Parole reform in Scotland: consultation

Consultation Questions

The following questions are where appropriate accompanied with a brief background.

Governance Of The Parole Board

1. Independence of the Parole Board

The Parole Board is independent of Scottish Ministers, at present the legislation does not provide any statement about the Parole Board's independence or its accountability and governance structures.

It may be the case that a statement, specifically stating the Parole Board's independence and how it is governed, would reinforce public confidence in the operation of the Parole Board.

Question 1: Do you agree that there is a need to reinforce the independent nature of the Parole Board's decision making and clarify accountability?

Yes

No

Question 1a: Please detail how you believe this would be best achieved.

Comments:

2. Appointment terms of duration

Currently the chairman and members of the Parole Board are appointed for terms of duration between six and seven years with no option for immediate reappointment.

These arrangements are out of step with other similar bodies that, for example, have a fixed five year appointment and permit immediate reappointment of members. The barrier on immediate reappointment for the Parole Board, results in valuable skills, knowledge and experience being lost, and unnecessary recruitment costs being incurred.

We are seeking views on whether the current provisions governing appointment and reappointment to the Parole Board remain fit for purpose.

Question 2: Do you agree that the current provisions governing appointment and reappointment to the Parole Board remain fit for purpose?

Yes

No

Question 2a: Please give reasons for your answer to Question 2

Comments:

3. Removal of upper age restriction on membership of the Parole Board

Currently the appointment of a person as a member (including chairman) of the Parole Board shall not extend beyond the day when the person reaches the age of 75.

We propose to remove the upper age limit for Parole Board membership.

Question 3: Do you agree that the upper age restriction on membership of the Parole Board should be removed?

Yes

No

Question 3a: If you have answered No, please give reasons for your answer to Question 3

Comments:

4. Prescribed membership of the Parole Board

Currently membership of the Parole Board must include a Lord Commissioner of Justiciary, a registered medical practitioner who is a psychiatrist, a person appearing to Scottish Ministers to have knowledge and experience of the supervision or aftercare of discharged prisoners and a person appearing to have made a study of the causes of delinquency or treatment of offenders.

We believe that in practice, as the number of members has grown to meet demand, the wide experience, knowledge and skills of Parole Board members has lessened the need for specific experience and knowledge to be prescribed.

We propose to review the requirement that membership of the Parole Board includes certain prescribed members.

Question 4: Do you agree that the current requirements regarding the membership of the Parole Board should be reviewed?

Yes

No

Question 4a: Please give reasons for your answer to Question 4

Comments:

5. Removal from remit of CESPL for Parole Board recruitment

In relation to the recruitment of Parole Board members, the Parole Board for Scotland falls under the remit of the Commissioner for Ethical Standards in Public Life in Scotland ( CESPL) (which monitors how people are appointed to the boards of specified public bodies in Scotland).

We believe that the Parole Board's inclusion in the Commissioner's remit is anomalous. CESPL mainly covers the appointment of members to the management boards of certain public bodies.

We propose to remove the Parole Board, from the remit of CESPL.

Question 5: Do you agree that the Parole Board should be removed from the remit of CESPL?

Yes

No

Question 5a: Please give reasons for your answer to Question 5

Comments:

Involvement Of Scottish Ministers In The Parole Process

6. Decision to release or not release in deportation cases

The final decision to release or not release long term prisoners who are liable to removal from United Kingdom in deportation cases on parole licence currently sits with Scottish Ministers.

This is inconsistent with all other decisions (with the exception of compassionate release decisions) where Scottish Ministers are either directed to release or not release, or are required to accept the recommendation of the Parole Board.

We propose 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.

Question 6: 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?

Yes

No

Question 6a: Please give reasons for your answer to Question 6

Comments:

7. Setting licence conditions for extended sentence prisoners

Where a person receives an extended sentence and the custodial part of that sentence is less than four years but the extension period results in a total combined sentence above four years, Scottish Ministers may only impose licence conditions, as recommended by the Parole Board.

In the majority of other cases involving a custodial sentence which is less than four years, the responsibility for setting licence conditions lies with Scottish Ministers alone. In neither case does the Parole Board have a role in the decision to release the prisoner.

