Voices in Justice: Parole Reform in Scotland: Consultation Analysis

7. Hearing attendance and pre-hearing representations (Q8–11)

Key points from Chapter 7

¨ Victim support organisations, victims, and family / friends of victims were largely in favour of expanding the rights of victims in the parole hearing process, arguing that this would lead to greater inclusion, empowerment, equality and fairness for victims.

¨ The views of other respondents were more complex. Organisations and individuals with no experience of custody expressed support for extending – to victims of less serious crimes – (i) the right to request to observe oral parole hearings and (ii) the right to make oral representations to the Parole Board. However, these respondents had reservations about giving victims of the most serious crimes an automatic right to observe a hearing.

¨ Individuals with experience of custody and family / friends of a person in custody were not in favour of extending the rights of victims in the parole process. These respondents were concerned that the involvement of victims would unfairly influence Parole Board decisions.

7.1 Currently, the victim of an offender serving a life sentence, extended sentence or Order for Lifelong Restriction (OLR), and who is registered with the Victim Notification Scheme (VNS) can apply to observe the offender’s parole hearings. Where individuals are serving other types of sentences, the case will usually be determined without an oral hearing through a casework meeting. If an oral hearing is held for those cases, there is no entitlement or specific procedure for a victim to request to attend. They may still request to attend, as an observer, at the parole panel’s discretion.

7.2 In addition, section 17 of the Criminal Justice (Scotland) Act 2003 makes provision for (i) all eligible victims to give written representations to the Parole Board, and (ii) eligible victims of individuals serving a life sentence to provide oral representations to a Parole Board member (not a member on the case panel) via a victim interview ahead of the parole hearing.

7.3 The consultation included three questions about potential new provisions for victims to observe parole hearings, and a fourth question, asking if any change is required to current provisions for victims regarding pre-hearing representations.

Question 8: Should victims / survivors, who are registered under the VNS, have the automatic right to attend and observe oral hearings?

Question 9: Should all victims / survivors – regardless of the type of sentence the person in custody is serving – have the right to request to observe a parole board oral hearing if one is held?

Question 10: Who else, if anyone, do you think should have access to parole hearings?

Question 11: Should all victims – regardless of the type of sentence the person in custody is serving – have the right to give oral representations to the Parole Board for Scotland ahead of the Parole Board considering a case?

7.4 Respondents’ views on these questions are presented below. The views of organisations and individuals with no experience of custody are discussed first, followed by the views of individuals with experience of custody.

Organisations and individuals with no experience of custody

The rights of victims to attend and observe oral hearings

7.5 Question 8 asked respondents if they thought that victims registered with the VNS should have an automatic right to attend and observe oral hearings. Table 7.1 shows a lack of consensus on this question.

• Overall, 39% of respondents said ‘yes’, and 40% said ‘no’ (i.e. victims should have to continue to request to attend).
• The most common view among organisations was that there should be an automatic right for registered victims to observe oral hearings (10 out of 18 said this).
• The most common view among individuals was that victims should have to continue to request to attend (30 out of 70 said this).

* Individuals with no experience of custody

7.6 The 21 campaign respondents said ‘no’ to this question. They thought the current arrangement, where victims have to request to attend, is appropriate and should continue.

7.7 It should be noted that some respondents interpreted this question as asking whether victims should have a right to be physically present at an oral hearing, rather than simply observing it remotely. This misunderstanding may have affected their response to the question and the figures in Table 7.1 should therefore be treated with caution.

7.8 All the victim support organisations, most victims and most family / friends of victims thought that victims of serious offences, who are registered with the VNS, should have an automatic right to observe oral hearings.

7.9 These and other respondents said that an automatic right to observe would have benefits for victims and their families in terms of (i) helping them understand the parole process and the reasons for the decisions made, and (ii) feeling included and empowered. Having an automatic right to observe would mean that the onus is no longer on the victim to request this and / or potentially be denied.

7.10 If taken forward, respondents said that:

· Victims would need to understand that this would involve attendance by video-link and observation only, not participation.

• It must be made clear that victims may choose to attend or not, and that their attendance / non-attendance will have no bearing on the outcome of the hearing.
• In some cases, oral hearings (or parts of hearings) may need to be ‘closed’ – i.e. because of risk management concerns, or because certain matters are confidential to the person seeking parole.

