Voices in Justice: Parole Reform in Scotland: Consultation Analysis

9. Test for release on parole (Q15–17)

Key points from Chapter 9

¨ Overall, there was a lack of consensus about whether there should be a single test for release on parole that would apply in all cases; however, the most common view among respondents was that there should continue to be different tests for release depending on sentence type.

¨ All respondent types favoured a test (or tests) including both risk and readiness to reintegrate. At the same time, they thought risk should still be the priority concern. Those with experience of custody were more likely to emphasise the importance of considering readiness to reintegrate and / or say this should be the focus of any test(s).

¨ Respondents commonly called for a broader approach to understanding and assessing risk and deciding whether to grant parole. However, this meant different things to different respondents.

9.1 The consultation paper explained that there are currently different tests for release on parole depending on sentence type, with different tests for indeterminate sentences (e.g. life sentences and Orders for Lifelong Restriction (OLRs)), determinate and extended sentences (custodial part), and extended sentences (where the person has been released and subsequently recalled to custody). It also noted that, in each case, the focus of the test is on risk. However, other jurisdictions use a test which considers both risk and rehabilitation. Three questions sought views on the test(s) for release on parole that should be in place.

Question 15: Do you support the introduction of a single over-arching, statutory test for release that would apply to all cases considered for release by the Parole Board?

Question 16: Regardless of whether a single test is introduced, or the current process is retained, should the test(s) for release from custody continue to focus solely on risk, or should they be amended to also consider a person’s readiness to reintegrate into the community?

Question 17: Do you have any other views on the assessment and decision-making process around release – for example, other aims that should be reflected, improvements that could be made, or changes in how risk is considered?

9.2 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

A single statutory test for release for all cases

9.3 Question 15 asked respondents if they supported the introduction of a single test for release for all cases considered by the Parole Board. Table 9.1 shows that:

• Overall, 38% of respondents said ‘yes’, and 51% said ‘no’ at Question 15.
• Individuals (36 out of 66) were more likely than organisations (7 out of 19) to say ‘no’.
• Organisations were divided in their views with 8 out of 19 saying ‘yes’, and 7 out of 19 saying ‘no’.

* Individuals with no experience of custody

9.4 The 21 campaign respondents answered ‘no’ to this question, saying that different tests should continue to apply depending on the type of sentence.

9.5 Respondents (particularly justice sector professionals and family / friends of those in custody) who supported a single over-arching test said that this would be helpful to both public and stakeholder understanding. Additionally, they said this would improve the clarity and consistency of decisions, and ensure flexibility and fairness across the system. Organisations and justice sector professionals in particular also said that a single test made sense if a single definition of parole were adopted and / or if the purpose of parole in all cases is to ensure public safety. They also said a single test would allow a more nuanced approach to the assessment of risk and the management of that risk in individual cases, irrespective of sentence type or offence. Some organisational respondents, particularly statutory justice bodies, thought that consideration should also be given to aligning the tests used for different sentence types across the parole system (including at release, recall and re-release).

9.6 The main view among respondents who favoured retention of the current multiple tests was that different sentence types (or different offences) have different risk implications and therefore require different approaches to deciding on parole. There was concern that a single test would oversimplify a complex issue and was not in line with the distinct types of sentences available to the courts in Scotland.

9.7 However, other individuals who answered ‘no’ at this question stressed the need for an approach that took account of the nature of the offence and the sentence imposed as well as the circumstances of the individual. Their comments were brief, but suggest that these respondents may have been referring to the approach that should be taken and the factors that should be considered in deciding whether a test for release has been met, rather than whether that test should be the same irrespective of sentence type.

9.8 Among those making other points, a local justice organisation suggested a two-test system involving one test for life and indeterminate sentences and a second test for all other sentence types. Additionally, some respondents (both organisations and individuals) said they needed more information on what the single test might be in order to offer a view.

The focus of test(s) for release

9.9 Question 16 asked respondents if they thought the test(s) for release should continue to focus solely on risk or should also consider a person’s readiness to reintegrate into the community. Table 10.2 shows that:

• Overall, 26% of respondents said test(s) for release should continue to focus solely on risk, while 67% said they should focus on a combination of risk and readiness to reintegrate into the community.
• The overall pattern of response was similar for organisations and individuals.

