Parole reform in Scotland: analysis of consultation responses

8. Administrative Procedures for Considering Cases

Overview

8,1 The proposals consulted on from question fourteen onwards are ones which can be made by way of secondary legislation (Scottish Statutory Instrument). A description of each of the procedures is provided under the relevant heading.

Use of live link

8.2 Currently the chairing member of the tribunal or the chairing member of the oral hearing may allow the use of a live link (such as a video link) in the taking of evidence from the prisoner concerned, or from a witness. In order for the live link to be used it must be considered by the Parole Board, to be in the interests of justice to do so. Use of a live link results in significant administrative efficiencies for the Parole Board, although there may be occasions, for example where a prisoner has communication difficulties, where it is recognised that using a live link may impact on the fairness of the proceedings. It is proposed that a live link cannot be used where it would be unfair on the prisoner concerned, or on the witness, to do so.

Q14. "Do you agree that a live link cannot be used where it would be unfair on the prisoner concerned, or the witness, to do so?"

8.3 Eighteen 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
(Q14) Live link not to be used if unfair on prisoner or witness	18	18	0	5	5	0	6	6	0	2	2	0	4	4	0	1	1	0	0	0	0

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

• concerns around quality of equipment which may impact on key information being relayed to and by the Parole Board.
• concerns that use of a live link brings additional stress to the person being considered for release and/or witnesses.
• concerns this removes the personal interaction element of a formal face-to-face tribunal or oral hearing.
• the "interest of fairness" must be at the centre of this.
• some respondents felt the decision on usage or not of a live link should rest with the person being considered for release.

Removal of prescribed dossier contents

8.4 The Scottish Ministers currently submit a dossier to the Parole Board containing any information they consider to be relevant to the case, including wherever practicable, the information and documents specified in the Parole Board (Scotland) Rules 2001 ("the Rules"). It is proposed that, the prescribed set of documents is no longer necessary. Instead the general requirement that the Scottish Ministers should submit a dossier to the Parole Board containing any information the Scottish Ministers consider to be relevant to the case, is sufficient.

Q15. "Do you agree that the current list of prescribed documents required for the dossier in the Rules, is no longer relevant and the general requirement that the dossier contain all the information that Scottish Ministers consider to be relevant to the case is sufficient?"

8.5 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
(Q15) Removal of prescribed dossier content	14	10	4	3	2	1	5	4	1	2	2	0	3	2	1	1	0	1	0	0	0

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

For those who answered Yes:

• the Parole Board are the experts and are ultimately responsible for their decisions. They are best placed to know what information is required in order to make those decisions.
• a minimum set of core documents could be agreed but needs to be offset against those which may be irrelevant or erroneous for certain prisoner categories/cases.
• reduce administration by removal of reports no longer relevant in terms of review period being considered, streamline process.
• information should be focussed and relevant.

For those who answered No:

• there needs to be a core set of documents which still enables the Parole Board to request other reports, if required. This needs to be communicated clearly to all involved in providing information which forms part of a dossier for the Parole Board.
• any list must take account of the various types of people detained. This will include being in prison custody, secure accommodation (children and young people) and also secure hospitals.
• there should be greater flexibility on report requirements on a case by case basis.
• there should be centralised paperwork - templates, guidance and advice for the core set of documents and the parole process, where practical.
• collaboration with relevant organisations would be welcomed when determining a core set of documents.

Issue of Guidance by the Chair of the Parole Board

8.6 To improve consistency of approach and ensure common understanding it is proposed to enable the Chair of the Parole Board to issue guidance in relation to the procedure to be adopted in dealing with any case, and a requirement that all members of the Parole Board and all parties must have regard to this guidance.

Q16. "Do you agree that the chairman of the Parole Board should be able to issue guidance in relation to the procedure to be adopted in dealing with any case and that all members of the Parole Board and all parties must have regard to this guidance?"

8.7 Fifteen 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
(Q16) Ability for Chair of Parole Board to issue procedural guidance	15	11	4	4	3	1	5	3	2	2	2	0	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:

• improvements in consistency would be welcomed.
• whilst answering yes, the respondent noted that it may be perceived as interference with independence of members judicial decision-making.
• greater clarity on what is required and why, would be welcomed.
• for transparency any guidance should be placed on Parole Board's external website.

