4. Proposed Changes to the Current Rules Non-Disclosure of Information (current rule 6)
Non-Disclosure of Information (current rule 6)
4.1 There can be instances where it would not be in the public interest to disclose information to the person concerned or their representative. This is commonly known as 'damaging information'. Examples of this might include police intelligence in relation to an ongoing investigation, information which might lead individuals to be vulnerable to retaliation or information where national security is at risk. On occasions where such damaging information is provided in confidence the Parole Board must take a decision on whether this information should be provided to the person concerned or their legal representative. The damaging information may be significant in assessing risk and applying the tests for release.
4.2 We propose add to the rules a procedure for handling damaging information and to include provision for the Parole Board to appoint a special advocate to represent the prisoner's interest in the consideration any Non-Disclosure of damaging information.
4.3 Where such damaging information is present, the prisoner requires to be notified of this fact and provided with the "substance" of the information (i.e. as much information as can be safely disclosed) unless disclosing the substance would prejudice the purposes for which the information is not being provided.
4.4 The issues the Parole Board tribunal/panel determine are:
- a) Whether the damaging information is significant, i.e. does it impact on the Board's assessment of risk and its application of the tests for release?
- b) If it is significant, does the tribunal/panel require to consider it? There may be cases where, although the damaging information is significant, there is enough disclosed information within the dossier or from evidence provided at a hearing to allow the Board to reach a conclusion without consideration of the damaging information.
Changes to current procedure
4.5 It is proposed that express provision is made in the rules for the tribunal/panel to appoint a special advocate if it has concluded that the damaging information is significant and that fairness requires that it be tested by a special advocate.
4.6 The role of a special advocate will be to test, by examination of evidence, if the case for withholding the damaging information is made. This role should be carried out without taking any instructions from any party to the proceedings on any aspect of the information. It is intended that the special advocate may communicate with the prisoner and their legal representative after they had been provided with the dossier. The special advocate would also be prohibited from initiating any communication with the person concerned or their legal representative, once the damaging information is served upon them. The person appointed as a special advocate would not be responsible to the person concerned or their legal representative
4.7 The primary role of the special advocate would be to seek to challenge the classification of some or all of the evidence classified as damaging information and to submit representations as to whether the Board should place any reliance upon the evidence. Part of the function of a special advocate is to ensure that the damaging information is subject to independent scrutiny and adversarial challenge this would include making submissions (in closed session) on whether or not the damaging information should in fact be disclosed to the person concerned and their legal representative.
4.8 We also propose adding to the list of reasons that information should not be disclosed a new category where it is in the interests of national security. This could be applied where the Parole Board considers that the security of the country could be at risk if the information is divulged.
4.9 The final decision on whether to disclose damaging information would remain with the Parole Board.
1. Do you agree or disagree that provision should be made for the
appointment of a special advocate to represent the prisoner's interests in the consideration of the damaging information being with held?
2. Do you agree or disagree with the additional reason for information to be withheld from the prisoner if the interests of national security are at risk?
Matters to be taken into Account by the Parole Board (current rule 8)
4.10 Current Rule 8 contains provisions which list the matters that the Parole Board may take into account when considering a person's case. This is not a comprehensive list but it brings to the attention of the Board specific matters it may consider.
4.11 We propose to add to the list a provision which outlines that the Board may, in applicable cases, take into account any failure to reveal the location of a victim's body.
4.12 This would be relevant in cases where a person has been convicted of murder or culpable homicide and the victims remains have never been discovered or disclosed, and where the convicted person keeps silent on the whereabouts of their victim. This would not amount to a prohibition on parole in such circumstances as the decision on whether to grant parole or otherwise is one for the independent Parole Board to make taking into account all of the circumstances and evidence in the case.
4.13 We also propose to strengthen this rule and change the wording in this rule from 'matters the Parole Board may consider' to 'matters the Parole Board must (where it is relevant) consider'.
3. Do you agree or disagree that there should be a provision which asks the Parole Board to consider the failure to reveal a victim's body as a specific matter they should consider?
4. Do you agree or disagree with the change of term from 'may consider' to 'must (where relevant) consider' in this specific rule?
Observation of a Parole Hearing (current rule 26A)
4.14 The Parole Board (Scotland) Amendment Rules 2021 brought in new provisions, with effect from 1 March 2021, to allow a victim or family member(s) of a victim to request to observe a parole hearing relating to the person involved in their case.
4.15 This provision currently applies to all victims who are registered with the Victim Notification Scheme ("the scheme") under part's 1 or 2 , and family member(s) of such victims.
4.16 The scheme operates as follows:
- Part 1 gives the registered person(s) the right to receive information about the person concerned release.
- Part 2 gives the registered person(s) the right to know if the person concerned is being considered for parole or for release with an electronic tag (Home Detention Curfew).
4.17 We propose to amend this to restrict the entitlement to ask to observe a hearing to those registered with part 2 of the scheme only.
4.18 This move avoids re-traumatising those victims who have made the choice to register only for part 1 and to hear about the person's release and have not requested to have information about parole and do not want to receive unexpected news about the person concerned. We feel this sits better with the registered person(s) choice.
4.19 Should the registered person choose at a later date that they do wish to hear about the parole hearing they are free to register for part 2 of the scheme to receive that information and request to observe a hearing, should they change their mind and wish to do so.
4.20 This move avoids contacting people about parole hearings who do not wish to have the information. It follows from feedback from people registered with part 1 of the scheme who have indicated that they do not welcome being contacted in this way.
4.21 Registered victims are also entitled to receive a redacted/anonymised note of the decision minute. We consider that this information is also only of interest to part 2 registered victims but would welcome views on whether the decision minute should be sent to part 1 and part 2 victims.
4.22 An independent review of the scheme started in April. The review is examining the scheme to ensure it is fit for purpose and serving victims effectively. Outcomes, including any related to these arrangements, will be carefully considered by the Scottish Government.
5. Do you agree or disagree that only victims registered on part 2 should be contacted in regards to observing parole hearings?
6. Should the redacted/anonymised decision minute be sent to all victims registered with the scheme or only victims registered with part 2 of the scheme?
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