be reviewed by your supervising
officer on a [WEEKLY/MONTHLY/ETC] basis
and may be amended or removed if it is felt
Parole Board – Oral Hearings Guide – August 2014
To be lawful the total number of hours allowed as a curfew is
a maximum of 16 hours per day. However, any curfew over
12 hours needs to be cleared with PPCS and any reporting
requirements within the non curfew hours could be unlawful,
so these should be cleared as well. These curfew hours
should also include any standard curfew added as part of
residence at an Approved Premises (AP). For instance, where
REQUIREMENT
Exclusion
LICENCE CONDITION
ADVICE
that the level of risk that you present has an AP has the standard curfew of 11pm to 8pm would count
reduced appropriately.
as nine hours towards the maximum of 12 and 16 hours.
Blanket extended curfews across resident groups beyond
(b) Confine yourself to remain at [CURFEW those in the AP Rules are not allowed, and any extension to
ADDRESS] initially from [START OF CURFEW curfews must be considered on a case by case basis.
HOURS] until [END OF CURFEW HOURS] each
day, and, thereafter, for such a period as may EM is available for offenders who are MAPPA level 3 or for
be reasonably notified to you by your those offenders who are considered Critical Public Protection
supervising officer; and comply with such cases.
arrangements as may be reasonably put in
place and notified to you by your supervising Any requests in relation to Intensive Supervision and
officer so as to allow for your whereabouts Surveillance Programme (ISS) being used as a condition of
and your compliance with your curfew licence for Young Offenders, should be referred to the Youth
requirement be monitored [WHETHER BY Justice Board.
ELECTRONIC
MEANS
INVOLVING
YOUR
WEARING
AN
ELECTRONIC
TAG
OR
OTHERWISE].
(a) Not to enter the area of [CLEARLY Requests for exclusion zones must be carefully applied in
SPECIFIED AREA], as defined by the attached order to be lawful. Once the exclusion is shown to be
map without the prior approval of your necessary, it is critical to establish that it is proportionate,
supervising officer.
taking into account factors such as whether the offender has
close family who live in the exclusion area, or where the
(b)
Not
to
enter
[NAME
OF exclusion would restrict his ability to work or to visit the
PREMISES/ADDRESS/ROAD] without the prior doctor or dentist. Although the fact that an exclusion
approval of your supervising officer.
condition may have this effect might be relevant, it is not
determinative in deciding whether the proposed condition is
(c) Not to enter or remain in sight of any [eg: reasonable. The condition could be imposed, but the
CHILDREN’S PLAY AREA, SWIMMING BATHS, offender manager could grant occasional access.
SCHOOL etc] without the prior approval of
your supervising officer.
The exclusion area must be defined precisely. A blanket ban
on entering a large town, for example, will not always be
acceptable. The zone should be no bigger than is reasonably
necessary to achieve the objective sought. In order to define
Parole Board – Oral Hearings Guide – August 2014
REQUIREMENT
LICENCE CONDITION
ADVICE
the exclusion area as clearly and precisely as possible, it is
necessary to draw the boundaries on a map or diagram. The
offender must be in no doubt where the exclusion zone
begins and ends.
Supervision
(a) On release to be escorted by police/prison
staff to [RELEASE ADDRESS]
More limited exclusion zones may be used in order to
prevent re-offending, for example, preventing an offender
from entering an area where there are nightclubs and where
previous offending has occurred.
Conditions requiring compliance with Approved Premises or
other accommodation rules must be avoided if possible.
Such rules are many and varied and it is difficult to argue
that recall is always a proportionate response to any breach.
If an offender’s consistent refusal to comply with rules
presents a real risk to staff or other residents it would be
reasonable to seek to recall him under the condition to be of
good behaviour.
(b) Report to staff at [NAME OF APPROVED
PREMISES/POLICE
STATION]
at
[TIME/DAILY], unless otherwise authorised by
your supervising officer. This condition will be
reviewed by your supervising officer on a
[WEEKLY/MONTHLY/ETC] basis and may be
amended or removed if it is felt that the level The condition requiring notification of vehicle details should
of risk you present has reduced appropriately. normally only be applied for when the offending relates
specifically to the use of a car and/or there is a direct causal
(c) Provide your supervising officer with link between the offender’s identified risk factors and the use
details [SUCH AS MAKE, MODEL, COLOUR, of a vehicle.
REGISTRATION] of any vehicle you own, hire
for more than a short journey or have regular Conditions relating to the notification of intimate
use of, prior to any journey taking place.
relationships can be used if there is a specific risk of groups
of people. Where specific risks are involved, a blanket ban
(d) Notify your supervising officer of any may be difficult to justify and it would be preferable to say
developing
intimate
relationships
with whether the condition relates to males or females and
women/men.
provide reasons.
Parole Board – Oral Hearings Guide – August 2014
REQUIREMENT
Non- Association
LICENCE CONDITION
ADVICE
(a) Not to contact or associate with [NAMED Non-association conditions should always be subject to the
INDIVIDUAL(S)] without the prior approval of clause “…..without the prior approval of your supervising
your supervising officer.
officer.”
(b) Not to contact or associate with a known
sex offender other than when compelled by
attendance at a Treatment Programme or
when residing at approved premises without
the prior approval of your supervising officer.
(c) Not to contact directly or indirectly any
person who is a serving or remand prisoner or
detained in State custody, without the prior
approval of your supervising officer
In most cases it will be difficult to justify a general condition
preventing an offender from associating with “any exoffender”. The name of the offender must be inserted. It is
acceptable to require non-association with named individuals
who are linked with previous offending (for example,
convicted members of a child sex offender ring) or
individuals with whom the supervising officer has good
reason to believe that association could lead to future
offending (for example, a child sex offender who has forged
links with other child sex offender whilst in prison). In cases
where a person’s offending is not linked to a restricted
number of individuals it is more difficult to justify a nonassociation condition.
(d) Not to associate with any person currently
or formerly associated with [NAME OR
DESCRIBE
SPECIFIC
GROUPS
OR
ORGANISATIONS] without the prior approval In respect of associating with sex offenders the Offender
of your supervising officer.
Manager can consider this condition if it is reasonable that
the offender could be expected to know certain individuals
as they have served on the same wing, attended the same
programme etc. The Offender Manager should evidence this
at the point of enforcing this condition.
Where an offender is associating with other criminals and
there is reason to believe that the association is likely to
lead to reoffending, the offender could be recalled under the
good behaviour condition.
The groups and organisation condition may be appropriate
for certain offenders, but only if there is a clear link between
the offending behaviour and/or current risk factors and one
Parole Board – Oral Hearings Guide – August 2014
REQUIREMENT
Drug testing
LICENCE CONDITION
ADVICE
or more identifiable groups or organisations such as
extremist groups or gangs. As with other conditions that
engage the offender’s rights, this condition can only be used
where it is necessary and proportionate to manage the risk
posed by the offender. You will need to take into account the
nature of the offending to check that the condition is
justified.
Attend [INSERT NAME AND ADDRESS], as Any offender who is found to be in possession of Class A
reasonably required by the probation officer, drugs has immediately put himself in breach of the standard
to give a sample of oral fluid / urine in order condition to be well behaved.
to test whether you have any specified Class
A drugs (heroin or crack/cocaine) in your This provision is limited to offenders defined as ‘Prolific and
body, for the purpose of ensuring that you are other Priority’ (PPOs) by local Crime and Disorder Reduction
complying with the condition of your licence Partnerships (CDRPs). It is limited by the Secretary of State
requiring you to be of good behaviour.
to particular drugs (currently heroin and cocaine/crack
cocaine).
The
condition
must
be
necessary
and
proportionate. Beside being PPOs, offenders must also be
over 18, have a substance misuse condition linked to their
offending, and have served their sentence for a ‘trigger
offence’ specified by the Criminal Justice and Court Services
Act, s.64 and Schedule 6 (as amended). These are (broadly)
acquisitive crimes and Class A drugs offences.
Parole Board – Oral Hearings Guide – August 2014
REQUIREMENT
LICENCE CONDITION
ADVICE
Polygraph testing
To comply with any instruction given by your
Offender Manager requiring you to attend
polygraph testing. To participate in polygraph
sessions and examinations as instructed by or
under the authority of your Offender Manager
and to comply with any instruction given to
you during a polygraph session by the person
conducting the polygraph.
This can be added to the licences of certain sexual offenders
after 8 August 2014 – see PSI 36/2014. The condition
requires the offender to take part in regular polygraph tests.
The aim is to monitor compliance with other licence
conditions. The results of a (failed) polygraph examination
cannot be used in Criminal Courts or be the basis of recall.
If the offender is aged 18 years and over, received a
custodial sentence of 12 months or more for a specified
sexual offence (those listed in Part 2 of Schedule 15 to the
Criminal Justice Act 2003) and is assessed as High/Very High
Risk of both Serious Harm and sexual reoffending, the
Offender Manager MUST seek a polygraph condition.
If the offender is aged 18 years and over and received a
custodial sentence of 12 months or more for a specified
sexual offence but is NOT High/Very High risk, a polygraph
condition MAY be imposed where it can be shown that testing
is necessary and proportionate to manage risk - for example,
for an offender with a history of licence non-compliance.
A polygraph condition may also be requested to be inserted
into the licences of any relevant sexual offender already
released on licence without a condition, but whose risk of
serious harm has escalated, providing s/he meets the criteria
& for whom it is considered necessary to impose a condition
to manage their risk.
The condition may be imposed on both men and women,
and offenders whose sexual offence pre-dates their 16th
birthday (but only if necessary and proportionate).
Parole Board – Oral Hearings Guide – August 2014
CHAPTER 5
__________________________
EQUAL TREATMENT/DIVERSITY
ISSUES
Parole Board – Oral Hearings Guide - August 2014
1.
Introduction
The Board is committed to protecting and promoting equality and diversity. There is
a positive duty on the Board to make reasonable adjustments in oral hearing
arrangements for persons with protected characteristics under the Equality Act 2010.
A reasonable adjustment is an adaptation to change a provision, criterion or practice,
or to change a physical feature, or to provide auxiliary aids or services in order to
avoid placing a protected person at a substantial disadvantage. There is no universal
criterion of ‘reasonableness.’ When deciding whether an adaptation request is
reasonable, it may be considered how disruptive, expensive, practicable and effective
taking such a step would be.
The following guidance is not exhaustive; panels must consider the needs of
individual prisoners.
2.
Prisoners with physical disabilities
Persons with physical disabilities may find it harder to concentrate, or may need to
eat or drink more frequently, take medication or go to the lavatory at frequent
intervals.
3.
Prisoners with learning disabilities
It is particularly important to communicate well and appropriately with prisoners with
learning difficulties. Clear and simple language is vital. Panel members should break
down questions into smaller sections, preparing the prisoner for each stage of the
communication. Prisoners with learning disabilities may also need longer to process
the questions and think about their answers; be careful not to rush them.
It may not always be clear that the prisoner does not understand what a panel
member has asked them. Some prisoners with learning difficulties will agree with a
statement or question simply to please the questioner or because they are
embarrassed or frightened.
4.
Children and Young People
It is relatively rare for the Board to have to assess risks posed by children and young
persons (in this context, those under the age of 21). However, they are likely to
require a different approach to adults. Young persons who have been sentenced for
such serious crimes frequently have disturbed backgrounds and have experienced
extreme developmental disadvantage. Consequently, they pose a unique challenge to
both professionals working with them and panels who must assess the risk they pose
to the public.
In cases concerning children and young persons, the key consideration at all times
must be what is in their best interests.
Fuller guidance on all matters relevant to parole that concern children and young
people is at Annex J.
Parole Board – Oral Hearings Guide - August 2014
4.1
Treating children and young persons differently to adults
Both domestic and international law recognise the rights of children (aged under 18)
to be treated distinctly by the courts and criminal justice system. In all decisions
concerning children the child’s best interests are a primary (but not the sole)
consideration (Article 3(1) of the UN Convention on the Rights of the Child; s11
Children Act 2004).
Although young adults (aged 18-21) do not enjoy the same level of legal protection
as children, it is well recognised that they may be especially vulnerable and there is a
growing consensus that they also require a different approach. At the time they come
before the Parole Board, young adults may be at a point of a number of transitions;
such as to the adult prison estate, from Youth Offending Team supervision to
management by the National Probation Service, from care into independent living.
These changes may give rise to a need for a different and individualised approach.
However, the statutory test is overriding: no child or young adult must be released
unless the panel is satisfied that it is no longer necessary for the protection of the
public for them to be detained.
4.2
Entitlement to Oral Hearing
All children sentenced to an extended or indeterminate sentence are automatically
entitled to an oral hearing to consider release (if their release cannot be directed on
the papers) and are given the highest priority for listing.
4.3
Directions
Many, if not all, appropriate Directions which address the specialised needs of a child
or young adult will have been made at ICM stage. However, it is important that
chairs review the Directions made and consider whether anything further is required
for a fair and effective hearing to take place.
4.3.1 Witnesses
It is likely that additional witnesses will be required, particularly to give evidence
about the release plan. Chairs may particularly wish to direct attendance of the Youth
Offending Team (YOT) worker (if this has not already been done), who will be able to
give evidence as to the hand-over arrangements to an adult Offender Manager,
confirm the care status of the young person with the local authority and answer
questions concerning the local authority’s pathway assessment and plan.
4.3.2 Hearing length
In estimating hearing times, bear in mind that hearings of young offenders invariably
take longer than adult cases as adaptations will need to be made to accommodate
their particular needs and additional witnesses may be required.
4.3.3 Representation and support
Young persons are entitled to legal representation. If a young person is not
represented it may be necessary for a panel to make directions to encourage them to
Parole Board – Oral Hearings Guide - August 2014
take advantage of this right and assist them in obtaining suitable representation.
Case law has established that there is a positive duty on panels to be proactive in
ensuring the young person is legally represented.
Similarly, if a young person has not indicated that they want someone present at the
hearing as an observer to support them, chairs may wish to consider directing that
the YOT or OS equivalent discuss this possibility with the young person.
If a young person cogently and persistently refuses representation and requests that
the hearing proceed, the offer of an adjournment/deferral to enable the young
person to be represented should be recorded in the decision letter.
4.3.4 Adjournments and deferrals
Particular consideration must be given to the timing of any adjournment or deferral.
Panels must take into account practical matters that may be affected by the timing of
any length of deferral, such as timing of offending behaviour work, pending transfers
to the adult prison estate or reductions in support from social services.
4.3.5 Specialist panel members
When considering whether a specialist member is required on a panel, it should be
noted that adolescent forensic psychiatrists may become involved with children in the
criminal justice system where it would not be appropriate were they an adult. It
should also be noted that there are very few members with specialist expertise in
adolescent issues, and there may be logistical difficulties with their sitting on a panel
that is geographically distant.
4.4
The hearing
Oral hearings can be particularly difficult and intimidating for children. For hearings
to be fair children must be able to “effectively participate” (Venables). Children
should be treated with respect for their age, special needs, maturity and level of
understanding and any communication difficulties. This may mean making hearings
less formal, explaining in extra detail about what the hearing will entail, using simple
language and taking frequent breaks. It may be more appropriate for an observer
such as a parent to attend as an emotional support.
Chairs will often be constrained in the adaptions they can make by the facilities
available at the secure establishment. However, there are some examples of good
practice that can be transferred to any environment:
a.
Introduce yourself to the child before the hearing by going to see the child in
the room he or she is waiting in
b.
Offer to show the child the room and who will sit where on their own before
the hearing begins
c.
Make sure that the child can see all the witnesses as they introduce
themselves at the beginning (especially where the layout of the room means
that the witnesses are sitting behind the child)
Parole Board – Oral Hearings Guide - August 2014
d.
Offer the child the chance to give evidence in private (although do note that
the panel will also need to consider whether other witnesses need to hear the
offender’s evidence)
e.
Make sure that questions to be put to a child are discussed among the panel in
advance to avoid duplication and ensure that the questions are structured in a
logical fashion
f.
Use simple language (but avoid pejorative terms which tend to embarrass and
distract a child)
4.5
Risk Assessment
Panels should be mindful that there are no standard risk assessment tools for
children. It can therefore be very difficult to distinguish between young persons
whose offending will most likely decrease into adulthood, and those whose offending
will most likely continue and potentially escalate in frequency and severity. Most
young offenders mature out of adolescent offending behaviour but panels are likely
to encounter individuals who have deep-rooted issues.
It is not appropriate to apply adult risk assessment tools to young persons since
these do not account for developmental factors, and as young persons can change
relatively quickly compared to adults their risk needs to be assessed more frequently.
Research suggests that any risk assessment of young people should try to
understand why the offending behaviour took place by looking at the environment in
which it took place and what advantages that behaviour may confer on the young
person – ie, what is maintaining or strengthening the behaviour? In respect of
preventing re-offending, risk assessment should focus on the young person’s
strengths and protective factors.
Only suitably qualified professionals should carry out risk assessments with young
people. Professionals need to have specific training in both child and adolescent
development and youth offending, relevant practical experience of working with
young offenders and specific training in any risk assessment tools they use. If panels
have any concerns about the suitability of the professional presenting risk evidence
to them they should not be afraid to ask for confirmation of the above.
4.6
The decision
There are currently no open establishments for children and seven where young
adults (aged 18-25) can be placed. However, legally young offenders can be placed
anywhere the Secretary of State considers suitable, so if the terms of the referral
require panels to consider recommending open conditions they must apply the test
and respond.
In drafting reasons, panels should again be mindful of the need for their decision and
reasoning to be understood by the young person.
5.
Female prisoners
Panels will need to make adjustments for female prisoners who are pregnant or
breastfeeding, particularly in provision of additional breaks.
Parole Board – Oral Hearings Guide - August 2014
6.
Transgender prisoners
Transgender persons are those who live or propose to live in the gender opposite to
that assigned to them at birth. Panels may encounter prisoners at various stages of
the transgender process.
Any prisoner with the intent of undergoing physical surgery to reassign their gender
has the protected characteristic of gender reassignment for the purpose of the
Equality Act 2010 and must not be discriminated against because of this. Panels
should note that establishments must permit prisoners who wish to do so to live
permanently in their acquired gender role, including allowing them to adopt genderappropriate names and modes of address, and dress in gender-appropriate clothing.
Establishments must also permit transgender persons items to assist them in
presenting in their acquired gender.
In most cases prisoners will be located within the male or female prison estate
according to their legally recognised gender. However, there may be rare
circumstances where a person legally recognised as male may be located within the
female estate and vice versa.
