John Worboys case shows Parole Board is not independent, court to hear
A British prisoner is seeking a judicial review because he says he does not have a fair chance of parole following the controversy surrounding the decision to release the serial sex attacker .
High court judges ruled in March that the Parole Board’s decision to release Worboys and ordered a “fresh determination” in his case. The ruling led to the departure of Parole Board chair Nick Hardwick, whose position was said to be “untenable” by the justice secretary, David Gauke.
Lawyers acting for the prisoner Paul Wakenshaw claim that Hardwick’s removal proves that the Parole Board lacks independence and as such fails to meet the requirements of the European Convention on Human Rights
Wakenshaw is also seeking an order postponing the recruitment of a new chair, for which interviews are scheduled to take place next month.
On Thursday the Royal Courts of Justice will consider whether the recruitment process should be suspended until the judicial review claim can be decided.
Like Worboys, Wakenshaw is serving an indeterminate public protection (IPP) sentence. In 2009 he was sentenced to a minimum of six years’ imprisonment for two offences of robbery and for using an imitation firearm. Now three years over that tariff, he is undergoing a parole review and is due to appear before the Parole Board.
IPP sentences were introduced in 2005 by the former home secretary David Blunkett to protect the public against criminals whose crimes were not serious enough to merit a normal life sentence but who were regarded as too dangerous to be released when the term of their original sentence had expired.
High-risk criminals, mainly convicted of violent or sexual offences, were given a tariff (a minimum sentence) instead of a fixed-term sentence. They could only be released at the end of that tariff if the Parole Board was satisfied they could be managed safely in the community.
In 2012, IPP sentences were scrapped by the then justice secretary Kenneth Clarke, who called them a stain on the justice system. More than 3,000 IPP prisoners remain behind bars. Before being released, IPP prisoners must complete offending behaviour courses. But not all jails run the required courses and prisoners can wait years to participate in them.
Wakenshaw’s lawyers will argue that while the Parole Board is a de facto court under both common law and the ECHR, it does not enjoy the independence usually granted to a court.
They will quote from Hardwick’s resignation letter, in which he questioned the board’s independence. Speaking to the Guardian in May, he went further, saying: “I think the Parole Board now fails the independence test.”
It is not the first time the autonomy of the board has been questioned in the courts. In 2008 four prisoners successfully challenged its perceived lack of independence, again citing common and ECHR law.. The secretary of state appealed, but the court of appeal upheld the lower divisional court’s ruling.
In that case – R (Brooke) v Parole Board – the judges concluded: “Neither the secretary of state nor his department has adequately addressed the need for the Parole Board to be and to be seen to be free of influence in relation to the performance of its judicial functions. Both by directions and by the use of his control over the appointment of members of the board, the secretary of state has sought to influence the manner in which the board carries out its risk assessment.”
Wakenshaw’s lawyers acknowledge thatsome changes to the Parole Board were made after the Brooke ruling, but say the overall structure remains largely in place.
Wakenshaw’s lawyer, Dean Kingham, of Swain & Co, said: “The Ministry of Justice classifies the Parole Board as an arms-length body, but often its approach could better be described as hands on. The removal of Hardwick by the minister was a stark example of overt and undue political influence over a supposedly independent body. My client believes that the board will now exercise undue caution, and many prisoners who are safe to be released will not be.”
Deborah Russo, co-director of the Prisoners’ Advice Service charity, said a legal challenge was long overdue and that nothing had substantially changed in the Parole Board since the Brooke case. “The fact that the Parole Board is located within the Ministry of Justice and shares a website within it, is indicative of a lack of independence. Further, the forced resignation of Nick Hardwick is testament to the fact that the actions of the Parole Board are very closely manoeuvered behind closed doors by the MoJ.”
A Ministry of Justice spokesperson said: “The Parole Board is independent from the government and ministers play no role in the decisions that it makes. It would be inappropriate to comment further while legal proceedings are ongoing.”