There has been a steady increase in the number of recommendations for oral hearings for determinate recall cases since the Osborn, Booth and Reilly judgment and changes stemming from the Offender Rehabilitation Act 2014 (ORA). This significantly increased demand for oral hearings at the Board, and has impacted disproportionately on waiting times for indeterminate prisoners due to the Board’s current listing prioritisation framework.
To address these issues the Parole Board Management Committee reviewed a number of approaches and ran pilot projects from August to December 2016. Details on these were shared back in September and can be found here. An update on each of the work strands is provided below:
1. Working with PPCS to increase the use of Executive release and diverting recall cases from the Parole Board.
As part of the National Parole System Action Plan, NOMS have committed to increase the number of Executive releases for determinate recall prisoners, which is intended to reduce the number of referrals, and demand for oral hearings at the Parole Board. From April to December 2016 NOMS undertook Executive Release reviews for 2,610 prisoners which resulted in the re-release of 1,192 prisoners (46%).
As well as this, of the 8,061 referrals for determinate recall prisoners made to the Board in the same period, approximately 2% resulted in a MCA (Member Case Assessment) paper release. There continues to be times when Executive Release may be appropriate, but to meet current policy requirements the referral is still required to be made to the Board by day 28 of the prisoner’s return to custody. NOMS may also continue to review an individual prisoner for release alongside an ongoing review by the Parole Board.
In order to assess potential approaches that could reduce the number of determinate recalls being sent for oral hearing at MCA stage (that were subsequently considered for an Executive Release) the Parole Board and PPCS launched a short pilot on 15th August 2016 with twelve Parole Board members, to test if a cohort of cases identified could be adjourned for additional information and/or a request that NOMS reconsider Executive Release as an option prior to the MCA review being concluded. In a three month period 785 cases were identified to be in scope of the pilot. Of this cohort, 29 cases (17%) had an Executive release review resulting in 5 prisoners being re-released due to this approach. Due to the low impact of this work the pilot approach ceased at the end of November 2016.
The operations team have since commenced further reviews aimed at;
*Improving communication and recording of individual cases that have been considered for Executive Release at the point of referral to the Parole Board
*Improving collaborative reviews of potential Executive Releases once the listing cycle has concluded (i.e.) determinate cases that have been made ready to list who have not received a listing slot being re-reviewed by NOMs for Executive Release ahead of the next listing exercise
*Refined the maximised listing approach to focus on determinate recall cases that are confirmed as not suitable for Executive Release
*Expanding single member determinate recall hearings via remote hubs (e.g. the Royal Courts of Justice) and increased use of the Parole Board hub facilities outside of the generic listing process
*Consulting the Legal Advisor and counsel to identify if the Board could consider rejecting dossiers that do not contain mandatory information which enables decisions at MCA stage.
In addition to internal actions the Ministry of Justice has committed to reviewing the guidance to National Probation Service (NPS) and Public Protection Casework Section (PPCS) when considering, authorising and actioning the recall of offenders from the community. NOMS have now republished PSI 30/2014 Recall Review & Re-Release of Recall Offenders alongside updating guidance to NPS and PPCS staff. It is envisaged that the updated guidance will increase the number of offenders who are reviewed via a fixed term recall status, which will reduce the number of offenders who are referred to the Parole Board under the standard recall process.
2. Pilot approach of extending the Sentence Expiry Date (SED) cut off for determinate recall cases from 12 to 24 weeks
The Parole Board Management Committee approved a pilot extending the SED cut off for oral hearing listings for determinate recall prisoners from the previous 12 weeks to 24 weeks for an initial period of six months. This followed counsel’s advice that scheduling hearings close to a sentence expiry date could lead to the utility of the hearing being diminished with little benefit to the individual prisoner. The identified benefits of extending the SED cut off to 24 weeks from the date of the MCA decision included:
*more equitable and flexible access to oral hearings for all case types, specifically indeterminate sentenced prisoners, which are not superseded by high volume determinate recalls.
*a reduction in the age profile of cases awaiting listing, specifically to those who are over tariff.
*a projected reduction in the Board’s litigation costs stemming from delays
*an increase in decisions being communicated to prisoners at the earliest opportunity.
An impact assessment was undertaken by the board in December 2016 which indicated that the extended SED cut off had contributed to the recalibration of listings allocation to indeterminate prisoners. Indeed the number of indeterminate prisoners waiting in excess of 90 days for a listing hearing has been reduced by 60% in the period.
In the period from August – December 2016 there were 110 cases that may have proceeded to oral hearing where the prisoner was within 24 weeks of SED. In 19 cases (17%) prisoners remained in the listing queue due to exceptional circumstances, all of whom have received a listing date prior to their SED.
Following advice from counsel the Board have now decided to pause the extension of the 24 weeks cut off to enable exploration of alternative approaches for this group. The Board is now reviewing how standalone short term listing capacity can be provided for this group where it is deemed that a decision is not possible on the papers.
In the interim any determinate recall case that is recommended for oral hearing will continue to be case managed until it receives a ‘ready to list’ status. Upon receiving a ‘ready to list’ status the individual prisoner will be considered in the next available listing exercise, added to available standalone listing hearings such as the regional hubs, or added to an existing vacancy as a maximised hearing. Cases identified as expedited will be listed as a priority.
Since the beginning of February members have been asked to revert to the original guidance of a 12 week SED cut-off point for determinate recall cases. This means that in cases where there are fewer than 12 weeks to SED, members should consider a decision on the papers wherever possible. It is recognised that it will not always be possible to make a decision on papers, as it may be that risk cannot be assessed without oral evidence.
In every case falling within the 12 week cut off, members will consider whether there are exceptional circumstances that mean the cut-off point of 12 weeks should not be applied and the case should be ‘prioritised’ within the next listing exercise or expedited as an exceptional listing.
3. Changes to the Listing Prioritisation Framework
The Listing Prioritisation Framework (LPF) published in 2010 dictates that determinate recalls are prioritised over all other case types as there is no fixed target or tariff date. The pilot around the LPF means that determinate recalls will no longer be prioritised for an oral hearing, and will no longer be listed ahead of any other case types. These cases will be listed for hearing where capacity allows in the generic listing exercise, or where possible stand-alone single member determinate recall hearings.
This element of the pilot will continue until the end of March 2017, when the Management Committee will undertake a full review of the LPF alongside the other options proposed, by the end of this business year and as part of our strategy review.
4. Dedicated oral hearings for determinate recalls in regional hubs
The Parole Board continues to scope facilities that can support oral hearings at regional sites as a separate exercise outside of the routine listing process. Consultation continues with the MOJ estates team and HMCTS. A number of potential sites have now been identified and site visits have been undertaken with further visits planned in the coming months including Peterborough, Birmingham, Norwich and Manchester.
The Board have now undertaken trial ‘remote’ hearings at the Royal Courts of Justice and will shortly be commencing a routine listing for stand-alone single member determinate recall hearings on a monthly basis.