THE MEMBERSHIP OF THE PAROLE BOARD
It has always been a practice for Home Secretaries to exercise a prerogative power to release any prisoner on licence. When in 1966 the Labour administration signalled its wish to legislate for a justice system for post-war Britain it did not, however, include any provision in the Criminal Justice Bill of that year authoritatively regulating its internal (prerogative) powers of discharge.
It was envisaged that, as a result of the abolition of the death penalty in 1965, and its replacement of death by ‘life’ imprisonment, parole would be a consideration of the working of the Department by the new Home Secretary, Mr Roy (later Lord) Jenkins, certainly the most distinguished holder of that office since the Second World War. The subject of paroling prisoners in an expanding prison population was rife, not just among penal reform groups. But the operation of the function of parole in the days when the daily prison population was around 35,000 and when the few ‘lifers’ (life imprisoned offenders) served around nine years differs distinctly, particularly after the Criminal Justice Act 2003 when it became principally a decision-maker and recall agent.I was a member of a private delegation in 1966 that sought an assurance from the Home Secretary that there should be established statutorily a parole board that would independently make recommendations to the Home Secretary (the predecessor, until 2007, of the Secretary of State for Justice (the former Minister of the Constitutional Affairs Department)), through an elaborate system of Local Review Committees at the prisons and a board of members to whom the LRCs would report after interviewing the applicant prisoners. Mr Roy Jenkins readily acceded to the request, and the Bill duly included the new authority, the Parole Board. It was made abundantly clear to the deputation that the Home Secretary insisted that the selected chairman would always be a distinguished figure who did not possess any legal qualification, and still more would not be a member of the judiciary.
It was at that time that the judiciary did not actively support the system, mainly on the ground that the release of prisoners was a function of the court system. It was, however, commendable that from the outset it was accepted that the Board would always contain two serving High Court judges as vice-chairmen of the Board - and so it has remained until very recently.The first chairman was Lord Hunt of Llanfair Waterdine, publicly known as the leader of the first successful expedition to reach the summit of Everest. He was an outstanding public figure who graced the early beginnings of the statutory parole system. It is no exaggeration to say that his leadership ensured the sound system that has sustained it over the years; although there had been some doubt in the early days of the viability of an independent system established by law.
What emanated from that positive ministerial decision was that the system should be regarded as a vital element in the public administration of the prison system. It would not follow a reasonable argument that any lessening of the time served in custody which exclusively was considered by a criminal court of law had to remain a part of the criminal justice system and was to be reconsidered by a judicial authority. The rival arguments are relevant today, as I shall prescribe later.
The chairmanship of the Board was in the hands of a non-judicial figure until March 2009 when Sir David Latham (a recently retired Lord Justice of Appeal) was appointed part-time, and succeeded in 2012 by Mr Justice David Calvert-Smith, a retired High Court judge who had been a former Director of Public Prosecutions after a distinguished career as a prosecuting counsel at the Old Bailey.
Those favouring a less formal and less rigorous objective procedure than that which pertains to the court of law look for something more akin to an administrative tribunal, stripped of traditional legalism. The essential principle for initially detaching a modern parole system from criminal justice is that, in determining release from custody, the tribunal must avoid any review (but not a study) of the sentence of imprisonment, that task being essentially one of risk assessment, with (as part of that assessment) a recognition of the original criminality that led to imprisonment.
It reflects the traditional attitude of a parole system since its statutory introduction in the Criminal Justice Act 1967. That is not to deny the judicial elements of adjudication and disposal that is a precursor of lost liberty, but it is a system that incorporates relevant procedural safeguards for a prisoner, akin to court procedure, familiar to judiciary, the legal profession and administrators of the legal system. What is needed is a hybrid tribunal, a quasi-judicial body that ensures an equality of its members, with the legally trained among them playing an equal, but never a dominant role; the doctrine of primus inter pares belongs to the chairman, not to his or her professional qualification.There is a strong case for granting any prisoner - particularly where custody is in the form of a protective sentence for a dangerous offender - the right of access to an independent tribunal of a specialist kind, charged with a unique view and a duty to report on the case to the relevant Minister in the exercise of his or her political function in the administration of a civilised penal system. This need not entail any constraint on the ministerial discretion to permit the prisoner’s release on licence without further reference to the criminal justice process. Once a prisoner is consigned by the criminal court, subject to any appellate process which is (as now) timelimited, to the penal administration, the only court function thereafter is the process of judicial review of the prison system, and that procedure is already well-developed.
The recent history of legislation protecting the public has been demonstrably ill-judged. Only in March 2014 did Mr David Blunkett (who, as Home Secretary in 2003, was the architect of the indeterminate sentencing of serious offenders - and some less serious) confess that the IPPs were wrong and had induced injustices.[207] The need now is for a parliamentary form of controlling the release of prisoners back into the community; it should involve a review of the parole system. The task should form a part of the remit of a Royal Commission on the Penal System, advocated by Professor Sean McConville and myself in a pamphlet published on 18 November 2014.