Panels may exceptionally have to address a prisoner’s transgender status if they
consider this has a direct bearing on risk (for example, where the evidence indicates
that the transgender status is more transient than permanent and offending only
takes place [or risk of offending significantly increases] when the prisoner presents in
the adopted gender). However, in all other circumstances, panels should treat
transgender persons equally to any other prisoner of their chosen gender, including
addressing the prisoner with their chosen name and gender-appropriate form of
address.
7.
Foreign language speakers
People generally express their views and needs better in their native language.
Where a prisoner’s native language is not English, and they express a need or
preference to conduct the hearing in a foreign language, the Board must enable them
to use their preferred language where reasonably practicable.
If it is clear from the dossier that an interpreter will be needed, one should be
supplied automatically. There have, however, been instances where this has not
happened; it may be necessary to defer if a fair hearing cannot take place without an
interpreter present.
7.1
Welsh Language Scheme
The Parole Board has adopted the principle that in the conduct of public business and
the administration of justice in Wales, it will treat the English and Welsh languages
on a basis of equality, so far as is both appropriate in the circumstances and
reasonably practicable.
This means that where a prisoner requests it, a hearing must be translated into
Welsh and where the prisoner has corresponded in writing with the Board in Welsh
decision letters must be translated into Welsh.
Parole Board – Oral Hearings Guide - August 2014
STATUTORY INSTRUMENTS
___________________________________________________________________________
2011 No. 2947
PRISONS, ENGLAND AND WALES
The Parole Board Rules 2011
Made - - - - 8th December 2011
Laid before Parliament 12th December 2011
Coming into force - - 3rd January 2012
CONTENTS
PART 1
Introduction
1.
2.
3.
Title, commencement, revocation and transition
Interpretation
Application
PART 2
General
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
Referral of cases
Appointment of panels
Representation
Service of information and reports
Withholding information or reports
Representations by and evidence of the prisoner
Directions
Directions hearing
Adjournment
Panel decisions
Disclosure of information
Release without a hearing
PART 3
Proceedings without a hearing relating to the initial release of a prisoner serving an
indeterminate sentence
16.
17.
18.
Consideration by single member
Provisional decision against release
Consideration by an oral panel
Oral Hearings Guide – Annex A – Parole Board Rules (2011)
PART 4
Proceedings with a hearing
19.
20.
21.
22.
23.
24.
25.
26.
General provision
Notice of hearing
Notification of attendance by prisoner
Witness
Observer
Location and privacy of proceedings
Hearing procedure
The decision
PART 5
Miscellaneous
27.
28.
29.
Time
Transmission of documents etc.
Error
__________________________
SCHEDULE 1
PART A
PART B
SCHEDULE 2
PART A
PART B
Information and reports for submission to the Board by the Secretary of
State on a reference to the Board to determine the initial release of a
prisoner
Information relating to the prisoner
Reports relating to the prisoner
Information and reports for submission to the Board by the Secretary of
State on a reference to the Board to determine the release of a recalled
prisoner
Information relating to the prisoner
Reports relating to the prisoner
The Secretary of State, in exercise of the powers conferred by section 239(5) of the Criminal
Justice Act 2003(a), makes the following Rules.
PART 1
Introduction
Title, commencement, revocation and transition
1.—(1) These Rules may be cited as the Parole Board Rules 2011 and shall come into force
on 3rd January 2012.
(2) The Parole Board Rules 2004(b) are revoked.
___________________________________________________________________________
(a) 2003 c.44.
(b) The Parole Board Rules 2004 were made under section 32(5) of the Criminal Justice Act 1991 (c.53) and were not made by
statutory instrument. Section 32(5) of the Criminal Justice Act 1991 was repealed by sections 303(a) and 332 and Part 7 of
Schedule 37 of the Criminal Justice Act 2003 and its provisions were re-enacted in section 239(5) of that Act. The Parole Board
Rules 2004 were amended by the Parole Board (Amendment) Rules 2009 (S.I. 2009/408).
Oral Hearings Guide – Annex A – Parole Board Rules (2011)
(3) The revocation of the Parole Board Rules 2004 does not affect anything done under those
rules before 3rd January 2012.
Interpretation
2. In these Rules:
“Board” means the Parole Board, continued by section 239(1) of the Criminal Justice Act
2003;
“Chairman” means the chairman of the Board appointed under paragraph 2 of Schedule 19 to
the Criminal Justice Act 2003;
“Chair” means a chairman of a panel appointed under rule 5(3);
“Determinate sentence” means a sentence of imprisonment other than an indeterminate
sentence;
“Indeterminate sentence” means a sentence of imprisonment listed under section 34(2) of the
Crime (Sentences) Act 1997(a);
“Panel” means a panel appointed in accordance with rule 5(1) or (2);
“Oral panel” means a panel which determines a case or matter at a hearing;
“Party” means a prisoner or the Secretary of State;
“Prison” includes a young offender institution or any other institution where a prisoner is or
has been detained; and
“Single member” means a member of the Board who has been appointed to constitute a panel
in accordance with rule 5(1).
Application
3.—(1) These Rules apply where the Secretary of State refers a case to the Board relating to
the release or recall of a prisoner.
(2) Rule 7(3) applies only where the Secretary of State refers a case to the Board relating to
the initial release of a prisoner serving an indeterminate sentence.
(3) Part 3 of these Rules applies only where the Secretary of State refers a case to the Board
relating to the release of a prisoner serving an indeterminate sentence.
(4) A reference to a period of time—
(a) in the case of the initial release of a prisoner serving an indeterminate sentence, applies as
set out in the Rules; and
(b) in all other cases, applies as if it was a reference to such period of time as the chair shall in
each case determine.
PART 2
General
Referral of cases
4. Where the Board is to consider the release of a prisoner serving a determinate sentence, the
release following a recall of a prisoner serving an indeterminate sentence or is to advise the
Secretary of State, the case is deemed to be referred to the Board on the date it receives the
information and reports specified in rule 7.
___________________________________________________________________________
(a) 1997 c. 43; section 34(2) was amended by section 165(1) and paragraph 183 of Schedule 9 to the Powers of Criminal Courts
(Sentencing) Act 2000 (c.6), section 230 and paragraph 3 of Schedule 18 to the Criminal Justice Act 2003 (c. 44) and by section
378 and Schedules 16 and 17 to the Armed Forces Act 2006 (c.52).
Oral Hearings Guide – Annex A – Parole Board Rules (2011)
Appointment of panels (as amended by Parole Board (Amendment Rules) 2014)
5.—(1) The Chairman shall appoint a single member of the Board to constitute a panel to deal
with a case where the Board is to consider the initial release of a prisoner serving an
indeterminate sentence.
(2) In any other case the Chairman shall appoint one or more members of the Board to
constitute a Panel.
(3) The Chairman shall appoint one member of each panel to act as chair of that panel.
(4) A person appointed under paragraph (1) may not in the same case sit on a panel appointed
under paragraph (2)(a).
Representation
6.—(1) Subject to paragraph (2), a party may be represented by any person appointed by the
party.
(2) The following may not act as a representative—
(a) any person who is detained or is liable to be detained under the Mental Health Act
1983(a);
(b) any person serving a sentence of imprisonment;
(c) any person who is on licence having been released from a sentence of imprisonment; or
(d) any person with a conviction for an offence which remains unspent under the
Rehabilitation of Offenders Act 1974(b).
(3) Within 5 weeks of a case being referred to the Board, a party shall notify the Board and
the other party of the name, address and occupation of any person appointed to act as their
representative.
(4) Where a prisoner does not appoint a person to act as their representative, the Board may,
with the prisoner’s agreement, appoint a person to do so.
Service of information and reports
7.—(1) The Secretary of State shall serve on the Board and, subject to rule 8, the prisoner or
their representative—
(a) where a case relates to the initial release of a prisoner, the information specified in Part A
of Schedule 1 to these Rules and the reports specified in Part B of that Schedule;
(b) where a case relates to the recall following release of a prisoner, the information specified
in Part A of Schedule 2 to these Rules and the reports specified in Part B of that
Schedule; and
(c) in either case, any other information which the Secretary of State considers relevant to the
case.
(2) Where the Board has a duty to advise the Secretary of State, the Secretary of State shall
serve on the Board and, subject to rule 8, the prisoner or their representative, any information
or reports which the Secretary of State considers relevant to the case.
(3) The Secretary of State shall serve the information and reports mentioned in paragraph (1)
within 8 weeks of the case being referred to the Board.
___________________________________________________________________________
(a) 1983 c.20.
(b) 1974 c.53.
Oral Hearings Guide – Annex A – Parole Board Rules (2011)
Withholding information or reports
8.—(1) The Secretary of State may withhold any information or report from the prisoner and
their representative where the Secretary of State considers—
(a) that its disclosure would adversely affect—
(i) national security;
(ii) the prevention of disorder or crime; or
(iii) the health or welfare of the prisoner or any other person; and
(b) that withholding the information or report is a necessary and proportionate measure in the
circumstances of the case.
(2) Where any information or report is withheld, the Secretary of State shall—
(a) record it in a separate document;
(b) serve it only on the Board; and
(c) explain to the Board in writing why it has been withheld.
(3) Where any information or report is withheld from the prisoner, the Secretary of State
shall, unless the chair directs otherwise, serve it as soon as practicable on—
(a) the prisoner’s representative if the representative is—
(i) a barrister or solicitor;
(ii) a registered medical practitioner; or
(iii) a person whom the chair directs is suitable by virtue of their experience or professional
qualification; or
(b) a special advocate who has been appointed by the Attorney General to represent the
prisoner’s interests.
(4) A prisoner’s representative or a special advocate may not disclose any information or
report disclosed in accordance with paragraph (3) without the consent of the chair.
(5) Where the chair decides that any information or report withheld by the Secretary of State
under paragraph (1) should be disclosed to the prisoner or their representative, the Secretary
of State may withdraw the information or report.
(6) If the Secretary of State withdraws any information or report in accordance with paragraph
(5), nobody who has seen that information or report shall sit on a panel which determines the
case.
Representations by and evidence of the prisoner
9.—(1) A prisoner who wishes to make representations to the Board shall serve them on the
Board and the Secretary of State within 12 weeks of the case being referred to the Board.
(2) Any documentary evidence that a prisoner wishes to present at their hearing shall be
served on the Board and the Secretary of State at least 14 days before the date of the hearing.
Directions
10.—(1) Directions may be given, varied or revoked—
(a) before the appointment of a panel, by a member of the Board; or
(b) after the appointment of a panel, by the chair.
(2) Such directions may relate to—
(a) the timetable for the proceedings;
(b) the service of information or a report;
(c) whether any information or report should be withheld;
Oral Hearings Guide – Annex A – Parole Board Rules (2011)
(d) the submission of evidence;
(e) the attendance of a witness or observer.
(3) Within 7 days of being notified of a direction under paragraph (2)(c), either party may
appeal against that direction to the Chairman, who shall notify the other party of the appeal.
(4) Within 7 days of being notified that a party has appealed under paragraph (3), the other
party may make representations on the appeal to the Chairman.
(5) A party may apply in writing for a direction to be given, varied or revoked.
(6) An application under paragraph (5) shall—
(a) specify any direction sought; and
(b) be served on the other party.
(7) Where a party has applied in writing for a direction to be given, varied or revoked, either
party may—
(a) make written representations about the application;
(b) where the chair thinks it necessary, and subject to rule 11(4)(b), make oral submissions at
a directions hearing.
(8) The power to give directions may be exercised in the absence of the parties.
(9) The Board shall serve notice on the parties of any directions given, varied or revoked as
soon as practicable.
Directions hearing
11.—(1) A chair may hold a directions hearing.
(2) A chair shall give the parties at least 14 days’ notice of the date, time and place fixed for
any directions hearing.
(3) A directions hearing shall be held in private.
(4) At a directions hearing, unless the chair directs otherwise—
(a) the chair shall sit alone; and
(b) a prisoner who is represented may not attend.
Adjournment
12.—(1) A chair may adjourn proceedings to obtain further information or for such other
purpose as the chair considers appropriate.
(2) Where the chair adjourns a hearing without a further hearing date being fixed, the chair
shall give the parties—
(a) at least 3 weeks’ notice of the date, time and place of the resumed hearing; or
(b) such shorter notice period as the parties agree.
Panel decisions
13.—(1) Where a panel has been appointed under rule 5(2), a decision of the majority of the
members of the panel shall be the decision of the panel.
Oral Hearings Guide – Annex A – Parole Board Rules (2011)
(2) A panel that is unable to reach a decision in accordance with paragraph (1) shall be
dissolved by the Chairman, who shall then appoint a new panel.
Disclosure of information
14. Information about the proceedings and the names of persons concerned in the proceedings
shall not be made public.
Release without a hearing
15.—(1) Where the Secretary of State refers a case to the Board relating to a prisoner serving
a determinate sentence, the Board may make a decision without a hearing.
(2) Where the Board has a duty to advise the Secretary of State with respect to any matter
referred to it by the Secretary of State which is to do with the early release or recall of a
prisoner, the Board may advise the Secretary of State without a hearing.
PART 3
Proceedings without a hearing relating to the initial release of a prisoner serving an
indeterminate sentence
Consideration by single member
16.—(1) Within 14 weeks of a case being referred to the Board, a single member shall
consider the case without a hearing.
(2) The single member shall either—
(a) decide that the case should be referred to an oral panel; or
(b) make a provisional decision that the prisoner is unsuitable for release.
(3) The decision of the single member shall be—
(a) recorded in writing with reasons for the decision; and
(b) provided to the parties within a week of the date of the decision.
Provisional decision against release
17.—(1) Where a single member has made a provisional decision under rule 16(2)(b) that a
prisoner is unsuitable for release, the prisoner may request that an oral panel hear the case.
(2) A prisoner who requests a hearing shall, within 19 weeks of the case being referred to the
Board, serve notice giving full reasons for their request on the Board and the Secretary of
State.
(3) If no notice has been served in accordance with paragraph (2) after the expiry of the
period permitted by that paragraph, the provisional decision shall—
(a) become final; and
(b) be provided to the parties within 20 weeks of the case being referred to the Board.
(4) If notice is served in accordance with paragraph (2), a single member shall decide whether
or not to hold a hearing.
Oral Hearings Guide – Annex A – Parole Board Rules (2011)
(5) The single member who made the provisional decision under rule 16(2)(b) that a prisoner
is unsuitable for release may not in the same case decide whether to grant a hearing requested
by the prisoner under paragraph (1).
Consideration by an oral panel
18. Where a single member has referred a case to an oral panel for consideration under rule
16(2)(a) or where a hearing has been ordered pursuant to a request under rule 17(1), the case
shall be considered by an oral panel within 26 weeks of the case being referred to the Board.
PART 4
Proceedings with a hearing
General provision
19.—(1) This Part of the Rules applies to hearings.
(2) Any reference in this Part of the Rules to a ‘panel’ is to an oral panel.
Notice of hearing
20.—(1) The hearing shall be held within 26 weeks of a case being referred to the Board.
(2) When fixing the date of the hearing the panel shall consult the parties.
(3) Within 5 working days of a case being listed, the Board shall notify the parties of the date
on which the case is due to be heard.
(4) The panel shall give the parties—
(a) at least 3 weeks’ notice of the date, time and place scheduled for the hearing; or
(b) such shorter notice as the parties agree.
(5) If applicable, the panel shall also give the parties notice that the hearing will be held via
video link, telephone conference or other electronic means.
Notification of attendance by prisoner
21. A prisoner who wishes to attend their hearing shall notify the Board and the Secretary of
State within 23 weeks of the case being referred to the Board.
Witness
22.—(1) A party who wishes to call a witness at a hearing shall make a written application to
the Board, a copy of which shall be served on the other party, within 20 weeks of the case
being referred to the Board.
(2) A written application to call a witness shall—
(a) include the witness’s name, address and occupation; and
(b) explain why the witness is being called.
(3) A chair may grant or refuse an application to call a witness and shall communicate this
decision to the parties.
Oral Hearings Guide – Annex A – Parole Board Rules (2011)
(4) The chair shall give reasons in writing for any refusal to call a witness.
(5) Where the panel intends to call a witness, the chair shall notify the parties in writing
within 21 weeks of the case being referred to the Board.
(6) Written notification from the panel that it intends to call a witness shall—
(a) include the witnesses’s name, address and occupation; and
(b) explain why the witness is being called.
(7) Where a witness is called under paragraph (1) or (5), it shall be the duty of the person
calling the witness to notify the witness at least 2 weeks before the hearing of the date of the
hearing and the need to attend.
Observer
23.—(1) A party who wishes to be accompanied by an observer shall make a written
application to the panel, a copy of which shall be served on the other party, within 20 weeks
of the case being referred to the Board.
(2) A chair may grant or refuse an application for a party to be accompanied by an observer
and shall communicate this decision to the parties.
(3) Before granting an application under paragraph (2), the Board shall obtain the
agreement—
(a) where the hearing is being held in a prison, of the prison governor or prison director; or
(b) in any other case, of the person who has the authority to agree.
Location and privacy of proceedings
24.—(1) Subject to paragraph (2), a hearing shall be held at the prison where the prisoner is
detained or at such other place as the chair, with the agreement of the Secretary of State,
directs.
(2) Where a hearing is held in accordance with paragraph (3), paragraph (1) shall not apply.
(3) A chair may direct that a hearing is to be held via video link, telephone conference or
other electronic means.
(4) A hearing shall be held in private.
(5) In addition to any witness and observer whose attendance has been approved in
accordance with rule 22 or 23, the chair may—
(a) admit any other person to the hearing; and
(b) impose conditions on that person’s admittance.
(6) At the hearing the parties may not challenge the attendance of any witness or observer
whose attendance has been approved pursuant to rule 22 or 23.
Hearing procedure
25.—(1) At the beginning of the hearing the chair shall—
(a) explain the order of proceeding which the panel proposes to adopt; and
(b) invite each party present to state their view as to the suitability of the prisoner for release.
Oral Hearings Guide – Annex A – Parole Board Rules (2011)
(2) The panel—
(a) shall avoid formality in the proceedings;
(b) may ask any question to satisfy itself of the level of risk of the prisoner; and
(c) shall conduct the hearing in a manner it considers most suitable to the clarification of the
issues before it and to the just handling of the proceedings.
(3) The parties shall be entitled to—
(a) take such part in the proceedings as the panel thinks fit;
(b) hear each other’s evidence;
(c) put questions to each other;
(d) call a witness who has been granted permission to give evidence; and
(e) question any witness or other person appearing before the panel.
(4) If, in the chair’s opinion, any person at the hearing is behaving in a disruptive manner, the
chair may require that person to leave.
(5) The chair may permit a person who was required to leave under paragraph (4) to return on
such conditions as the chair may specify.
