The recent decision of the Parole Board to release a notorious serial rapist from prison for reasons which cannot be disclosed or discussed has drawn attention to the lack of transparency of the board’s decision making process. Now moves are afoot to make the board more open to scrutiny and public accountability, as Paul Magrath explains.

Earlier this month it was reported that the notorious “Black cab rapist” John Worboys, who was believed to have raped as many as a hundred women, was to be let out of prison after serving little more than the minimum eight years of a sentence of Imprisonment for Public Protection (IPP). The sentence was imposed in 2009 after his conviction on 19 charges, only one of which was for rape. The others were for sexual assaults and for the administration of drugs to his victims.

It appears that more than 100 complainants had made allegations against him, but most of them were not the subject of prosecutions, and moreover that the police failed properly to investigate many of them: see the judgment of Green J in two test case claims by such victims against the police, DSD v Commissioner of Police for the Metropolis [2014] EWHC 436 (QB).

So the outcry is based not on the fact that Worboys has been released after serving eight years of what would have been, but for the IPP, a 16 year sentence (as well as another year or more of pre-trial custody) but on the perception that a man who committed over 100 rapes has been let out after serving what amounts to only a month or so for each of them. And we don’t know why.

That’s because, under rule 25(1) of the Parole Board Rules it states that: “Information about proceedings under these Rules and the names of persons concerned in the proceedings must not be made public.”

John Worboys

Another cause of concern was the failure to notify many of the victims of the likelihood of Worboys’ release. In some cases this was for purely technical reasons. As Matthew Stanbury explained in a blog post on the Garden Court North Chambers website (Questions arising from the release of “the Black Cab Rapist” John Worboys), “The statutory Victim Contact Scheme is offered to those who have been the victim of sexual or violent offences resulting in a sentence of 12 months or more.  It entitles them to be kept informed of key stages of the offender’s sentence … and to make representations about the offender’s licence conditions.” But this does not apply to alleged victims or potential complainants whose cases were never prosecuted. They can still apply to join, but many did not, or were not told they could. So that is an issue that needs to be addressed.

Yet, as Simon McKay wrote on The Justice Gap (John Worboys: ‘Let the victims to have their say’), “…more can be done. A wide range of jurisdictions, including Canada and the United States permit victims or their families to attend parole hearings and give evidence. The United Kingdom’s reticence about the role of the victim in the post-sentencing process must be confronted.”

Shortly before the cabinet reshuffle the then Lord Chancellor and Secretary of State for Justice, David Lidington, issued a statement about the matter, saying: “While it is right that the Parole Board should remain an independent body, I believe that there is a strong case to review how to allow greater openness about the decision-making process. We also need to make sure arrangements across the criminal justice system ensure victims are both heard and, if they wish, kept informed about their case.”

Since then there’s been a cabinet reshuffle and the new Lord Chancellor, conscious perhaps that his predecessor’s announcement has not dowsed the flames of public concern, has issued his own statement on the review proposals. Although in that statement Gauke says “it appears that the correct procedures were followed,” it has subsequently been reported that he proposes a more radical form of review. According to the BBC, “Justice Secretary David Gauke is looking into the possibility of applying for judicial review, but will only proceed if there is a good chance of success. If a judge finds the Parole Board did not follow the correct process or reached its decision on the wrong basis, that decision would be quashed and Worboys would have to make a fresh application for parole.”

The effect of initiating judicial review proceedings would be to prevent the Parole Board’s decision being carried out, pending such review. But it would also, of course, have the effect of publicising the reasons for the decision, which would be aired in open court and probably quoted in the court’s judgment.

Unusually for a defendant, the Parole Board has welcomed the Lord Chancellor’s claim for judicial review. In a statement issued on 16 January its chair, Professor Nick Hardwick, said he hoped “such a review will provide assurance that the Parole Board itself has acted in accordance with the law and the evidence.” The statement explained the basis on which the board takes its decisions, which are focused not on the prisoner’s guilt or appropriateness of the sentence, but on their future risk to society. “The burden is on the prisoner to demonstrate they are safe to release, not the panel to demonstrate they are too dangerous to do so.” The board had to be trusted to make independent decisions in accordance with the law and on the basis of evidence, and free of political interference.

Professor Hardwick also agreed that the process needed to be more transparent. “Justice needs to be seen to be done. If the parole system is closed and secretive we cannot complain if people do not understand it.”

That must be right. A similar process of opening up to public scrutiny what have previously been described (somewhat unfairly) as “secret courts” sitting “behind closed doors” has been taking place in the Family Division of the High Court, following a number of developments promoted by the President, Sir James Munby, in recent years (not always appreciated), and also in the Court of Protection (as reported here). Concerns of a similar nature have been levelled against recent plans for Coroner’s Courts to decide cases on paper or online instead of hearing them in open court, again arousing the concern of justice campaigners and the media.

There is a risk, too, that the shiny new Online Court which will emerge from the Courts’ Service £1bn upgrade will lack the virtual press bench and public gallery that would enable it to offer open justice. So the Parole Board’s inclination towards openness and transparency should be welcomed and appreciated.

Paul Magrath is head of product development at the Incorporated Council of Law Reporting for England and Wales (ICLR) and a member of the Transparency Project.