Transforming Parole in Scotland: consultation report

Independence and Governance

143. The consultation sought views on providing greater clarity around the independence, governance and accountability of the Parole Board. It was suggested that this could be achieved by transferring the Parole Board to the Scottish Tribunals as established by the Tribunals (Scotland) Act 2014. The consultation also asked whether there should be a review and appeal process such as the process that existed by being part of the Scottish Tribunals.

Question 15: Do you agree that a transfer to the Scottish Tribunals would enhance the independence of the Parole Board?

There were 74 responses to this question, 61 of which expanded on the answer with comments.

"Transferring the Parole Board to the Scottish Courts and Tribunals Service would clearly show its independence from the Scottish Government. This would allow for a more streamlined approach to Parole Board hearings."

"There is merit in the autonomy and separateness of the Parole Board from the judiciary and we cannot see how bringing them under the Scottish Tribunals process will enhance their independence."

144. This question was misunderstood by many respondents. There were a number of people who responded 'Yes', 'No' or 'did not answer either way', who also commented they did not understand or did not know, if transferring to the Scottish Tribunals would enhance the independence of the Parole Board. Some suggested that they would require more information before they could respond to the question and the suggestion was made that there should be a further consultation if a transfer was considered appropriate.

145. Although answering negatively to the question, the comment was made that the respondent had no objections 'to it being done for efficiency purposes'.

146. It was also suggested that being part of the Tribunal Service would allow for appropriate governance of the Board.

147. One respondent thought more consideration would be given to victims if the Parole Board were part of the tribunal structure.

148. Several respondents considered a transfer to the Scottish Tribunals would enhance the independence of the Parole Boards with one commenting that 'reinforcing the autonomy of the Parole Board must be the primary reason for this change'. As well as mentioning the secondary benefits of the wider structural supports and enhanced procedural arrangements would be welcomed to ensure continuing operation of the Parole Board and general satisfaction of its stakeholders.

149. Another respondent thought that independence would be guaranteed by not being associated with Scottish Government sponsorship. This respondent was also supportive of the broader supports of the tribunal structure and the potential for an appeal process.

150. Some thought a transfer would address issues of accountability and transparency.

151. Although supportive of a tribunal transfer the issue of ensuring there were sufficient resources allocated to allow the Parole Board to operate was mooted.

152. It was also felt that a tribunal was best placed to balance and protect the interests of victims, witnesses and prisoners in a manner commensurate with European Convention requirements.

153. A few respondents thought that the Parole Board was already independent and no change was required. A suggestion was made that there was merit in keeping it as a distinct body for fear it would become less visible or approachable. It was also felt that relationships with professionals may be compromised.

154. There was some understanding of the perception of independence and the idea of the Scottish Government having undue influence over the Parole Board however, this was not felt to be a significant issue.

155. There were comments made about the importance of impartiality and the need for that to be assured going forward, that there was merit in autonomy from judiciary, and that a transfer would not affect how decisions were made.

156. One respondent thought that people have a greater understanding of the Scottish Tribunals and the more significant issue is how the Parole Board function is communicated. A number were unclear how bringing the Parole Board under the auspices of the Scottish Tribunals would enhance independence. People were also unclear about the benefits of doing so.

157. The issue was raised that a transfer risks the ability to take account of changing priorities and concerns that the same body making sentencing decisions would be making decision on release.

158. There was a suggestion of a working group with representatives from across the system being best to take the decision to transfer, learning from other countries to help make an informed, balanced decision.

159. There was also a concern about the appeal process being abused and the impact this would have on resources.

160. One person worried about the possible loss of member expertise but was not opposed to the use of tribunal facilities.

Question 15 - Next Steps

The Scottish Government will take the following action:

Undertake a specific consultation to seek views on transferring the Parole Board for Scotland to the Scottish Tribunals. The consultation will explain more clearly the purpose of any transfer and make clear the advantages or disadvantages to a transfer taking place.

Question 16: A review and appeal are available in the Scottish Tribunals. Do you consider these processes should be available for the Parole Board?

There were 81 responses to this question, 60 of which expanded on the answer with comments.

"Parole boards are only human and mistakes can be made - there should be an appeal process against their decisions."

"What is meant by this question. This question is all about offenders being given yet more rights of appeal under the parole board system. How would this assist a more open parole board hearings? Where would families of murdered victims fit into this if at all?"

161. The majority of respondents to this question thought that there should be a review and appeal process. Those in favour thought it would be fairer for victims and their families and also fairer to prisoners.

162. There was a concern that having a review of a decision would add time to the process for parole review hearings and that this time should be taken into account so that if the decision is upheld then the next review hearing wouldn't take place until a year after the one that was reviewed. Others thought if there was the opportunity to review a decision it should not add time to the hearing process.

163. There was general agreement about there being a review process but it was felt that there had to be clear criteria and grounds for review. It was also felt that there had to be clear definitions about the differences between review and appeal.

164. The fact that the Parole Board already had an informal review process was mentioned and that it may be appropriate to put this on a statutory footing. The Parole Board in England and Wales reconsideration process (see rule 28 of the Parole Board Rules 2019)^[4] was also highlighted which established criteria where parole review was unfair, irrational or procedurally flawed. This process is open to the prisoner or the Secretary of State (including on behalf of the victim) to apply for.

165. A respondent thought that the tests the Parole Board apply needed to be refined and robust to improve legal and defensible decision-making.

166. It was acknowledged that bringing the Parole Board into the Scottish Tribunals would provide both a review and appeal process. It was also mentioned that an appeal route could be considered without a transfer to the Scottish Tribunals.

167. The fact that victims were not currently 'a party in a case' was thought to cause difficulties in creating an appeal process.

168. Some thought that an appeal process would aid transparency and that everyone should have the right to appeal if unsound or questionable decisions were made.

169. It was mentioned that under the current system prisoners do not know a judicial review is open to them unless they have good legal representation.

170. There was a question raised around audit activity and whether that was currently undertaken regarding Parole Board decisions. It was felt that this could give insight into the need for an appeals process and the resources required for that.

171. A couple of respondents mentioned the lack of an appeal for an original decision compared to the right to an oral hearing, that is available to challenge a recall decision, following a breach of licence conditions.

172. A few respondents thought that an appeal should be available to both the prisoner and the victim or victim's family.

173. One respondent commented that they were not aware of any scrutiny of Parole Board decisions and as such would support an accessible review and appeal process being available. They felt that as decisions relate to a person's liberty they should be subject to review and appeal in the interests of justice.

174. It was suggested that a review and appeal system should sit outside the current judicial framework to help speed up the process. It was also suggested that the role of quality assurances processes in assisting with the scrutiny of the Parole Board decision-making, to ensure consistency of performance and that greater transparency in this area, would be helpful.

175. One respondent commented that the review and appeal processes of the Scottish Courts and Tribunals Service were tried and tested and could be applied to Parole Board decisions.

176. There were also some reservations expressed about having a review and appeal process. Some thought that it may create a misleading impression to victims who object to parole being granted and their potential to have a greater influence on the process and to change the outcome. The legal costs for victims was also questioned and how funding could be accessed by those on low income. It was also felt that any new process would need to be appropriately resourced.

177. Concerns were raised that the review mechanism may be misused and prisoners would first seek a review and then appeal. A more straightforward process for correcting mistakes was preferred.

Question 16 - Next Steps

The Scottish Government will take the following action:

As part of the rewrite of the Parole Board rules we will set out a formal review process. This action will make it clear what the process is to seek a review, what the criteria is, the timescales for an application and what the grounds for review are.