One of the more prosaic reasons for the low rate of release from IPP sentences is that the Parole Board simply does not have the capacity to hear all IPP cases when their tariffs expire. The introduction of the IPP greatly increased the demand for oral hearings by the Parole Board: 1,900 oral hearings were held in 2005/06, compared to 2,757 in the year 2008/09 (Parole Board, 2006; 2009). This increase in demand, together with a shortage of Parole Board panel members (particularly judicial members), and various practical difficulties
associated with the collation of the necessary paperwork for panels, led to many and lengthy delays in hearings since the relatively early days of the IPP sentence.39As the Parole Board
39. See, for example, Nichol (2006, 2007), National Audit Office (2008), Justice Select Committee (2008). 40. EWHC 1638 (Admin)
continued to struggle to fulfil its obligations, the IPP right to a hearing around the time of tariff expiry was affirmed by the case of R (Betteridge) v Parole Board (2009),40 in which it was asserted that a delay in listing the claimant’s Parole Board hearing, due to a lack of panel members, breached his right to a speedy hearing under Article 5(4) of the European
Convention on Human Rights.41
Various steps have been taken to ease the burden on the Parole Board. These include the introduction of the Intensive Case Management System which aims to improve the content and delivery time of dossiers (Parole Board, 2008); increased recruitment of judicial
members; and the introduction of a generic parole process with robust performance monitoring (as set out in Prison Service Order 6010). In addition, the Parole Board rules have been amended to permit non-judicial members to chair panels in some IPP hearings, and to allow cases to be dealt with on paper rather than by oral hearing where there is no prospect of release (Parole Board (Amendment) Rules 2009). Despite these provisions, delays in hearings continue to be commonplace. It has been reported that of 2,280 IPP prisoners who were over tariff as of 16 December 2009, only half (1,124) had had a Parole Board review ‘either on expiry or following expiry of their tariff’, while the other half (1,156) were ‘recorded as still awaiting a review or a decision from a review.42
Where IPP cases are heard by the Parole Board, for understandable reasons it is generally reluctant to sanction release. This risk averse approach is clearly illustrated by Table 5.1, which shows that release was directed in just eight per cent of hearings in 2008/9, with similar figures in the preceding years; the figure for April to September 2009 appears to be even lower. The equivalent figure for lifers is 15% release directed in each of the years 2006/7, 2007/8 and 2008/9 (Parole Board, 2009).
Various inter-related factors would seem to account for the Parole Board’s reluctance to release IPP prisoners. These include the limitations of offending behaviour programmes and the inherent difficulty of demonstrating reduced dangerousness, to be discussed below. These problems are compounded by the uncertainties of the risk assessment process, and the fact that in IPP cases, as with lifers, the Parole Board must consider the likelihood of re-offending over the remainder of the individuals’ lives (or, at a minimum, over the next ten years). Prior to the CJA 2003, which made parole automatic for all determinate sentenced prisoners,
No. cases considered % released % not released % deferred/adjourned at hearing 2006/7 74 8% 59% 32% 2007/8 253 7% 76% 17% 2008/9 556 8% 70% 22%
April-Sept 09 473 5%* n/a n/a
Table 5.1: Outcomes of IPP Parole Board oral hearings of IPP cases
Source: 2006/7 to 2008/9 figures from Parole Board Annual Report (Parole Board, 2009); April-Sept 09 figures derived from Hansard 26.11.09, column 338W (no. of hearings held) and Hansard 26.1.10, Column 731W (no. of IPPs released).
*Note that the 5% release rate for April-Sept 09 is calculated using data from two different sources, and thus may not be reliable.
41. Article 5(4) reads: ‘Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.’ 42. Letter from Home Office Minister Maria Eagle MP to Andrew Stunell MP, 19.1.10 ‘Indeterminate Sentenced Prisoners Parole
those serving determinate sentences of at least four years could only be released half-way through their sentence at the discretion of the Parole Board.43The Parole Board’s approach also reflects the broader trend towards risk aversion which is manifest in policy and practice across the criminal justice system. Again as applies to other parts of the system, the ever- increasing pressures on the Parole Board to ‘get it right’ all the time are at least partially driven by sensationalist and relentless reporting of cases where people who have been released by the Parole Board have gone on to commit appalling crimes. Two of the most prominent among these cases are those of Damian Hanson and Anthony Rice, both of whom committed murder, in 2004 and 2005 respectively, after having been released by the Parole Board (in Hanson’s case, on Parole and in Rice’s case, on life licence). In both cases,
subsequent investigations by HM Chief Inspector of Probation found that the parole
decisions were not necessarily unreasonable, but highlighted a variety of shortcomings in the parole process (HM Inspectorate of Probation 2006a, 2006b).44
Of course, the pressures on the Parole Board to ‘get it right’ tend to operate in one direction only, in the sense that the public and political scrutiny is always of seemingly
inappropriate decisions to release prisoners, and never the possibly ill-informed decisions not to release. The Chairman of the Parole Board, Sir David Latham, has himself commented on the problems created by risk aversion:
Our release rates have reduced in the last few years in a way which is arguably an over- reaction to public concern about the reoffending by released prisoners…. Actually, the serious further offending rate of released prisoners is just 1-2%; a level that has remained stable for many years.45
Some of the implications of risk aversion in the criminal justice system are noted by Hebenton and Seddon:
Within precautionary logic, margins of error are viewed in a distinctive way. False ‘positives’ (incorrectly assessing a person as ‘dangerous’) are part and parcel of being cautious in the face of uncertainty — erring ‘on the safe side’. By contrast, false ‘negatives’ (incorrectly rating a person as ‘safe’) cannot be tolerated because the consequences of this type of error for public safety and security are seen as potentially catastrophic (2009: 352).
The ‘precautionary logic’ described by Hebenton and Seddon requires criminal justice agencies to attempt to eliminate rather than manage risk, and silences debate about what levels of risk might realistically be tolerable. In this environment, the Parole Board is
inevitably propelled towards demanding ever higher standards of the prisoners it releases – all the more so given that the statutory test applied to IPP (and life sentenced) prisoners is so vague that it can be constantly redefined. Under the Crime (Sentences) Act 1997, an indeterminate sentenced prisoner can be released if the Parole Board is satisfied that it is no longer necessary for the protection of the public that he be confined (section 28(6)b)). As noted in a JUSTICE report on the parole system, this ‘life and limb test’, as it is commonly known, ‘refers to the nature of a risk which justifies continued detention, [but] it gives no indication of the actual level of risk required’ (JUSTICE, 2009: 26).
43. In these cases, the Parole Board was required to consider likelihood of re-offending over the period between the one-half and two-thirds stages of the sentence. Hence the ‘parole window’ was much narrower than it is in both IPP and life sentence cases. 44. See Harding (2006) for discussion of these cases and their implications for the Parole Board. See also the recent
45. Amelia Hill, ‘Parole chief: release more prisoners’, The Guardian, 31.3.10, www.guardian.co.uk/uk/2010/mar/31/parole-chief- warns-overreaction .
Despite the external pressures on the performance of the Parole Board, among the Parole Board members we interviewed there appeared to be a general acceptance that uncertainty is an integral element of the parole decision-making process – as we have already noted, above, in our discussion of risk assessment. One Parole Board member expressed this point of view bluntly: ‘If you can’t live with uncertainty, you shouldn’t be doing the job.’