For those who answered No:

• might be perceived as interference with independence of the members.
• any guidance needs to set out clearly this is not interfering with the judicial decision-making of those Parole Board members conducting tribunals, oral hearings and casework meetings.

Some responses show a misunderstanding of how the Parole Board operates and it appears it is being interpreted as a management board who collectively ( e.g. as a group of 30+) take decisions on procedural matters etc.

There is also a misunderstanding that the guidance which is being proposed is to be issued by person 'chairing' the consideration and not the 'Chair of the Parole Board' which is the actual proposal.

Authorisation to attend hearings

8.8 Cases are currently considered by the Parole Board in three ways, casework meetings, tribunals and oral hearings. Observers may currently attend tribunal hearings with the authorisation of the person chairing the consideration, for example, for training purposes.

8.9 It is proposed to enable the person chairing any consideration (casework meeting, tribunal or oral hearing) to be able to authorise any person to attend.

Q17. "Do you agree that the chairman of any consideration (casework meeting, tribunal and oral hearing) should be able to authorise any person (for example, observers) to attend?"

8.10 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
(Q17) Authorisation of any person to attend hearings ( e.g. as an observer)	16	14	2	4	4	0	5	4	1	3	2	1	3	3	0	1	1	0	0	0	0

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

For those who answered Yes:

• this would enable a better understanding of the parole process and could be an appropriate platform to aid training for those involved in parole. This is all with the understanding that agreement would be sought from the person being considered for release.
• this provides additional transparency of the process.

For those who answered No:

• content insofar as there needs to be a legitimate reason for observation.

For some of those who answered 'yes' and one who answered 'no', it was clear that not everyone was aware of the current policy process for tribunals where a silent observer has been requested. This includes a letter going to the person being considered for release asking them if they have any concerns or objections. Any concerns/objections are taken into account by the tribunal chair, who has the final decision on silent observers. There was also a clear misunderstanding of role of the Parole Board and their powers in relation to citation of witnesses for tribunals.

Written record of state of preparation

8.11 The consultation proposed that, before consideration of their case, the prisoner (or their representative) must submit a written record of their state of preparation to the Parole Board. This record of the state of preparation could include such matters as: confirmation of receipt of dossier; confirmation of representative (if any); confirmation that they wish to participate in the parole process; confirmation of intention to seek release or otherwise (and review period if not); and, notification of any witnesses. This requirement would reduce unnecessary postponements and adjournments, help the prisoner to be fully prepared, and offer the opportunity for them to raise any issues of concern in advance.

Q18. "Do you agree that before consideration of their case the prisoner (or their representative) must submit a written record of their state of preparation to the Parole Board?"

8.12 Seventeen 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
(Q18) Prisoner to submit written record of state of preparation	17	12	5	4	3	1	6	3	3	3	3	0	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:

• any changes had to take account of those individuals who are among the most vulnerable or disadvantaged, examples being in relation to individuals who are detained in a secure hospital who may not be in a position to provide a written statement of preparation or, children and young people who may have limited capacity in terms of reading and writing.
• this may help speed up the process.
• a template may be helpful.
• this may assist in reducing the number of postponements and adjournments due to the person being considered as not being ready.
• there should be sufficient support in place to assist individuals in their preparation for parole consideration.

For those who answered No:

• concern this may cause an increase in persons withdrawing from the parole process (Rule 20).
• this may have an impact on prisoners with literacy issues.
• who would provide the support for those prisoners who may need it to complete this written record.
• concern a prisoner could not confirm their intention to seek release or otherwise if they have not seen their dossier.
• this may actually delay the process.

Considerations for recalled extended sentence prisoners

8.13 Currently in the majority of cases where an individual has been recalled to custody by the Parole Board (or in some cases where the risk of serious harm is imminent to the public, recalled by the Scottish Ministers) their consideration for release or not to release is generally considered at a casework meeting (paper-based with the individual concerned not present). One of the exceptions to this is individuals who are subject to an extended sentence, who have been recalled and are in their extension part of their sentence.

