It has been over three months since the Secretary of State banned his employees from giving recommendations to the Parole Board about whether someone should be released or progress to open conditions. Various bits of guidance have been issued and published following Freedom of Information Act (FOI) requests since then and a legal challenge mounted (Bailey v SSJ).
Parole Board hearings are now often characterised by awkward exchanges whereby witnesses who clearly have formed a view are unable to speak frankly. Clients are still getting their heads round the notion that their probation officers and psychologists who are supposed to be experts in risk are unable offer their full support for release or progression, even when it is clear from discussions that this is what they think. Many fear that this will go against them. They may well be right. It will be interesting to see how the rates of release and recommendations for progression differ pre- and post July 2022. If nothing else, confusion around what professionals can and cannot say and the lack of clear and transparent guidance, may well have an impact on the efficacy of the process and the ability of applicants to prepare effectively.
It is clear that the guidance that has been disclosed is not complete. The guidance issued as of 22 September 2022 was disclosed to me in response to a Freedom of Information Act. In the Bailey case, counsel for the Secretary of State had suggested that new guidance had been drafted but the letter accompanying the response to me confirmed that the guidance provided with that response was up to date: it reflected the guidance that was at the time Bailey was heard and was outlined in that judgment.
A number colleagues became aware of guidance issued on or around 4 October 2022 by the Public Protection Casework Suite (PPCS) which appeared to provide further rationale for the change and pointers as to what staff should say if they are asked if they support release. However, this guidance was not publicly available and I therefore asked for all guidance issued to staff on this issue since 22 September 2022 under the Freedom of Information Act. On 16 November 2022, I received an undated “Frequently Asked Questions” document. It bore no relation to the guidance from October and I have therefore sought an internal review as the disclosure is clearly not complete.
The ”Frequently Asked Questions” document is here. Unfortunately it seems to raise more questions than it answers. There is no sign that the interim judgment in Bailey has been taken on board: that decision made it clear that the rules don’t cover oral evidence, a point the Secretary of State appeared to concede. Yet the Rules have not changed and the FAQ does not clarify that the new Rules do not apply to oral evidence. It also remains firm on the prohibition on writing recommendations in reports but under the question “What should I tell the prisoner?” it states “You should discuss your assessment with the prisoner so that they know whether or not your assessment is optimistic.” My reading of this is that HMPPS staff are encouraged to give people going through the process a sense of their overall views but cannot actually write that down, which is really problematic in a judicial process.
The questions also confirm that executive release is still an option “where it is flagged in the covering email that the Part B or C report is submitted on, that release could be supported by the proposed risk management plan.” In another question, it is confirmed that practitioners “should continue to provide your assessment of risk and how that risk may or may not be safely managed as part of your usual practice. This includes in the course of discussing cases with colleagues as part of HMPPS and multi-agency risk assessment and management processes.” Thus, it is clear that probation officers are still expected for formulate views as to a person’s suitability for release but cannot share them with the person concerned or the parole board.
The full hearing in Bailey is expected to take place in the next month or so. Let’s hope it provides some clarity on this important issue.