7.11 Most of family / friends of individuals with experience of custody thought victims should continue to request to observe oral hearings. These respondents and others who thought the status quo should be retained expressed a range of concerns about giving victims an automatic right to observe hearings. These related to:

• Threats to privacy / confidentiality: Oral hearings often include discussion of sensitive matters – including about the family members / children of people in custody. There were concerns that it was not appropriate for the victim to hear these discussions unless these other individuals had given their consent. There were also concerns that some victims may not honour confidentiality requirements.
• Threats to safety / security: Respondents highlighted cases where threats have been made to the person in custody by victims or victims’ families. An automatic right to observe would also enable the victim or their family to identify other people involved in the hearing – such as social workers, support workers or panel members, which could introduce security risks for those individuals.
• Potential impact on the process and outcome of the hearing: Respondents thought the presence of a victim as an observer could inhibit open discussion between Parole Board members and the individual seeking parole. Some cited research evidence which they said indicated that the involvement of a victim or efforts by a victim to raise the profile of a parole case in the media can affect the outcome of the Parole Board’s decision.

7.12 In addition, some respondents questioned whether having an automatic right to observe would be in the best interests of victims, as the discussion at the oral hearing could lead to re-traumatisation. There were also concerns about what the expectations of victims might be in attending a hearing and how those expectations could be managed.

7.13 Some respondents noted that the current approach involves asking the person in custody if they have any objections to observers attending an oral hearing, and their views are taken into account by the chair of the hearing in deciding whether to grant a request. This arrangement was seen as providing a good balance between the rights of the victims and the person in custody. Respondents also noted that the victim can be kept informed about the progress and outcome of the hearing without having to attend.

7.14 Other views expressed about the right of victims to attend oral hearings were as follows:

• Some family / friends of a person in custody thought this question was suggesting that victims or their family members might be physically present at parole hearings, and they thought this was inappropriate given that the family members of people in custody are not permitted to attend. There was also a recurring view that victims should not be permitted to observe an oral hearing at all (either physically or through video-link) but should rather be kept informed through the VNS.
• Some respondents said that any expansion of the rights of victims to observe oral hearings would require adequate resourcing of victim support agencies and the provision of appropriate (trauma-informed) venues.

Extending the right to request to observe parole hearings to all victims

7.15 As noted above, currently, only victims of the most serious offences may request to observe an oral parole hearing relating to their case. Question 9 asked respondents if they thought that all victims – regardless of the type of sentence the person in custody is serving – should have this right. Table 7.2 shows that:

• Overall, 53% of respondents said ‘yes’, and 20% said ‘no’. A relatively large proportion (26%) said ‘other’ or ‘not sure’.
• The most common response, both among organisations and individuals, was ‘yes’ (11 out of 18 organisations and 35 out of 68 individuals said this).
• Just one organisation (out of 18) said ‘no’ at this question, whereas around a quarter of individuals (16 out of 68) said ‘no’.

* Individuals with no experience of custody

7.16 The 21 campaign respondents said ‘no’ to this question.

7.17 All victim support organisations thought all victims should have the right to request to observe oral hearings. Individuals who chose this option included most of the justice professionals, family / friends of victims, and victims. The main reasons given by this group for saying ‘yes’ related to fairness and equality. They thought that if some victims had the right to request to observe, then all victims should have that right, and that the type of sentence given to the person in custody was irrelevant.

7.18 Respondents who did not answer ‘yes’ (including those who said ‘other’ or ‘not sure’) expressed a range concerns and uncertainty about the benefits of expanding access to hearings for a wider range of victims. These respondents acknowledged that the harm experienced by a victim is not necessarily related to the seriousness of an offence in sentencing terms. However, they saw the need to balance any expansion of the rights of victims of less serious offences with the need to give individuals released on parole the best chance of successful reintegration to the community.

7.19 The concerns raised by these respondents echoed those discussed in relation to Question 8. (See paragraphs 7.11–7.12.) These related to privacy, safety, the potential impact on the fairness of the hearing for the person being considered for parole, the victim’s expectations, and the mental health impacts for the victim and the offender.