* Individuals with no experience of custody

9.10 The 21 campaign respondents said that test(s) for parole should combine risk assessment with an assessment of the individual’s readiness to reintegrate into the community.

9.11 Respondents who favoured a test based solely on risk thought that protecting the public should be the priority in considering whether to grant parole. Some victim support organisations also thought there should be separate consideration of victim and public protection, particularly in relation to domestic abuse and other gender-based offences, and that the risk assessment process (and parole process as a whole) should adopt a victim-focused and gendered approach in making decisions.

9.12 These respondents still saw readiness to reintegrate as important. However, some thought this should be considered as a factor in the overall risk assessment while others (mainly individuals) said that it should be considered as a separate (secondary) issue.

9.13 Some respondents also saw challenges in including ‘readiness to reintegrate’ in the test for parole – they said, for example, that this was a subjective concept that was difficult to define and assess, and that its use could penalise (i) those who did not admit guilt or show remorse (but were nevertheless judged low risk), (ii) those from disadvantaged backgrounds, and (iii) those less able to articulate their feelings and intentions.

9.14 Respondents favouring a test which incorporated both risk and readiness to reintegrate said that this would give a more holistic or balanced view of the individual and their suitability for parole. They also argued that risk and readiness to reintegrate were linked, with successful community reintegration being a key factor in reducing reoffending. While respondents mostly said that ‘risk’ should still be the priority, some offered views on how these different aspects might be considered as two elements of the same test. Some respondents noted the importance of readiness to reintegrate being well defined and / or well evidenced.

The assessment and decision-making process

9.15 Question 17 asked for any other views on the assessment and decision-making process around release. This was an open question with respondents prompted to consider other aims that should be reflected, improvements that could be made, or changes in how risk is considered. The comments made at this question covered a range of issues, and the sections below present the main themes identified.

9.16 Respondents commonly called for a broader approach to understanding and assessing risk and the decision whether to grant parole. However, this meant different things to different respondents:

• Respondents of all types called for an approach that took account of a full range of factors and evidence – behaviour, conduct and attitudes in prison, engagement with rehabilitation opportunities, family circumstances, prospects on release, offence and offending history, etc.
• A range of respondents (local justice organisations, statutory justice bodies, and some individuals) called for a more thorough, better informed, more structured approach to risk assessment, using high quality evidence compiled over time.
• Victim support organisations and family / friends of victims stressed the need for an approach that takes account of victims’ views and perspectives, and adopts a victim and trauma-informed approach to assessing risk, particularly in relation to domestic abuse offences.
• A range of respondents (local justice organisations, statutory justice bodies, justice sector professionals, organisations working with prisoners, and some individuals) called for a forward looking, pragmatic and enabling approach to decision-making about parole. This would focus more on current conduct and behaviour of the individual and their circumstances as a whole and less on completion of programmes and formal risk assessment methodologies. It would consider how release could be made possible and successful for the individual concerned.

9.17 Some respondents commented on who should be involved in or contribute to parole decision-making. Organisations working with prisoners and family / friends of those with experience of custody wished to see input from ‘independent’ third party experts, but also more input from professionals who know the person in custody well, and the families (and children) of offenders. Additionally, victim support organisations and family / friends of victims suggested the need for more input from victims at all hearings, while justice professionals suggested the need for more input and evidence from a wider range of professionals.

9.18 It was suggested that risk assessment and other information should all be available and considered ahead of hearings, and that the Parole Board should take a more active role in ensuring that all the required information for decision-making was available at a hearing.

Individuals with experience of custody

9.19 Questions 15, 16 and 17 in the prison questionnaire were worded differently to the questions in the online questionnaire.

Question 15: Do you think there should be one single rule for deciding if someone in prison can be safely given parole, no matter the type of sentence?

Question 16: Should the test for release focus only on how risky a person is, or also if that person is ready to live safely in the community?

Question 17: Do you have any other views on how decisions should be made about release? For example, do you think there are any other improvements that could be made?

