2 March 2010: The Future of the Parole Board

Speakers: Sir David Latham, Chairman,
and Linda Lennon CBE, Chief Executive
The Parole Board for England and Wales

Lord Ramsbotham (in the chair)
Lord Dear
Lord Judd
Baroness Masham of Ilton

Lord Ramsbotham opened the meeting and welcomed the speakers.  He noted that it was two or three years since the group had heard from the Parole Board, under the speaker’s predecessor, and it was good to have this opportunity now.  He had been a strong supporter of the Parole Board, ever since he had known of it. He had become concerned about its work, finding that all too often staff were not supplied with the information they needed by the Prison Service. The enormous workload was currently being added to by the large numbers of prisoners serving indeterminate sentences: a topic frequently mentioned in debates in the House of Lords.  He was very glad to hand over to the first speaker, Sir David Latham.

Sir David Latham began:

I am the present Chairman of the Parole Board. I was appointed on 24th February last year for one year. I was reappointed by Jack Straw last Thursday for one year, or the end of the consultation exercise.  I am not sure whether that was intended to be longer than the year or less than the year. We shall wait and see.

I was appointed with the brief to take the Parole Board through to the end of the consultation exercise. I did not appreciate at that stage exactly what problems were facing the Parole Board. When I arrived, there had been no chairman for about 8 months or thereabouts.  Sir Duncan Nichol had relinquished his post in May of 2008, and Christine Glenn, the then chief executive, was just about to leave.   Linda did not arrive till April. I found it rather a depressing picture. As Linda will tell you in more graphic detail, we were quite simply not able at that stage to cope with the workload. Linda and I have had to do an enormous amount of work to get ourselves into the position to be able to say to you that we are at least doing something to meet our obligations to the two constituencies we have to look after: the prisoners on the one hand and the public on the other.
What I propose to do is to ask Linda to bring us up to date from the evidence that Duncan Nichol gave on the last occasion, and when she has done that I will take over and deal with the consultation exercise and my thoughts about the future of the Parole Board.

Linda Lennon:

Thank you David.  I am going to talk about the challenges that David and I faced when we joined, and to bring you up to date with what we are looking to do to improve on performance. It was quite interesting for me to look back on Sir Duncan’s report, because he started to talk about the deluge of recall work, and the impact of indeterminate sentences.  For me, the biggest challenge has been the rise in the numbers of oral hearings facing us. Over the past four years there has been a 50% increase in oral hearings, from 1900 cases in 2005-06 to a predicted 2800 this year. I think that’s an unprecedented level. The increase has been driven primarily by the expanding population of indeterminate sentenced prisoners, following the changes in the Criminal Justice Act 2003, which subsequently came into effect in April 2005. Just to give you some examples, back in 2005-06 we did not have any indeterminate hearings. In 2006-07 we had 74, and so far in the first nine months of this year, we have had 708.

Looking at the increases in workload, obviously subject to any future changes in legislation, we are predicting that for the coming year in 2009-10, the indeterminates will rise by another 33%. The following year we are expecting them to rise by another 14% and in 2011-12 up another 18%. So as you can imagine that is a huge increase in the workload.

The biggest problem that David and I found was that there had been no increase in judicial resource to match the increase in hearings. So one of the first tasks was to look at every single case, to determine what stage it was at, and whether it needed a judge to chair it or not, so that we could then go to the director general and the minister with a business case to get more judicial resource. I was fortunate in that I was seconded from Her Majesty’s Courts Service, so I had a pretty good idea how to go about bidding for judges, and with David’s expertise, too, that has been particularly successful.   Since I joined in April, we held 467 oral hearings in the first quarter. In the most recent quarter we have increased that to 573, but we need to almost double that figure in order to get on top of our backlog. At any one time between October and January we had between 540 and 730 outstanding cases that we could list, had we had a judge to hear them.

I will also touch on recalls as well. I know that when Sir Duncan came, recalls were running at about 14,000. That peaked in 2007-08 to 19,060. Last year it reduced to 17,184 and this year we are expecting it to get down to about 14,000 again. The indeterminate workload is decreasing, but we have had to put a lot of resource into recall work, and to give that a really high priority.

As you will appreciate, such delays in hearing cases can lead to claims for compensation by prisoners, who claim their right to a timely review of detention by a court under Article 5.4 of the ECHR has been infringed. When they can prove that a timely review has not taken place, they look to seek damages from us, understandably. The board defends those cases where release is not directed, but we have had to pay out compensation in some cases where it has been proved that a prisoner has suffered loss of liberty due to a delay in their release. So we have to look at  how we prioritise the listing of cases, with the resources that we have got. In a nutshell, that summarises the main challenge that David and I found: ever-increasing workload, and not having the resources to match, and on occasions having to pay out money to prisoners that we would ideally have wanted to put into hearing those cases.