(6) A panel may produce or receive in evidence any document or information whether or not
it would be admissible in a court of law.
(7) No person shall be compelled to give any evidence or produce any document which they
could not be compelled to give or produce on the trial of an action.
(8) The chair may require any person present to leave the hearing where evidence which has
been directed to be withheld from the prisoner or their representative is to be considered.
(9) After all the evidence has been given, the prisoner shall be given an opportunity to address
the panel.
The decision
26.—(1) The panel’s decision determining a case shall be—
(a) recorded in writing with reasons;
(b) signed by the chair; and
(c) provided to the parties not more than 14 days after the end of the hearing.
(2) The recorded decision shall refer only to the matter which the Secretary of State referred
to the Board.
PART 5
Miscellaneous
Time
27. Where the time prescribed by or under these Rules for doing any act expires on a
Saturday, Sunday or public holiday, the act shall be in time if it is done on the next working
day.
Transmission of documents etc.
28. Any document required or authorised by these Rules to be served or otherwise transmitted
to any person may be transmitted by electronic means, sent by pre-paid post or delivered—
Oral Hearings Guide – Annex A – Parole Board Rules (2011)
(a) in the case of a document directed to the Board or the chair, to the office of the Board; or
(b) in any other case, to the last known address of the person to whom the document is
directed.
Error
29. Where there has been an error of procedure such as a failure to comply with a rule—
(a) the error does not invalidate any steps taken in the proceedings unless the panel so
directs; and
(b) the panel may remedy the error.
Signed by the authority of the Secretary of State
J Djanogly
Parliamentary Under Secretary of State
8th December 2011
Ministry of Justice
___________________________________________________________________________
SCHEDULE 1
Rule 7
Information and reports for submission to the Board by the Secretary of State on a reference
to the Board to determine the initial release of a prisoner
PART A
Information relating to the prisoner
1.
2.
3.
4.
5.
6.
7.
The full name of the prisoner.
The date of birth of the prisoner.
The prison in which the prisoner is detained, details of any other prisons in which the
prisoner has been detained and the date and the reason for any transfer.
The date on which the prisoner was given the current sentence, details of the offence
and any previous convictions.
The comments, if available, of the trial judge when passing sentence.
If available, the conclusions of the Court of Appeal in respect of any appeal by the
prisoner against conviction or sentence.
The parole history, if any, of the prisoner, including details of any periods spent on
licence during the current sentence.
PART B
Reports relating to the prisoner
1.
2.
3.
If available, the pre-trial and pre-sentence reports examined by the sentencing court
on the circumstances of the offence.
Reports on a prisoner who was subject to a transfer direction under section 47 of the
Mental Health Act 1983(a).
Current reports on the prisoner’s risk factors, reduction in risk and performance and
behaviour in prison, including views on suitability for release on licence as well as
compliance with any sentence plan.
Oral Hearings Guide – Annex A – Parole Board Rules (2011)
4.
An up-to-date risk management report prepared for the Board by an officer of the
supervising local probation trust, including information on the following where
relevant:
(a)
details of the home address, family circumstances and family attitudes
towards the prisoner;
(b)
alternative options if the offender cannot return home;
(c)
the opportunity for employment on release;
(d)
the local community’s attitude towards the prisoner (if known);
(e)
the prisoner’s attitude to the index offence;
(f)
the prisoner’s response to previous periods of supervision;
(g)
the prisoner’s behaviour during any temporary leave during the current
sentence;
___________________________________________________________________________
(a) 1983 c.20; section 47 was amended by sections 1 and 4 of the Mental Health Act 2007 (c. 12) and by sections 49(3) and
56(2) and Schedule 6 of the Crime (Sentences) Act 1997 (c.37).
(h) the prisoner’s attitude to the prospect of release and the requirements and objectives of
supervision;
(i) an assessment of the risk of reoffending;
(j) a programme of supervision;
(k) if available, an up-to-date victim personal statement setting out the impact the index
offence has had on the victim and the victim’s immediate family;
(l) a view on suitability for release; and
(m) recommendations regarding any non-standard licence conditions.
SCHEDULE 2
Rule 7
Information and reports for submission to the Board by the Secretary of State on a reference
to the Board to determine the release of a recalled prisoner
PART A
Information relating to the prisoner
1.
2.
3.
4.
5.
6.
7.
8.
The full name of the prisoner.
The date of birth of the prisoner.
The prison in which the prisoner is detained, details of any other prisons in which the
prisoner has been detained and the date and the reason for any transfer.
The date on which the prisoner was given the current sentence, details of the offence
and any previous convictions.
The parole history, if any, of the prisoner, including details of any periods spent on
licence during the current sentence.
If available, the details of any sentence plan prepared for the prisoner which has
previously been disclosed to the prisoner.
The details of any previous recalls of the prisoner including the reasons for such
recalls and subsequent re-release on licence.
The statement of reasons for the most recent recall which was given to the prisoner,
including the outcome of any criminal charges laid against the prisoner prior to or
subsequent to the point at which they were recalled.
PART B
Reports relating to the prisoner
1.
2.
Any reports considered by the Secretary of State in deciding to recall the prisoner.
If available, any pre-sentence report examined by the sentencing court on the
circumstances of the offence.
Oral Hearings Guide – Annex A – Parole Board Rules (2011)
3.
4.
Any details of convictions prior to the index offence.
A copy of the prisoner’s licence at the point at which the Secretary of State decided to
recall the prisoner.
___________________________________________________________________________
EXPLANATORY NOTE
(This note is not part of the Rules)
These Rules set out the procedure to be adopted by the Parole Board when dealing with cases
referred to it by the Secretary of State.
Part 1 revokes the Parole Board Rules 2004 and contains provisions for the application and
interpretation of the Rules.
Part 2 covers procedures which are required in Parole Board proceedings, including the
appointment of panels, information and reports to be prepared by the Secretary of State and
the giving of directions.
Part 3 sets out the timetable and rules for proceedings without a hearing where the Parole
Board determines the initial release of a prisoner serving an indeterminate sentence.
Part 4 sets out the timetable and rules for proceedings with a hearing.
Part 5 contains miscellaneous provisions about time limits, the transmission of documents
and procedural errors.
Schedules 1 and 2 set out the information and reports to be sent to the Parole Board by the
Secretary of State.
© Crown copyright 2011
Printed and published in the UK by The Stationery Office Limited under the authority and
superintendence of Carol Tullo, Controller of Her Majesty’s Stationery Office and Queen’s
Printer of Acts of Parliament.
Oral Hearings Guide – Annex A – Parole Board Rules (2011)
OFFICIAL
Intensive Case Management (ICM)
Directions Form (2012 Ver. 8)
THIS DOCUMENT IN ITS ENTIRETY
WILL BE DISCLOSED TO ALL PARTIES
Date: (This should be the date the case is considered by the ICM member).
Prisoner Name: «FIRST_NAMES» «FAMILY_NAME»
Prison Number: «PRISON_NUMBER» «NOMS_ID»
Prison: «PLANNED_ESTABLISHMENT»
Target month of parole hearing: «CURRENT_TARGET_MONTH_YEAR»
REVIEW TYPE:
«REVIEW_TYPE» «REVIEW_REASON_DESCRIPTION»
Introduction:
Having reviewed the dossier of xxx pages, the ICM Member has directed that this
case progress to an oral hearing.
Please provide an explanation as to why are you sending this case for an
oral hearing and the focus of any additional reports and any further
instructions.
Note whether written representations have been received and any decision
on requests made within representations.
Non-Disclosure Direction: (Please delete the paragraph that does not apply.
Delete entire section if not applicable).
The ICM single member directs under Rule 10(2)(c) that the material submitted by
the Secretary of State will be withheld from the prisoner on the grounds that it is
necessary and proportionate in the circumstances of this case and that its disclosure
would adversely affect (enter criteria)
It shall be served by the Secretary of State on the prisoner’s representative who is
directed that it may not be disclosed either directly or indirectly to the prisoner or
any other person without the express direction of the chair. Within 7 days of
receiving this direction, the prisoner may appeal against it in writing to the Chairman
of the Parole Board. The Secretary of State may make representations and the
Chairman’s decision will be final.
OR (delete non applicable section)
The ICM single member panel directs under Rule 10(2)(c) that the material
submitted by the Secretary of State should not be withheld from the prisoner on the
grounds that it is not necessary and proportionate in the circumstances of the case
to do so and that its disclosure would not adversely affect (enter criteria)
The Secretary of State should re-consider whether he wishes to rely on this evidence
Oral Hearings Guide – Annex B – ICM Directions Form
and if so, he must make full disclosure. Within 7 days of receiving this direction, the
Secretary of State may appeal against it in writing to the Chairman of the Parole
Board. The prisoner’s representative may make representations and the Chairman’s
decision will be final.
Directions:
Reports – required before Listing:
Report Name
Who should provide
the information?
What information is required?
Deadline
If no reports are required before listing, please leave section blank.
Reports – required after Listing:
The following reports or other documents are required no later than 4 weeks before
the hearing:
Report Name Who should provide
What information is required?
the information?
Any request to vary or revoke any of the above Directions must be issued in writing.
Requests from the Secretary of State must come via the Public Protection Casework
Section (PPCS).
Witnesses:
The following witnesses are directed to attend:
First name
Last name
Witness role
(if known)
Reason for
attendance
The parties must advise the Parole Board of dates witnesses are NOT available during
the target month of hearing or other month as appropriate. Unless the Parole Board
is advised within four weeks of the date of these Directions, it will be assumed that
witnesses are available on all dates.
Oral Hearings Guide – Annex B – ICM Directions Form
Panel Logistics:
For how long should the case be
listed?
Specialist Member required?
Specialist Member – Reasons
Is this case suitable for video link?
(please provide reasons if not)
Are any special arrangements
required?
Any other relevant requirements?
Distribution:
hours
-None-
Suitable
No
Not suitable
Yes
Ministry of Justice Public Protection Casework Section
Prisoner/Prisoner representative
Prison
Oral Hearings Guide – Annex B – ICM Directions Form
PROTECT - PERSONAL
LICENCE
Criminal Justice Act 2003
[Establishment Name]
[Establishment Telephone Number]
Name: [Offender name]
NOMS No: [NOMS No]
CRO No. [CRO No] Date of Birth: [Offender’s DOB]
Prison No: [LIDS No]
PNCID No: [PNCID No]
1. Under the provisions of Chapter 6 of the Criminal Justice Act 2003 you are
being released on licence. Unless you are subsequently being detained under
the Immigration Act 1971 for the purpose of your deportation / removal from
the United Kingdom, you will be under the supervision of a nominated officer
and must comply with the conditions of this licence. The objectives of this
supervision are to (a) protect the public, (b) prevent re-offending and (c) help
you to resettle successfully into the community.
2. Your supervision commences on [Licence Start Date] and expires on [Licence
Expiry Date] unless this licence is previously revoked.
3. On release from prison (including, if applicable, any release from detention
under the Immigration Act 1971 during the currency of your licence, whether
or not leave has been granted for you to remain in the United Kingdom),
unless otherwise directed by your supervising officer, you must report without
delay to:
[Supervising officer role]
[Supervising officer name]
[Supervising officer address]
[Supervising officer telephone]
At [First time of First Appointment] on [Date of First Appointment]
4. If on the date your licence commences, you are released to hospital or other
suitable care on compassionate grounds under Section 248 of the Criminal
Justice Act 2003 or if you are detained under mental health and / or
immigration provisions or are subsequently so detained before your licence
expires, your supervising officer will keep in touch with you. Otherwise, you
must place yourself under the supervision of whichever officer is nominated
for this purpose from time to time.
5. While under supervision you must:
i.
Be well behaved, not commit any offence and not do anything which
could undermine the purposes of your supervision, which are to protect
the public, prevent you from re-offending and help you re-settle
successfully into the community;
ii.
Keep in touch with your supervising officer in accordance with any
instructions that you may be given;
Oral Hearings Guide – Annex C – CJA 2003 Licence
iii.
If required receive visits from your supervising officer at your home /
place of residence;
iv.
Permanently to reside at an address approved by your supervising officer
and obtain the prior permission of the supervising officer for any stay of
one or more nights at a different address;
v.
Undertake only such work (including voluntary work) approved by your
supervising officer and notify him or her in advance of any proposed
change;
vi.
Not travel outside the United Kingdom unless otherwise directed by your
supervising officer (which will be given in exceptional circumstances
only) or for the purposes of immigration deportation / removal;
vii.
[Additional licence conditions]
6. The Secretary of State may vary or cancel any of the above conditions, in
accordance with Section 250(4) of the Criminal Justice Act 2003.
7. If you fail to comply with any requirement of your supervision (set out in
paragraphs 3, 4 and 5 above) or if you otherwise pose a risk to the public,
you will be liable to have this licence revoked and be recalled to custody until
the date on which your licence would have otherwise ended. If you are sent
back to prison and are re-released before the end of your licence, you will still
be subject to licensed supervision until the end of your sentence.
8. Your licence expires on [Licence Expiry Date].
9. Your sentence expires on [Sentence Expiry Date].
Signed:
Status: [Role]
Date: [Date]
for the Secretary of State for Justice
This licence has been given to me and its requirements have been explained.
Name: [Offender name]
Signed:
Date: [Date]
Oral Hearings Guide – Annex C – CJA 2003 Licence
Guidance to members on LASPO Act 2012 (Legal Aid,
Sentencing and Punishment of Offenders) – test for release
NEW SENTENCES AND TESTS FOR RELEASE
This Act came into force on 3 December 2012. The significant changes that affect the
Parole Board are:
1.
2.
3.
5.
6.
Abolition of the IPP/EPP
Introduction of a new extended determinate sentence (EDS)
Change in the test for release for existing DCR, 1967 and ‘old style’ extended
sentence cases
Power given to the Secretary of State to change the release test by statutory
instrument
Arrangements for determinate recalls
New automatic life sentence
1.
ABOLITION OF THE IPP/EPP
4.
Anyone convicted (the date the offence was committed is immaterial) on or after 3
December 2012 will not be eligible for an IPP or EPP. Existing IPP prisoners’ status is
unaffected.
2.
EDS (Extended Determinate Sentence)
Section 124 of LASPO creates the EDS by inserting a new section 224A into the 2003
Act. Schedule 18 of LASPO inserts a new Schedule 15B into the 2003 Act. Schedule
15B (attached at Annex A) lists 44 offences of the more serious kind. The longer list
of specified offences still exists under Schedule 15 (attached at Annex B).
An EDS will be imposed on an offender who, if over 18:





where he is convicted of a Schedule 15 offence on or after 3 December 2012
(regardless of when the offence was committed); and
is adjudged to present a significant risk to the public of serious harm; and
is not suitable for a life sentence; and either
he has a previous conviction for a Schedule 15B offence o
if the court was minded to impose an extended sentence, the custodial would
be at least 4 years.
An EDS will be imposed on an offender who is under 18:




where he is convicted of a Schedule 15 offence on or after 3 December 2012
(regardless of when the offence was committed); and
is adjudged to present a significant risk to the public of serious harm; and
is not suitable for a life sentence; and
if the court was minded to impose an extended sentence, the custodial would
be at least 4 years.
The extension period imposed must not exceed 5 years in respect of a violent
offence; and 8 years in respect of a sexual offence.
Oral Hearings Guide – Annex D – Revised LASPO Guidance
Guidance for panels
In cases where the custodial period is less than 10 years, and the offence is not one
listed in Schedule 15B, the EDS prisoner will be released automatically once he has
served two thirds of the custodial period.
Any case where the custodial period is 10 years or more; or the EDS was imposed for
a Schedule 15B offence, will be referred to the Parole Board for consideration of early
release.
In EDS cases referred to the Board, the relevant eligibility date will be the two-thirds
stage of the custodial period. If the Board does not release at this stage, the prisoner
will serve the whole of the custodial period subject to annual reviews, as for DCRs.
Note: In October 2013, the Secretary of State announced changes to the criteria by
which EDS sentence prisoners will be referred to the Board. Legislation is required
for these changes to take effect and we will update members as and when such
changes are implemented.
The sentence and eligibility calculations in respect of the release of all existing
determinate prisoners (DCR, 1967, pre-LASPO extended sentences) remain
unchanged.
The test for release for EDS prisoners is stated in section 125 of the LASPO
(amending section 246 of the 2003 Act):
“The Parole Board must not give a direction [for release] … unless the Board is
satisfied that it is no longer necessary for the protection of the public that P
should be confined.”
For advice on interpreting the test, see 3 below.
3.
NEW TEST FOR RELEASE FOR ALL DETERMINATE PRISONERS
LASPO imposes the same statutory test for the release of all determinate prisoners:
“The Parole Board must not give a direction [for release] … unless the Board is
satisfied that it is no longer necessary for the protection of the public that the
person should be confined.”
This test came into force on 3 December 2012 and applies to all determinate
prisoners at first release (EDS, DCR, 1967 and extended sentences).
Where there is a statutory test, it is for the Board to interpret it in light of any
existing case law. Parliament has ruled that the test shall be one of public protection
rather than a balancing act between the risk of any type of offending against the
benefits of early release; in other words, it will be a ‘risk-only’ test.
In respect of lifers/IPPs, the Board is required to protect the public from the risk of
serious harm (risk to life and limb). The Board’s view is that the same test must be
applied to determinate sentenced prisoners.
Oral Hearings Guide – Annex D – Revised LASPO Guidance
Every Parole Board panel is a judicial body in its own right; this guidance cannot
legally fetter a panel’s duty to interpret the statutory test as it sees fit. Guidance is
published in order to assist rather than bind a panel.
Guidance to panels
Panels may interpret the test for all determinate sentenced prisoners as follows:
In order to direct release, the Board should be satisfied that it is no
longer necessary for the prisoner to be detained in order to protect the
public from serious harm (to life and limb). It is not a requirement to
balance the risk against the benefits to the public or the prisoner of
release.
Panels are invited to interpret the statutory test as they see fit with the above
guidance in mind.
Panels are reminded that when considering a case, public protection
must be the over-riding consideration.
The identification and management of risk remains the focal point for panels’
consideration.
4.
SECRETARY OF STATE’S POWER TO CHANGE THE TEST
Section 128 of LASPO gives the Secretary of State power, by order made by
statutory instrument, to change the test for:



An IPP prisoner
An extended sentence prisoner or
A determinate sentenced prisoner subject to the transitional arrangements in
the Act
The Secretary of State has confirmed that he has no plans to exercise his power at
present. Should that position change in the future, further advice will be given to
members.
5.
ARRANGEMENTS FOR DETERMINATE RECALLS
There are three changes of interest to the Board. The third will mean a significant
change to the way we approach the risk of re-offending in recall cases.
i.