A single rule for deciding if someone can be safely given parole

9.20 At Question 15, most individuals with experience of custody thought there should be different tests depending on sentence type. Of the 120 respondents who replied:

• 24 said ‘yes – a single test for all cases is a good idea’
• 71 said ‘no – there should be different tests depending on sentence type’
• 19 said ‘other’
• 6 said ‘not sure / no opinion’.

9.21 Those who said there should be a single test thought that everyone should be treated the same, or that the same principles should be applied to all cases. They also said that a single test would be easier for everyone to understand and would help with decision-making in individual cases.

9.22 Among those who thought there should be different tests depending on sentence type, some said that this was right because different sentence types (or offence types) had different levels of risk – with some highlighting offences such as sexual offences as requiring a specific approach. However, it was more common for respondents to say that each potential case for parole should be considered individually or looked at on an individual basis, taking account of the offence, as well as individual circumstances including conduct and progress made in prison. Comments often suggested that respondents had understood this question to be asking about how individual cases should be assessed, and the factors and evidence that should be taken into account in reaching decisions. Those who selected other response options (‘other’ or ‘not sure / don’t know’) generally offered similar views to these.

Focus of the test(s) for release

9.23 At Question 16, most individuals with experience of custody thought that test(s) for release should focus on whether someone is safe to leave prison and whether they are ready to live a good life in the community. Of the 124 respondents who replied:

• 19 said ‘the test(s) should continue to focus on risk’
• 77 said ‘the test(s) should check if someone is safe to leave prison and also ready to live a good life outside prison’
• 20 said ‘other’
• 8 said ‘not sure / no opinion’.

9.24 Those who said the test(s) should continue to focus on risk made three main points:

• It would be difficult to define and assess readiness to live safely (or be reintegrated) in the community – some said they were unclear about the difference between how ‘risky’ a person is and whether a person is ‘ready to live safely in the community’.
• Whether someone was ready to live safely in the community depended on factors outwith the control of individuals being considered for parole (such as the availability of employment opportunities and housing on release, access to programmes and courses in custody, and availability of support and management in the community).
• It was not justifiable to keep people in prison who were judged to be safe to release just because they had not demonstrated a readiness to reintegrate – there could be understandable reasons for this, particularly for long-term prisoners.

9.25 Those who favoured a test (or tests) that checked if someone is safe to leave prison and also ready to live a good life outside prison said that it was important to assess all factors in considering a person for parole and / or that readiness to live a good life was an integral factor in assessing how safe someone is to leave prison. There was a general view that readiness to live a good life was key to preventing future breaches of parole conditions or reoffending. Respondents said it was important to ensure that those considered safe to leave prison were also equipped to live a positive life – that they have housing and a support network, and that appropriate management arrangements are in place. However, there were concerns about the opportunity to make progress while in custody and demonstrate ‘readiness to live a good life’ because of problems accessing programmes and courses, and open prison places.

9.26 Those offering other views generally thought that readiness to live a good life should be seen as the priority (or sole) test in parole decisions. These respondents thought that conduct while in prison, engagement with rehabilitative requirements, and arrangements in place for the person on release should be the key factors in deciding on parole. These respondents often also expressed concern about the importance attached to assessing ‘risk’ in the parole process as they thought this was a subjective or ‘abstract’ concept, and difficult to assess in a reliable way; some respondents also suggested that the current approach was ‘risk averse’.

Other views on the assessment and decision-making process around release

9.27 The main themes in the comments at Question 17 made by individuals in custody were similar to those in comments made by other respondents. The views expressed are summarised below.

• Parole decision-making should take a more individualised approach. Decisions should be based on full information about the individual and their circumstances. This included taking account of behaviour, conduct and progress made while in custody, as well as family and home circumstances, and plans for return to the community. There was a view that the current approach to risk assessment was flawed and did not give fair consideration to whether someone in custody could be safely released.
• Parole should be granted more readily and more often. It was pointed out that the current test(s) did not require to be met ’beyond reasonable doubt’, and suggested that the general approach should be based on looking for reasons to give rather than deny parole.
• The Parole Board should take more account of the views of professionals who know the individual in custody well (e.g. community social workers, and personal officers in prisons), rather than relying on formal reports from those who are not very familiar with the individual.
• Those being considered for parole should be able to speak with Parole Board members ahead of hearings.