7.20 These respondents also noted that giving more victims the right to request to observe hearings would cause delays in the parole system (because of the need to respond to a larger number of requests, and the possibility of victims challenging Parole Board decisions). For this reason, they thought the right to request to observe should continue to be restricted to victims of the most serious cases only.

Who else should be allowed to observe parole hearings?

7.21 Question 10 asked who else, apart from the victim in a case (and the victim’s family where a victim has died) should be able to observe parole hearings. Table 7.3 shows that:

• Overall, respondents were most likely to say that legal professionals / researchers, social workers, and other professionals (for training purposes) should be able to observe parole hearings. Between 36% and 39% of all respondents chose each these three options.
• A similar proportion of respondents (37% overall) said only the victim(s) (or victim’s family member, where the victim has died) should be able to observe. (Note that some respondents chose this latter option and also chose other options.)
• Respondents were least likely to say that journalists / media or members of the public should be able to observe parole hearings (13% and 11%, respectively).

* Individuals with no experience of custody

** This is the number of respondents who selected at least one option. Total percentages are not shown as respondents were able to select more than one option.

7.22 The 21 campaign respondents selected ‘other’ in response to this question.

7.23 Regardless of the response option(s) selected, the main theme in respondents’ comments was the importance of privacy and safety – both for victims and their families, and also for the person being considered for parole. Some also emphasised that the parole panel needed to feel safe and free of distraction to do their jobs. In that context, respondents generally thought that access to parole hearings should be restricted to those (including relevant professionals) who are directly involved in a case.

7.24 Other suggestions of specific individuals or groups who should be permitted to observe and / or attend the hearing were:

• Professional support workers from victim support agencies (if the victim and / or their family wish such support) – made by victim support organisations
• Family members of the person being considered for parole (if requested by that individual) – made by family / friends of a person in custody.

7.25 In the main, respondents did not support access to oral hearings by journalists / media or members of the public apart from in exceptional cases and at the discretion of the chair of the Parole Board. Those who did support access for these groups argued that an oral hearing should be seen in the same way as a trial and, for the sake of transparency, should be open to all. Respondents who opposed access for the media and members of the public specifically argued that an oral hearing is not the same as a trial. The focus of a hearing is to assess risk, not to establish innocence or guilt.

7.26 While some respondents supported access for other professionals for training purposes, others argued that this was not necessary, as trainees could be provided with anonymised decision summaries and other online training materials.

7.27 In general, respondents said that additional attendees (including the victim) should only be permitted to attend under strict confidentiality rules at the discretion of the panel chair or chair of the Parole Board, and with the informed consent of the person being considered for parole. It was noted that the Board would need to have powers to make orders restricting publication of parole hearing discussions, and to punish those who breach these orders.

Victims’ pre-hearing representations

7.28 Question 11 asked if all victims – regardless of the type of sentence the person in custody is serving – should have the right to give oral representations to the Parole Board ahead of the Board considering a case, or if this should be limited, as under the current approach, to victims in the most serious cases. Table 7.4 shows that:

• Overall, 52% of respondents said ‘yes’ (all victims should have the right to give oral representations), and 26% said ‘no’. A relatively large proportion of respondents (16%) said ‘other’.
• The most common response for both organisations and individuals was ‘yes’ – 11 out of 17 organisations and 34 out of 69 individuals said this.

* Individuals with no experience of custody

7.29 The 21 campaign respondents said ‘no’ (they thought the current approach was appropriate and should be retained).

7.30 All victim support organisations thought all victims should have the right to speak to the Parole Board ahead of a parole hearing. Most justice professionals and most family / friends of victims also said this.

7.31 In general, this group argued that the current arrangement is unfair in that it treats the experiences of some victims as more ‘important’ than others. These respondents thought that extending current arrangements would not only benefit victims but also the Parole Board panel in their consideration of any licence conditions. Victim support organisations said that giving all victims the right to make oral representations would (i) promote inclusion, equality of treatment and equal access to justice for all victims, (ii) enable victims to express the ongoing impact of the offence in their own words, (iii) provide the Parole Board with a greater insight into potential risk, harm and public safety considerations, and (iv) strengthen victims’ trust in the justice system.

