Worboys Case and the Parole Board

Lord Keen of Elie Excerpts

Wednesday 28th March 2018 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, with the leave of the House, I will repeat a Statement made by my right honourable friend the Lord Chancellor and Secretary of State for Justice. The Statement is as follows:

“With permission, Mr Speaker, I should like to make a Statement on the High Court judgment handed down this morning in the case relating to the Parole Board decision to release John Radford, formerly known as John Worboys.

This is an important and unprecedented case. The President of the Queen’s Bench Division, Sir Brian Leveson, the most senior judge who heard this case, said it is wholly exceptional. It is the first time that a Parole Board decision to release a prisoner has been challenged and the first time that the rules on the non-disclosure of Parole Board decisions have been called into question.

The judgment quashes the Parole Board’s decision to release Worboys and finds that Rule 25 of the Parole Board rules is unlawful. This means that Worboys’ case will now be resubmitted to the Parole Board. A new panel will be constituted and updated evidence on his risk from prison and probation professionals will be provided. The panel will then assess anew whether Worboys is suitable for release. Those victims covered by the victim contact scheme will be fully informed and involved in this process. My department also has to reformulate the Parole Board’s rules to allow more transparency around decision-making and reasoning.

It is clear that there was widespread concern about the decision by the Parole Board to release Worboys. As I have previously told the House, I share these concerns and consequently I welcome this judgment. I want to congratulate the victims who brought the judicial review and to reiterate my heartfelt sympathy for all victims who have suffered as a result of Worboys’ hideous crimes.

I want to set out, in greater detail than I have previously been able, the reasons why I did not bring a judicial review. As I told the House on 19 January, I looked carefully at whether I could challenge this decision. It would have been unprecedented for the Secretary of State to bring a judicial review against the Parole Board—a body which is independent but for which my department is responsible. I took expert legal advice from leading counsel on whether I should bring a challenge. The bar for judicial review is set high. I considered whether the decision was legally irrational—in other words, a decision which no reasonable Parole Board could have made. The advice I received was that such an argument was highly unlikely to succeed, and indeed this argument did not succeed. However, the victims succeeded in a different argument. They challenged that, while Ministry of Justice officials opposed release, they should have done more to put forward all the relevant material on other offending. They also highlighted very significant failures on the part of the Parole Board to make all the necessary inquiries and so fully take into account wider evidence about Worboys’ offending.

I also received advice on the failure of process argument and was advised that this was not one that I, as Secretary of State, would have been able successfully to advance. The victims were better placed to make this argument and this was the argument on which they have won their case. It is right that the actions of ministry officials, as well as the Parole Board, in this important and unusual case have been laid open to judicial scrutiny.

I have always said I fully support the right of victims to bring this action. I have been very concerned at every point not to do anything to hinder the victims’ right to challenge and to bring their arguments and their personal evidence before the court. Indeed, the judgment suggests that, had I brought a case, the standing of the victims might have been compromised.

The court’s findings around how this decision was reached give rise to serious concerns. The court has found that the ‘credibility and reliability’ of Worboys’ account in relation to his previous offending behaviour,

‘was not probed to any extent, if at all’,

by the Parole Board, and that, although the Parole Board was entitled to make inquiries of the police in relation to his offending, it did not do so. These are serious failings which need serious action to address. In these circumstances, I have accepted Professor Nick Hardwick’s resignation as chair of the organisation.

I am also taking the following actions: instructing my officials to issue new guidance that all relevant evidence of past offending should be included in the dossiers submitted to the Parole Board, including possibly police evidence, so that it can be robustly tested in each Parole Board hearing; putting in place robust procedures to check that every dossier sent by HMPPS to the Parole Board contains every necessary piece of evidence, including sentencing remarks or other relevant material from previous trials or other civil legal action; boosting the role of the Secretary of State’s representative at Parole Board hearings, with a greater presumption that they should be present for more complex cases where HM Prison and Probation Service is arguing strongly against release; working with the Parole Board to review the composition of panels so that the Parole Board includes greater judicial expertise for complex, high-profile cases, particularly where multiple victims are involved or where there is a significant dispute between expert witnesses as to their suitability for release; and developing more specialist training for Parole Board panel members.

