Parole reform in Scotland: analysis of consultation responses

4. Involvement of the Scottish Ministers in the Parole Process

Overview

4.1 The Parole Board's recommendations and directions are binding in relation to all cases except deportation and compassionate release cases, where the Scottish Ministers currently make the final decision about release. We sought views on whether the Scottish Ministers should continue to make the final decision to release in deportation cases.

4.2 We also sought views on who should set licence conditions for extended sentence prisoners who have a total sentence of four years or more where the custodial sentence is less than four years. Currently the Parole Board sets licence conditions in such cases.

4.3 Legislation currently makes various references to "recommendations" and "directions", and to "release" and "immediate release". We sought views on the terminology and any need to clarify responsibility on who is making the final decision as to whether to release or recall to custody. We also sought views on applicable timescales for the Scottish Ministers to release a prisoner following a direction to do so by the Parole Board.

4.4 Where a prisoner has been released by the Scottish Ministers on a Home Detention Curfew ( HDC) licence and this licence has then been revoked, the Scottish Ministers are currently required to refer to the Parole Board the case of any person who makes representations to them about the revocation. The Parole Board may direct, or decline to direct the Scottish Ministers to cancel that revocation. The consultation asked for views on whether a time limit should be introduced by which a prisoner needs to make representation about the revocation of the licence.

Decision to release or not release in deportation cases

Q6 . "Do you agree that Scottish Ministers should not be involved in the decision to release or not to release prisoners who are liable to removal from the United Kingdom in deportation cases?"

4.5 Thirteen of the 23 respondents answered the initial question. Responses were as follows (100% of those responding answered Yes): -

R = Total Responses Y = Yes N = No	Overall Responses			Public Sector			LA			Individual			3 rd sector			legal			Judiciary
	R	Y	N	R	Y	N	R	Y	N	R	Y	N	R	Y	N	R	Y	N	R	Y	N
(Q6) SMs removed from decision to release or not prisoners liable to removal from UK deportation cases	13	13	0	2	2	0	5	5	0	2	2	0	3	3	0	1	1	0	0	0	0

Key themes from respondents in relation to their follow-up comments were:

• there is inconsistency of approach by having the Scottish Ministers involved in decision-making.
• ensures clarity as confusion arises amid roles of the Parole Board and the Scottish Ministers. Perception which leads to independence from the Scottish Ministers being questioned.
• concern these decisions as they currently stand could be construed as politically motivated or have political influence if the Scottish Ministers are involved.
• there is some misunderstanding of the role of the Parole Board across a couple of categories in particular relating to decision-making.

Setting licence conditions for extended sentence prisoners

Q7. "Do you agree that for extended sentence prisoners where the custodial part is less than four years, the Parole Board no longer recommends licence conditions and that Scottish Ministers should set licence conditions for those prisoners?"

4.6 Sixteen of the 23 respondents answered the initial question. Responses were as follows: -

R = Total Responses Y = Yes N = No	Overall Responses			Public Sector			LA			Individual			3 rd sector			legal			Judiciary
	R	Y	N	R	Y	N	R	Y	N	R	Y	N	R	Y	N	R	Y	N	R	Y	N
(Q7) SMs to set licence conditions for extended sentence prisoners	16	8	8	4	2	2	5	2	3	1	1	0	4	3	1	1	0	1	1	0	1

Key themes from respondents in relation to their follow-up comments were:

For those who answered Yes: -

• a consistent approach would be met by this as the Scottish Ministers currently set licence conditions for short-term offenders (less than four years).
• clarification required on any implications for the breach of licence process and where the Parole Board sit within that.

For those who answered No: -

• the imposition of licence conditions by the Scottish Ministers woul d directly conflict with the independence of the Parole Board, these are judicial decisions.
• licence conditions should be set by the same body who takes the release decision.
• ensure all extended sentence prisoners (irrespective of length of custodial part of their sentence) are treated consistently.
• risk of licence conditions losing weight and effectiveness if removed from Parole Board.