8.14 To ensure a more timeous decision it is proposed that those individuals who are subject to an extended sentence, have been recalled and are in their extension part of their sentence, they are also considered at a casework meeting.

Q19. "Do you agree that those individuals who have been recalled and are in their extension part of their sentence are generally considered at casework meetings?"

8.15 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
(Q19) Considerations for recalled extended sentence prisoners to be at casework meetings	16	11	5	5	4	1	6	3	3	1	1	0	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:

• would support a consistent approach and level of fairness for all those people who have been recalled to custody.
• if changed to casework consideration, there should still be an opportunity for an oral hearing, if appropriate.
• may speed up the decision-making process.
• if oral hearing required, there should be a clear timescale for this.

For those who answered No:

• given the nature of risk posed by those with an extended sentence, a tribunal should continue to be the forum for re-release consideration.
• perceived lack of transparency and less robust process if changed to casework decision as opposed to face-to-face at a tribunal.

Composition of Parole Board members for oral hearings and tribunals

8.16 Currently a casework meeting can sit with a minimum of two Parole Board members but oral hearings and tribunals are required at the outset to sit with three Parole Board members (this can be reduced to two in certain circumstances, such as in the event of the death or incapacity or unavailability of a member appointed to the tribunal or oral hearing). The consultation sought views on whether the minimum number of members required for oral hearings and tribunals should be changed to two members.

Q20. "Do you agree that oral hearing and tribunal considerations should mirror that of casework meetings, so that they could be conducted with two Parole Board members?"

8.17 Fifteen 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
(Q20) Composition for oral hearings and tribunals to mirror casework meetings	15	5	10	4	1	3	5	1	4	1	0	1	4	3	1	1	0	1	0	0	0

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

For those who answered Yes:

• though respondents answered yes, there were concerns that reducing to two members may impact on the breadth of knowledge and experience of those considering the case.
• though respondents answered yes, there were concerns that reducing to two members raised the possibility of no consensus and therefore no majority decision.
• though respondents answered yes, there were concerns that reducing to two members may result in an increase of deferrals due to no consensus being reached.
• needs to be clear mechanism in place to support decision-making if not all in agreement.
• if reduced this may expedite the process.

For those who answered No:

• fairer to the prisoner if there are three members.
• concern if reduced to two members, the rigour of decision-making is reduced in cases where consideration of the balance of rights is more heightened.
• if reduced to two members, there needs to be a transparent and clear mechanism in place to support decision-making if there is a disagreement.
• the default position should be three but in exceptional circumstances (such as illness) the tribunal or oral hearing could sit with two.
• there is far greater flexibility time wise for a casework consideration than there is for an oral hearing or tribunal.
• three members ensures a better breadth of knowledge and enables a majority decision if required.

Breach Considerations - Imminent Risk of Serious Harm to the Public

8.18 Where a supervising officer (local authority social worker) believes an individual who has been released on licence has breached the conditions of their licence and that the Parole Board should consider recalling them to custody the officer submits a breach report to the Scottish Ministers. A decision to recall that individual in such a case requires two members of the Parole Board (in exceptional circumstances these two members may decide an oral hearing is required, requiring three members).

8.19 The proposal is that if there is an imminent risk of serious harm to the public a single Parole Board member can take a decision to recall. In exceptional circumstances this single member may still decide that an oral hearing requiring three members is required.

Q21. "Do you agree that a single Parole Board member could take a decision on a recall consideration?"

8.20 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
(Q21) Breach considerations - imminent risk of serious harm - single PB Member to consider	18	11	7	5	4	1	6	4	2	3	1	2	5	4	1	1	0	1	0	0	0

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

• collective/collaborative decision making removes perceived influence.
• given this decision is in relation to someone's liberty, in the interests of fairness there should be more than one person taking this decision.
• efficiency and expediency should never be at the expense of due process.
• clearer guidance on structuring an opinion in relation to imminence of risk of serious harm within the report for the Parole Board to consider would be welcomed.

Some respondents did not fully understand the recall process and this was reflected in their comments.