What does the “Worboys” case mean for those involved with the parole system?

Thu, 29 Mar 2018

The terrible infamy of John Worboys and his particularly shocking spree of offending against members of the public – those who did not know him, and were in vulnerable situations trusting a black-cab taxi service – is plain. The case is particularly exceptional, and one that causes a great deal of concern to the public generally, and to a large number of persons who are regarded as probable victims of his (even if those offences were not pursued by any criminal prosecution). It is plainly welcomed by the general public that he shall now have to go before a fresh parole board for consideration before he might be released.

However, the impact of the judgment of the Court in this case (R.(DSD) and others v Parole Board of England and Wales [2018] EWHC 694 (Admin)) goes far beyond one particularly exceptional case. There are ramifications for the system more generally that will have direct impact for prisoners whose cases are to be considered by a parole board in future, for the families of those prisoners, for victims of offences, for families of victims, and potentially for professionals working in the system. There are even ramifications for the general public whose knowledge of what occurs within a particular parole process will likely be greater in consequence.

The decision of the Divisional Court

There were three separate claims to be decided by the Court, each somewhat different. Overall the Court was required to decide:

(1)    Whether the decision to release Worboys was unlawful on Wednesbury grounds of irrationality? And, linked to this, whether the panel of the Parole Board unlawfully failed to properly consider and inquire into the evidence of wider offending as a relevant consideration (to test the account he now advanced) [79]-[81]?

(2)    Whether Parole Board Rule 25, contained within rules set by the Secretary of State, prohibiting the Board from any publication of reasons or provision of them to interested persons, was ultra vires (outside the lawful scope of) the enabling statute?

Will there be many more challenges by victims to Parole Board decisions to release offenders?

It seems unlikely that many other challenges will follow for several principal reasons.

Firstly, the statutory scheme is deliberate in separating out the need to consider victims’ views as to what conditions are appropriate for an offender’s licence, distinct from whether or not an offender ought to be released at all. This is for good reason: it is to be presumed a victim will usually not support release; and the question as to release arises only after a required punitive detention period has been completed. A parole board panel considers not punishment but only whether risk has reduced so that rehabilitation has displaced the need for preventative detention. It is notable that in this case at the permission hearing no objection was made to the disclosure of the parole dossier to the parties bringing these claims, subject to confidentiality undertakings. That stance might not be taken in other cases (and certainly not adopted pre-action), and might require detailed consideration in such a situation where a contest arises. Nor does the Court in this judgment actually decide whether or not victims (or potential victims) do have the standing with which to bring judicial review proceedings [114]. However having decided at the permission hearing, where the offender had no counsel present, that standing was afforded to NBV and DSD the Court does tend to suggest, but not decide, that victims might have the necessary standing to bring a claim challenging release itself.

Secondly, this case is very unusual and extreme factually and in its combination of factors:

(1)    There were convictions for 19 offences involving twelve separate victims [4]. Those offences were committed over an 18 month period [13];

(2)    It had been accepted by the police that others were also victims despite no convictions. That was admitted in civil proceedings in which the police were successfully sued for failings to take reasonable steps to prevent the continuation of the offending. Findings were recorded by a High Court Judge. The additional affected persons (treated as victims of this offender) succeeded in proceedings that reached the Supreme Court (Commr of Met. Police v DSD [2018] 2 WLR 895). The addition of such unproven offences extended the offending period to almost a decade of behaviour;

(3)    The Crown Prosecution Service had considered the evidence in DSD’s case to be such as to give a realistic prospect of conviction but had chosen to limit the number of offences on the indictment to render it manageable [57] (contrary to a later press release [58]);

(4)    The claimant DSD had also sued Worboys personally, and that claim was settled (albeit without liability admission) [6], [8]. He had settled 11 such claims at a cost of £241,000 [60];

(5)    The parole dossier contained numerous references to a large-scale police operation in which about 80 potential victims came forward [41]. The Court does not say a parole board should (or could) decide if there have been other non-conviction offences, but says that it is a different issue to consider that material as part and parcel of a global assessment of risk, subject to doing so fairly [150]-[151];

(6)    The offender remained in the highest level, Category A, security conditions: he had failed since his imprisonment to demonstrate a reduced risk such as to achieve downgrading to B, C and D (open) conditions. Releases from Category A conditions without gradual progression are extremely rare;

(7)    The dossier failed to contain the sentencing observations of the High Court judge who heard the trial, contrary to the requirements of the Parole Board Rules [14], [49];

(8)    All reports by probation officers and expert psychologists prior to August 2017 were unanimous that Worboys was not ready for release or progression to open conditions [24]-[27]. The parole board sat on 8 November 2017 to make its decision [42]. Until 2015 he remained in denial of his offending [20]. The subsequent admissions remained partial and minimising his responsibility [25], [31]. [37]. In that context there were some later recommendations of psychologists that favoured or accepted the possibility of release on licence, following an assessment based on the limited 18-month offending period and openness and full accounts of those offences he had provided [32]. There were also inconsistencies in the accounts he gave each psychologist [36]. Neither the Offender Supervisor or Offender Manager, who work with the offender intensively, supported release [39]-[40].