Previous statutory restrictions which prevented some categories of prisoner
being given a Fixed Term Recall (FTR) have been removed by LASPO. This
means that FTRs may now be considered (but only where appropriate in each
case) for prisoners:



serving a sentence for a violent or sexual offence (as listed in
CJA 2003);
who have previously had a FTR during the current sentence;
subject to the Home Detention Curfew (HDC) scheme.
Oral Hearings Guide – Annex D – Revised LASPO Guidance
Schedule 15
As regards standard recalls, there are no changes procedurally.
ii.
The Board now has the power to direct release of recalled determinate
prisoners, rather than recommend it.
iii.
Interpreting the test for release of recalled determinate prisoners - see
following guidance.
Guidance to panels
The Parole Board will now apply the public protection test to all determinate cases at
first release. LASPO is silent, however, on the test for release of recalled determinate
prisoners. This could be interpreted in two ways: either Parliament did not want the
Board to apply the public protection test; or it is content for the Board, as a judicial
decision maker, to interpret it for itself in light of case law. There are two good
reasons for saying that the public protection test must now be applied to recalls.
i.
Since FTRs are now available in respect of Schedule 15 offences, and the
Secretary of State must himself apply the public protection test when
considering executive release of someone not suitable for FTR, it would be
difficult to reconcile the Board’s position with this if the Board devised a
completely different test for itself.
ii.
LASPO presents a similar picture to that for lifers - there is a statutory public
protection test for the first release of a lifer, but none in respect of a recalled
lifer. In the 1996 case of Watson, the Court of Appeal said (emphasis added):
“Section 39(4) [1991 Act] prescribes no statutory test [for recall] which the
Board is to apply. But the Board’s function under section 39(5) [first release] is
almost exactly the same as that under section 34(3), namely to direct (or not)
the prisoner’s release. In the absence of express statutory provision, it is
to be assumed that the same test is applicable”
That closely resembles the situation in LASPO in respect of determinate
sentences; other amendments brought in by LASPO give the Board the power
to direct release rather than recommend it as it did before. Accordingly the
public protection test may be interpreted to apply to determinate recall cases.
Just as for lifers, someone charged with a minor offence can be dealt with
through the criminal courts and will, if convicted, receive a sentence
appropriate in all the circumstances.
Panels may interpret the test for determinate sentenced prisoners as follows:
In order to direct release, the Board should be satisfied that it is no
longer necessary for the prisoner to be detained in order to protect the
public from serious harm (to life and limb). It is not a requirement to
balance the risk against the benefits to the public or the prisoner of
release.
Panels are reminded that when considering a case, public protection
must be the over-riding consideration.
Oral Hearings Guide – Annex D – Revised LASPO Guidance
The identification and management of risk remains the focal point for panels’
consideration.
6.
NEW AUTOMATIC LIFE SENTENCE
Although courts will no longer be able to impose an IPP, section 122 introduces a new
life sentence. The life sentence will be imposed on someone over the age of 18
where:





the offence is one of those in the new Schedule 15B; and
it was committed after 3 December 2012; and
the court would otherwise have imposed a 10 year sentence or more
(disregarding the extension period if an extended sentence); and
the offender had a previous conviction for a Schedule 15B offence for which he
received a determinate sentence of 10 years or more, or a life sentence with a
tariff of 5 years or more; and
it would not be unjust in all the circumstances to impose a life sentence.
December 2013
Oral Hearings Guide – Annex D – Revised LASPO Guidance
The Parole Board
for
England and Wales
Practice Guidance for referring
cases to Oral Hearings
December 2013
Contents
Page
1. Overview
3
2. Osborn & others – the judgment
3-6
3. Practice guidance for members
6
4. Entitlements to oral hearings: Rules and policies that apply
7
4.1 Life or indeterminate sentenced prisoners – on- or
post-tariff reviews
4.2 Life or indeterminate sentenced prisoners –
suitability for open conditions
4.3 Life or indeterminate sentenced prisoners – 1st review
after recall
4.4 Juveniles
5. Requests for oral hearings: Rules and procedures that apply
5.1
5.2
5.3
5.4
Life or indeterminate sentenced prisoners
Recalled determinate and extended sentenced prisoners
Extended sentence prisoners – initial release
Discretionary Conditional Release (1991 Act)
Oral Hearings Guide – Annex E – Sending cases to oral hearings
8-9
1
Overview
Following the Supreme Court’s judgment in the case of Osborn & others v Parole
Board [2013] UKSC 61, the Parole Board has revised its existing practice guidance on
the consideration of the necessity of or suitability for oral hearings to assist both
members in making their decisions, and offenders and their representatives in
understanding the Board’s position following the judgment.
There remains no statutory entitlement by right to an oral hearing before the Parole
Board for any case other than life or indeterminate sentenced prisoners who are
assessed as ‘not unsuitable’ for release, or life or indeterminate sentenced prisoners
at first review following recall. However, the UKSC judgment clearly indicated
that the previous policy and practice of the Board could no longer stand.
This means a fundamental change in the way the Parole Board regards the
purpose of and necessity for an oral hearing in each case before it. While
this does not mean that an oral hearing will be necessary in every case, the
judgment has significantly broadened the circumstances in which such a
hearing will now be required.
Detailed practice guidance follows at section 3 below, but members should note the
main change in the position at law following the judgment. Fairness to the
prisoner is now the overriding requirement; the perceived utility of an oral
hearing is not the deciding factor. Prior to the Supreme Court decision, the
domestic courts had agreed with the Board’s position that a relevant factor in
deciding whether or not to hold an oral hearing was whether such a hearing would be
likely to make a significant difference to the final outcome. In cases where it would
not be likely to make a significant difference, the courts had considered that a
hearing on the papers, with written representations, was procedurally fair. This is no
longer the case.
It is therefore necessary for the Board to fundamentally change the way it thinks
about oral hearings; where previously we might not have held an oral hearing in
circumstances where resolving a dispute of fact or hearing mitigation would have no
material affect on the outcome, this is no longer the position. It is purely a question
of fairness to the prisoner.
2
Osborn & others – the Judgment
The court found that board had breached its common law duty of procedural fairness
to the three appellants and article 5(4) ECHR, by failing to offer them oral hearings.
In judgment of the Court, Lord Reed clarified that human rights is not a distinct area
of the law based on the case law of the European Court, but permeates our domestic
legal system. Lord Reed reminded us that “paper” decisions at the ICM stage are
provisional and the right to request an oral hearing is not an “appeal”. (Members will
be aware that we had already amended our template wording to remove references
to the word “appeal”, however, the approach taken by the Board often remained one
of a challenge to the paper decision as opposed to a separate question of whether
fairness required an oral hearing before a decision could be reached). Lord Reed also
stated that a prisoner need only persuade the board that an oral hearing is
appropriate. The common law duty to act fairly is influenced by the requirements of
art 5(4); if we comply with the former then typically we’ll also comply with the latter.
Oral Hearings Guide – Annex E – Sending cases to oral hearings
Lord Reed sets out guidance on complying with common law standards in
this context. The Board should hold an oral hearing whenever fairness to the
prisoner requires one in the light of the facts of the case and the importance
of what is at stake. By doing so, the Board will act compatibly with art 5(4).
In paragraph 2 of his judgment, Lord Reed summarised the conclusions he had
reached. The full judgment may be accessed here, but for ease of reference,
paragraph 2 is copied below. We have emboldened those paragraphs which are
particularly significant:
“2 i) In order to comply with common law standards of procedural fairness, the
board should hold an oral hearing before determining an application for
release, or for a transfer to open conditions, whenever fairness to the prisoner
requires such a hearing in the light of the facts of the case and the importance
of what is at stake. By doing so the board will also fulfil its duty under section
6(1) of the Human Rights Act 1998 to act compatibly with article 5(4) of the
European Convention for the Protection of Human Rights and Fundamental
Freedoms, in circumstances where that article is engaged.
ii) It is impossible to define exhaustively the circumstances in which an oral
hearing will be necessary, but such circumstances will often include the
following:
a) Where facts which appear to the board to be important are in
dispute, or where a significant explanation or mitigation is advanced
which needs to be heard orally in order fairly to determine its
credibility. The board should guard against any tendency to underestimate
the importance of issues of fact which may be disputed or open to explanation
or mitigation.
b) Where the board cannot otherwise properly or fairly make an
independent assessment of risk, or of the means by which it should be
managed and addressed. That is likely to be the position in cases
where such an assessment may depend upon the view formed by the
board (including its members with expertise in psychology or
psychiatry) of characteristics of the prisoner which can best be judged
by seeing or questioning him in person, or where a psychological
assessment produced by the Ministry of Justice is disputed on tenable grounds,
or where the board may be materially assisted by hearing evidence, for
example from a psychologist or psychiatrist. Cases concerning prisoners
who have spent many years in custody are likely to fall into the first of
these categories.
c) Where it is maintained on tenable grounds that a face to face
encounter with the board, or the questioning of those who have dealt
with the prisoner, is necessary in order to enable him or his
representatives to put their case effectively or to test the views of
those who have dealt with him.
d) Where, in the light of the representations made by or on behalf of the
prisoner, it would be unfair for a “paper” decision made by a single member
panel of the board to become final without allowing an oral hearing: for
Oral Hearings Guide – Annex E – Sending cases to oral hearings
example, if the representations raise issues which place in serious
question anything in the paper decision which may in practice have a
significant impact on the prisoner’s future management in prison or on
future reviews.
iii) In order to act fairly, the board should consider whether its independent
assessment of risk, and of the means by which it should be managed and
addressed, may benefit from the closer examination which an oral hearing can
provide.
iv) The board should also bear in mind that the purpose of holding an
oral hearing is not only to assist it in its decision-making, but also to
reflect the prisoner’s legitimate interest in being able to participate in
a decision with important implications for him, where he has
something useful to contribute.
v) The question whether fairness requires a prisoner to be given an
oral hearing is different from the question whether he has a particular
likelihood of being released or transferred to open conditions, and
cannot be answered by assessing that likelihood.
vi) When dealing with cases concerning recalled prisoners, the board should
bear in mind that the prisoner has been deprived of his freedom, albeit
conditional.
When
dealing
with
cases
concerning
post-tariff
indeterminate sentence prisoners, it should scrutinise ever more
anxiously whether the level of risk is unacceptable, the longer the time
the prisoner has spent in prison following the expiry of his tariff.
vii) The board must be, and appear to be, independent and impartial. It
should not be predisposed to favour the official account of events, or
official assessments of risk, over the case advanced by the prisoner.
viii) The board should guard against any temptation to refuse oral
hearings as a means of saving time, trouble and expense.
ix) The board’s decision, for the purposes of this guidance, is not
confined to its determination of whether or not to recommend the
prisoner’s release or transfer to open conditions, but includes any
other aspects of its decision (such as comments or advice in relation to
the prisoner’s treatment needs or the offending behaviour work which
is required) which will in practice have a significant impact on his
management in prison or on future reviews.
x) “Paper” decisions made by single member panels of the board are
provisional. The right of the prisoner to request an oral hearing is not correctly
characterised as a right of appeal. In order to justify the holding of an oral
hearing, the prisoner does not have to demonstrate that the paper
decision was wrong, or even that it may have been wrong: what he
has to persuade the board is that an oral hearing is appropriate.
xi) In applying this guidance, it will be prudent for the board to allow
an oral hearing if it is in doubt whether to do so or not.
Oral Hearings Guide – Annex E – Sending cases to oral hearings
xii) The common law duty to act fairly, as it applies in this context, is
influenced by the requirements of article 5(4) as interpreted by the European
Court of Human Rights. Compliance with the common law duty should result in
compliance also with the requirements of article 5(4) in relation to procedural
fairness.
xiii) A breach of the requirements of procedural fairness under article 5(4) will
not normally result in an award of damages under section 8 of the Human
Rights Act unless the prisoner has suffered a consequent deprivation of
liberty.”
3
Practice guidance to members
All members, when considering a case on the papers, must apply the principles set
out by the Supreme Court in the case of Osborn.
If in any doubt, we should hold an oral hearing.
Fairness to the prisoner in the individual case before you is the over-riding factor.
We can no longer decline an oral hearing merely because it’s unlikely to make any
difference.
We must not be tempted to refuse an oral hearing in order to save time, trouble or
expense.
While there are some phrases in the judgment which might be construed to say that
the Board has a role in sentence planning, the Board considers that the judgment
does not vary our statutory role, or widen the Secretary of State’s terms of reference
to include assessing a prisoner’s sentence plan and offending-behaviour work. But
Lord Reed observes that the Board may consider a variety of matters and recognises
the Board’s role in determining how those with responsibility for providing the
sentence plan may act when it assesses the existing risk factors and progress. We
must therefore consider the need for an oral hearing having regard to any
controversies or disputes in relation to any matter which we may properly mention in
our decisions.
The panel ought to consider whether or not fairness implies an oral hearing, even
where the prisoner doesn’t ask for one. But the panel may consider the fact that the
prisoner hasn’t asked for an oral hearing as a factor against an oral hearing.
Save where there are exceptional reasons against a video-link, the video hub may be
equated with a face-to-face hearing.
From now on, it may be sensible for all decisions to cite the judgment. A paper
decision might still refuse an oral hearing: for instance, if the prisoner offers no
reasons for an oral hearing and there would not be anything to discuss at an oral
hearing. In these circumstances, the panel might write:
“We/I have considered the principles set out in the case of Osborn, Booth &
Reilly [2013] UKSC 61 concerning oral hearings. We/I do not find that there
Oral Hearings Guide – Annex E – Sending cases to oral hearings
are any reasons for an oral hearing. In addition, the prisoner has not
submitted any reasons for an oral hearing. Therefore an oral hearing is
declined.”
4
Entitlements to oral hearings: Rules and policies that apply
4.1
Life or indeterminate sentenced prisoners - on or post tariff review – Parole
Board Rules
The Parole Board Rules 2011 describes the single member Intensive Case
Management panel procedure as follows:
“Consideration by single member
16.—(1) Within 14 weeks of a case being referred to the Board, a single
member shall consider the case without a hearing.
(2) The single member shall either—
(a) decide that the case should be referred to an oral panel; or
(b) make a provisional decision that the prisoner is unsuitable for release…”
4.2
Life or indeterminate sentenced prisoners – suitability for open conditions (Pretariff or advice cases)
Additionally, the Parole Board has applied the following policy since February 2007:
“Post tariff preliminary paper decisions that would otherwise recommend
release or transfer to open conditions should be referred to an oral hearing.
Pre-tariff paper decisions that would otherwise recommend transfer to open
conditions should be referred to an oral hearing.”
The effect of both Rule 16(2) and the 2007 policy in relation to life and indeterminate
sentenced prisoners is therefore that any lifer or IPP prisoner who is assessed as not
unsuitable for release, or who is assessed as a likely candidate for a progressive
move to open conditions, whether pre-, on- or post-tariff will be sent to an oral
hearing.
Rule 16(2)(a) also allows for any other circumstance in which the single member
assesses the case requires further consideration at an oral hearing. In these cases,
the Board will now apply the principles provided by the Supreme Court in making the
determination as to the necessity for an oral hearing.
4.3
Life or indeterminate sentenced prisoners – 1st review after recall
The Parole Board Rules already imply that such cases must proceed to an oral
hearing (Rule 16 only applies to the initial release of such prisoners). Offenders may
opt out of an oral hearing on request, however, the policy of holding an oral hearing
in cases where release or a recommendation to transfer to open conditions is a
realistic outcome remains, together with the application of the Supreme Court
judgment in Osborn. Offenders’ requests to opt out of a life/IPP 1st recall review oral
hearing will be considered by an ICM Member.
Oral Hearings Guide – Annex E – Sending cases to oral hearings
4.4
Juveniles
Please refer to the separate policy in relation to juveniles and oral hearings for
details. In summary, all offenders who were aged 17 or under at the start of their
review or at the time of recall, will automatically be provided with an oral hearing.
5
Requests for oral hearings: Rules and policies that apply
5.1
Life or indeterminate sentenced prisoners
Parole Board Rule 17 with regard to on- or post-tariff prisoners states:
“Provisional decision against release
17.—(1) Where a single member has made a provisional decision under rule
16(2)(b) that a prisoner is unsuitable for release, the prisoner may request
that an oral panel hear the case.
(2) A prisoner who requests a hearing shall, within 19 weeks of the case
being referred to the Board, serve notice giving full reasons for their
request on the Board and the Secretary of State.
(3) If no notice has been served in accordance with paragraph (2) after the
expiry of the period permitted by that paragraph, the provisional decision
shall—
(a) become final; “
When considering such requests, the Board will apply the principles set out the
Supreme Court judgment in Osborn. All such prisoners may make a request for
oral hearing at any stage where they are pre-tariff as well.
5.2
Recalled determinate and extended sentenced prisoners
These cases are routinely dealt with by paper panels and will remain so in
order not to deprive the Board of the opportunity to direct release on the
papers in an expeditious manner. In all cases paper panels will consider the
need for an oral hearing regardless of whether the prisoner has requested one
and will apply the principles set out in the Supreme Court judgment in Osborn.
Prisoners may request an oral hearing as part of their representations provided
prior to the panel’s consideration. Prisoners are also entitled to apply for an
oral hearing following receipt of a negative paper decision.
5.3
Extended Sentence – initial release
These cases are routinely dealt with by paper panels and will remain so in
order not to deprive the Board of the opportunity to direct release on the
papers in an expeditious manner. In all cases paper panels will consider the
need for an oral hearing regardless of whether the prisoner has requested one
and will apply the principles set out in the Supreme Court judgment in Osborn.
Prisoners may request an oral hearing as part of their representations provided
prior to the panel’s consideration. Prisoners are also entitled to apply for an
oral hearing following receipt of a negative paper decision
Oral Hearings Guide – Annex E – Sending cases to oral hearings
5.4
Discretionary Conditional Release (1991 Act)
These cases are routinely dealt with by paper panels and will remain so in order not
to deprive the Board of the opportunity to direct release on the papers in an
expeditious manner. In all cases paper panels will consider the need for an oral
hearing regardless of whether the prisoner has requested one and will apply the
principles set out in the Supreme Court judgment in Osborn. Prisoners may request
an oral hearing as part of their representations provided prior to the panel’s
consideration. Prisoners are also entitled to apply for an oral hearing following receipt
of a negative paper decision.
Oral Hearings Guide – Annex E – Sending cases to oral hearings
ANNEX F
GUIDANCE ON SETTING DIRECTIONS FOR ORAL HEARINGS
1.
