Transforming parole in Scotland: consultation

1. Current Arrangements

Background to the Parole Board for Scotland

1.1 The Parole Board was first established by the Criminal Justice Act 1967. It is a tribunal Non Departmental Public Body that operates independently from the Scottish Ministers.

1.2 The Parole Board has a number of statutory functions, largely set out in the Prisoners and Criminal Proceedings (Scotland) Act 1993 ("the 1993 Act"). As part of their role, the Parole Board aim to protect the public by considering if a prisoner can be released into the community on licence. The Parole Board will also consider any licence conditions that should be imposed on a person on their release into the community, to minimise any risk associated with that. The Parole Board undertake risk assessments which are evidence-based, rigorous, fair and timely and which can contribute to the rehabilitation of prisoners and ultimately reduce reoffending.

1.3 A prisoner does not apply for parole. The type of sentence imposed by the court determines the point in the sentence that the Parole Board will consider the prisoner's release and the procedures that will be followed during that consideration. Annex B provides information on custodial sentence types.

1.4 There is no role for the Parole Board in sentencing a prisoner as that is a matter for the courts. Neither can the Parole Board decide whether a sentence was fair in a particular case.

1.5 Parole is a process that enables prisoners to be released on licence in the community under the supervision of a community-based social worker. If a prisoner is released on licence, they are liable to be recalled to prison at any time during the remainder of their sentence if they breach the terms of their licence. Parole is only granted if the evidence reviewed by the Parole Board demonstrates that the risk presented by the person concerned can be managed in the community.

1.6 It should be noted that those prisoners sentenced to a long-term determinate sentence (i.e. 4 years or more), prior to 1 February 2016, may remain in prison until they have served two-thirds of their sentence, at which point they are released automatically on licence. This would also apply to long-term determinate sentence prisoners subject to an extended sentence,^[2] with a custodial term of 4 years or more.

1.7 For those sentenced on or after 1 February 2016, the Prisoners (Control of Release) (Scotland) Act 2015 ended the previous system of automatic early release. If not otherwise released by the Parole Board, long-term determinate sentence prisoners will be released automatically six months before the expiry of the sentence, provided that they are not subject to an extended sentence. In this instance, the prisoner is released into the community on a licence for the remaining six months of their sentence but is subject to be recalled to prison to serve the remaining term if they breach the terms of their licence.

1.8 Where an extended sentence has been imposed on a long-term prisoner, sentenced on or after 1 February 2016, they will serve their entire custodial term in custody, unless the Parole Board has authorised early release. When released at the end of their custodial term, they will be on licence for the whole of the extension period and will be subject to be recalled to prison to serve the remaining extension period, if they breach the terms of their licence.

Who sits on the Parole Board?

1.9 The Parole Board consists of members appointed by the Scottish Ministers and appointments are currently made under the auspices of the Commissioner for Ethical Standards in Public Life. This ensures the process for making appointments is independent and fair. There are currently 37 Parole Board members including the Chair of the Parole Board. Members are drawn mostly from the legal, social work, prisons, police, medical and mental health professions.

How does the Parole Board for Scotland Currently Operate?

1.10 The way in which the Parole Board considers cases is determined by the Parole Board (Scotland) Rules 2001, as amended ("the 2001 Rules")^[3]. There are two main routes of consideration - either Part III cases (casework meetings) or Part IV cases (tribunal hearings). In certain circumstances, the Parole Board may decide to convene an oral hearing in a Part III case.

Part III Cases (casework meeting/oral hearing)

1.11 The following are the main cases regularly considered under Part III of the 2001 Rules: -

Case type	Parole Board role
Children & Young People serving less than 4 years	Make recommendations for release on licence up to half way point of sentence Consideration of recall and rerelease Recommend and consider amendment to licence conditions
Children & Young People serving more than 4 years	Make recommendations for release on licence up to the two-thirds point Consideration of recall and rerelease Recommend and consider amendment to licence conditions
Short-term Determinate Sentence Sex Offenders serving less than 4 years	Consideration of recall and rerelease
Long-term Determinate Sentence serving more than 4 years	Make recommendations on release on licence at Parole Qualifying Date (PQD) and thereafter Recommend and consider amendment to licence conditions Consideration of recall and rerelease
Extended Sentence where custodial part is less than 4 years	Recommend and consider amendment to licence conditions Consideration of recall and rerelease
Extended Sentence where custodial part is more than 4 years	Make recommendations on release at PQD and thereafter Recommend and consider amendment to licence conditions Consideration of recall and rerelease
Life Sentence (who are already in the community)	Consider variation of licence conditions
Order for Lifelong Restriction (OLR) (who are already in the community)	Consider variation of licence conditions

1.12 At a casework meeting Parole Board members assess cases in closed session on the basis of written material (in the form of a dossier) that is provided to them by the Scottish Ministers, in practice this is done by the Scottish Prison Service (SPS) in their role as an executive agency of the Scottish Government.