We propose that the Parole Board no longer recommend licence conditions in such cases. Instead we propose that Scottish Ministers would set licence conditions in these cases. The Parole Board would still be required to provide advice to Scottish Ministers should the Scottish Ministers request it.

Question 7: 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?

Yes

No

Question 7a: Please give reasons for your answer to Question 7

Comments:

8. Recommendations and direction of Parole Board decisions

At present the Parole Board may make "recommendations" and "directions" to the Scottish Ministers in effect these recommendations are binding to Scottish Ministers.

This may lead to a concern that Scottish Ministers are involved in the decision making process of the Parole Board and that decisions made by the Parole Board are not binding.

We propose to clarify that decisions of the Parole Board (other than in compassionate release cases (see also questions 7 and 7a. above)) are binding on Scottish Ministers.

Question 8: 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?

Yes

No

Question 8a: Please give reasons for your answer to Question 8

Comments:

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

Where a prisoner has been released on licence and that licence is subsequently revoked, the Parole Board will consider the revocation of that licence. Upon their consideration of the case, where the Parole Board directs the immediate release of the prisoner, the legislation provides that the Scottish Ministers give effect to that direction.

In all other cases of prisoner release involving the Parole Board, Scottish Ministers will release the prisoner as soon as practically possible following a direction to do so by the Parole Board. The reference in relation to immediate release of recalled prisoners sets an expectation that can cause practical difficulties.

We propose 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.

Question 9: 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?

Yes

No

Question 9a: Please give reasons for your answer to Question 9Comments:

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

Prisoners may currently make representations to the Scottish Ministers regarding the revocation of their HDC licence. The Scottish Ministers will then refer this to the Parole Board for consideration. There is no timescale within which the representations regarding the revocation of HDC must be submitted. The lack of a time limit for referrals means that the Parole Board may be asked to consider historical referrals where the revocation of the HDC licence has taken place a considerable time ago.

We propose to introduce 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.

Question 10: 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?

Yes

No

Question 10a: Please give reasons for your answer to Question 10

Comments:

Tests That The Parole Board Apply In Determining Whether To Release

11. Tests for release

In terms of the decisions to be made by the Parole Board there are currently two tests which must be met before releasing or re-releasing certain categories of prisoners.

One of these tests is in relation to the release of life and OLR prisoners and provides that a direction to release cannot be made unless the Parole Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. The second test is concerned with the re-release of extended sentence prisoners and provides that that a direction to re-release cannot be made unless the Parole Board is satisfied that it is no longer necessary for the protection of the public from serious harm that the prisoner should be confined .

There are no specific tests concerning decisions to be made by the Parole Board for the release, re-release or recall of other types of prisoners.

We propose to introduce a common test to be applied in all release, re-release and recall cases considered by the Parole Board.

Question 11. Do you agree that a common test should be applied in all release, re-release and recall cases considered by the Parole Board?

Yes

No

Question 11a: Please give reasons for your answer to Question 11

Comments:

Question 11b: Do you have views on what the common test to be applied should be?

Yes

No

Question 11c: please give reasons for your answer to Question 11b

Comments:

Timescales For Subsequent Reviews Following Initial Consideration For Parole

12. Review Periods

Currently Life and OLR prisoners, who are refused release on parole licence at first consideration, are subsequently considered for release on parole licence no later than every two years. Recalled prisoners serving extended sentences are entitled to require Scottish Ministers to refer their case for consideration by the Parole Board, initially at any time upon the revocations, and thereafter annually during the currency of the recall. In practice, such prisoners are considered annually. There are no specific parole review periods set out for other relevant categories of prisoners. In practice these prisoners cases are currently reviewed approximately on an annual basis.

We believe that it may be helpful to specify clear timescales for further reviews following initial consideration. Given the length of sentences involved, we believe the current two year review timescale for life and OLR prisoners is appropriate. For all other types of prisoners a one year timescale may be appropriate.

We propose to introduce clear timescales for all parole considerations following initial consideration.

Question 12: Do you agree that the current provisions whereby Life and OLR prisoners, following initial consideration, are considered for release on parole licence every two years are appropriate?

Yes

No

Question 12a: Please give reasons for your answer to Question 12

Comments:

Question 12b: Do you agree that all prisoners, apart from Life and OLR prisoners, should be considered annually for parole following a first decision not to release on parole licence?