Introduction
The objective of this document is to assist panel chairs in setting directions. It is
based on the experience of Parole Board staff and members in terms of what works
well and what is liable to cause problems and it reflects the views of those
stakeholders who have been consulted. It is not, however, a substitute for other
standing instructions of the Parole Board, notably the Parole Board Rules. If you are
chairing a panel and have any doubts about the appropriateness of a direction, it is
recommended that you consult the Legal Advisor.
All cases referred to chairs will have been subject to Intensive Case Management
(ICM) which should have identified any significant gaps in the dossier such as the
absence of mandatory reports. The process should also have flagged up those cases
which may require directions to be made and complied with in several stages before
they are ready for an oral hearing.
2.
Guiding Principles
2.1
Purpose of an oral hearing
The role of a panel at an oral hearing is to determine whether the prisoner’s risk is
low enough for release or transfer to open conditions and/or to comment on the
continuing areas of risk that need to be addressed, where these matters cannot be
determined on paper. It is necessary only to determine WHETHER or not risk remains
too high; if it does, there is no requirement to investigate WHY this is the case.
2.2
Remit of the Parole Board
Beyond making a direction for release or a recommendation for transfer to open
conditions, the Parole Board has no role to play in how or, indeed, whether the
prisoner progresses through his or her sentence. It is acknowledged that some
prisoners will be unable to progress and will spend the rest of their lives in custody.
2.3
Scope of directions
Directions should always be proportionate, reasonable, necessary, lawful and
deliverable. They will usually be confined to four areas: the timetable for the hearing,
the reports that are needed, the witnesses who are required to attend, and the
disclosure of material submitted under Rule 8. The number of directions made should
be the minimum that is necessary to enable the panel to do its job properly. Chairs
should consider carefully what witnesses and additional reports are essential. In this
regard, they should review, at the earliest opportunity, the directions made by the
ICM member to see if it is appropriate to stand down any witnesses warned that they
may be required to attend the hearing. Applications for additional directions from
legal representatives of prisoners should be considered in the light of this principle.
Oral Hearings Guide – Annex F – Setting Directions for Oral Hearings
3.
Best practice points
3.1
Time estimates
A difficulty with oral hearings is estimating accurately how long it will take to hear a
case. An accurate estimation is vital for listing purposes, particularly as the Board
increasingly seeks to list more than 2 cases per day. The ICM member will have
estimated the time allowance on sending the case to oral hearing. However, good
practice is for chairs to review this, as circumstances may have changed such that it
may now be estimated that the case will take significantly longer (or shorter) than
expected, enabling or necessitating a change in listing arrangements. If the panel
chair amends the time estimate reasons should be provided.
The starting point - that is the minimum time needed (including the panel discussion
before and after the hearing) - will usually be one hour where there are no witnesses.
For each witness, it is prudent to allow between 10 and 60 minutes depending on the
nature of their likely contribution. A Personal Officer’s character reference will only
take a few minutes whereas a Psychologist’s or Offender Manager’s evidence will
likely require much more time. The length of each witness will of course depend on
the extent of questioning by panel members, the prisoner’s representative, and the
Public Protection Advocate (PPA), if one is present.
Recall cases will take longer where there are issues of disputed evidence. Experience
shows that a Secretary of State’s representative attending a hearing will add between
half an hour and three-quarters of an hour to the time it will take to hear a case. A
Victim Personal Statement will add to the length of proceedings depending on the
means by which it is delivered, principally whether or not the victim attends the
hearing in person.
The need for an interpreter can also increase materially the length of a hearing,
although the additional time needed will depend on whether everything is to be
translated for the benefit of the prisoner (because he or she speaks little or no
English) or whether only the questions to the prisoner and his or her responses need
to be translated. It is probably reasonable to double the time allowed for those parts
of the hearing where the interpreter will be used.
Having calculated how long it will take to hear all the evidence and submissions, the
ICM member or chair should build in a further time contingency to allow for
administrative delays; for instance, the late arrival of witnesses, short adjournments
for the prisoner to have a comfort break or give instructions, or reports being
provided on the day needing to be photocopied and read. A number of variables will
determine how much contingency should be allowed but a reasonable rule of thumb
is 20% (an additional 12 minutes per hour of expected hearing length).
3.2
Reports
“Current” reports in the dossier should be no more than 12 months old. Avoid
routinely asking for addendum reports from the Offender Manager or Offender
Supervisor where existing reports are less than six months old. Updates/addenda
should only be directed if there has been a significant material change or
development that the panel should be made aware of.
Oral Hearings Guide – Annex F – Setting Directions for Oral Hearings
If, where reports are several months’ old and/or further information has become
available you consider that it would be appropriate to have an addendum report
produced, it is helpful to be precise about what you want to avoid unnecessary work
for the report writer. Suitable wording might be:
“A brief addendum report from (name or job title) updating his report of
(date) in the light of any developments since it was written and after
consideration of the independent psychology report.”
or, in the case a specialist report:
“Report from Medical Officer at HMP... addressing:
 Mr A’s Hepatitis C
 The fits/seizures from which he is said to suffer
The report writer is asked to comment on whether these medical conditions
are relevant in terms of Mr A’s suitability for release or ability to cope in the
community. Would any special licence conditions or arrangements need to be
put in place?”
Always set a deadline for directed reports.
3.2.1 Justifying reports
Before asking for any report, consider its purpose. Is it necessary to ask for a written
report where someone is to be called to give oral evidence?
Some ICM members and panel chairs habitually direct the production of lengthy
psychologist’s reports for cases where there is no apparent need for any in terms of
assessing risk. This often happens because the prisoner’s representative requests
such a direction, usually for the purpose of galvanising the Prison Service into action
when his or her client has become “stuck” in the system. You are reminded that it is
NOT the Board’s role to help prisoners progress. Our only remit is to determine the
level of risk, not the causes thereof, however interesting that might be. Unless the
content of such a report is likely to change the panel’s mind about the feasibility of a
progressive move, it is not appropriate to ask for it.
Similarly, some chairs routinely direct addition of old reports to the dossier without
explaining why these are needed to inform a current risk assessment. Reasons
should be given for directions to add old reports.
3.2.2 Directions
If you request a risk assessment from a psychologist, please state the areas of
concern (instrumental violence, sexual offending etc.) that are to be investigated,
and whether you require a clinical or forensic assessment, but do not specify the
assessment tool (e.g. HCR-20) that should be used. Similarly, if there are concerns
about psychopathy, you should raise these but not ask specifically for a PCL-R
assessment.
Oral Hearings Guide – Annex F – Setting Directions for Oral Hearings
Please avoid generic phrases such as “full psychological assessment” or “conduct
report” which may not be readily understood by the recipient of the directions. Be
precise about the information you want from the report.
Notwithstanding the need to be specific, the Parole Board has had rather conflicting
requests and advice from different sources about the extent to which we should
specify by whom the information is to be provided. Lifer/parole clerks at some
prisons want precise instructions so that they know to whom to direct the request,
others consider that this ties their hands and that, provided the information
requested is supplied, it should not matter who writes the report.
Pragmatically, it is suggested that you word the directions in such a way as to cater
for both situations, for example:
“...report on custodial behaviour since recall.
This should address
adjudications, the results of drug tests, security reports, offending behaviour
work completed or scheduled and any other information deemed relevant. It
should be written by a Seconded Probation Officer or another individual
nominated by Mr X’s Offender Manager.”
NOMS policy currently requires that if a prisoner is transferred within three months of
the commencement of the parole process, the sending prison must assume
responsibility for preparing reports. However, prisons cannot have local policies of
refusing to write reports until the prisoner has been in the establishment for a
minimum period (this would prevent parole reviews from proceeding in a timely way)
and if a review is delayed for any reason, it may be necessary to ask for updated
reports from the receiving establishment.
Be mindful of how long it will take to get any report that you request. We have been
advised that it can take up to three weeks to source an old report (for instance, the
sentencing remarks) if it has been archived. The production of a new psychologist’s
report normally takes three months and a post-course risk assessment such as a
SARN may take six months or more.
The Parole Board cannot force a prisoner’s representative to disclose an independent
psychiatric or psychologist’s report, even where this has been publicly funded. It can
only say that it would be helpful for the report to be disclosed. Moreover, the Board
cannot directly commission any such report.
3.3
Witnesses
In general, where information is available in the form of documents it may not be
necessary to call a witness at all. For instance, at a recall hearing, where the reason
for recall was a prisoner’s behaviour in a hostel, the evidence of the supervising
officer supplemented by statements and copies of the relevant pages from the hostel
log will usually obviate the need for the hostel manager to attend as a witness. As a
panel chair, if a potential witness has already produced a comprehensive report you
might consider that little further information is likely to result from oral evidence.
Conversely, there are circumstances where oral evidence is preferred because written
information is not likely to be available at the time of the hearing; for example when
the panel wishes to enquire about a prisoner’s performance on an offending
Oral Hearings Guide – Annex F – Setting Directions for Oral Hearings
behaviour programme, and the post-course report is not yet available. In such
circumstances, an oral report can obviate the need to defer a hearing.
When deciding on whether or not to call someone as a witness, you should balance
the importance of the evidence that he or she is likely to give against the
inconvenience to that witness of getting to the hearing especially as regards the
distance that he or she will have to travel. The use of video-link should be
considered, especially for external probation officers, and in exceptional
circumstances it might be acceptable for evidence to be given over a conference
telephone or other mechanism by which all parties can hear the witness.
It is good practice to avoid having too many witnesses, not least because of the
effect that it will have on the length of the hearing. In particular, where a group of
witnesses would be called to give evidence on or around the same issue, the
presence of all of them is unlikely to add anything material to the panel’s
understanding of the issues in the case. For example, where several people
witnessed an incident that led to a prisoner’s recall, written statements from all of
them would probably suffice. Similarly, it is usually unnecessary to call a number of
prison officers to give evidence about someone’s custodial behaviour.
3.3.1 Directions
Directions should be precise about the evidence that the witness will be required to
give and avoid the use of general phrases such as “to speak to his report.” Where
possible, the directions should give some detail as to specific matters witnesses will
be asked to deal with in oral evidence: this enables witnesses to understand precisely
what will be required of them and prepare appropriately.
3.3.2 Persons who should not normally be called as witnesses
Serving prisoners should not normally be called as witnesses, unless this is
unavoidable; the logistical difficulties around securing their attendance are likely to
be considerable and prison Governors are generally very resistant to directions of this
kind. Any necessary evidence from other prisoners should be in writing where
possible.
It is also good practice to avoid, if possible, calling as witnesses prison officers from a
previous establishment. This, too, is for logistical reasons and you should bear in
mind that the prisoner’s file will have been transferred to his or her new
establishment so staff who worked with him or her previously will not have had the
opportunity to refresh their memories by reference to it.
Children should not be called as witnesses, and there would anyway be difficulties in
their coming into a prison to give evidence.
In cases concerning domestic violence, it may not be useful to hear evidence from a
victim who, according to the prisoner, has forgiven him and is now reconciled with
him. The possibility of coercion and re-victimisation if the witness should say “the
wrong thing” in evidence should be borne in mind and a written statement is often to
be preferred in such cases.
Oral Hearings Guide – Annex F – Setting Directions for Oral Hearings
3.3.3 Probation officers
Offender Managers are responsible for the progress of prisoners in custody and on
licence. They are the principal source of information on the prisoner and usually
essential to have an effective hearing. Where there is a realistic prospect of release,
and particularly with a Lifer in open conditions, the attendance of the Offender
Manager should always be directed. In addition, if a prisoner has been recalled and
has requested an oral hearing the Offender Manager should always be present.
If the supervision of the Lifer is likely to change on release, for instance because he
or she is to be relocated to another area, panel chairs should consider directing the
attendance of the future supervising officer or a representative of the Probation
Service in the release area so that the panel can be satisfied about the robustness of
release arrangements.
These considerations would also apply in the case of an Extended Sentence Prisoner
contesting the validity of his or her recall and/or applying for re-release.
A number of prisons are now experiencing difficulties in retaining Offender
Supervisors (particularly those from probation services) and increasingly are using
agency staff to fill gaps. As such, many of these have little or no contact with the
prisoner, and in some cases the prison do not even know the allocated OS at the
time of dossier disclosure. Members are therefore asked to consider carefully
whether Directing OS’s to attend oral hearings will bring added benefit. Where
possible, access to C-NOMIS notes may provide additional information, when an OS
is not available or has little knowledge of the prisoner.
3.3.4 Psychologists
Many of the psychologists working in the Prison Service are “trainees” in terms of
their chartered forensic psychology status, although they are qualified psychologists.
Questions have arisen over whether it is appropriate for them to give evidence or
whether their supervisor should do so. There will usually be no problem with their
giving evidence but generally, a report writer who is still a trainee will want his or her
supervisor to be present at the hearing and will seek to arrange this direct with that
individual. However, to anticipate the potential problem of the supervisor not being
consulted about his or her availability for the hearing, it is good practice to include
something along the following lines in directions:
”Ms B, Senior Forensic Psychologist at HMP [prison] is invited to attend the
hearing in her capacity as Mr C’s supervisor”.
3.3.5 Witness refusals to attend
Occasionally, a witness may refuse to attend a hearing. The reasons for this refusal
need to be investigated but if you are not satisfied that they are legitimate (for
instance a previous engagement), you may issue a witness summons. Please refer to
Chapter 1 of the Practice Guide for further information about this. This is not a step
that the Parole Board would normally take unless one of the parties has asked us to
do so, and you should only issue a summons if the evidence that the witness would
give is essential to the case AND that evidence cannot be given in written form or via
video-link.
Oral Hearings Guide – Annex F – Setting Directions for Oral Hearings
4.
Other matters
4.1
Specialist members on panels
The ICM member will have considered whether or not the case requires the presence
on the panel of a psychologist or psychiatrist. However, good practice is for the chair
to review this need in light of any updated information which may have been
received.
The decision to request a specialist member should be made when it is considered
that a contribution from a psychiatrist or psychologist panel member is necessary in
order to make a fair and rigorous risk-based decision.
4.2.1 Psychologists
Forensic psychology is the application of psychological knowledge to offenders and
offending behaviour in order to make evidence based predictions about when reoffending may occur. Forensic psychologists are skilled in the use of risk assessment
tools and other assessment techniques. They also have skills in the design and
implementation of interventions to modify offending behaviour.
It is appropriate to request a psychologist for cases where:
a.
b.
c.
current psychological evidence needs specialist interpretation;
there are two or more differing psychological opinions; or,
there are questions with regards to an offender’s response to interventions due
to issues such as motivation to change, levels of psychopathy, personality
disorder or learning difficulties.
4.2.2 Psychiatrists
Psychiatrists are medically qualified doctors who following their general medical
training have specialised in psychiatry. This means that they can prescribe
medication as well as recommend other forms of treatment. Psychiatrists have
knowledge of NHS services, how it functions in practice and the various NHS
treatment options available e.g. for mentally disordered offenders and those with
significant substance misuse.
It is appropriate to request a psychiatrist for cases when:
a. there are issues relating to the offender’s major mental disorder (and in some
cases physical illness);
b. the offender has been or is currently detained in a mental health setting or
secure psychiatric unit for on-going mental health problems;
c. current psychiatric evidence requires specialist interpretation; or,
d. licence conditions are proposed which involve mental health services.
4.2.3 Cases where either a psychologist or psychiatrist would be appropriate
It is appropriate to request either a psychiatrist or a psychologist for cases when:
Oral Hearings Guide – Annex F – Setting Directions for Oral Hearings
a.
there are less serious mental health concerns or evidence of psychological
distress with an identified or suggested link to the offender’s risk of reoffending or harm (e.g. substance misuse, anxiety, depression or self-esteem
issues);
b.
personality disorder or psychopathy has been identified or suggested;
c.
there is a learning disability, developmental disorder such as autism,
Asperger’s Syndrome, attention deficit hyperactivity disorder (ADHD) or brain
injury; or,
d.
the case has complex risk issues, for example where the offending involves
multiple victim types or sadistic behaviour, motivation for the offence is
unclear and the offender denies some or all aspects of their offence.
4.2
Parole Hub
All cases must be considered for suitability for a video-link hearing, although chairs
should be aware that not all prisons are able to link to the parole hub. Chairs should
start from an assumption that cases are suitable, and then consider why a case may
not be suitable, taking into account relevant issues in the dossier and any
representations made by the offender or his representative.
Factors which may mean a case is unsuitable for a video-link hearing include physical
impairments/disabilities (eg; hearing problems), mental health concerns or cognitive
problems (eg; learning difficulties), complex risk assessments involving numerous
witnesses and/or contested or contentious evidence.
4.3
Interpreters
If it is clear from the dossier that an interpreter will be needed, one should be
supplied automatically. There have, however, been instances where this has not
happened and it might be prudent to make such a direction to avoid the necessity of
adjourning or deferring the case on the day.
4.4
Unrepresented prisoners
It is expected that a number of prisoners will find it increasingly difficult to secure
legal representation, in particular pre-tariff review cases. Chairs are asked to
consider this when setting Directions and a legal representative is not clearly
identified.
4.5
Sentence progression
As stated at 2 above, in the light of the terms of the Secretary of State’s referral to
the Parole Board, the prisoner’s progress through his or her sentence is not an issue
into which we should enquire.
It is never appropriate to direct that a sentence planning review be carried out or
that a prison Governor explain why a prisoner’s security category has not been
downgraded. Similarly, you should not direct that a prisoner be assessed for or
attend a particular course or treatment programme before the hearing, be
Oral Hearings Guide – Annex F – Setting Directions for Oral Hearings
transferred to another closed establishment or, in the case of those in open
conditions, undertake home leaves.
4.5
Secretary of State
There have been instances of directions to the Secretary of State that he should be
represented at the hearing, even that he should be legally represented. Please refrain
from doing this. The Parole Board has no power to order the Secretary of State to be
represented; it is entirely a matter for him to decide.
4.6
Prisoners with mental health concerns
There is a slightly different procedure for hearing cases in secure units. Some
additional reports and witnesses, over and above what would be the norm in prisons,
are usually required.
In the case of those in prisons rather than secure units, the Parole Board should not
direct that a prisoner be transferred to a psychiatric hospital for assessment and
treatment, notwithstanding the views of report writers.
4.7
Security Information
Security information may be considered in a hearing but usually only when it is in
writing. In view of the sensitivity of some information and the need to protect those
who provide it, you should not direct that the names of the informants be disclosed,
other than under Rule 8.
4.8
Next review
It is not within the remit of the Parole Board to set a date for the next review of a
case as the terms of the Secretary of State’s referral makes clear. The fact that the
procedure for considering paper recall cases under the CJA 2003 allowed panels to
set a date for a further review has caused some confusion among those chairing ESP
oral hearing cases. Save where a case is being adjourned, a chair should not set a
date for a further review.