7.32 There was a range of suggestions about how such oral representations could be delivered. These included enabling victims to make representations by video link or pre-recorded video statements, and allowing oral representations to be made by telephone and transcribed. There was also a view that victims should be able to be supported by a professional to ensure the process does not cause further harm.

7.33 In general, respondents who thought only victims of the most serious cases should have the right to speak to the Parole Board said that the purpose of a parole hearing should be to consider the progress made by the offender in prison. It should remain focused on evidence and risk management. They thought victims should be able to submit written statements through existing channels but should not speak directly to the Parole Board.

7.34 There was also a recurring view that, where there is no reasonable expectation that the victim and convicted person would ever have future contact, then the victim’s contribution to the parole hearing should be limited to informing licence conditions.

7.35 Respondents who selected ‘other’ at Question 11 generally raised similar concerns to those who thought there should be no extension of the current arrangements for victim oral representations or they argued that no victims should be able to make oral representations to the Parole Board. This group made a range of points, including that:

• What happened to the victim is described in the index offence indictment and trial judge report which members of the Parole Board have access to.
• Oral representations by victims could unfairly influence Board decision-making.
• Prisoners’ requests for witnesses to give oral evidence are often refused on the basis that adequate submissions can be made in writing. This arrangement should also apply to victims.
• Parole hearings are already lengthy due to professional witnesses being called to give evidence. Extending the right to give oral representations to all victims would result in significant extra cost, and lead to more hearings being delayed / adjourned.

7.36 Some respondents also questioned whether there would be any additional benefit to victims in giving oral representations beyond their existing right to submit a written statement. They argued that victims are already able to give oral representations at the time of sentencing. Some said that any concerns victims may have about parole decision-making would be better addressed through improved public information about how the process works.

Individuals with experience of custody

7.37 Questions 8, 9, 10 and 11 in the prison questionnaire were worded differently to the questions in the online questionnaire.

Question 8: Should victims, who are part of the Victim Notification Scheme, always be allowed to watch oral hearings?

Question 9: Should all victims be allowed to ask to watch an oral hearing, no matter what sentence the person got?

Question 10: Who else, other than the victim, should be allowed to watch an oral hearing? (Select all that apply.)

Question 11: Should all victims, regardless of the type of sentence the person in custody is serving, be allowed to speak to the Parole Board before a case is decided?

Victims’ rights to observe oral hearings

7.38 At Question 8, the most common view among individuals with experience of custody was that victims who are registered with the VNS should still have to ask to watch an oral parole hearing. Of the 121 people who responded:

• 27 said yes, they should always be allowed
• 53 said no, they should still have to ask
• 20 said ‘other idea’
• 21 said ‘not sure’.

7.39 Those who thought victims should always be allowed to watch oral hearings gave three main reasons: (i) this could help them to see the progress made by the person who harmed them, (ii) this would help them to understand the parole process and how decisions are made, and (iii) it may help the victim’s own trauma.

7.40 Those who thought victims should continue to have to ask to observe an oral hearing made the following points:

• They thought the victim’s presence at the hearing would be stressful for the person being considered for parole and could affect the hearing process, the outcome of the hearing, and the individual’s successful reintegration into the community.
• They were concerned about victims sharing confidential information with the media or on social media sites.
• They thought the hearing would be stressful for the victim and could lead to re-traumatisation. Respondents questioned why a victim would wish to attend – particularly when the individual being considered for parole may be forbidden from contacting the victim as a condition of their release.

7.41 These respondents thought eligible victims should continue to have to request to watch a parole hearing and that the decision to allow this should be made on a case-by-case basis. Some thought this question was asking whether victims should be allowed to be physically present at the hearing and this was opposed.

7.42 Some individuals with experience of custody thought that victims should not be able to observe oral hearings at all, as their presence could affect the fairness of the hearing.

Extending the right to observe oral hearings to all victims

7.43 At Question 9, there was no consensus among individuals with experience of custody about whether all victims should be allowed to ask to observe an oral parole hearing – regardless of the sentence the person in custody was given. Of the 122 who answered this question:

• 43 said ‘yes, every victim should be allowed to ask’
• 42 said ‘no, only victims in very serious cases should be allowed’
• 20 said ‘other’
• 17 said ‘not sure / no opinion’.

