Voices in Justice: Parole Reform in Scotland: Consultation Analysis

13. Review and appeal (Q25)

Key points from Chapter 13

¨ A majority of individuals – both those with and without experience of custody – said that any formal appeal process for parole decisions should be for the person in prison only.

¨ Organisations did not express a clear consensus on who should be able to request a formal appeal of a parole decision.

¨ Concerns were raised about the costs of introducing an appeal process – which respondents speculated would be taken up on a widespread basis.

13.1 The consultation document explained that there is currently no appeal process for parole decisions. The only way a person in prison can challenge a Parole Board decision (in particular, a decision not to release them from custody) is by seeking a judicial review. The Parole Rules allow for internal review of decisions where there has been an administrative error or procedural defect. In addition, section 10 of the Bail and Release from Custody (Scotland) Act 2023 will, when implemented, allow reconsideration of release decisions before the person is released, where additional information comes to the attention of the Board. Responses to the Scottish Government’s 2019 consultation on parole indicated support for the introduction of a review and appeal process, but the COVID pandemic delayed taking this forward. The current consultation sought views on whether this issue should be revisited.

Question 25: What are your views on exploring a means to develop a formal review and appeal process for parole decisions, and who could this apply to? Please explain your answer.

13.2 Respondents’ views on this question 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

13.3 Question 25 invited views on the possible development of a formal review and appeal process for parole decisions, and whether this would apply to the person in prison, the victim, or both. Table 13.1 shows that:

• Overall, 21% of respondents said that any formal appeal process should be for both the person in prison and the victim, 46% said it should be for the person in prison only, and 9% said it should be for the victim only.
• Half of individuals (32 out of 64) thought an appeal process should be for the person in prison only. By contrast, organisations expressed no clear preference.

* Individuals with no experience of custody

13.4 The 21 campaign respondents said that a formal appeal or review process should be introduced, but only for the person in prison.

13.5 As can be seen from Table 12.1, the most common view was that a formal review and appeal process should be made available for the person in prison only. Respondents who supported this view gave three main reasons for favouring this approach:

• A statutory right of appeal would improve transparency, increase public trust, safeguard against wrongful convictions, and bring the parole system into line with other quasi-judicial systems (e.g. mental health tribunals, social security appeals).
• An appeal process offers the chance for further relevant information not available at the parole hearing to be considered.
• Victims are neither independent nor experts in risk assessment and should therefore not be allowed to appeal parole decisions. If they were allowed to appeal, then all decisions to grant parole would be challenged.

13.6 Individuals and organisations who favoured a formal review and appeal process for both the person in prison and the victim argued that:

• If everyone gets to have their voice heard it will lead to more understanding and acceptance of the Parole Board’s decisions and greater public confidence overall.
• Both those in prison and victims are vulnerable to procedural errors and misjudgements and so it is difficult to justify restricting it to those in prison only.
• It would give victims a voice beyond making representations and redress the current situation which can leave victims feeling they have not been able to challenge decisions or contribute meaningfully to the parole process.

13.7 There was widespread comment – from respondents who selected each of the response options – that if an appeal process was available, many Parole Board decisions would be appealed. This would lead to disproportionate expenditure, increased workloads, additional time pressures and negative impacts for the justice system more generally.

Individuals with experience of custody

13.8 Question 25 in the prison questionnaire was worded differently in the online questionnaire.

Question 25: Do you think there should be a rule that lets people ask for the decision to be checked again? Who should be allowed to do this?

13.9 Most of those with experience of custody said that an appeal process should be introduced only for the person in prison. Of the 123 respondents who answered:

• 28 said ‘both the person in prison and the victim or their family should be allowed to ask for a second look (review or appeal process)’
• 67 said ‘only the person in prison should be allowed to ask’
• 1 said ‘only the victim or their family should be allowed to ask’
• 10 said ‘the current system is OK’
• 8 said ‘other’
• 9 said ‘not sure / no opinion’.

13.10 The arguments in favour of an appeal process only for those in prison were that:

• Those in prison are the people whose lives are affected by the decisions made by the Parole Board. They should be allowed to appeal if they believe a decision is wrong.
• Evidence relevant to the case was not always shared, reported and / or considered by the Parole Board.
• An opportunity to review any judicial decision should always be available.
• Victims are prejudiced against offenders. If they are given a right to appeal they will use it every time and it would stop the Parole Board from ever granting parole.

13.11 The arguments in favour of an appeal process for both those in prison and victims were that:

• The decision of the Parole Board affects both prisoners and victims so it is only fair that they can both call for a review. These two groups have equal rights in regard to the decision, and both groups should be allowed to challenge the ruling.
• This would allow issues that were not disclosed at the original hearing to be discussed.
• Sometimes the Parole Board gets things wrong.

13.12 Respondents offered suggestions on how such a system should be organised. There was also recognition that the introduction of an appeal process could be very resource and labour intensive.