1.13 The prisoner can make written representations that are included in the material considered by the Parole Board but neither the prisoner nor their legal representative (if they have one) is present.

1.14 Rule 15A of the 2001 Rules provides that oral hearings can occur in certain Part III cases where the Parole Board consider it is within the interests of justice to do so, these are:

• In the case of a revocation of licence to which section 17 of the 1993 Act applies;
• In the case of a decision regarding the release of a person at the half way point of their long-term sentence under section 1(3) of the 1993 Act; and
• In the case of considering the release of a person subject to an extended sentence who has been recalled to custody and is serving the custodial part of that extended sentence.

Observers are not permitted to attend oral hearings.

Part IV Cases (tribunal hearings)

1.15 Part IV of the 2001 Rules detail the procedures for arranging and conducting tribunals, including the obligations on the parties. These are usually attended by the prisoner but they can waive their right to attend the hearing. Cases considered by the Parole Board sitting as a Tribunal include consideration of:

• recalled extended sentence prisoners (where the prisoner is serving their extension period); and
• life sentence and OLR prisoners (initial release, recall and re-release on licence).

1.16 For the purposes of the types of cases mentioned above, the Parole Board will only grant release where it is satisfied that it is no longer necessary for the protection of the public from serious harm that the prisoner should be confined (the former category); or that it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined (the latter category). The point at which the Parole Board will consider release of a prisoner and the procedures for review are determined by the original sentence imposed. Further information about sentence types can be found in Annex B.

Decisions

1.17 Currently, the Parole Board's decisions are not published and reasons for the decisions are not provided, except where the Chair of the Parole Board or the Chair of the Tribunal may allow or in connection with any court proceedings.

Licence conditions

1.18 The purpose of licence conditions recommended by the Parole Board when a prisoner is approved for release are to protect the public, to prevent re-offending and to help secure successful re-integration back into the community. Licence conditions are intended to be preventative rather than punitive. If a person is released on licence, there are nine commonly used conditions which may be applied as follows:

The person:-

• shall report on the day of release to the officer in charge of the office at the address notified to the person at the time of release;
• shall be under the supervision of the officer nominated for the purpose of supervision and from time to time by the Head of Service with responsibility for criminal justice social work of the relevant local authority involved;
• shall comply with such requirements as the supervising officer may specify for the purposes of risk management;
• shall inform the supervising officer immediately if they are detained, arrested or questioned by the police;
• shall keep in touch with the supervising officer as instructed by that official;
• shall inform the supervising officer if they change their place of residence or gain employment or change or lose a job;
• shall be of good behaviour and shall keep the peace; and
• shall not travel outside the United Kingdom without the prior permission of the supervising officer and subject to any restrictions that the supervising officer may impose.
• shall reside only in suitable accommodation, supported or otherwise, as approved by the supervising office and subject to any restrictions that the supervising officer may impose.

1.19 Although these are the most common licence conditions, it is for the Parole Board to recommend whether all or some are applied. The Parole Board are not bound by these conditions and can recommend any condition they feel is appropriate.

1.20 In exercising their judgement, the Parole Board will also consider whether other licence conditions may be appropriate such as exclusion from a certain area, mandatory drug or alcohol treatment or restrictions on internet use. All recommendations are made on a case-by-case basis and the recommendations of the Parole Board are binding on the Scottish Minsters.

1.21 The supervising officer may also request an additional licence condition. In this case, evidence has to be provided as to why this is appropriate and why the additional condition is necessary.

The role of the Scottish Ministers and the Scottish Prison Service

1.22 The Parole Board has no statutory powers to consider the case of a prisoner unless the case has been referred to it by the Scottish Ministers. In matters relating to Parole, this is done by the SPS, an executive agency of the Scottish Government. In practice, this means they refer a dossier of material containing information to enable the Parole Board to assess the risk the prisoner might pose if released into the community. These documents can include, a report from the judge who presided at the trial; details of any previous convictions; reports from prison staff; a psychologist or psychiatric report; and a report from the prison based social worker. The dossier should also include up-to-date reports on the individual's plans for release or re-release. The prisoner also has the right to make representations as a party to the proceedings.

Parole Reform and the Management of Offenders (Scotland) Bill

In 2017, the Scottish Government consulted on changes to the parole system, which emerged from the Parole Reform Programme. These changes are being taken forward through the Management of Offenders (Scotland) Bill^[4] which was introduced to the Scottish Parliament in February 2018. The provisions in the Bill make technical amendments to existing legislation, amend the tenure of Parole Board members, reinforce the independence of the Parole Board and provide for the administrative and accountability arrangements of the Parole Board to be set out in secondary legislation. The remainder of this document sets out the case for further reforms and seeks views on options for specific improvements to the parole process.