the current intense disquiet in many circles over the release from prison on
license of John Worboys, the black cab rapist castes into sharp relief
developments in the legal status of the Parole Board since that body was
established in 1967. When first established the Parole Board was little
more than an advisory committee advising the Home Secretary on the early release
of prisoners on licence. The Home Secretary was not obliged to follow the
advice of the Board and would base his decision on whether to release a
prisoner on the Home Secretary's estimation of where the
balance of the public interest lay. To be sure the Home Secretary's decision
might in principle be subject to judicial review but a reasonable
decision made in good faith would not be quashed by the then equivalent of
the Administrative Court. The Home Secretary would, of course, be
accountable to Parliament - not the courts - for the wisdom or otherwise of his
decision whether to release a prisoner. This was classic administrative law.
If the 1967 law applied in the Worboys case the Secretary of State for Justice
(who has taken the place of the Home Secretary as the minister
responsible for early release) could reject the view of the Parole Board that
Worboys was no longer a risk to the public and order that he not be released.
Much of the current disquiet would presumably be stilled.
But is it appropriate that the Justice Secretary might, in response to raw and fickle public opinion,
determine whether a prisoner goes free?
The victims of Worboys who are bringing a judicial review against the decision of the Board
to order his release are doubtless doing so in the hope that the understandable
public concern that such a prolific offender may be set free may somehow
be brought to bear on the decision-making process; and that he not be released.
But the relevant law has been transformed since 1967 and there is very little
scope for a minister's view of the merits of a release to be taken into consideration.
Today, in the typical case, once the prisoner
has served his "tariff period", (i.e. the period considered by the trial judge
as appropriate punishment taking into account the seriousness of the offence)
the Board may make directions for release on licence if
satisfied that it is no longer necessary for the protection of the public that the
prisoner should be confined. The Justice Secretary is bound to follow these directions.
These changes in the law reflect a strong developing judicial policy
at the domestic as well at the European level
which strongly favours in-person judicial standards of independence and
impartiality from the decisions of the Parole Board. In the result the Parole
Board has been transformed into an independent public body having the
specialist task of assessing the risk that offenders pose to the public. It is
not yet a fully fully fledged court in that it lacks the classic judicial
guarantees of independence and impartiality. The crucial being
that these developments have squeezed out any ministerial power to intervene in the public interest.
It would be wrong to see these developments as "a judicial power grab".
To be sure successful litigation by prisoners before the
European Human Rights Court at Strasbourg has driven many of these changes.
But the UK's Parliament has been responsible for much of the change
(most prominently with the enactment of the Human Rights Act 1998).
Reversing these changes would thus be difficult especially if the UK remained signed up to the European Convention.
Should the law none the less be changed to provide a mechanism - for instance,
a right of appeal to a minister -
whereby controversial Parole Board decisions might be overturned at
the behest of a person or body more sensitive to public disquiet?
This would be difficult but not impossible.
If the executive were able to articulate a vision of the public interest that goes beyond assessment of risk to the public,
the accountable ministers may justifiably
argue that in overriding the Parole Board they are adding value to the process.
It remains to point out that much of what has been said
about judicial review in this context is wrong or premature.
It is not at all clear on the information currently available that there are any grounds
for judicial review of the Parole Board's decision to release Worboys.
A sincere and intense belief that the Parole Board got it wrong is not enough.
There may, of course, be some as yet unrevealed egregious legal error sufficient to justify quashing the Board's decision.
It cannot be too often reiterated that judicial review is not about the merits
of a decision but is about the way in which the decision is reached.
One potential ground for judicial review is the failure of the Board to give reasons
for its decision contrary to the strong tendency in the modern law of openness in decision-making.
But Rule 25(1) of the Parole Board Rules provides that
"Information about proceedings under these Rules
[which presumably includes the reasons for decisions]
and the names of persons concerned in the proceedings must not be made public."
Much of the information before the Board will be highly confidential psychiatric reports
or similar and rightly not made public
but the blanket nature of Rule 25(1)
-prohibiting the release of any information about Parole Board proceedings -
may prove vulnerable to challenge.
This looks to me at present as the applicants' "best bet".
But even if the applicants' lawyers find a ground for judicial review justifying the quashing of the decision
of the Parole Board to release Worboys, their delight is likely to be short-lived.
The decision will have to be taken again, it will be taken by the Parole Board,
and it may well be that a properly taken decision would not significantly delay the release of Worboys.
The real problem with the Worboys case, surely,
is not do with the status and role of the Parole Board important as that issue might be.
Worboys is believed to be a most prolific offender and to be guilty of more than 100 attacks on women.
But he was convicted of only one count of rape, five sexual assaults,
one attempted assault and 12 drugging charges.
Serious as these charges are, they do not reflect the seriousness of Worboys'
suspected offending. And the tariff period of 8 years,
perhaps appropriate for the one rape and other serious charges, does not reflect the large number
of very serious offences of which he is believed to be guilty.
This discrepancy surely lies close to the heart of the victims' outrage.
Whatever might emerge from the inquiries into the operation
and transparency of the Parole Board will not the best outcome be a second trial
of Worboys on a fresh indictment addressing some of those 100 attacks ?
you