Recommendations and direction of Parole Board decisions

Q8. "Do you agree that it should be clarified that decisions of the Parole Board (other than in compassionate release cases) are binding on Scottish Ministers?"

4.7 Sixteen of the 23 respondents answered the initial question. Responses were as follows (100% of those responding answered Yes): -

R = Total Responses Y = Yes N = No	Overall Responses			Public Sector			LA			Individual			3 rd sector			legal			Judiciary
	R	Y	N	R	Y	N	R	Y	N	R	Y	N	R	Y	N	R	Y	N	R	Y	N
(Q8) Clarifying decisions of Parole Board are binding on SMs	16	16	0	4	4	0	5	5	0	3	3	0	3	3	0	1	1	0	0	0	0

Key themes from all who commented were:

• provide clarity of process and decision-making for all involved.
• clarify the independence of the Parole Board and give transparency on accountability.
• language should be clear and unambiguous.
• provide clear separation of role and functions from the Scottish Ministers.
• clarification may increase public confidence and reassurance that the independence of the Parole Board and their decision-making, remain free from political intrusion and interference.

Reference to 'immediate release' - initial consideration of release following recall

Q9. "Do you agree that the release of a prisoner, whose licence has been revoked, should be as soon as practically possible as in other cases involving the Parole Board?"

4.8 Eighteen of the 23 respondents answered the initial question. Responses were as follows: -

R = Total Responses Y = Yes N = No	Overall Responses			Public Sector			LA			Individual			3 rd sector			legal			Judiciary
	R	Y	N	R	Y	N	R	Y	N	R	Y	N	R	Y	N	R	Y	N	R	Y	N
(Q9) Re-release of a prisoner following recall to custody should be as soon as practically possible	18	16	2	4	4	0	6	6	0	3	3	0	4	2	2	1	1	0	0	0	0

Key themes from respondents in relation to their follow-up comments were:

For those who answered Yes:

• all those within the local authority category agreed there was a need to maintain consistency with other release decisions by the Parole Board, the person should not be detained any longer than is practically necessary e.g. no undue delay. This enables public safety to be properly considered and arrangements progressed to prepare for a person's release and return to the community.
• this would be in the interest of fairness.
• concern around the word 'immediate' and the expectation that this sets unrealistic timescales for social work, police, housing colleagues to put things in place for the person's release.
• ensure families of those being considered for release, as well as victims and their families, are included/advised of the decision.
• releasing an individual prior to everything being in place is effectively setting someone up to "fail" and may even result in a breach through no actual fault of the individual who is released.

For those who answered No:

• Breach, recall and release process is not readily understood based on comments as a person who has had their licence revoked and recalled to custody and then is released following consideration after initial recall does not mean a person has been wrongly recalled. The release consideration is not a re-examination of the recall decision.
• a maximum time limit should be set so a person is not held unnecessarily.

Referrals to the Parole Board regarding the revocation of Home Detention Curfew ( HDC) licences

Q10. "Do you agree with the introduction of a time limit of six months from the point that the person is returned to custody, for the submission of representations to be made concerning the revocation of the HDC licence?"

4.9 Fourteen of the 23 respondents answered the initial question. Responses were as follows:

R = Total Responses Y = Yes N = No	Overall Responses			Public Sector			LA			Individual			3 rd sector			legal			Judiciary
	R	Y	N	R	Y	N	R	Y	N	R	Y	N	R	Y	N	R	Y	N	R	Y	N
(Q10) Time limit for prisoner reps on HDC revocation referrals to Parole Board	14	11	3	3	3	0	5	4	1	2	1	1	3	3	0	1	0	1	0	0	0

Key themes from respondents in relation to their follow-up comments were:

For those who answered Yes:

• all categories felt there should be a time bar.
• it was noted some respondents felt that six months was too long and the time bar should be shorter.

It was clear that the process for HDC, the revocation of, and consideration of, prisoners representations was not fully understood by some categories of respondents.

For those who answered No:

• principle of time limit supported but six months is too long.
• the process for when a person is returned following revocation of HDC was not fully understood in particular the fact they are already informed of their right to appeal at point of return to custody.