4.9
Physical evidence
Should you think it appropriate to
mind the restrictions on items
administrative arrangements will
impossible for certain items to be
be allowed into a prison.
4.10
direct that physical evidence be produced, bear in
that can be brought into a prison. Special
usually be needed and it may be effectively
produced at a hearing if they would not normally
Observers
There are no hard and fast rules about the attendance of observers but it is sensible
to guard against having too many additional people at a hearing lest this should
prove intimidating for the prisoner or for witnesses. Consideration should also be
given to the fact that the presence of some observers – for instance a prisoner’s
parents - could prove problematic if it makes the prisoner less frank when giving
evidence.
Oral Hearings Guide – Annex F – Setting Directions for Oral Hearings
4.11
Order of cases
If more than one case is to be heard on a given day, and one is more complex than
the other(s) in terms of the nature of the case, disputed evidence or the number of
witnesses, it is sensible to list that case last on the day so that there will be no
knock-on effect on other hearings if it overruns.
4.12
Logistics of the hearing
Given the wide circulation and judicial nature of directions, it is not appropriate to
use them for outlining administrative arrangements that chairs consider necessary,
and the practice of some panel chairs of stating how many rooms for witnesses will
be required or that all parties to the proceedings are to be supplied with lunch can
cause unintentional offence to some prison Governors. If chairs wish to stipulate such
arrangements this should be done in a separate communication to the Case Manager.
____________________________________________________________
DIRECTIONS – INTERIM GUIDANCE & GOOD PRACTICE
January 2014
1.
Introduction
As the impact of the UKSC judgment in Osborn & others is felt, members who are not
ICM trained are required to issue Directions. The Board has therefore issued this
interim guidance on Directions, which should be read alongside section 3 of the
existing ICM Manual:
http://www.paroleboard.gov.uk/members/policy_and_guidance/handbooks/icm_man
ual/ (Please note that other sections of the ICM Manual are now out of date, pending
the outcome of the current project to review case management and the Parole
Board’s work following the Osborn judgment.)
It is important that members apply the different approach we must now take to an
oral hearing. Where previously oral hearings were generally only held where there
was a realistic prospect of release or progression, or where there were complex or
disputed risk factors to assess, this will not always be the case now. Previously, it
was rare to have an oral hearing without the Offender Manager in attendance, and
often the Offender Supervisor and other professional witnesses as well. Now, where,
for example, the oral hearing is granted on the basis that the offender has provided
tenable grounds as to why a face to face encounter with the Board is appropriate, it
may not be necessary to call any other witnesses. Therefore members should always
consider the reason they have granted the hearing and issue Directions and
requirements for witness attendance accordingly.
Members should also refer to PBM 37/2013 for further guidance on interim changes
to the various template forms currently used and associated good practice guidance
on issuing Directions.
Oral Hearings Guide – Annex F – Setting Directions for Oral Hearings
2.
Good practice considerations
a.
Directions should always be proportionate, reasonable, necessary, lawful and
deliverable.
b.
Always set a deadline for Directed written reports or documents.
c.
Avoid jargon and stock phrases; please use plain language as the prisoner
should also be able to understand exactly what the Direction means.
d.
Avoid lengthy Directions, which have the potential to confuse recipients. They
can also mean that there is a lack of clarity in precisely what is required. If you
do consider it to be necessary to provide some narrative, ensure that the
specific Directions seeking reports/documents are clearly and obviously set
out.
e.
Avoid issuing too many Directions. If you find yourself setting a lot of
Directions, ask yourself if you are seeking this information as it is necessary in
order to make a full and fair assessment of the case. If you are making
Directions for a different reason, consider whether there is a more appropriate
process to achieve the outcome.
f.
Avoid routinely asking for addendum reports from the Offender Manager (OM)
or Offender Supervisor (OS), where current reports are less than six months
old. It is recommended that a Direction is made stating that updates/addenda
should only be submitted if there has been a significant material change or
development that the panel should be made aware of. If the OM and/or OS is
being called as a witness then oral evidence may suffice, particularly if the
substantive report (PAROM1 or Part B Recall Report [previously Annex H]) are
less than six months old and comprehensive. NOMS has agreed to update the
Parole Board automatically on any developments that are relevant to the
review.
g.
Use clear and precise language that focuses on the outcome required.
h.
Where you consider a witness to be necessary, you should direct their
attendance, but make it clear that the Panel Chair will have the final say on
witness attendance. (Please do not declare that a witness is not necessary, as
the Panel Chair may have a different view. It is easier to stand down a witness
than to direct the attendance of one who has been told he is not required).
i.
Where you consider that it may be appropriate for a witness to give evidence
by telephone or videolink, please indicate that this may be the case, subject to
the final say by the Panel Chair.
j.
When setting Directions for witnesses to attend hearings, please direct a
named individual (with their job title, where applicable) to attend, rather than
just referring to their profession.
k.
Where you have granted the hearing on the basis that the offender has
provided tenable grounds as to why a face to face encounter with the Board is
necessary, do not feel obliged to call any other witnesses.
Oral Hearings Guide – Annex F – Setting Directions for Oral Hearings
2.1
Suitability for the Parole Hub (as set out in PBM 21-12)
Members should be aware that not all prisons are able to link to the Parole Hub,
however, all cases should be considered for suitability for a video link hearing. The
assumption is that most cases should be suitable to be heard by video link. When
considering suitability, members should identify relevant issues within the dossier for
themselves and also take into account any representations made by the offender or
his legal representatives.
This guidance is not intended to restrict members, or to suggest that where such
factors are present in an individual case it will necessarily mean it is not suitable for a
video link hearing. Instead, it simply provides a list of factors which may mean that
the case is unsuitable. Each case must be considered on its own merits.
Factors which may mean a case is unsuitable for a video link hearing:
a.
b.
c.
Physical impairments/disabilities (e.g. sight or hearing problems)
Mental health concerns, or cognitive problems (e.g. learning difficulties)
Complex risk assessments involving numerous witnesses and/or contested or
disputed evidence
3.
Duty ICM
3.1
Requests to expedite hearings
The impact of Osborn means we can expect, at least initially, some listing delays.
Therefore it is likely that we will return to considering a number of requests to
expedite or prioritise hearings. Members should refer to the existing guidance on
those issues (which can be found at Annex 5 of the ICM Manual) and note the
following:
Members considering requests to expedite hearings should concern themselves solely
with the judicial question of whether, in the circumstances of the case, the matter
should be expedited. The capacity of the Board to meet such a Direction is not
relevant to members’ consideration. It is then for the Board to decide whether it can
meet the requirement of the Direction. If not, the case manager will write to the
parties to explain that the Board has not been able to meet the Direction to expedite
and that the listing will instead be in X month. Members should provide brief reasons
for the expedition, so that listings and case managers are aware of the issues.
Where you refuse a request to expedite a hearing, please ensure that you provide
reasons as to why you do not consider it meets the criteria for expedition.
3.2
Templates
You must use the relevant templates:
http://www.paroleboard.gov.uk/members/templates/
Using the correct format will assist the Secretariat in uploading the Directions to
PPUD, cutting down on unnecessary manual data entry, and facilitating better
management of compliance with the Directions.
Oral Hearings Guide – Annex F – Setting Directions for Oral Hearings
ANNEX G
GUIDANCE ON DRAFTING REASONS
Offenders are entitled to be given adequate reasons for decisions made about their
liberty. The offender must be told in sufficient detail WHY the test for release was
met, or not. The Board is also under a statutory duty to respond to the terms of the
referral if release is not directed (i.e. apply the test for suitability for open conditions
and identify continuing areas of risk that need to be addressed).
Reasons must be clear, focus on assessment of risk and should address the offender
directly rather than in the third person, irrespective of whether it is a paper or oral
hearing.
Reasons should be drafted using the following framework:
1.
2.
3.
4.
5.
6.
7.
8.
9.
Introduction
Evidence considered by the panel
Analysis of offending
Risk factors
Evidence of change since last review and/or circumstances leading to recall
(where applicable) and progress in custody
Panel’s assessment of current risk
Evaluation of effectiveness of plans to manage risk
Conclusion and Decision of the Panel
Indication of possible next steps to assist future Panels
1.
Introduction
This section should:
a.
identify the prisoner and the date and location of the hearing
b.
set out the purpose of the hearing relevant to the individual case and point of
sentence as referenced in the referral from the Secretary of State (e.g. to
determine suitability for early release on licence (DCR) or for suitability for
transfer to open conditions or release on licence (lifer/IPP))
c.
identify the sentence length and sentence/tariff expiry date, noting any periods
the offender has spent unlawfully at large (UAL)
d.
briefly refer to the test to be applied so that the offender understands what
must be taken into account, and on what basis the panel in coming to its
decision (members are asked only to state the statutory tests and not attempt
to define them)
e.
identify the decision-maker - for example:
”Your case has been referred to the Parole Board by the Secretary of State to
consider whether or not it would be appropriate to direct your release. If it is
not appropriate to direct your release, the Board is invited to advise the
Secretary of State whether it would be appropriate for you to be transferred to
Oral Hearings Guide – Annex G – Reasons Writing
open conditions and on any continuing areas of risk. The Board is empowered
to direct your release if it is satisfied that it is no longer necessary for the
protection of the public that you should be confined. A decision about whether
to recommend transfer to open conditions is based on a balanced assessment
of risk and benefits, with an emphasis on risk reduction and the need for you
to have made significant progress in changing your attitudes and tackling your
behaviour problems in closed conditions, without which a move to open
conditions will not generally be considered. The Panel convened at HMP
Whatton on 4 July 2014 and included a judicial member, an independent
member and a psychologist member.”
2.
Evidence considered by the panel
The purpose of this section is to clarify and record the evidential basis on which the
decision/recommendation of the panel is made. Best practice is to:
a.
identify the number of dossier pages seen by the panel (it is not necessary to
list all documents within the dossier; however, if any mandatory documents
are missing these should be mentioned);
b.
list all additional documents submitted up to and on the day of the hearing (it
is particularly helpful for future panels to know exactly what documents were
provided on the day);
c.
note any written submissions from the offender or his representative;
d.
list the witnesses who gave oral evidence, identifying them by name and role
(and note also whether evidence was given orally or by videolink/teleconference);
e.
Note the name of the offender’s representative and what the offender was
asking the panel to do;
f.
g.
Acknowledge the Secretary of State’s view if presented (or note that the
Secretary of State was not represented and did not submit any written
comments);
Note any victim statements/attendance; and,
h.
Indicate whether there was any non-disclosure evidence.
3.
Analysis of offending
This section provides the opportunity to outline the historical evidence of offending
and to take an analytical approach to the index offence and pattern of previous
offending.
The panel may wish to rely upon findings of fact from previous parole decision letters
where these are available. The new panel should not simply repeat everything in
earlier decision(s) but rather indicate which parts of those decisions they wish to
adopt. Be aware that the next panel may not have the older decision(s) though –
consider copy and pasting relevant findings to ensure future panels see all the
details. The current panel must still conduct its own independent assessment of risk.
Oral Hearings Guide – Annex G – Reasons Writing
This section should include:
a.
a summary of the index offence and conviction, including but not limited to;
i.
the official account of the index offence
ii.
any discrepancies in the offender’s account, including partial or complete
denial
iii.
date of conviction
iv.
any guilty plea(s)
v.
the sentence imposed
vi.
details of any appeal to the Court of Appeal
vii.
tariff/sentence expiry date(s)
b.
a brief analysis (not narrative) of previous convictions, drawing out any
themes or patterns with attention being given to any violent or sexual offences
where relevant
c.
details of any reported unconvicted offending behaviour, cautions, warnings or
reprimands and allegations such as police call-outs for domestic violence
(where the panel may need to come to a view as to what weight to put on
these)
d.
adjudications and relevance of them to level of risk, risk factors and/or risk
management
4.
Risk factors
In this section panels should draw out the specific static and dynamic factors
associated with the offender’s risk of re-offending (both generally and risk of serious
harm) and;
a.
b.
comment on the impact of each of the risk factors they have identified from
their previous analyses of offending behaviours and not merely rely on those
listed in the dossier,
highlight any patterns and identify the characteristics of the individual, their
attitudes and behaviour and the circumstances which appear to be related to
their offending behaviour,
c.
note any patterns of previous non-compliance with court orders and
community based penalties,
d.
note any risk factors which have developed or come to light since sentence,
and
e.
highlight any psychological, psychiatric or medical considerations relevant to
risk.
5.
Evidence of change since last review and/or circumstances leading to
recall (where applicable) and progress in custody
This section should provide an account of the offending behaviour work the offender
has carried out in custody and assess the progress they have made, if any, during
their sentence and particularly since the last review. It should note changes to the
Oral Hearings Guide – Annex G – Reasons Writing
prisoner’s circumstances inside and outside the prison which are relevant to risk. In
recall cases the panel should particularly look for change in behaviour since recall.
Panels should take into account:
a.
changes in the underlying factors associated with offending - e.g. ability to
maintain appropriate relationships, attitudes and beliefs which support
offending, backed up by evidence of attitudes and behaviour in custody (such
as adjudications, drug tests etc);
b.
completion of relevant interventions to reduce risk (not limited to OBPs) with
evidence of the effect these interventions have had on relevant risk factors;
c.
the offender’s willingness to engage in work to change their behaviour;
d.
evidence from release on temporary licence (ROTL), periods in open
conditions, any absconds or failure to return on time, and use this to assess
the prisoner’s ability to respond positively to increasing levels of selfresponsibility and to apply new skills in more realistic, less secure settings;
e.
evidence of indicators of increasing as well as decreasing risk; and,
f.
factors which affect the offender’s capacity to change, e.g. learning disabilities.
6.
Panel’s assessment of current risk
The panel should use, and refer to, all the actuarial/structured risk assessments in
the dossier in coming to its own judgement, drawing together the risk factors
identified in section 4 and the evidence in section 5 to make its own assessment of
the type and level of risk presented by the offender.
This section should:
a.
cite the available risk assessments (e.g. OGRS, OASys etc) in the form of risk
levels (high/medium/low - it is not necessary to write out the actual scores
provided) noting any significant changes, stating the current position;
b.
detail the panel’s own assessment of the offender’s risk of re-offending and
harm reconciling any discrepancies with the professional assessments; and,
c.
identify the areas of risk that the panel considers to be outstanding.
7.
Evaluation of effectiveness of plans to manage risk
It is important in this section to analyse the effectiveness of the actions designed to
manage risk and not merely describe or list the contents of the risk management
plan.
In order to evaluate whether the risk presented by the offender is manageable under
the proposed plan if released or progressed to open conditions it is important to
assess the plan. The panel should:
Oral Hearings Guide – Annex G – Reasons Writing
a.
summarise the key elements of the risk management plan (or release plan for
low risk of serious harm cases) including details of interventions proposed in
custody or the community;
b.
analyse the effectiveness of the plan – consider whether the plan covers the
identified risk and protective factors including risk issues raised by any recall
and specific victim concerns;
c.
assess the likelihood of the offender complying with the plan, based on history
of supervision, compliance and breach behaviour;
d.
identify protective factors (if any); and,
e.
if relevant identify any benefits of a move to open conditions.
8.
Conclusion and Decision of the Panel
This is the key part of the reasons; it should explain clearly what decision the panel
has made and why.
The length of this section will depend on the circumstances of the case. A complex or
finely balanced case is likely to require more information than a clear-cut case with
few areas of controversy. Bear in mind that this is likely to be the section that will be
examined most closely by readers of the decision (whether they be the offender, the
authorities, the courts or the Review Committee).
Bear in mind also that many prisoners do not possess good literacy skills and may
have a vocabulary that is significantly narrower than the panel. It is imperative that
the offender understands why the panel has taken the decision they have, so the
panel should take particular care in this section to use simple, straightforward
language.
This section should:
a.
make a clear and lawful decision which links the assessment of risk to the
relevant test and refers to the Secretary of State’s Directions where applicable;
b.
set out the panel’s conclusions on any findings of fact which the panel was
required to make; and,
c.
state whether the panel agreed or disagreed with the recommendations of
professionals; where recommendations are not accepted the panel must justify
their reasoning, and if presented with conflicting expert evidence the panel
should explain why they chose to prefer certain witness evidence over others.
8.1
Open Conditions
Where the panel considers both release and in the alternative a recommendation for
open conditions, it must be made clear in the decision letter that the panel applied
the test for release and SEPARATELY conducted a balancing exercise in relation to
suitability for open conditions.
Oral Hearings Guide – Annex G – Reasons Writing
There must be express reference to the balancing exercise in the decision. It is not
enough for the panel to refer to the need to have regard to the directions of the
Secretary of State or note the support the prisoner had from professionals for
transfer (which if analysed is often likely to contain references to the benefits which
could be directly derived from transfer). The panel must expressly state what factors
which go towards benefit were taken into account.
8.2
Licence conditions
If the panel directs release, the panel must direct the conditions to be attached to an
offender’s licence. LASPO seems to suggest that only the Board has the power to
impose licence conditions, which includes the standard conditions. Panels must
therefore direct the standard licence conditions and any other additional conditions as
appropriate. Each additional licence condition must be justified with reference to
necessity and proportionality. If exceptionally a panel does not consider any of the
standard conditions to be necessary or proportionate they should seek advice from
the Legal Advisor; strictly speaking under LASPO they may not be required to impose
them.
If the panel does not add any condition(s) specifically requested by the victim, the
reasons should note the victim’s request and explain why the request was not
acceded to.
9.
Indication of possible next steps to assist future panels
If the panel considers that there is information missing from the dossier, or present
but in need of clarification or updating, that may assist the next panel in their
decision making, this should be identified. For example, this could include an updated
risk management plan or a psychological assessment. Please do not name specific
treatments or programmes or courses.
10.
Additional Guidance
10.1
Panels
An ICM member sits as a panel when making a negative decision and when writing
reasons relevant to the stage in sentence at which the offender is referred
(pre/on/post tariff); a Single Member recall oral hearing is also constituted as a
panel.
10.2
Standard wording
Panels may wish to exercise some caution when adopting standard forms of wording
to address commonly occurring issues. Where they do so, they should be clear that
the wording is appropriate to the particular case.
That said, it is beneficial for panels to use the statutory wording in respect of the
release test and test for open conditions to avoid later arguments that an incorrect
test has been applied.
Oral Hearings Guide – Annex G – Reasons Writing
10.2.1 Test for release
“The Parole Board must not give a direction [for release] … unless the Board is
satisfied that it is no longer necessary for the protection of the public that the
person should be confined.”
