Six months ago the Parole Board celebrated its 50th anniversary. On that occasion, the then Justice Secretary, David Lidington MP, congratulated its Chair, Nick Hardwick, on ‘getting this vital body into good shape’. A few weeks earlier, at a Justice Select Committee hearing, the Prisons Minister began, ‘The first thing to say is that Nick Hardwick and Martin Jones [the CEO] have been doing a very good job’.
On 27 March 2018, the day before the John Worboys case decision was handed down, the new Justice Secretary, David Gauke MP, told Nick Hardwick that his position was ‘untenable’. He duly but unwillingly resigned.
What had happened? In April, Nick agreed to be interviewed by Counsel. I met with him in Middle Temple where he is an Honorary Bencher.
Getting to the Parole Board
We discussed first the career which led him to chair the Parole Board. It began after university with a temporary summer job working with young offenders in the community. Six years with NACRO led to his appointment as Chief Executive of Centrepoint. His major concern were the number of youths then living on the streets. ‘They were throw-aways,’ he said, with no home to go back to and a history of abuse when in care. He helped to persuade the Major government to provide alternative accommodation and restore income for the youngsters. ‘You don’t see children that young’ sleeping in doorways any longer, he noted. After eight years as Chief Executive of the Refugee Council, he saw an ad in The Guardian and successfully applied to be the first chair of the Independent Police Complaints Commission (IPCC).
Some of what the IPCC had to deal with was very much in the public eye and particularly matters involving deaths where the police may have been responsible. Nick described the distinction between officers who were dealing with a very difficult situation and things going wrong, and those who deliberately abused their powers or neglected their duties. The police in defence of their colleagues could be ‘very difficult to deal with’ and ‘lots of them had links with media who took their side’. ‘It was a very adversarial situation.’
In July 2010 Nick moved to become Her Majesty’s Chief Inspector of Prisons. Prisons ‘were on an upward trend’ then, he said. ‘It had got more money like other public services and there was the “decency agenda” shifting from punitive to more rehabilitative, to humanise the system.’ From 2012 things ‘plummeted very quickly’. In the austerity drive, thousands of the most experienced prison staff were shed and their loss together with overcrowding had ‘catastrophic consequences’ in terms of drugs, suicide and violence. There have been fresh hirings but for now the new recruits lack the experience, age and maturity of the people who were let go.
Clearing the backlog
Nick took over as Chair of the Parole Board in March 2016. The Board, like prisons, falls under the control of the Ministry of Justice. The major challenge facing Nick was the backlog of cases and the consequent effect on morale. There were two pressures here. On 9 October 2013 the Supreme Court in the Osborn case stated that the Parole Board should hold an oral hearing before determining an application for release ‘whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and the importance of what is at stake’. This resulted in a sharp increase of requests for an oral hearing in front of a three-person board. Nick explained that panel members are judges, psychologists and others with relevant experience, but people who have usually been ‘decision-makers in the criminal justice system’.
As the requests went up, the number of Parole Board members went down, due to natural wastage and a budgetary freeze on engaging any new members. Delays mounted up and so did compensation, which had to be paid to prisoners who were deemed not to be in prison properly because of the administrative delays: this added up to about £1m out of the annual budget of £20m. ‘It was bonkers,’ Nick said, ‘it had to be sorted out.’
A new Justice Secretary, Michael Gove, agreed to the recruitment of 100 board members. The numbers of oral hearings went up (by 50% between 2013-14 and 2017) and the backlog duly shrank. Nick told the Select Committee in October 2017 that the ‘critical thing’ is that the hearing should happen when scheduled. In 2016-17 there were 7,377 oral hearings and 16,866 decisions on the papers.
Nick pointed out some of the basic facts. A large part of the Board’s work is dealing with prisoners with life sentences or an Indeterminate sentence for Public Protection (IPP), as well as whether to release recalled prisoners. IPPs were brought in by the Blair government to keep in prison those who were a risk to the public. They were abolished in 2012 by the Cameron government as unjust, as it led to prisoners spending longer inside than the courts intended or was proportionate. Worboys is an IPP prisoner. Had he been sentenced to a determinate term say of 17 years (the equivalent he has now served) the Parole Board would not have been involved. Nick explained: ‘In order to get in front of the Parole Board you have to have done something pretty horrendous... on the whole what we are doing is [deciding] whether to release those who have done terrible things from which the victims will never recover.’ Nevertheless the first three Justice Secretaries with whom Nick worked ‘were encouraging that we got on with getting IPPs back into the community’. In turn he wanted panels to resolve, if possible, applications without unnecessary adjournments or deferrals on the basis of the information put before them on behalf of the Justice Secretary.
