Special Briefing on the Worboys Case
Today the new Justice Secretary David Gauke makes a statement to MPs on the Worboys case – his first outing at the Dispatch Box in this post. In particular, he will focus on the Parole Board and support for victims. Should he consider some fundamental changes to the parole system?
Convicted in 2009 of 19 offences including charges of drugging and sexually assaulting 12 passengers and one charge of rape, Worboys is suspected of carrying-out over 100 such attacks. This case was already infamous for two reasons. First, the nature of his crimes – premeditation, betrayal of trust and preying on vulnerable women. Second, repeated police bungles that saw victims ignored and opportunities missed to bring him to justice.
To this sorry tale there are now two more questionable decisions – the decision not to prosecute other suspected offences (the then Director of Public Prosecutions Keir Starmer is now facing questions) and the decision to release Worboys after serving a few months for each crime. It is this latter question which concerns us here. How is that the Parole Board, a group of ministerially-approved judicial and non-judicial experts – whose first stated aim is not to increase public confidence in the criminal justice system but rather to ‘increase public confidence in our work as an independent body’ – is allowed to reach such a decision? And why can’t the Lord Chancellor or the Home Secretary act if they think there’s a public interest case? To answer this, we need to look at how politicians have absented themselves — and how, pushed by human rights law flowing from Strasbourg, the judiciary has expanded the legal ambit of the Parole Board.
Celebrating the Parole Board’s 50th anniversary last year, its chairman Sir Nick Hardwick, said of his organisation ‘With power, independence, size and status that have developed greatly since the Board was established. It is now defined as a court-like body. The growing independence of the board is still a journey we are on.’ But how, and why?
Governments of all colours have overseen the removal of ministers powers over sentencing, with many politicians eager to remove themselves from involvement in issues not just of morality but also public safety. The Wilson Government ramped-up the process of limiting the oversight of parole by elected representatives and handing power to the judiciary by creating the Parole Board itself in 1967. Initially it was only to advise the Home Secretary, but its reach was developed and in 1996 the Parole Board became a fully fledged independent Executive Non-Departmental Public Body and was transferred to the Ministry of Justice in 2007 when the latter was created.
As politicians retreated, the Human Rights Act 1998 (HRA), and the European Convention on Human Rights from which the HRA is derived, has also played important part in changing the character of the Parole Board: the Executive’s influence and involvement has again been squeezed, and the Parole Board itself has been judicialized (i.e. it has been (re)identified by the Court of Appeal as a judicial body, with a series of decisions requiring it to exhibit greater independence from the executive). This can be seen in a series of decisions over last 15 years (e.g. R(Brooke) v Parole Board (2008).
In Brooke the Court of Appeal noted the Parole Board performed a judicial role that required greater independence from the Executive. Making this decision, the Court argued that the Parole Board had changed its function over 40 years — evolving from an advisory board that simply offered advice to ministers to a judicial body making decisions. The latter requiring greater separation from the executive. The Court of Appeal said: “The cause of the problem [i.e. the Parole Board’s lack of independence] has been the change of function of the Parole Board from that of a body advising the Secretary of State in relation to an executive discretion to release prisoners whose penal sentences were part served to that of a judicial body assessing whether continued deprivation of a prisoner’s liberty is justified because of the risk that he will re-offend if released. The recognition of the difference between these two functions has been gradual both in this jurisdiction and at Strasbourg and there is still uncertainty as to which role the Parole Board is performing in the case of a diminishing number of prisoners sentenced under previous regimes’.
This process reflects a move whereby elected representatives have seen it more palatable not to be involved in sentencing decisions. This has been accompanied by legal judgement, for example, in Stafford v United Kingdom ((2002) it was held incompatible with the ECHR for the Home Secretary to set tariffs for those serving a life sentence. Following this the House of Lords in R (Anderson) v SoS for the Home Dept (2002) – involving the sentencing of a man convicted for double murder – held that the Home Secretary’s role in setting tariffs for those convicted of a life sentence was incompatible with Article 6 of the ECHR (right to a fair trial). As the then Home Secretary David Blunkett noted ‘When parliament took its decision to abolish the death penalty for murder, it was on the basis that it was replaced by this principle of parliamentary accountability, which I am determined to maintain. This is fundamental to confidence in the criminal justice system and our democracy.’
Following due process and limiting arbitrary power are hallmarks of a free society — yet to preserve them the public must have confidence in the system. The Brexit vote revealed what happens when some believe the system no longer works for them. Following the Worboys case, it is time to ask if the right balance has been struck in limiting the ‘safety valve’ of ministerial involvement in parole decisions. Indeed, were we even aware that the HRA and ECtHR were curtailing democratic accountability so dramatically is this way?
The Prime Minister has announced a review (hopefully to be conducted by more than just experts from the judiciary and the legal profession) of how the Parole Board operates, including informing victims of impending decisions. As far as this goes this is welcome. Indeed more transparency was called for by the Board’s Chairman last year. We should ask, however, whether the review should also include the role of elected ministers – and whether the scales have slipped too far the other way. The ECtHR’s overruling of Parliament on prisoner voting shows how the public’s voice can be overridden. Politicians beware – the public’s confidence, once lost, is not easily returned.