10.2.2 Test for open conditions
“A move to open conditions should be based on a balanced assessment of risk
and benefits. However, the Parole Board’s emphasis should be on the risk
reduction aspect …. the Parole Board must take into account:
a.
the extent to which the ISP has made sufficient progress during sentence
addressing and reducing risk to a level consistent with protecting the
public from harm in circumstances where the ISP in open conditions
would be in the community, unsupervised, under licensed temporary
release;
b.
the extent to which the ISP is likely to comply with the conditions of any
such form of temporary release;
c.
the extent to which the ISP is considered trustworthy enough not to
abscond; and,
d.
the extent to which the ISP is likely to derive benefit from being to
address areas of concern and to be tested in a more realistic
environment.”
Oral Hearings Guide – Annex G – Reasons Writing
The Parole Board
for
England and Wales
Practice Guidance on
Duties towards Victims
February 2014
Contents
Page
1.
Overview
3
2.
Practice Guidance
3-9
2.1
2.2
2.3
2.4
2.5
2.6
2.7
2.8
2.9
2.10
2.11
Definition of a “victim”
Victim Personal Statements (VPS)
Timing of provision of the VPS
Contents of the VPS
Parole Board Directions in relation to the content
or numbers of VPS
Disclosure
Multiple victims
Requests to attend the hearing
Live Link attendance or recordings
Attendance of the prisoner
Victims under 18 years old
3.
The Parole Board’s decision
4.
Complaints
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3-4
4
4-5
5-6
6-7
7
7
8
8
8-9
9
9-10
10
1
Overview
The Parole Board is fully committed to fulfilling its legal duties towards victims. These
duties encompass the statutory Code of Practice for Victims of Crime which in turn
observes the wider UK duties contained in Directive 2012/29/EU of the European
Parliament and of the Council. In addition the Parole Board may from time to time
adopt internal policies for what it regards as best practice for dealing with issues that
affect victims. Aside from these legal requirements the Board is also committed to
treating all victims with sensitivity and respect. The Board undertakes to work in the
spirit of the code in order to give victims every opportunity to participate in our
hearings, while maintaining our common law duty to provide fair hearings.
Under the Code of Practice the Parole Board1 must:
a.
b.
c.
d.
e.
consider all representations that victims have made about licence conditions;
where a victim has requested a licence condition which has not been included,
provide an explanation for the non-inclusion;
read a Victim Personal Statement (VPS) if one is submitted;
consider applications from the victim if they want to attend the oral hearing;
and
consent to a request from the victim to attend in person unless there are good
reasons for not doing so.
To read the Code in full follow this link:
https://www.gov.uk/government/publications/the-code-of-practice-for-victims-ofcrime
To read the Directive of the European Parliament in full follow this link:
http://db.eurocrim.org/db/en/doc/1828.pdf
At section 2, below, the Parole Board sets out its practice guidance explaining the
procedures and how it meets its duties under the Code of Practice.
2
Practice guidance
2.1
Definition of a “victim”
Under the Code of Practice, a victim is defined as “a person who has suffered harm,
including physical, mental or emotional harm or economic loss which was directly
caused by criminal conduct” or as a “close relative [This refers to the spouse, the
partner, the relatives in direct line, the siblings and the dependants of the victim.
Other family members, including guardians and carers, may be considered close
relatives at the discretion of the service provider] of a person whose death was
directly caused by criminal conduct.”
The Parole Board, as a service provider, will generally interpret the meaning of “close
relatives” widely and not usually restrict participation from a guardian or carer of a
murder victim, for example. Please refer to the detailed practice guidance in section
2.7 for details on situations where the Board may have to restrict the number of
victim personal statements in any one case.
1
Victims Code of Practice, Chapter 2, Part B, Section 6.vi), paragraph 6.21
Oral Hearings Guide – Annex H – Practice Guidance on Duties Towards Victims
2.2
Victim Personal Statements (VPS)
The Board allows victims to make a written statement for consideration by the panel.
This may be the statement put forward at trial, or a current statement. This
statement is known as a Victim Personal Statement (VPS). Parole Board panels will
always read any VPS submitted to them.
Under the Code of Practice for Victims, the victim can choose to have the written
statement placed before the panel for the panel members to read for themselves. Or,
where the case is being heard at an oral hearing, the victim may:
a.
b.
c.
d.
e.
request to be present and have the statement read on his or her behalf;
request to be present and read it in person; or
request that someone else attends to read it on his or her behalf; or
request to read the statement via Live-Link (if available); or
request to record it on audio/video tape or DVD for it to be played to the
panel (if facilities are available).
Normally, a request to attend in person will be granted. (See 2.8 below).
Victims should not feel that they have to seek to attend in person if the case is going
to an oral hearing. Their written statements will still be read by the Parole Board
panel in any event. The decision whether to seek to attend in person is a personal
decision for the victim
The Secretary of State for Justice has issued a Probation Instruction (PI 11/20132)
which sets out in detail the requirements and responsibilities of the Offender Manager
and Victim Liaison Officer (VLO) under the Victim Contact Scheme. This includes
instructions for helping victims complete their statements, how they should be
submitted to the Parole Board, how to request to attend an oral hearing or seek to
withhold all or part of a statement. VLOs are advised to refer to PI 11/2013 for these
instructions as they are not repeated here. However, where relevant, appropriate
sections of the PI will be referred to within this document.
2.3
Timing of provision of the Victim Personal Statement
The VPS should be received at the same time as the dossier is served on the Parole
Board and the prisoner3 (i.e. 4 months prior to the target end date of the review).
However, it is recognised that it is not always possible for the VPS and any recording
thereof to be ready at this point. Therefore the Parole Board has advised the Ministry
of Justice that statements must be served on the Board at least 28 days before
the date fixed for the panel hearing.
Where the authorities are unable to comply with this 28 day deadline, the
Parole Board will do all it can to allow the statement to be submitted and,
where relevant, allow the attendance of the victim to read the statement at
the hearing. Victims and VLOs should be aware that the Board has a duty to provide
2 PB Members are advised to read PI 11/2013, section 24 in “Part VI: Release”, pages 124141.
3
PI 11/2013 Part VI, section 24.4.33 PB Members are advised to read PI 11/2013, section 24
in “Part VI: Release”, pages 124-141.
3
PI 11/2013 Part VI, section 24.4.3
Oral Hearings Guide – Annex H – Practice Guidance on Duties Towards Victims
a procedurally fair hearing for the offender, which includes ensuring evidence is
served and can be considered by the offender and his legal representatives in good
time before the hearing. There may also be a need to make Directions on the content
of the statement and practical arrangements with the prison if the victim is seeking
to attend the hearing. Therefore the sooner the VPS and any request to attend a
hearing can be served on the Board and the offender, the better.
The statement will be considered by the Panel Chair as soon as is practicable after it
is provided to the Parole Board. He/she may then give such Directions in relation to
the statement as he/she thinks fit (see section 2.5 below).
2.4
Contents of the Victim Personal Statement
Those preparing a Victim Personal Statement (VPS) should bear in mind that the
Parole Board's primary role is to protect the public by risk assessing prisoners to
decide whether or not they can be safely released into the community.
The statement should be concise and normally not take more than about 10 minutes
to read aloud.
For ease of reference, the relevant section of the Victim Contact Scheme Manual is
copied below:
25.1 Purpose of the VPS
25.1.1 The VPS provides the victim with an opportunity to explain in their own
words how a crime has affected them. It can provide useful context and
information about the impact of the offence on the victim for the Parole Board.
25.1.2 The Parole Board ultimately makes decisions based on the offender’s
current risk. In most cases, the victim is unlikely to have information this.
However, the VPS can contribute to a better, more informed hearing, as it may
enable more open and robust questioning of the offender about the offence,
addressing their offending behaviour, remorse and victim empathy, which are
some of the many factors which will help the Parole Board to assess risk.
25.2 Content and format of the VPS
25.2.1 The VPS should as far as possible consist of pure impact. This may be
physical, psychological, emotional, financial or any other kind of impact. The
VPS should provide the victim’s views about:
-
the original impact of the offence when it was committed;
-
the lasting impact of the offence since it was committed; and
- the impact that the offender’s release would have, including on them,
their family, their community, or those with close ties to them or their
family.
25.2.2 The VPS should not include information which is not relevant to risk or
which would not be acceptable in a court of law. This may include:
Oral Hearings Guide – Annex H – Practice Guidance on Duties Towards Victims
- the victim’s views on whether the offender should be released or
transferred to open conditions, as that will be based on risk and the victim
is unlikely to have any up to date information about risk;
-
long descriptions of the index offence; or
- threats or critical comments to or about the offender or the Parole
Board.
25.2.3 If victims include inappropriate information or subjective opinions on
whether the offender should be released, the Parole Board will usually simply
disregard them. The VLO must explain this to victims and encourage them not
to put such material in their VPS. Referring to sentencing comments made by
the trial judge may provide victims with a means of expressing their concerns
in a way that would be acceptable to the Parole Board. However, if the victim
insists, the VLO should not remove any material from the VPS.
25.2.4 The VPS can be an update of the court VPS or it may be a completely
new statement. A new VPS may be submitted for each Parole Board review.
25.2.5 The VPS is most likely to have an effect if it is concise and takes less
than 10 minutes to read. If the victim reads the VPS in person or via video
link, or submits a recording of the VPS, this must be limited to the text of the
written VPS. The victim must be told that they must not add anything to the
contents of the written VPS when reading it.
25.2.6 The VPS must always be submitted in writing. If a recording is
submitted, a written copy of the VPS must accompany it.
If the victim has additional information that helps the Board assess the current risk
the offender presents, they are advised to inform their VLO who will liaise with the
Offender Manager to seek to submit such information in evidence. Consideration will
need to be made by the authorities as to how that information may be submitted
without the need to directly involve the victim. Where it is decided by the victim or
the authorities that information of this nature is to be included in the victim personal
statement, victims and VLOs should be aware that the victim may subsequently be
asked questions as a witness.4 If the Parole Board considers that information in the
VPS means that the victim may have to be asked questions as a witness, the Panel
Chair will make Directions accordingly (see section 2.5 below).
2.5
Parole Board Directions in relation to the VPS, or the number of statements
submitted
The Parole Board Panel Chair has power to issue Directions concerning any evidence
put before the Board.
The National Offender Management Service has made it clear that it will remove from
a VPS any material that contains threats either to the prisoner or a third party. In
addition, a Direction may, for example, provide for the removal of offensive or
PI 11/2013 Part VI, section 25.10 advises that such risk information is best submitted
through the OM rather than via the VPS
4
Oral Hearings Guide – Annex H – Practice Guidance on Duties Towards Victims
potentially inflammatory material from the statement. The Board recognises that the
Secretary of State has stated in PI 11/2013 that “If victims include inappropriate
information or subjective opinions on whether the offender should be released, the
Parole Board will usually simply disregard them.” 5 However, it may not always be
appropriate for the Board to simply disregard such information.
The Parole Board Panel Chair will not ask a victim to change or alter their VPS,
except in exceptional circumstances. This may be where there is a concern that the
inclusion of such information at a hearing where the offender’s family is also in
attendance as observers could put the health and safety of parties at risk, or increase
the risk of an untoward incident at the hearing
If it appears to the Panel Chair that the statement contains new information
potentially relevant to the prisoner’s risk, the Panel Chair may direct the Secretary of
State for Justice to submit evidence relating to the matter and/or may direct that the
victim attends the panel hearing as a witness in order to give evidence (and
potentially to be cross-examined) in relation to it.
Either party (i.e. the Secretary of State for Justice or the prisoner) may make written
representations to the Panel Chair in relation to the statement or to any of his/her
directions.
2.6
Disclosure
It should be clearly understood by victims that normally the statement and any
recording thereof will be disclosed to the prisoner and his/her legal representative in
its final form. If the victim wishes to object to such disclosure written notification to
this effect (giving reasons) should be provided to the Secretary of State for Justice
when the statement is sent and the Secretary of State for Justice may make the
appropriate non-disclosure application to the Board (and thus to the Panel Chair).
The application will be decided by the Panel Chair in accordance with Rules 8(1) and
10(3)-(4) of the Parole Board Rules 2011.
It should be noted that it is only in rare circumstances that the Parole Board will
lawfully be able to direct that a VPS is withheld from an offender.
2.7
Multiple Victims
The Panel Chair has the power to limit the number of victim statements. Where a
number of members of a murder victim’s family, for example, wish to put forward
separate personal statements, it may be appropriate for the Panel Chair to direct that
one or two representative views are submitted. The Board will always aim to be
sensitive to the needs and wishes of the victims in these cases.
2.8
Requests to attend the hearing
Where the case is being heard at an oral hearing, the victim may:
a.
b.
5
request to be present and have the statement read on his or her behalf;
request to be present and read it in person; or
PI 11/2013 Part VI, section 25.3.3
Oral Hearings Guide – Annex H – Practice Guidance on Duties Towards Victims
c.
d.
request to read the statement via Live-Link (if available); or
request to record it on audio/video tape or DVD and played to the panel
(only if facilities are available).
Normally, a request to attend in person will be granted.
The normal practice should be for the victim, if attending in person, to read his/her
statement to the panel at the start of the hearing. Normally the prisoner will not be
present but his/her legal representative will be.
The victim will not be allowed to add anything to the contents of the written
statement. Where a Direction has been made to remove wording from a statement
(as described at 2.5 above), the victim attending must only read out the redacted
version of the statement. The Board recognises that victim participation in this way
can be a difficult and emotionally distressing experience and panels will try not to
interrupt victims while delivering their statements. However, if the victim does add
content to the statement which is offensive, potentially inflammatory or prejudicial,
the Panel Chair may have to intervene and ask the victim to return to their preprepared statement. The victim will not normally be questioned about the statement.
Once the victim has read the statement, the victim and his/her supporter will be
asked to leave. The panel will then continue with the hearing.
If the victim is attending the hearing in person he/she may apply to be accompanied
by a supporter. It is suggested that this should normally be the Victim Liaison Officer
(VLO) or a family member or friend.
Arrangements to ensure that the victim is met, escorted, and kept apart from the
prisoner whilst attending the penal establishment are the responsibility of the
Secretary of State for Justice.
2.9
Live-Link attendance or recordings
The Ministry of Justice will be responsible for providing facilities for the playing of
audio/video/DVD recordings and for the provision of Live Link. Any audio/video tape
or DVD must be limited to a reading by the victim of the written statement. The
written statement must accompany the audio/video tape or DVD.
2.10
Attendance of the prisoner
The attendance of the prisoner during the presentation of the Victim Personal
Statement (VPS) is a matter for the panel chair to decide. The panel chair will take
account of the wishes of both the victim and the prisoner, if a view has been put
forward, before reaching a decision.
Where a prisoner indicates that s/he does not want to be present, the Parole Board
will not force them to attend. While it is recognised that some victims want offenders
to be present while they present their statement, forcing the attendance of the
prisoner could be detrimental to the Parole Board’s ability to make a full assessment
of risk. For example, an offender who does not want to attend but feels forced into
attendance may not then be open to providing honest answers to the panel’s
question about his attitude to the index offence or victim empathy.
Oral Hearings Guide – Annex H – Practice Guidance on Duties Towards Victims
Where the victim does not want the prisoner to be present, but the prisoner does
want to be present, Panel Chairs will normally seek to agree that the prisoner should
be excluded from that part of the hearing where that is possible. The prisoner has a
right under the Parole Board Rules to be present throughout the entire hearing, but
Panel Chairs will ensure that victims’ wishes are made known to the prisoner and
where possible reach an agreement that the prisoner does not attend to hear the
presentation of the VPS. Where the prisoner is legally represented, however, their
lawyer will usually be present.
In situations where there has been a successful application to withhold the VPS from
the prisoner, and the victim is attending to deliver their VPS in person, the prisoner
will not be present. Generally, the prisoner’s legal representative will be present (and
have seen the VPS).
2.11
Victims under 18 years old
A victim under 18 years of age will not normally be allowed to attend the hearing in
person due to the security restrictions involved in entering a prison. A victim under
18 may choose to have the written statement placed before the panel for the panel
members to read for themselves; or have the statement read on his or her behalf or;
request to read the statement via Live-Link or record it on audio/video tape or DVD
for it to be played to the panel (if facilities are available). In accordance with the
Code of Practice, the Parole Board will accept Victim Personal Statements from young
victims and from their parents or guardians. Where the victim is under the age of 18
years, their parent or guardian may request to attend the hearing on their behalf in
order to read out the victim’s statement and any statement of their own.
3
The Parole Board’s decision
Laws on data protection and confidentiality mean that the victim will not be entitled
to see the dossier or a copy of the panel's written reasons. The National Offender
Management Service, via the Victim Liaison Officer (VLO) will be responsible for
informing the victim of the outcome of the Parole Board hearing6.
Where the victim has made representations about licence conditions in a VPS, s/he
should be aware that the Parole Board will not always decide to make the precise
conditions requested. The Parole Board has a duty to balance the rights of the victim
and family against the rights of the offender and family. All licence conditions must
be necessary proportionate and manageable in order to be lawful. Where a Parole
Board panel has not made the licence conditions requested by a victim, it will explain
why it has not done so in its decision. This information will be passed on to the victim
by their VLO.
4
Complaints
If a victim believes that the Parole Board has breached any of its duties under the
Code of Practice for Victims7; or has a grievance about any other issue involving their
treatment by the Parole Board, that person may make a formal complaint. The
Complaints
Policy
is
available
on
the
Justice
website
here:
http://www.justice.gov.uk/complaints/parole-board.
6
7
PI 11/2013 Part VI, section 24.7.5
Victims Code of Practice, Chapter 2, Part B, Section 9
Oral Hearings Guide – Annex H – Practice Guidance on Duties Towards Victims
ANNEX I
PAROLE BOARD POLICY ON OPEN CONDITIONS
1
Background
The Secretary of State's Directions (which apply regardless of Girling) state that most
lifers should spend a period in open conditions prior to release.
The point of open conditions is not simply one of rehabilitation or curing possible
institutionalism. It offers the only chance to observe a prisoner putting into practice
that which he/she has learned in theory. In other words, a prisoner may well make
all the right noises on an accredited programme, but the structured and sheltered
nature of closed conditions, where all decisions and responsibilities are taken by
others, means that prisoners cannot demonstrate that they can fend for themselves
in conditions more akin to those they will face on the outside. Open conditions offers
this opportunity as far as possible. It is the only true testing ground.