Yes

No

Question 12c: Please give reasons for your answer to Question 12b

Comments:

Way In Which Information Is Supplied To The Parole Board

13. Referring Bodies

Where the Parole Board is to consider revocation of a licence, following a reported breach of licence conditions, the breach report is submitted by the supervising officer (social worker) to Scottish Ministers, who then refer this on to the Parole Board.

It is important that potential breaches of licence conditions by prisoners who are serving the end of their sentence in the community are considered quickly as there may be a risk to public safety. The process could be streamlined, and therefore risk to public safety reduced, by allowing local authority social workers to report licence breaches directly to the Parole Board for consideration and for suitably qualified professionals such as officers from Police Scotland and NHS medical staff to also provide any additional papers requested directly to the Parole Board.

We propose that, for cases where revocation of a licence or re-release of a prisoner is being considered by the Parole Board, local authority social workers may report licence breaches directly to the Parole Board for consideration, and that suitably qualified professionals such as local authority social workers, officers from Police Scotland and NHS medical staff may also directly provide any additional papers requested to the Parole Board.

Question 13: Do you agree that, for cases where revocation of a licence or re-release of a prisoner is being considered by the Parole Board, local authority social workers should be able to report licence breaches directly to the Parole Board for consideration and for suitably qualified professionals such as local authority social workers, officers from Police Scotland and NHS medical staff may also directly provide any additional papers requested to the Parole Board?

Yes

No

Question 13a: Please give reasons for your answer to Question 13

Comments:

Administrative Procedures For Considering Cases

14. Use of live link

Currently the chairman of the tribunal or the chairman of the oral hearing may allow the use of a live link (such as a video link) in the taking of evidence of the prisoner concerned, or 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 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 live link would impact on the fairness of the proceedings.

We propose that a live link cannot be used where it would be unfair on the prisoner concerned, or the witness, to do so.

Question 14: 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?

Yes

No

Question 14a: Please give reasons for your answer to Question 14

Comments:

15. Removal of prescribed dossier contents

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").

We propose 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. The Parole Board is ultimately responsible for decisions it makes and knows what information is required in order to make those decisions. By moving to the proposed arrangements we will eliminate any unnecessary paperwork, and give the Parole Board the flexibility to determine what papers are relevant in any particular case. In practice it is anticipated that the Parole Board will agree with Scottish Ministers a default list of core documents they will require.

Question 15: 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?

Yes

No

Question 15a: Please give reasons for your answer to Question 15

Comments:

16. Issue of Guidance by the Chairman of the Parole Board

To improve consistency of approach and ensure common understanding we propose enabling the chairman 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.

Question 16: 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?

Yes

No

Question 16a: Please give reasons for your answer to Question 16

Comments:

17. Authorisation to attend hearings

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 chairman of the consideration, for example for training purposes.

We propose to enable the chairman of any consideration (casework meeting. tribunal and oral hearing) to authorise any person to attend.

Question 17: 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?

Yes

No

Question 17a: Please give reasons for your answer to Question 17

Comments:

18. Written record of state of preparation

We propose 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.

Question 18: 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?

Yes

No

Question 18a: Please give reasons for your answer to Question 18

Comments:

19. Considerations for recalled extended sentence prisoners

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 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.

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

Question 19: 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?

Yes

No

Question 19a: Please give reasons for your answer to Question 19

Comments:

20. Composition of Parole Board members for oral hearings and tribunals

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 the tribunal or oral hearing). We are seeking views as to whether the minimum number of members required for oral hearings and tribunals should be changed to two members.

Question 20: 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?

Yes

No

Question 20a: Please give reasons for your answer to Question 20

Comments:

21. Breach Considerations - Imminent Risk of Serious Harm to the Public

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 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).

We are proposing 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.

Question 21: Do you agree that a single Parole Board member could take a decision on a recall consideration?

Yes

No

Question 21a: If you have answered No, please give reasons for your answer to Question 21

Comments:

Question 22: Please tell us about any potential impacts, either positive or negative, that you consider any of the proposals in this consultation may have on anyone (including custody or community facing) or any organisation affected by the parole process.

Comments: