The on-going saga of the question as to whether or not it was lawful for the former Secretary of State, Dominic Raab, to issue guidance to his professional witnesses not to provide recommendations to the Parole Board has finally drawn to a close, with a third decision in R(Bailey) v SSJ on 13 June 2023.
The previous judgments can be found here (no 1) and here (no2) .
While the Court did not find that the policies resulted in contempt of court, the Court was sufficiently concerned to ensure that the full details of this sorry story should be publicly available.
An email from the Chief Executive of the Parole Board and an extraordinarily detailed statement setting out how the implementation of the former Secretary of State’s wishes came about, ultimately resulting in unlawful policies, is appended to the decision and well worth a read.
The Court observes that the statement from the Ministry of Justice official, Mr Davison, outlining what happened is “a nuanced, candid and thoughtful analysis of what went wrong in the development of policy in this case”. The Court goes on to add that:
“It may be questioned whether Mr Davison accepts, on his own behalf and that of other officials and advisers, too much of the blame for decisions taken to implement a policy instigated and insisted upon by the then Secretary of State, which he was advised against adopting and which we found to be unlawful. At any rate, Mr Davison’s statement offers considerable reassurance that the defaults identified in our judgments are unlikely to be repeated.”
Let’s hope that the court is correct and the new Secretary of State will not repeat the errors made by his predecessor by implementing changes to practice to achieve key policy objectives regardless of their legality.
The dangers of imposing changes in the parole process that conflict with well established legal principles should be kept in mind as Part III of the Victim and Prisoners’ Bill goes through Parliament, something I have written about previously.
This is not just a dry question of policy formulation. Wrong turns can have serious consequences. As you may recall, in its second judgment the High Court raised serious concerns that the policy could have led to the wrong decisions (§5(f)):
“The July Guidance and October Guidance were bound to, and did, cause report writers to breach their legal obligations in large numbers of cases. It is not possible to say with certainty what effects this guidance has had in the cases determined while it was in force. But its promulgation may well have resulted in prisoners being released who would not otherwise have been released and in prisoners not being released who would otherwise have been released.”
From my own perspective as a practitioner, it is clear that this chain of wrong turns has had a profound effect on professional witnesses employed by the Secretary of State when appearing before the Parole Board: it appears to me to have created a culture that is shy of making professional recommendations and a number of professionals are still unsure of exactly what they can and cannot say. Only this week a young adult had a meeting with his probation officer. When I asked him what she was recommending he said that his probation officer had told him that they are not allowed to make a recommendation! Further, the new and final guidance, which I have just received following a freedom of information act request and can be downloaded here, does not actively encourage probation officers to make a recommendation. In fact, the new report template is very clear that practitioners should only make a recommendation if they feel “capable of providing an opinion” and goes on to state that:
“Report writers who provide the Parole Board with their opinion should ensure that that opinion is expressed as their own, and not of the Secretary of State.”
It would be interesting to see what proportion of probation parole reports do indeed make a recommendation following the new guidance. I have asked this question but doubt I will receive an answer. Given the three judgments in Bailey the Secretary of State might want to conduct some research into this to understand how confident probation officers now feel to provide their opinions to the Parole Board.
The full guidance I have obtained under FOI is here (the question was for “all guidance issued to HMPPS staff in respect of providing recommendations to the Parole Board since 4 October 2022?”):
- Oral Hearings Guidance Oct 2022
- HMPPS Parole Reform – Practice Guidance for Psychological Risk Assessment Reports V2 – 28th October 2022
- HMPPS Parole Reform Notice – Psychological Risk Assessment Reports V2 28th October 2022
- HMPPS Parole Reform Notice – Psychological Risk Assessment Reports V3 21st February 2023 Final
- PAROLE GUIDANCE ON GIVING AN OPINION_31 March 23 Final
- HMPPS Parole Reform – Practice Guidance for Psychological Risk Assessment Reports V3 – 21st February 2023 Final
- Psychology Risk Assessment Reports – Supplementary Guidance 5th April 2023 FINAL