The judgment also found that the blanket ban on the transparency of Parole Board proceedings was unlawful. I accept the finding of the court and will not be challenging this. It was my view from the beginning that very good reasons would be needed to persuade me that we should continue with a law that does not allow any transparency. I am now considering how the rule should be reformulated.

When I addressed the House on this matter in January, I said that I had commissioned a review into how victims were involved in Parole Board decisions, into the transparency of the Parole Board and into whether there should be a way of challenging Parole Board decisions. That work has been continuing for the past two and a half months. Given the very serious issues identified in this case, I can announce today that I intend to conduct further work to examine the Parole Board rules in their entirety.

As a result of the work that has been completed to date, I have already decided to abolish Rule 25 in its current form and will do so as soon as possible after the Easter Recess. This will enable us to provide for the Parole Board to make available summaries of the decisions they make to victims. In addition, I will bring forward proposals for Parole Board decisions to be challenged through an internal review mechanism, where a separate judge-led panel will look again at cases that meet a designated criterion. I intend to consult on the detail of these proposals by the end of April, alongside other proposals to improve the way that victims are kept informed about the parole process.

I am grateful to Baroness Newlove for her help with this part of the review and to Dame Glenys Stacey for her helpful suggestions and review of the way that victim liaison operated in this case. I will come back to the House with further proposals as they are developed.

In conclusion, let no one doubt the seriousness with which I take the issues raised by this morning’s judgment, nor the bravery of the victims who brought this case to court. I commend this Statement to the House”.

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[Lord Keen of Elie]

I am obliged to the noble Baroness and the noble Lord for their observations on this matter. We are all agreed that we have to maintain the independence of the Parole Board: that is certainly our intention. Transparency came up early in this process as a matter that had to be the subject of review. Indeed, my right honourable friend’s predecessor announced on 9 January this year that he intended to institute inquiries into the question of Rule 25. Those inquiries have effectively concluded and, as I indicated, we intend to bring forward proposals with regard to Rule 25 by the end of April. The detail of that is not something that I can address because we have yet to formulate an alternative rule that allows for the appropriate level of transparency. As to the further, more detailed review that is to touch on victims, for example, and their position, we fully intend that such a review should be completed by the summer. I cannot give a cast-iron guarantee, but that is certainly our intention. We recognise the importance and the urgency of this work.

I turn to the questions raised by the noble Lord, Lord Marks. The question about the evidence of past offending raises the issue of reports of other offences for which an individual has not been tried or convicted. The court commented on that in its judgment and indicated that such evidence should be before the Parole Board, not in order that it should make its own determination of guilt or innocence but so that it could utilise that material in engaging with the party seeking parole and test their honesty and candour with regard to their previous offending. It is in that context that I anticipate this material being used. Particular note is taken of the interests of victims and the question of notification: that will be addressed in the course of the forthcoming review, as well as the question of how the Secretary of State’s representatives will take a more enhanced role in these matters. That will be a matter for consideration.

As for training, we were not saying that the training was deficient in the past, but we believe it can be improved. That will again be the subject of the forthcoming review. The noble Baroness also asked what material was and was not before the Parole Board. I should say that the judge’s sentencing comments should, as a matter of procedure, have been before the Parole Board. That is a failing on the part of HM Prison and Probation Service, which should have been providing the material to the Parole Board. There is other material that the Parole Board could have called for, and which the court clearly felt it should have called for, that it did not call for. Clearly, we have taken that into account when deciding on the need for further review in this area. Beyond that, I would not like to make any further comment, except that in light of Nick Hardwick’s resignation it may be that new leadership will bring about change in itself, so far as the conduct of the Parole Board is concerned.

[Lord Woolf (CB)]

My Lords, I shall take up the last point that the noble and learned Lord made in answering the questions raised a few moments ago. Nick Hardwick has been an outstanding contributor to criminal justice in this country. I say that knowing that other Members of this House who have occupied the highest judicial posts in this country share that view, even though they have been closely involved in criminal justice as Lord Chief Justice. I have not spoken to the noble and learned Lord, Lord Phillips, but I have spoken to the others and they confirm that that is the case. It was not mentioned in the Statement that has just been read out that Nick Hardwick indicated that his role in this matter was extraordinarily limited. Although the Parole Board may have been at fault, as indicated in the judgment, it is right to say there was no personal criticism of its chairman. I am sure the House accepts that being a member of a parole board is an extraordinarily difficult task. A parole board can act only on the information given to it. In those circumstances, I ask the Minister to make clear that the view I have just indicated about Nick Hardwick is accepted by the Lord Chancellor and Minister of Justice. It is right that it was made clear to him that he should resign, albeit that he thought he would have been able to carry on perfectly well in the role. Bearing in mind the importance of the Parole Board, this is a most important matter.