Moving on, in terms of what we’ve done, the big challenge was getting in enough judicial members. First we took the business case which was approved by the DG and the minister, and we did quite a lot of research into why judges were not applying to join the Parole Board. It was for a combination of reasons: first there was a very bureaucratic, intensive recruitment process, and bearing in mind that they go through a very detailed recruitment process to become a judge, this was putting a lot of them off. Another issue was that retired judges were not being paid the same fee rate as they would be had they sat in somewhere like a crown court or a tribunal.  Understandably, they were choosing to go and work in different disciplines. So we approached the ministers and OCPA with the agreement of the Cabinet Office Minister, Tessa Jowell, to bring in a much more simplified interview and recruitment process. We also agreed that with the Lord Chief Justice and the senior judiciary. A letter went out from David with the full support of the LCJ and the senior presider, asking judges who had a rape ticket, a murder ticket, or experience of mental health work, to express interest in the job. We had around 70 applications from judges, whereas in the past we were attracting about 10 or 12. All of those judges were invited to interview, and Sir David chaired every single board. We also had independent members, an OCPA member, and either myself or one of my senior team sitting on the panels. We haven’t just rubber stamped every application: we have chosen those judges who we feel meet the competencies and demands we require. So far, 19 additional judges have been approved by the Minister, and we are just about to make another submission for a further 39. That will mean we would have, if approved, an additional 58 judges, which would more than double our judicial capacity. That is really good news.

We have also got the agreement that we can pay our retired judges the same fee rate as they would get if they sat in a crown court or a tribunal, and that is helping to attract more retired judges to do this work. The other thing we have done, is when David and I researched the amount of preparation judges were doing, they were having to do a lot of this work in their own time. When I first joined I was naïve enough to think I could just get the judges to work harder. But when I looked at their workloads and compared it with what judges did in crown courts and family work, I realised that the workload was far greater than that, and they were giving up vast amounts of their own time. So what we have done now, again with the senior judges’ and the minister’s approval, is to allow the judges to have two days’ preparation, reading and writing up reasons time to three days’ sitting. And I think that has proved helpful in retaining the judges we have already got.

The first tranche of judges has been approved by the minister. We are running training in the week of 15 March for 16 of those, and they will then become available to us to sit. We are looking at planning further training, probably in June and August, to get the remaining judges through. So that is really positive.

 We have also been doing other things to tackle our backlog. One of the key changes is that the Parole Board rule change last April enabled us to train up independent members to chair our IPP hearings. So far we have trained 29 independent members, and this means that we can then take judges who were chairing those hearings to chair the lifer hearings where there is no choice about having a judicial chair. We have invested heavily in training these independents, we have a proper accreditation process in place, and that is also beginning to pay dividends.

We have also now got an intensive case management process in place. It’s a bit like a pre-trial you would get in a court case. A member looks at what directions are needed, what witnesses should be called, and does a lot of preliminary work which means that we can get the cases ready at a much earlier date, which means that we don’t then have to defer and adjourn them.

What we have not done is sacrificed on the quality side. As you will appreciate, it is absolutely vital that we protect the public by maintaining very high standards of quality, and we have been monitoring and evaluating our written reasons. We have been doing that with experienced members and feeding back lessons learned into either individuals or best practice across the membership. We have also set up a Parole Standards Board, which involves other agencies, which is looking to drive up improvements in the quality of parole reports, and setting and monitoring standards. That has been done in close cooperation with NOMS, with whom we enjoy a very good working relationship and it has gone out to all probation officers and prison officers as guidance for the quality and standards that we require. Also a parole resources pack has gone out across the prison and probation network, which we are hoping will drive up the quality of dossiers. This has been endorsed by Michael Spurr the chief operating officer in NOMS.

Finally, internally, we have been doing a lot of work to reorganise the team. When I arrived, there was no way of telling me how many staff I needed to do what work. That was quite a difficult position, because some of our case workers had seen their work more than doubled, and were being constantly deluged by work. So we have done a big review of all of that, to even out the workload, and attach case workers to prisons, so that they can build up really good relationships with the parole clerks in the prison, trying to get away from a blame culture, and talking to individuals. We are also rolling out a new IT system in May, which will replace a number of stand-alone systems which are very antiquated. This will allow our staff to manage cases on a single database. In addition some of you may have heard about the LEAN programmes, where you look at eliminating waste.  We have just started doing the first of those workshops, looking at things like how we copy documents and process post, and we had our first set of presentations last week, which have already knocked a large amount of waste out of the system, and given us time to invest in other areas, to improve quality and even out the workload.  That’s what we have been concentrating on over the past ten months, and hopefully gives you a picture of the times and what we have been doing to try and address the challenges.

Sir David Latham: 

Meanwhile, looking at the future: when I came, the consultation exercise was proposed. It didn’t start as soon as anyone expected. It was intended to start in April of last year, but it didn’t start until June. The consultation exercise has now been completed, in the sense that all the responses are in. What was it intended to do? It was intended to look at the future place of the Parole Board. There were those of us who thought it might be an opportunity to look at the jurisdiction of the Parole Board as well. But essentially the consultation exercise has concentrated on its constitutional position, on the one hand, and its practical position on the other.

