This article is part of the Prison law during the coronavirus pandemic series:

A recent letter from the Parole Board published on social media by Dean Kingham of Swain & Co Solicitors has confirmed that all face to face parole board hearings have been cancelled. In the run up to the nationwide lockdown prison lawyers have either been appearing via telephone or video-link to represent their clients. Further reports suggested that panel members sat in a different room to legal representatives and professional witnesses, connecting via video-link, in order to prevent panel members from a risk of contracting COVID-19.

Going forward the recently published letter states that a Task Force is being set up to address the issue of oral hearings and how they can continue. This is no doubt in part a result of the legal obligations to review indeterminate sentenced prisoners under Article 5 of the ECHR. A lack of resources is not an adequate reason for delaying a prisoner’s review and steps must be taken to arrange a compliant system.

Panel members have been written to and asked to identify whether on the papers decisions can be made in relation to parole reviews. This would be hugely beneficial to some prisoners who are clearly suitable for release, such as some determinate sentenced prisoners and/or determinate recalls. However, it is unlikely to benefit a vast number of lifer prisoners who have serious index offences and where panel members need to make a detailed risk assessment before having the confidence to release.

In the absence of a positive decision on the papers it appears the new ‘norm’ will be telephone hearings. Whilst the adaptiveness of the Parole Board is welcomed in these challenging times, a telephone hearing may not always be best placed to deal with difficult issues raised by clients. In the absence of seeing witnesses face to face, subtleties and nuances to the evidence of professional witnesses and prisoners may be lost on the panel. The panel will also have to consider the longstanding principle that in the majority of cases where the liberty of a person is in issue, they are usually entitled to attend in person for fairness to be done.

As legal visits have been cancelled for the foreseeable future, access by lawyers to their clients by telephone must be facilitated. This poses difficulties for confidential legal discussions, as usually unless calling using a prison PIN phone, prisoners must be supervised if making calls from prison staff offices. A Panel must ensure that prisoners have adequate time to provide instructions to their legal representatives both before and during the hearing, and that those discussions remain confidential.

A further issue for oral hearings is the use of independent experts.  It is unlikely, considering the lockdown, that experts will conduct assessments in prisons. If a prisoner and/or their legal representative maintains that an independent report is essential the Parole Board must adjourn these cases.

The Parole Board needs to act swiftly in these uncertain times. There are substantial and significant issues to be addressed, both in terms of procedural fairness and delays in reviewing prisoners’ cases, giving rise to potential damages claims, and or claims for judicial review.

Philip Rule, Head of Public Law, No5 Barristers’ Chambers Chambers

Ian Brownhill, Deputy Head of Public Law, No5 Barristers’ Chambers.

Stuart Withers, Barrister

Benjamin Harrison, Barrister

Avril Rushe, Barrister