[Lord Keen of Elie]

I am obliged to the noble and learned Lord, Lord Woolf, for his observations and readily concur with his comments on the contribution that Professor Nick Hardwick has made to criminal justice in this country. I say that without qualification. Clearly a situation had arisen in which there had to be consideration, both by the Secretary of State and by Professor Nick Hardwick, of whether it would be tenable for him to continue in the present circumstances. In light of that, he tendered his resignation. Again, I repeat, I accept without qualification the comments made about his considerable contribution to criminal justice in this country.

[Baroness Newlove (Con)]

My Lords, this has been a successful day for victims and they have received justice, but we must not forget how hard this journey has been for them. They have had huge pressure on their shoulders. It has not been an easy fight and is still not an easy fight. I ask my noble and learned friend to think that it cannot be right that offenders have legal teams to take them through the parole system, yet the victims have had to crowdfund through the internet to get a legal team to represent them. Surely the Government will look at this so that it never happens again.

My other point is that, if Worboys appeals this judgment, I want it understood that all the victims in this case should be given the right information, including those who did not go to trial but had their evidence put on file. It is more important that we do not see the same situation again, where victims are scared and do not feel safe for their lives.

[Lord Keen of Elie]

I am obliged for the observations of my noble friend Lady Newlove. I should like to repeat the appreciation of the department and the Lord Chancellor for the work she has done in leading engagement with victims in the inquiry to date. That has been extremely important. Under the present victims’ scheme, those who are the victims of an offence for which there has been a conviction are automatically engaged in the victim engagement scheme. Where the victim of a reported offence did not proceed to trial or conviction, however, the position is different. We shall look at that matter in the forthcoming review.

[Lord Blunkett (Lab)]

My Lords, in endorsing the words of the noble Baroness, Lady Newlove, the ruling of the High Court, and the transparency, training and other measures that will flow from it, I wish also to endorse what the noble and learned Lord, Lord Woolf, said. I was responsible for appointing Nick Hardwick to his first major public appointment 15 years ago, to head the Independent Police Complaints Commission. He has been a great public servant. He has done a superb job in modernising and reforming the Parole Board, with great difficulty, and we owe him a debt of gratitude.

[Lord Keen of Elie]

I entirely accept the observations of the noble Lord.

[Lord Grabiner (CB)]

We have focused attention—quite properly, in my view—on the performance of the Parole Board, but there is a separate and rather important aspect of this very shocking case. As I understand it, the CPS had available to it a good deal of material which was not then the subject of prosecution. That may have had a real impact on the sentence that was ultimately imposed upon Worboys; in fact, I am sure that it did. Can the Minister assure us that the performance of the CPS in this story and in future possible prosecutions and investigations will be carefully looked at? If you do not charge what you should charge, you often end up with the wrong result.

[Lord Keen of Elie]

I note the observations of the noble Lord. Clearly, the role of the CPS in the conduct of the prosecution of Worboys is a matter of some concern. The CPS takes these decisions independently and clearly, that independence has to be respected. Worboys was the subject of an IPP sentence, albeit one that was liable to open the door to review before the Parole Board. I cannot give an undertaking at this time of any formal inquiry into the role of the CPS with regard to the original prosecution decisions that were taken, but I note what the noble Lord has said.

[Viscount Hailsham (Con)]

My Lords, I welcome what my noble and learned friend has said about the action that has been taken. With regard to enhancing the role of the Secretary of State at the meetings of the Parole Board, I suggest that in complex cases he gives consideration to using a special counsel, who might, after all, also be able to articulate the views of the victims. I remind him of the practice that was adopted when I was a very junior Minister in the Home Office reviewing the tariffs in life sentence cases, which was to obtain the up-to-date observations of the trial judge, if available—and, if I may say so, the Lord Chief Justice.