(9)    There was a failure to probe the account of offending offered by Worboys and whether there was minimisation, and whether there was more extensive offending than the 19 convictions recorded [44], [62], [124]-[127]. None of the material revealed in the civil proceedings was before the panel [49]. Extensive relevant material existed [51]-[56];

Despite the combination of factors, the Court rejected the challenge that the decision to release was on its merits wrong (i.e. that it was irrational, as the argument was put in this case) [130]-[133]. There was also no unlawful failure to take into account a relevant consideration required by statute to be considered [141]-[142]. The only legal flaw, by which the challenge succeeds, is that it was irrational of the panel – in this particular case – to fail to consider the evidence or information of wider offending relevant to probing the level of insight into the causes of his offending and testing the honesty and veracity of the offender’s account [155], [159]-[164], [201].

A third reason why challenges to a release decision may remain extraordinary in future is that local authorities do not enjoy standing to seek to frustrate a release to their particular areas: the Mayor of London lacked standing to bring the judicial review challenge he attempted [109].

Fourthly, it may be that proceedings of this type will rarely be able to satisfy the test that such material that a panel was obliged to obtain, but failed to obtain, is material that is liable to have or capable of having a determinative impact on the result (see [163]). To succeed an error must be such as to have had the capacity to make a substantial difference to the ultimate outcome of the parole review. Even where successful, as here, the case will simply have to be redetermined by the Parole Board at a new review hearing. The Court stated clearly:

“We must emphasise that we have not held, nor must we be understood as suggesting, that Mr Radford's [i.e. Worboys’] present risk is such that his continued imprisonment is necessary for the protection of the public, or that the Parole Board should so find. Subject only to the review jurisdiction of this Court, the assessment of all the available evidence, and all matters relevant to Mr Radford's risk, is for the Parole Board alone to make” [202]

Future changes

It is most likely that the greatest change in practice that shall follow this decision shall be to the working of the general parole system. Only the Secretary of State defended Parole Board Rule 25 [94]. There was notably no advocate for the wider prison population advancing any concerns about a chilling or negative effect that may follow the opening up of the process, if that may discourage report writers and experts from a willingness to support release for fear of public censure. Questions of rehabilitation and risk (the question the statute poses as to whether it is any longer necessary to confirm on risk grounds) may then be subsumed by and confused with questions of public acceptability, public opprobrium, and greater punishment demands advanced against release.

The Court holds that the current rule that information about parole proceedings, and the names of the persons concerned in the proceedings, must not be made public, is unlawful. The principle of open justice is applied to displace or restrict the element of privacy, such privacy generally allowed by the holding of hearings themselves in private [176]-[177] (the question itself of whether private hearings are always necessary and justified is left to another case on another day: [196]). The blanket and total restriction of Rule 25 was not justified by the general and ambiguous words of section 239(5) of the Criminal Justice Act 2003 [191], [193]. The restriction went too far as it imposed a prohibition that exceeds the minimum necessary and/or proportionate [198]-[200].

The right to information shall not be limited to victims, but shall extend to the wider public also. The Court states:

“There are no obvious reasons why the open justice principle should not apply to the Parole Board in the context of providing information on matters of public concern to the very group of individuals who harbour such concern, namely the public itself. Indeed, it seems to us that there are clear and obvious reasons why the Parole Board should do so. This information can readily be provided in a fashion which in no way undermines the Article 8 [European Convention on Human Rights] rights of the prisoner and the confidentiality which attaches to it” [176]

There will now be a review of the parole process, and the rules that govern it. It remains to be seen what type of amendment shall be made to the scheme. The Court grants declaratory relief identifying the unlawfulness of Rule 25, but noting “it will be for the Secretary of State (as it may be that he is minded to do) to decide how Rule 25 should be reformulated” [203]. There will need to be balancing of various interests, and protection of personal details of victims, reporting officers, and families of offenders, will need particular attention.

One immediate change is the departure of Professor Nick Hardwick from his post as Chairman of the Parole Board. Given the very fact-specific and individual issues in this case (originally decided by a panel of three parole board members, not the Chairman, whose own support for open justice is cited by the Court) it is entirely inexplicable as to why the Secretary of State has apparently applied pressure to compel this resignation.

Philip Rule
Specialist public, prison and criminal law barrister
No5 Barristers’ Chambers

© 28.3.2018

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