7.44 Those who said that every victim should be allowed to ask to watch the oral hearing thought it was not ‘fair’ if some victims can watch and others are denied, and that it should be up to the victim to choose whether to observe. Some said observing the hearing would help the victim to see the progress made by the person in custody and help achieve ‘closure’. There were also suggestions that there should be clear criteria for allowing victims to watch hearings.

7.45 Respondents who said that only victims in very serious cases should have the right to observe were concerned about the effect the presence of the victim could have on Parole Board decision-making. They also said the oral hearing is not intended for the victim, and that it is important to keep hearings private to support the reintegration of the individual into the community. Some pointed to the large administrative burden that would result (‘the process is clogged enough’), and expressed concerns about victims who may be seeking retribution or revenge. In general, these respondents thought it was appropriate that the right to request to attend a hearing should be restricted to victims of serious offences (murder and rape were mentioned most often).

7.46 Other recurring views expressed by respondents at Question 9 were that: (i) victims should not be able to be involved in parole hearings at all and (ii) if the victim is allowed to observe the parole hearing, then the prisoner’s family should also be permitted to observe.

Who else should be allowed to observe an oral parole hearing?

7.47 Question 10 in the prison questionnaire asked if anyone else – apart from the victim or their family – should be allowed to watch an oral parole hearing. Among those who responded to this question, 116 chose one or more options – specifically:

• 66 said ‘lawyers or researchers’
• 55 said ‘social workers’
• 49 said ‘only the victim or their family’
• 32 said ‘other workers for training’
• 31 said ‘other’
• 6 said ‘journalists’
• 4 said ‘people from the public’
• 7 said ‘not sure’.

7.48 These views largely aligned with the views of organisations and individuals with no experience of custody. Moreover, individuals with experience of custody often gave the same reasons for their choices – which related to issues of privacy / fairness and safety. They also thought journalists and members of the public should not be able to watch oral parole hearings. In general, these respondents thought only relevant individuals, directly involved in the case (or involved in supporting the individual after release), should be able to watch an oral hearing.

7.49 Some individuals with experience of custody said that a family member or other supporter / advocate of the person being considered for parole should be permitted to watch the hearing. They said that (i) family members are often directly affected by the decision made and should understand the process, and (ii) the person being considered for parole should be able to have a supportive person attend the hearing with them.

Right of a victim to speak to the Parole Board before the case

7.50 The most common response at Question 11 among individuals with experience of custody was that only victims in the most serious cases should be able to speak to the Parole Board. Of the 124 who answered this question:

• 30 said ‘yes, every victim should have the right to speak to the Parole Board’
• 45 said ‘no, only victims in the most serious cases should speak to the Parole Board’
• 35 said ‘other’
• 14 said ‘not sure / no opinion’.

7.51 Those who thought that every victim should have the right speak to the Parole Board gave two main reasons: (i) it is important that victims are able to express any concerns they may have about a person’s release, and (ii) it would not be fair to allow only some victims to speak to the Parole Board.

7.52 However, respondents also noted caveats to this view – for example: (i) as long as what they are saying is relevant, (ii) the victim’s feelings should not outweigh the facts of a person’s rehabilitation, and (iii) this should be done on a case-by-case basis.

7.53 Those who thought only victims of the most serious cases should be allowed to speak to the Parole Board were concerned about the potential impact of this on a decision to grant parole. Some questioned the purpose of allowing victims to speak directly to the Parole Board and suggested that if the purpose was for victims to feel heard, this could be done in another way – for example, by requiring a social worker to speak to the victim in advance of the parole hearing. Some recognised the impact on victims of more serious cases and thought it was right that these victims are able to speak to the Parole Board directly if they wish. However, they were not in favour of extending this right to victims of less serious crimes because of the time and cost implications of this and the possibility of delays in the scheduling of parole hearings.

7.54 Individuals with experience of custody offering other views at Question 11 generally thought that no victims should not be able to speak to the Parole Board in advance of a parole hearing. These respondents argued that the person who committed a crime had already been punished and the length of their sentence would have taken into account the victim’s statement at the time of the trial. In addition, the victim is likely to have no knowledge of the efforts made by a person in custody towards rehabilitation, and therefore their perspective would be biased and could unfairly influence the decision to grant parole.