[Lord Keen of Elie]

I note the observations of my noble friend Lord Hailsham. Clearly, these considerations will be taken into account in the review process that is being carried out.

[Lord Beith (LD)]

My Lords, I welcome the High Court decision and the fact that it showed up the really serious errors made by both the Parole Board and the Ministry of Justice. But I take it that the Minister agrees that these errors should not blind us to the proper role and importance of the parole system within our criminal justice system and, indeed, as the noble and learned Lord, Lord Woolf, rightly pointed out, to the contribution, which the Minister has already acknowledged, that Nick Hardwick has made in several positions—bearing in mind also that Nick Hardwick argued that the transparency we are all now calling for was not allowed by law and should have been.

[Lord Keen of Elie]

Well, indeed. I am obliged to the noble Lord for his observations in that regard. As I indicated earlier, it had occurred to my right honourable friend’s predecessor, almost as soon as this matter came to his attention, that Rule 25 really did need to be looked at and given further consideration because of the impact it had on the perception of proceedings. Regarding the proceedings of the Parole Board itself, clearly, there are hundreds of individuals involved and engaged in that process. It is critically important as part of our criminal justice system and it is equally important that it should remain independent of the Executive.

[Lord Mackenzie of Framwellgate (Non-Afl)]

My Lords, in my experience, when criminals convicted of serious offences and serving long sentences are released, it is generally to an open prison so that they can be further assessed. Why did this not happen in Worboys’ case?

[Lord Keen of Elie]

I am not able to answer that question but the point the noble Lord makes is entirely accurate because, generally speaking, the issues for the Parole Board to consider are, first, whether it should release into an open prison environment and, thereafter, whether there should be release on licence.

[Lord Judge (CB)]

My Lords, what is the proposal to improve the arrangements by which the victims in this case are provided legal aid?

[Lord Keen of Elie]

There are no immediate proposals in that regard. As the noble and learned Lord is aware, the LASPO provisions are currently under review.

[Lord Davies of Stamford (Lab)]

My Lords, the head of the Parole Board has resigned and, as usual, the Secretary of State and the Government sail on with apparent impunity. However, the failings revealed by this case—the excessive secrecy, the failure to consult victims, the apparent inadequacy of training and the failure to look at previous offences—were part of the system’s structure for years and years. They should have been known about—if, indeed, they were not—and the Government should have addressed them a long time ago. Has the noble and learned Lord persuaded himself that the Government have no responsibility at all for these shortcomings?

--- Later in debate ---

[Lord Keen of Elie]

With respect, I have not suggested that the Government consider themselves as having no responsibility in respect of the matters disclosed in the Worboys judicial review.

[Lord Goldsmith (Lab)]

My Lords, I want to raise one question about the funding for this appeal. Quite rightly, noble Lords have commented that it is inappropriate that the victims should have had to crowdfund in order to challenge this decision. From the Statement that the noble and learned Lord made, I understand that the Secretary of State for Justice himself had some impediment to bringing a claim—I am not talking about the substance of his claim here. Why did the Attorney-General not consider it to be part of his job to challenge the decision? After all, it is the Attorney-General who challenges inappropriate sentences and, to some extent, has responsibility for looking after victims. Would that not have reduced the problems, such that the Government, through what is in many ways the independent office of the Attorney-General, could have stepped in to bring this matter before the courts?

[Lord Keen of Elie]

The noble and learned Lord makes an interesting suggestion. It is not a point which I recollect being addressed at the time, and the matter was looked at from the perspective of the Secretary of State for Justice. As the noble and learned Lord implicitly acknowledges, the Secretary of State was in something of a difficult position, given that the Parole Board—albeit an independent entity—has a link to the Ministry of Justice. But I take on board the noble and learned Lord’s observation.

[Lord Selkirk of Douglas (Con)]

Does my noble and learned friend accept that his assertion that there will be a review of procedures with a view to keeping them properly up to date is extremely welcome? Does he agree that in very anxious cases of this nature, the protection of the public must be considered paramount?

[Lord Keen of Elie]

Of course, the protection of the public is an all-embracing requirement, but there are certain things which require particular consideration. These include the interests of the victims.

