The Parole Board: Why Splitting Legal Hairs Is Vital

By Mark Leech FRSA

Lawyers often accuse their opponents in court of ‘splitting legal hairs’, meaning the points they’re making are so academic in nature they are, in the grand scheme of things, utterly irrelevant – and yet history has shown time and again (and in at least two successful Supreme Court and Court of Appeal cases cases that I brought myself against the prison authorities) that there are instances where the splitting of some legal hairs can prove so important that they safeguard fundamental human rights.

The legal case of Dickens this month is a prime example.

Dickens was a case successfully brought by prison law solicitors Swain and Co against the Parole Board on behalf of their client Mr Dickins, who was represented by the brilliant Jude Bunting.

Mr Dickens was a post-tariff life sentence prisoner – but don’t waste your time looking for this case on the Parole Board website for you won’t find it mentioned anywhere there. 

While the Parole Board is the first to trumpet its alleged ‘independence’ the truth is that as a body it has become increasingly skilled at concealing its legal failures from the public – it doesn’t publicise any legal cases brought against it, and nor does it comply with its public undertaking to publicise quarterly its Reconsideration Decisions; indeed in 2021 they have published just one decision, claiming they are too busy with other things.

‘Risible’ is my response to that and a point I will return to later, but first to Mr Dickens.

Facts: Any indeterminate sentenced prisoner, like Mr Dickens, is entitled to require the Secretary of State for Justice to refer his or her case to the Parole Board at any time after they have served their minimum term and every two years after that until release is directed.

The law requires that where the Parole Board, having had a case referred to them by the Secretary of State, “… is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined” it shall direct the prisoner’s release.

When the Board directs a prisoner’s release, the Secretary of State must release him or her and their release can only be delayed for a reasonable time to put in place any necessary licence conditions, and no longer than absolutely necessary.

The question is this: Where the Parole Board directs a prisoner’s release at what exact point, legally, in the parole process, has the Parole Board legally given that direction?

That was the legal hair that had to be split in Dickens.

The usual procedure after an oral hearing is for the Parole Board panel to hold a discussion to consider and formulate its decision.

After the discussion, the panel chair will draft the decision which they then circulate in draft to the other panel members.

Once the panel has agreed the final wording the panel chair sends the decision to the case manager for transmission to the parties in accordance with the Rules requiring it to be communicated to all parties within 14 days.

So where, exactly, in that process has the Parole Board done its job – when precisely has it given its direction?

Is it when the chair has drafted the decision; or

Is it when it is circulated to panel members; or

Is it when the panel has agreed the final wording; or

Is it when the panel chair sends it to the case manager; or

Is it when the case manager communicates the decision to the parties?

At what point in that process, in law, has the Parole Board legally given the ‘direction to release’?

In short when as far as the Parole Board Rules are concerned is it case closed, powers expended, when is it, as lawyers call it, functus officio – job done and there’s no going back?

You may ask does it really matter, they’ve made their decision does it really matter when it was made as long as it was made?

Well yes actually it does – and never more so than in this case because in the 90 minutes between the panel chair emailing the decision to release to the case manager at 08.51, and 10:24, just an hour and a half after the case manager had received the panel’s decision and reasons but before he had communicated the decision to the parties, the panel was informed that Mr Dickens had been returned to closed conditions.

This followed an allegation that a prison officer had witnessed a white Range Rover pull into the chapel car park within the grounds of the open prison, HMP Hollesley Bay, and saw a large black plastic bag passed to Mr Dickens through the car window.

A search of the bag found it to contain what was believed to be alcohol and steroid tablets.

Mr Dickins denied the allegation, he has not been charged with a criminal offence nor made subject to prison discipline rules in respect of the incident.

On receipt of the new information however the panel chair decided to adjourn the case, to stay the release decision, in order to receive further reports. The chair made a number of directions for a full report on the circumstances giving rise to Mr Dickens’ return to closed conditions to be obtained, an updated risk assessment and up to date recommendation on his suitability for a return to open conditions – but those instructions were never acted upon because the Parole Board was told that while the panel was ‘functus‘ (had legal powers) when it made its decision directing release and emailed that decision to the case manager, thereafter it was functus officio having no authority to take any further action at all.

The Secretary of State then sought to have the decision to release Mr Dickens reconsidered under the Reconsideration Mechanism, and that was successful before HHJ Topolski QC who ordered the release decision be quashed.

However HHJ Topolski’s decision was challenged successfully in the High Court by Mr Dickens, where the High Court judge Mrs Justice Stacey said HHJ Topolski was wrong to say the panel had function to suspend its release decision in light of the new information; quite simply, it didn’t.

Stacey.J said once the decision to release had been emailed to the case manager at 08.51 thereafter the panel was powerless to change it – calling it a ‘hard case’.

“Hard cases make bad law and this is a hard case. Highly relevant material that could well have had a bearing on its assessment of the risk Mr Dickins posed to the public if he were to be released came to light after the panel had made its decision on 11 May 2020. But the Board was functus when it made its Decision and Parliament has not given the Board the power to reconsider its decision in such circumstances. It is not for the Court to intervene and re-write the Rules. The Decision must be quashed. It is very much to be hoped that any concerns as to Mr Dickins’ risk can be met by his licence conditions.”

Answer: Where the Parole Board directs a prisoner’s release at what exact point, legally, in the parole process, has the Parole Board legally given that direction? Dickins is now the authority for saying the answer is the direction is given the moment the panel chair communicates the release decision and reasons for the decision to the case manager – and it is at that point (slip and procedural errors apart (rr29 and 30)) that the powers of the panel cease and thereafter the panel is functus officio.

I suspect that we can expect from this an amendment to the Parole Board Rules 2019 – giving the panel a power to review an earlier decision in light of later potentially adverse information that comes to its attention before release has taken place; but for the moment no such power exists.

What I personally find seriously disturbing about this case is that neither the successful – but later overturned – reconsideration decision of HHJ Topolski QC, nor the case of Dickens in the High Court itself, appears on the Parole Board website.

Any judicial body that promotes itself as independent should be transparent, open to scrutiny, unafraid to publish that which supports its decisions as well as those which legally criticise what it has done.

But that is far from the Parole Board that we have today.

The reality is that since the disastrous case of Worboys when Nick Hardwick, the then Parole Board Chairman was, according to a High Court Judge unlawfully forced out of office, the Parole Board has become increasingly insular and inward looking, failing to publicise legal cases challenging their decisions and the highly critical adverse judgments that result from them – and it has continually failed to publicise the Reconsideration Decisions that it has publicly undertaken to make available every quarter – they have published just ONE decision in 2021.

Can the Parole Board be trusted?

Yes, for the most part I believe it can.

Those people who make up the Parole Board panels do a wholly professional job, and they do it exceptionally well – however it is some of the Civil Service mandarins who administer the Parole Board whose motives we need to examine and, in some cases sadly, we also need to question their integrity too.