2
Guidance
The overriding factor is risk to the public. The Parole Board confirms that those
serving indeterminate sentences may potentially remain in prison for their natural
life. It is not the role of the Parole Board to seek to help prisoners to progress
towards release because of perceived shortcomings by other agencies. The Board's
role is to advise the Secretary of State in line with the Directions he has imposed.
3
Release from closed conditions
The Board may not direct the release of any prisoner serving a sentence of life
imprisonment or indeterminate sentence for public protection, unless it is satisfied
that it is no longer necessary in the interests of public protection that they continue
to be detained.
In the majority of cases, the Board cannot ultimately be satisfied about risk until and
unless a successful period of testing has been completed. Regardless of the length of
tariff, where offending behaviour has been addressed in closed conditions, the
prisoner has had no opportunity to demonstrate by his behaviour in conditions similar
to those existing in the community that he/she can apply lessons learned in closed
conditions.
It will be unusual for an indeterminate prisoner to be released direct from closed
conditions. Circumstances where that may be appropriate could include
a.
where the Board is considering representations against recall
b.
where the prisoner has already successfully completed a sufficient
period of testing in open conditions; AND the Board considers that the
reason for removing the prisoner from open conditions was unrelated
to risk
c.
where the case is considered on compassionate grounds
Oral Hearings Guide – Annex J – Guidance to replace Secretary of State’s Directions
d.
where there are other grounds that dictate that any or further testing
in open conditions is not required to satisfy the Board about the
prisoners level of risk.
In determining whether the prisoner may be released from closed conditions, the
Board will take into account:
4
a.
whether a previous period of testing in open conditions was cut short.
If so, the expectation will be that the Board will recommend a return
to open conditions for the prisoner to complete testing and monitoring;
b.
that testing should not take place in the community. Accordingly it is
not appropriate to balance risk against benefits when release is
considered. Panels must acknowledge that testing, where the Board is
not satisfied that risk is acceptable, may only take place in a prison
environment;
c.
where a prisoner is in closed conditions and has successfully
completed all the offending behaviour work thought necessary, it is
nevertheless required in the majority of cases for a testing period in
open conditions to be completed before the Board can ultimately be
satisfied that risk is acceptable. Panels should not be swayed by a
legal representatives argument that those who have completed
offending behaviour work in closed conditions must be released, unless
the case falls within the exceptional category
Reasons
Where the Board directs release from closed conditions in 2 and 4 above, the reasons
should state why release without a [further] period of testing in open conditions is
appropriate.
Every case shall be considered on its merits and nothing above detracts from the
principle that if the Board is satisfied in any case that the risk to the public is
acceptable, then it must direct the prisoners release.
5
Recommendations for transfer to open conditions
The Board recognises that the Secretary of State's Directions require the Board to
balance the risk to the public against any benefits to the prisoner and the public that
might accrue from the prisoners transfer to open conditions. Within that framework,
the Board will take into account:
a.
that the normal expectation is that all offending behaviour
fundamental to risk reduction must be successfully completed in closed
conditions;
b.
that only relapse prevention and booster offending behaviour work
should normally be envisaged in open conditions;
c.
that where the risk against benefits is evenly balanced, the risk to the
public shall be the deciding factor;
Oral Hearings Guide – Annex J – Guidance to replace Secretary of State’s Directions
d.
that where the Board assesses the risk as unacceptable for a transfer
to open conditions, it shall take no account of the fact that further
offending work has not been identified as necessary by prison and
probation staff, or that such work is not available, except to
acknowledge that fact in the reasons.
11 July 2013 (amended 5 August 2013 by the insertion of 4.ix)
Guidance to Members 2013
1. This document has been produced to coincide with the Secretary of State’s
withdrawal of his Directions, previously issued under section 239(6) of the Criminal
Justice Act 2003 and section 32(6) of the Criminal Justice Act 1991. This guidance
applies to all cases where the Parole Board has the power to direct release; and does
not apply to recommendations for the transfer of prisoners serving indeterminate
sentences to open conditions. The Secretary of State’s Directions in respect of the
latter remain in force.
2. It is for each panel to decide for itself how to apply this guidance in an individual
case. The guidance is to be read in conjunction with the “Guidance to members on
LASPO (2012)”, section 28(6) of the Crime (Sentences) Act and any relevant case
law.
3. In reaching a decision whether or not to direct release, panels will take account of
all relevant material, both written and, if applicable, verbal. It will be for each panel
to decide what weight, if any, should be attached to each piece of material.
4. In most cases a panel will consider the following, where appropriate and available,
in reaching its decision:
i)
ii)
iii)
iv)
v)
vi)
vii)
viii)
ix)
x)
the nature and circumstances of the index offence and any previous
offences;
any information relating to the offender’s personal circumstances and
background;
any reports prepared for the trial and the sentencing remarks and any
judgment of the Court of Appeal, House of Lords or Supreme Court in the
case;
the prisoner’s attitude and behaviour towards, and relationships with,
others, including authority figures;
assessments resulting from programmes, courses of treatment, or other
activities designed either directly or indirectly to address his offending
behaviour;
any medical, psychiatric or psychological considerations where relevant to
the assessment of risk;
actuarial assessments of risk;
the prisoner’s behaviour during outside activities during the sentence and
any such periods in the past, including periods spent on licence or bail;
in the case of an indeterminate sentenced prisoner, the time spent in
custody since expiry of the tariff;
representations from a victim;
Oral Hearings Guide – Annex J – Guidance to replace Secretary of State’s Directions
xi)
xii)
xiii)
xiv)
the prisoner’s attitude to, and the likelihood of compliance with, conditions
of release on licence;
plans for supervision on release and the suitability of the release address;
written or verbal representations made by the prisoner and his
representative;
any other material, information or fact deemed by the panel to be relevant
to the assessment of risk.
5. Each case will be treated on its merits and without discrimination on any ground.
____________________________________________________________________
DIRECTIONS TO THE PAROLE BOARD UNDER SECTION 32(6) OF THE CRIMINAL
JUSTICE ACT 1991 – issued Aug 2004
TRANSFER OF LIFE SENTENCE PRISONERS TO OPEN CONDITIONS
INTRODUCTION
1.
A period in open conditions is essential for most life sentence prisoners (“lifers”). It
allows the testing of areas of concern in conditions that more closely resemble those
that the prisoner will encounter in the community often after having spent many years
in closed prisons. Lifers have the opportunity to take resettlement leave from open
prisons and, more generally, open conditions require them to take more responsibility
for their actions.
2.
The main facilities, interventions, and resources for addressing and reducing core risk
factors exist principally in the closed lifer estate. In this context, the focus in open
conditions is to test the efficacy of such core risk reduction work and to address, where
possible, any residual aspects of risk.
3.
A move to open conditions should be based on a balanced assessment of risk and
benefits. However, the Parole Board’s emphasis should be on the risk reduction aspect
and, in particular, on the need for the lifer to have made significant progress in
changing his/her attitudes and tackling behavioural problems in closed conditions,
without which a move to open conditions will not generally be considered.
DIRECTIONS
4.
5.
Before recommending the transfer of a lifer to open conditions, the Parole Board must
consider:
(a)
all information before it, including any written or oral evidence obtained by the
Board;
(b)
each case on its individual merits without discrimination on any grounds.
The Parole Board must take the following main factors into account when evaluating
the risks of transfer against the benefits:
(a)
the extent to which the lifer has made sufficient progress during sentence in
addressing and reducing risk to a level consistent with protecting the public from
harm, in circumstances where the lifer in open conditions would be in the
community, unsupervised, under licensed temporary release ;
Oral Hearings Guide – Annex J – Guidance to replace Secretary of State’s Directions
6.
7.
(b)
the extent to which the lifer is likely to comply with the conditions of any such
form of temporary release;
(c)
the extent to which the lifer is considered trustworthy enough not to abscond;
(d)
the extent to which the lifer is likely to derive benefit from being able to address
areas of concern and to be tested in a more realistic environment, such as to
suggest that a transfer to open conditions is worthwhile at that stage.
In assessing risk in such matters, the
information, where relevant and where
transfer to open conditions, recognising
particular information may vary according
Parole Board shall consider the following
available, before recommending the lifer’s
that the weight and relevance attached to
to the circumstances of each case:
(a)
the lifer’s background, including the nature, circumstances and pattern of any
previous offending;
(b)
the nature and circumstances of the index offence and the reasons for it,
including any information provided in relation to its impact on the victim or
victim’s family;
(c)
the trial judge’s sentencing comments or report to the Secretary of State, and
any probation, medical, or other relevant reports or material prepared for the
court;
(d)
whether the lifer has made positive and successful efforts to address the
attitudes and behavioural problems which led to the commission of the index
offence;
(e)
the nature of any offences against prison discipline committed by the lifer;
(f)
the lifer’s attitude and behaviour to other prisoners and staff;
(g)
the category of security in which the lifer is held and any reasons or reports
provided by the Prison Service for such categorisation, particularly in relation to
those lifers held in Category A conditions of security;
(h)
the lifer’s awareness of the impact of the index offence, particularly in relation
to the victim or victim’s family, and the extent of any demonstrable insight into
his/her attitudes and behavioural problems and whether he/she has taken steps
to reduce risk through the achievement of life sentence plan targets;
(i)
any medical, psychiatric or psychological considerations (particularly if there is
a history of mental instability);
(j)
the lifer’s response when placed in positions of trust, including any outside
activities and any escorted absences from closed prisons;
(k)
any indication of predicted risk as determined by a validated actuarial risk
predictor model or any other structured assessment of the lifer’s risk and
treatment needs.
Before recommending transfer to open conditions, the Parole Board shall also consider
the lifer’s relationship with the Probation Service (in particular the supervising
probation officer), and other outside support such as family and friends.
Oral Hearings Guide – Annex J – Guidance to replace Secretary of State’s Directions
ANNEX K
Good Practice Guide: Expectations of those contributing to
an Oral Hearing
The purpose of this guide is to help us all work effectively together to achieve the best
possible outcome at an Oral Hearing and was commissioned as a joint piece of work between
London Probation Trust and the Parole Board. The guide is presented in bullet points and
focuses on the basic service we can each expect from the other. Clearly all cases are different
and some have intricacies that can not be addressed by a generic guide, it is hoped that the
information contained here will assist with a wide range of cases.
In order to draw up this bullet point guide colleagues from the Parole Board, NOMS Public
Protection Unit and Victims Unit, Prisoners Legal Representatives, Public Protection
Representatives, Probation Officers, Senior Probation Officers have been approached for
comment and contributions. It was helpful to hear from everyone and our sincere thanks to
all those who contributed or commented.
This document should be read in conjunction with the protocol agreement between the Parole
Board and the Prison Estate, which provides all staff in prison establishments with clear
guidance on the standards they are expected to meet in the provision and facilitation of oral
hearings for Parole Board panel members.
Joint Responsibilities and Expectations
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All will treat each other with professional respect
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All will ensure they respond to e mails in a timely manner.
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Will ensure Hearings start promptly (prisoner movement etc permitting)
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The day is protected and adjournments/deferrals caused by any of the parties having to
leave the Hearing early are avoided.
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All will undertake their respective tasks pre and post Hearing to ensure deadlines are met
and all the necessary information is shared and available to all parties where appropriate.

Where there are concerns or issues with the practice or conduct of any party at the
Hearing, all will use the relevant procedures to make and ask for a complaint to be
investigated and not overtly criticise or address the shortcomings in the Hearing or in any
written material that may be generated.
Parole Board Panel Members
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The Chair can be expected to look at the case well in advance of the Hearing so that any
further Directions can be set in advance to aid avoidance of a deferral on the day because
something is missing.
The Chair will check with legal reps that all have the same documentation before the
Hearing starts.
The Chair will intervene, when appropriate, if a witness is being unduly/unreasonably
pressed by another party.
The Chair will endeavour to facilitate attendance by a witness via video link or telephone
conference call if it is evidenced there are genuine difficulties in the witness attending in
person, and when there are obvious time and costs savings in providing evidence in this
manner.
Questions will be discussed amongst the panel members and they will be limited to the
key issues for the Hearing and be relevant to the assessment of risk.
Oral Hearings Guide – Annex K – Good Practice Guidance for those attending Oral Hearings
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Will ensure that reasonable breaks for comfort breaks or lunch are provided for the
witnesses
Will be clear in their reasons why a licence condition has been included that was not
requested, and why a condition was omitted that had been requested.
Where there are particular cases where it may be helpful for a Public Protection
Representative to attend the Parole Board can highlight this to the PPCS caseworker.
The Public Protection Representative will always be included in all discussions and
conversations relating to proceedings as the legal representative would expect to be.
Consider any written submissions made by the Public Protection Review where applicable.
Will give the Public Protection Representative the opportunity to ask pertinent questions of
all witnesses during the hearing.
Will ensure the Offender Manager is able to respond to information/opinions provided by
other witnesses
If a panel wishes to speak with the Offender Manager before the Hearing, be clear as to
what time the OM must be in the Hearing room and that the legal rep is similarly invited.
Consider alternative release addresses where appropriate and avoid a blanket requirement
approach for an Approved Premises placement.
Will write decision letters that are succinct and easily understood by all parties including
the prisoner.
Undertake to issue Directions that are clear and specific to assist those who must interpret
them and act on them, and they should be reasonable and proportionate.
Parole Board Case Managers
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Will contact witnesses to inform them of the Panel date at the earliest opportunity being
clear as to the time the relevant panel will expect to sit
Will ensure any change to a panel date is communicated to witnesses as soon as possible
Will ensure Panels have information passed to them as far ahead of the hearing as is
practicable
The Public Protection Representative, when deciding to attend a hearing, is copied into all
relevant documentation and correspondence relating to the hearing.
Public Protection Casework Section
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Will ensure that Parole Board Directions are circulated in a timely fashion to all parties
Will ensure that any Non Disclosure requests are dealt with promptly and Probation Trusts
made aware of out come in a timely fashion
Ensure that the Public Protection Representative, when deciding to attend a hearing, is
copied into all relevant documentation and correspondence relating to the hearing.
Public Protection Representative provided with a copy of decision of the Panel.
Will assist Probation Trusts in asking for a variation of a Direction where appropriate and
in appealing a non disclosure decision
Provide clear and consistent advice to Probation Trusts regarding non disclosure matters.
Will follow up Directions and ensure all completed prior to the Hearing and to dates
required.
Will provide advice and support to OM’s relating to legal issues.
Public Protection Representative
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Will ensure Submissions are forwarded to all parties a minimum of 3 working days prior to
the hearing.
Provide Submissions that are based on the dossier, relating to risk of serious harm to
assist the Board in making a decision (It is no longer the case that the Public Protection
Representative will give a for or against release recommendation)
Will liaise with the OM prior to the hearing and any other Sec of State witnesses.
Oral Hearings Guide – Annex K – Good Practice Guidance for those attending Oral Hearings

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Can be expected to have a copy of the dossier and be fully apprised of the case prior to
the hearing and ensured that they have added themselves to the timetable and given
notice to the Parole Board of their attendance a week in advance of the hearing where
possible.
During the Oral Hearing the Public Protection Representative can be expected to ask
questions of all of the witnesses that assist the Parole Board in their decision on whether
the various risks posed by an individual is manageable in the community
Will sum up the evidence he/she has heard at the end of the hearing succinctly.
Offender Manager (or Youth Offending Team Officer, where applicable)
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Will ensure that there is a good level of communication with the offender supervisor with a
check in the day or so before the Hearing to see if there is any new information that may
influence the Hearing
Will have as much contact either face to face, letter, video link with the prisoner as is
possible and certainly before the Oral Hearing when preparing the PAROM 1 or Addendum
PAROM 1.
Will have discussed their recommendation, Risk Management Plan and Sentence Plan with
the prisoner ahead of the Hearing and ascertained the prisoners view.
Ensure that Licence Conditions/Exclusion Zones requested are evidenced as to why they
are being requested, how they will be enforced and so on.
Can be expected to ensure that the Oral Hearing date is given priority and to arrange for a
replacement person to attend in the extreme circumstance they can not attend, and that
the replacement person is fully informed about the case and can assist the panel
Will use the relevant templates related to Oral Hearings i.e. PAROM 1 for a first review
and, thereafter use the Addendum PAROM1 to provide updated information and address
the issues identified from the previous Hearing.
Will provide a full risk management plan and sentence plan as required of them by NOMS,
even when not supporting release or progression to Open Conditions.
Will make an evidence based recommendation in each case.
Can be expected to ensure referrals to MAPPA or accommodation providers are made
ahead of the Hearing and the panel provided with realistic timescales for interventions or
accommodation to be available.
Will ensure that non disclosure material is dealt with appropriately and clearly marked as
such for the consideration of the parole board.
Can be expected to have communicated with the Victim Unit as applicable
Will access the paginated electronic Dossier via PPUD.
Will ensure the assessments and recommendations made are owned by them and not
presented as the opinion/assessment of management or MAPPA/MARAC, and will secure a
gist of MAPPA/MARAC* minutes if directed by the panel (*in consultation with the police).
Make applications to give evidence by video link or case conference call early in the
process and provide evidence as to why this is needed.
Will ensure they allow time to arrive, book in and be taken to the Hearing room so as to
be there 20 to 30 minutes before the Hearing starts.
Will bring important or new information to the attention of the panel if it has not been
explored or raised at the Hearing.
Feel able to change their recommendation either way if oral evidence indicates this is
necessary.
Will seek any legal advice required from the Public Protection Casework Teams.
Offender Supervisor
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Will ensure there are good levels of communication with the Offender Manager and
prisoner.
Will provide detail of custodial conduct including the nature of any adjudications and their
outcome to the Offender Manager and in their Offender Supervisor reports in a time scale
that allows the Offender Manager to include this information in their risk assessments.
Oral Hearings Guide – Annex K – Good Practice Guidance for those attending Oral Hearings

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Be mindful of any risk issues relating to prisoner/witnesses and ensure prison alert to
them in order to ensure safety of witnesses.
Will make an evidence based recommendation in each case.
Legal Representative
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The Legal Representative will always be included in all discussions and conversations
relating to proceedings as the Public Protection Representative would expect to be.
The Legal Representative will sum up in a succinct manner at the appropriate juncture.
Will arrive early enough to see their client before the Hearing is set to start.
Guard against using a pre prepared submission that may not align with the evidence
heard on the day.
Victim Liaison Officer
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Will ensure that victim impact statements are submitted where appropriate and liaison
take place with the Offender Manager.
Ensure that victims are clear as to the boundaries and rules relating to attendance and
addressing the panel in writing or in person.
Ensure that licence conditions and exclusion zones requested are supported with evidence
as to why they are needed and to ensure they are proportionate and necessary.
November 2013
Oral Hearings Guide – Annex K – Good Practice Guidance for those attending Oral Hearings