[Lord Christopher (Lab)]

Will the noble and learned Lord reflect for a moment on the fact that this case, awful though it was, may well lead to changes being made which have unexpected consequences? I suggest that he go back to the original papers from when the Parole Board was set up to see precisely what its purpose was and was not intended to be. There is another side to this matter which has not been aired today—and I understand why not: the interests of offenders who are, one hopes, working towards release by parole. If that confidence in the Parole Board stops, considerable damage may well be done to the position and the penal system—of prisons with numbers of prisoners we have never seen before. If we go back and look at the papers, we may be able to provide something better which does not give rise to a whole rash of cases for all sorts of offences. In particular, confidentiality is very valuable in many cases of offenders coming before the Parole Board.

[Lord Keen of Elie]

My Lords, we are concerned that we maintain a balance between the aims of the parole process and the interests of the victims of serious crime. In the context of any review, that balance will be at the forefront of our minds. The Parole Board has always been conscious of the need to take account of the future of offenders who are in prison. We do not operate a system of permanent internment—there comes a time when offenders are deemed safe for release on licence—but clearly the process by which we arrive at these conclusions has to be the subject of continued assessment and, in this instance, further review.

[Baroness Hussein-Ece (LD)]

My Lords, only a fraction of crimes of sexual violence such as rapes ever come to court and end with successful convictions. How can the Government ensure that women will still be encouraged to come forward to seek and get justice if they are the victims of such crimes, given the way that Worboys’ victims have been treated in this total failure? Victims of these appalling crimes have had to crowdfund. I am sure that Members in this House have seen these brave women come forward and exactly what they have gone through in giving evidence and being interviewed. There are women who have not had justice at all yet and were told not to push it, since the sentencing of Worboys would somehow reflect the true nature of the crime and the numbers of women affected. How can the Ministry of Justice ensure that women will come forward, and that these women will receive justice in the end?

[Lord Keen of Elie]

Clearly, it is a matter of concern for the entire justice system that victims, particularly of these sorts of serious crimes, should not feel inhibited in coming forward and reporting them. We have seen issues arise regarding the way these complaints were handled on some occasions by the police; those resulted in civil litigation, which has now concluded. We have also seen the issue raised of the CPS in the context of the number of prosecutions actually undertaken in the Worboys case. Clearly, we must keep these matters under review in the context of ensuring that victims of such crimes are willing to come forward and report offences, and appreciate that they will receive justice at the end of the day.

[Lord Cormack (Con)]

Can my noble and learned friend assure the House that this deeply unfortunate case will not result in undue delay in looking at other prisoners who are on indeterminate sentences? That issue has been raised many times in this House, not least by the noble and learned Lord, Lord Brown of Eaton-under-Heywood.

[Lord Keen of Elie]

Clearly, the Worboys case will not be allowed to displace further consideration of the position of IPP prisoners. That issue is raised regularly in this House. We have had it under active consideration and continue to have it under consideration.

[Lord Harris of Haringey (Lab)]

The noble and learned Lord has told us repeatedly of the importance of the Parole Board’s independence, and he responded positively to all the statements made around the House about the integrity of and contribution made by its outgoing chairman. Can he therefore explain the thinking of the Secretary of State that Nick Hardwick’s position was untenable, essentially requiring him to resign? Is that not incompatible with his statements about the independence of the Parole Board?

[Lord Keen of Elie]

I do not regard the position taken by my right honourable friend as inconsistent with the independence of the Parole Board. He took a view on the matter following the decision of the High Court, and he expressed that view to Professor Nick Hardwick, who tendered his resignation.

[Lord Campbell of Pittenweem (LD)]

My Lords, may I take the Advocate-General back to the question of legal aid? Had the legal aid scheme provided for assistance in cases of this kind, it would none the less have had to apply the test of reasonable prospects of success, or probable cause. Given that the Secretary of State received advice to the effect that there was no probable cause, that could well have resulted in the victims making an application for legal aid but still being turned down.

[Lord Keen of Elie]

That is of course potentially the case, although I would observe that the High Court’s decision eventually turned on a different point from the issue of rationality: the failure to take account of material information that should have been before the Parole Board. Beyond that, I would not seek to speculate as to the outcome of a legal aid application, but the point the noble Lord makes is entirely sound.