He was particularly sensitive to the question of victims. The role of victims is to help inform the decision on release conditions. They are not parties to the proceedings – that is only the Justice Secretary and the prisoner. The impact of the crime on the victims is not a factor in deciding whether (using the statutory test) ‘it is no longer necessary for the protection of the public that the prisoner should remain detained’ – that is a matter solely for the sentencing judge. The panel is not in a position to decide whether or not a prisoner has committed other offences for which he was not sentenced – it is moot how they can use the existence of further allegations when assessing risk. Nevertheless he told the Select Committee: ‘I regularly meet victim groups and the victims’ commissioner.’ He was very accommodating to their needs but he was equally aware that ‘not all victims want the same thing and some change their mind’. The duty to contact victims and keep them informed rests with the Victim Contact Service of the Probation Service. It was to this, not the Parole Board, that complaints made by victims in the Worboys case about not being kept informed should have been addressed.
The Worboys hearing
It is the statutory duty of the Chair to choose who sits on a panel. Because of the volume of work it was not possible for Nick to do all that himself. He chose the chair of the Worboys panel and the secretariat chose the other two members. Two of them were women. ‘As we went into the Worboys issue, we did not think there were unusually complex legal issues. What appeared to be complex was the risk assessment,’ which is why a senior non-judicial member with expertise at risk assessment was selected to chair the panel. There were ‘five psychologists’ in the room: one on the panel; three who had examined and assessed the prisoner and favoured release, and one (from offender management) who had not personally examined him but who opposed release. ‘We realised it was a complex and serious case but objectively it was not out of the ordinary. We have dealt with others that are far worse.’ The panel received a dossier prepared on behalf of the Secretary of State and which presumably contained as much material as the Secretary of State found relevant. He is not often represented at oral hearings but he was here, at the Board’s request. The representative did not ask for further information to be obtained. The failure noted by the Divisional Court not sufficiently to challenge Worboys’ reliability and credibility applied to the Secretary of State’s representative as well as to the panel.
There is no appeal against a Parole Board decision. Each panel is a court in its own right. ‘I had no line of control over what they decided nor should I have done,’ Nick noted, and no power to alter it. Panels cannot re-categorise a prisoner: it is either release (Worboys was not the first Category A prisoner recommended for release on conditions, although it is unusual) or a recommendation to open conditions. Prisoners sometimes apply to judicially review a decision. Never before had victims, who are not parties, made such an application. ‘I instructed that we should not challenge their standing because I felt it was important the JR should go ahead,’ he tells me.
The judgment raised the question of how far a panel is obliged to go beyond what has been placed in front of it; notably here were the 80-plus further allegations. Although there were references in the dossier to other allegations, none of them had been proved in court. ‘The panel didn’t know what it didn’t know.’ For a panel to engage in a ‘speculative hunt’ runs the risk of ‘let’s ask for information and then decide if it is relevant’. Parole Board Rules require hearings to ‘avoid formality’. Nick conceded that the system may have ‘become too informal’. It takes place in a room in a prison, which lacks the ‘theatre’ of other judicial bodies. ‘You are trying to predict a future event,’ Nick explained. ‘You could do a brilliant risk assessment and put in well tailored licence conditions’ and yet the prisoner re-offends. Many in fact do breach their conditions – which raises the question of whether they were too rigorous. Under 1% commit further offences where someone is badly harmed, though Nick quickly added: ‘Getting it wrong has very serious consequences.’
Reaction to the decision
After the public furore broke in early January, the Ministry of Justice issued a Review of Law, Policy and Procedure. Two months before, at the anniversary event on 6 November, Nick had called for greater openness. Aware that ‘some of the decisions we make are subject to ill-informed criticism’, ‘perhaps we should go further and publish our decisions and reasons so that everyone can see them’. He also then proposed that the Board, rather than the Secretary of State, should ‘direct the evidence and witnesses it requires at the start of the process’.
On 15 March Nick wrote to the Justice Secretary with the Parole Board’s response to the Review, welcoming ‘the opportunity to accelerate the introduction of much needed reforms’. This included a proposed mechanism for reconsidering decisions. Nick told me that many of the current criticisms could be overcome by making the Board part of the tribunal system, separate from the Ministry. This, amongst other proposals with which he agreed, were sent by letter on 27 March by the Chair of the Justice Select Committee to the Justice Secretary.
Despite his commitment to a reform agenda of which he had been an early proponent the Justice Secretary sacked him. ‘I am absolutely clear in my own mind,’ Nick told me, ‘I wasn’t told my position was untenable because the Parole Board had made a wrong decision, it was because the Parole Board had made an unpopular decision. I am also absolutely clear that the Justice Secretary felt that his position would be under threat.’
There is also the issue of judicial independence. ‘If it is the case that you make an unpopular decision and either I will sack the panel or the chair of the board, that is going to have an effect on your decision-making. It is a very direct attack on the Parole Board’s independence and decision-making and makes us no longer compliant with Article 5’ – another argument for tribunal status.
Finally he told me, ‘I don’t demur from the [Divisional Court] judgment. I think the panel got it wrong and I think that people at the top of organisations should take responsibility for what their organisation does. I am not feeling sorry for myself. But if you unpick what happened, the wider principles go way beyond any consequences to me.’
Contributor David Wurtzel is a member of the Counsel Editorial Board and a Bencher of Middle Temple