As far as its constitutional position is concerned, those of you who were here on the last occasion will remember Sir Duncan indicating that he did not feel that the Parole Board could properly continue as a non-governmental body with an umbilical cord directed to the Ministry of Justice. That was tying it too closely to the executive, to a source of money, and in particular to the minister who actually appoints its members.  Some other constitutional position would have to be found for it. That was certainly one of the matters that drove the need for the consultation exercise. The other was a feeling that it ought in fact to be connected to the Courts Service – using that word for the moment very generally - either as a court or court-like body, which is what the Court of Appeal describes it as, or as a tribunal. The debate which has taken place in the context of the consultation exercise seems not really to have concentrated on the question of whether we should remain attached directly to the Ministry of Justice. There may be some voices to support that, and the fact that we are working extremely well with the Ministry of Justice at the moment makes it from our point of view slightly sad that we think it’s inevitable we’ll have to be removed from a direct connection with it.
At the moment the likely options are that we become connected to the Courts Service as a form of court, or that we are or remain a non-governmental body, but with our sponsoring unit being not the Ministry of Justice, through the Access to Justice group, but the Courts Service, linking directly to the Lord Chief Justice. The alternative model, which is the one proposed by Justice and those who support that view, is that we should become a tribunal and part of the Tribunals Service. There is a sort of irony there in the sense that the general policy of the present Ministry of Justice is, as I understand it, that the distinction between tribunals and courts should go, and there should be a unified structure with one administration. But at the moment we do have this bifurcation between tribunals and courts, and the debate is whether we should be connected with the one or the other.

There are clear parallels between the way that the Parole Board works and the way that the mental health review tribunals work. Both are concerned with assessing risk in relation to those who are being detained. But of course mental health patients are detained for another reason and another purpose. Therefore it is argued that the Parole Board could sit neatly within the same unit as the mental health review tribunals, as part of the Tribunals Service. I can understand that point of view but I don’t agree with it. The Parole Board has carried out an extensive consultation exercise amongst its members and amongst its staff and the clear view of both members and staff is that the Parole Board, in its present form, is capable of working well. We have a committed staff, and we have a structure in relation to the way the Board operates which in itself does not seem to be the subject of any sensible criticism. By that I mean we operate our decision-making process through panels, particularly those in oral hearings, where you have a judge, or as has just been explained a trained non-judicial chair, supported by two experienced panel members, who will often be, on the one hand, a psychiatrist or psychologist, and on the other, an experienced lay person, perhaps with experience of probation or similar work. We think that it would be a pity if change were in some way to disrupt that aspect of the way in which the Parole Board works, which is, in our view, satisfactory.

We accordingly came to the conclusion that the right way forward, to meet the constitutional problem on the one hand, but also to enable us to continue with the beneficial work that Linda and her team have been doing, would be to transfer the sponsorship from the Ministry of Justice to the Courts Service. The advantages of that are as follows: firstly, the Parole Board, unlike the mental health review tribunal, is an integral part of the criminal justice system, and in our view the Parole Board’s place is within that system. If we have a direct connection with the Courts Service, directly linking through to the Lord Chief Justice, that would recognise what we consider its proper place in the system to be. Secondly, that has the great advantage that we are the direct responsibility of the body which provides us with the judicial resource which is necessary to do our work. In other words, the LCJ would be directly responsible for ensuring the Parole Board is properly staffed. Finance would come directly through the Courts Service, and not through the Tribunal Service.

Our concern about being part of the Tribunal Service is that those benefits would be diluted to an extent that might ultimately be unsatisfactory. We would simply be one of a large number of tribunals. The LCJ would not be looking at us as directly as he would with our solution. Our administrative structures would be seriously affected, I think. It is difficult to see at the moment how it is proposed that we would operate as a tribunal: I can see it could be done. It’s not an impossibility. But it seems to all of us who have been looking at it that the benefits of us being part of the tribunal structure are only apparent and not real, whereas, if we are directly connected to the courts we are, in our view, obtaining the best solution.

Why not make us a court? The answer is that the Parole Board panels operate inquisitorially. They don’t operate like a court. The panels ask the questions, they summon up the evidence, and there are no rules of evidence. In the public interest, it is essential that Parole Board decisions are made on the basis of all available material which could possibly be relevant to the assessment of risk, irrespective of whether it is legally admissible in court terms. I don’t think that the public would tolerate a system whereby issues so critically connected with public safety could be affected by a decision on admissibility of evidence. It’s possible for a court structure to be developed which on its face would appear to protect the Parole Board’s present procedures. But I fear ‘creep’ if we become a court. If we are called a court and we start to operate in any way like a court, I have this gut feeling that we shall end up having to accept structures and strictures which would prevent us doing the work in the way we do it at the moment. And for those reasons we have put forward a clear preference for us to remain essentially as we are, in terms of structure, but connected to the Courts Service directly. We shall wait and see what, ultimately– I suspect no decision will be made this side of the election – whoever is in power will determine to be the right solution.

That’s where we stand at the moment.  The next step is to be a paper, sometime this month we hope, from the Ministry of Justice, pulling together the threads of the consultation exercise, identifying what options are being proposed and putting forward some view as to what principles can be gleaned, to produce a practical solution.