Imagine a court where a witness cannot state their honestly held belief when asked and the question goes to the heart of the case. Now, imagine that the issue the court has to consider is whether someone a court once found dangerous is safe to be out in the community.
This is exactly the position that prison and probation employees before the Parole Board have been put in since July 2022. They have been required not to express their views about whether people in prison should be released or sent to open prisons where they can spend some time in the community in reports. They have also been told to refuse to answer direct questions about their views on these issues if asked by Parole Board Members or lawyers of people in prison. Instead, they have been supplied with pre-prepared lines to say to the court when asked questions about their views on the outcome of the review.
A raft of instructions and policies were introduced in anticipation of new Parole Board Rules which came into force on 21 July22.
The Rules themselves, among other things, included a requirement that reports prepared on behalf of the Secretary of State for parole reviews no longer provided a recommendation on a person’s suitability for release or progression, as they typically have done for many years. Part B of the Schedule to the 2019 Rules was amended to include the following two provisions:
“Reports relating to the prisoner should present all relevant information and a factual assessment pertaining to risk, as set out in the paragraphs of Part B of this Schedule, but the report writer must not present a view or recommendation as to the prisoner’s suitability for release or move to open prison conditions.
Where considered appropriate, the Secretary of State will present a single view on the prisoner’s suitability for release.”
However, guidance issued to staff went a lot further, requiring prison and probation witnesses not to express a view in oral evidence before the Parole Board. I was so surprised when I first heard whispers of this, that I made a freedom of information request on 13 July 2022:
“Please can you provide me with any guidance issued to HMPPS staff, including but not limited to psychologists, trainee psychologists and probation staff, in connection with paragraph 22 of the Parole Board (Amendment) Rules 2022?
For clarity, this is the amendment to Paragraph B of Schedule 1 of the Parole Board Rules 2019 that concerns report writers for the Secretary of State and presenting a view as to a prisoner’s suitability for release or transfer to open conditions.”
On 10 August 2022 I received the following documents (reference 220713012) and confirmation that some information had been withheld on the basis that it “contains personal data”:
- Changes to the new test for open conditions (undated but file name includes date of 28 June 2022) (2 pages)
- Changes to Parole and Recall Report Recommendations to the Parole Board – Single Secretary of State View (undated but file name includes date of 5 July 2022) (2 pages)
- HMPPS Parole Reform: Practice Guidance for Psychological Risk, V1: 13 July 2022, HMPPS psychology services (14 pages)
- HMPPS Parole Reform Notice – Psychological Risk Assessment Reports V1 – 13th July 2022, HMPPS psychology services (14 pages)
- Parole Reform Update, July 2022, Updated 11th July 2022, HMPPS psychology services – power point presentation
Absent from the documents provided under the Freedom of Information Act was a 20 page guidance document issued to all staff by HM Prison and Probation Service.
This was the subject of legal challenge in a recent High Court judgment for interim relief, R (Bailey) v SSJ [2022] EWHC 2125 (Admin). The judgment summarises the key passages of this guidance at paragraphs 15 to 17:
“15. A 20 page guidance document was issued by HM Prison and Probation Service to all staff “involved in writing parole and recall review reports, or who are attending oral hearings, about recent significant changes to the parole and recall process.”
16. In addition to providing necessary guidance about the impact of the amended rules, the guidance sets out the following: “From 21 July HMPPS witnesses in oral hearings must no longer provide a view or recommendation about suitability for release or a move to open conditions, unless they have submitted a report with a recommendation before 14 July.” Under the heading “Language guidance for reports and attendance at oral hearings” the guidance sets out what an HMPSS employee should do if asked at a Parole Board hearing taking place after 21 July (if they have not provided a report before 14 July) to express a view or recommendation as to the prisoner’s suitability for release. The guidance directs that one of four possible responses be used.
- ‘It is not my role to provide a view on the suitability of [prisoner name] release or open conditions, but I am able to answer any questions you may have otherwise’
- I / the Probation Service / Prison Service cannot provide a view/recommendation on whether or not to release / a move to open conditions
- Where appropriate and relevant: A single view has been provided by the Secretary of State in this case and I refer you to it
- I cannot provide a view / recommendation on that I’m afraid, but I can provide my assessment of risk and my plan to manage that risk should release be directed
17. The guidance is expressed in mandatory terms (“you should respond”) and amounts to a clear direction that a question put by the panel, or a legal representative should not be answered:
a. Under the heading “what do you need to do now?” in respect of “staff attending an oral hearing on or after 21 July” the guidance is unequivocal: “Do not provide a view or recommendation about suitability for release or a move to open conditions in the oral hearing…… Review the language guidance below to help you prepare.” (emphasis added)
b. In the “frequently asked questions” section of the guidance the answer to the question: “What if a Parole Board panel member or solicitor / barrister asks me for my view on suitability for release during the oral hearing?” the response is: “The Parole Board is aware of these changes. It is very likely that Panel Members and the prisoner’s legal representative will ask you whether you assess the risk to be manageable in the community, whether your risk management plan is considered sufficient to protect the public, whether the prisoner is safe to be released or is suitable for transfer to open conditions. You cannot answer as it would constitute a view on suitability for release/open and instead should politely tell the Panel Members and/or the prisoner’s legal representative that your role is not to provide the Panel with a recommendation but rather your assessment of the prisoner’s risks. If this does happen, you may wish to speak to your line manager following the hearing.” (emphasis added).”
According to Bailey the Secretary of State agreed in court that the Rules do not expressly cover oral evidence but argued that the Rules should be read as if they covered it (paragraph 18). The Court disagreed and directed that in the hearing that Bailey was due to have a few days later, witnesses should be free to give their unfettered views. The Court essentially agreed that the Parole Board should be able to ask whatever questions it wished. The Court found that the guidance “does not support the amended rules and appears to interfere with the judicial functions of the Board” and in view of the Client’s right to “a fair and impartial hearing” ordered that the guidance should not apply to the Claimant’s parole hearing (paragraph 44).
The Secretary of State for Justice produced some amended guidance for the Court but the judge said it did not alter his views (paragraph 47).
We will need to await the outcome of the full judicial review to find out whether the Rules and associated guidance are lawful. In the meantime, prison and probation staff tasked with assessing their risk are in the rather difficult position of writing reports that do not provide a view on the key question to be determined and arguably being legally required to give their view in oral evidence if asked while being told by their employer that they should not do this.
People going through the process will not know whether those assessing them for parole support their release or progression either at all or until they give evidence at the hearing, and that is only if the approach in Bailey is followed.