Voices in Justice: Parole Reform in Scotland: Consultation Analysis

15. Recall to custody (Q30–34)

Key points from Chapter 15

¨ There was broad agreement among all respondent types that the Parole Board’s current options when considering a request for recall were limited and lacked flexibility.

¨ Respondents thought any additional options for responding to a reported breach in licence conditions should (i) provide increased support, (ii) give people on parole a chance to explain and put things right, and (iii) introduce more restrictions on liberty in the community – instead of recalling people to prison.

¨ Victims, family / friends of victims and victim support organisations thought that any decisions regarding recall should, first and foremost, prioritise victim / public safety.

¨ There was support for the idea of holding a progress meeting as an additional option when the Board is deciding on recall. However, some organisations identified problems with this proposal, noting that such decisions often need to be made very quickly. It was suggested that further discussion with a range of agencies would be necessary to develop this proposal.

15.1 Under current arrangements, a person who has been released from prison on licence can be recalled to custody. The recall process may be initiated when a person has breached one or more conditions of their parole licence and may no longer be manageable in the community, and / or because it is deemed to be in the public interest (e.g. due to an increased risk to public safety). The Parole Board has three options when considering a recall request: (i) issue a formal warning letter, (ii) recall to custody, or (iii) take no action.^[14] The consultation paper noted a view among stakeholders that a broader range of options could reduce unnecessary returns to custody and improve outcomes for both individuals and communities. Five consultation questions sought views on the current recall process in Scotland, and how this might be improved.

Question 30: What are your views on the options currently available to the Parole Board when they consider a request for recall (warning letter, recall to custody or no action)? (select all that apply)

Question 31: If the Board were to have more options for responding to a potential licence breach or request for recall, what should these be in your opinion?

Question 32: Do you support enabling the Parole Board for Scotland to set a progress hearing as an additional option in cases where the Board are deciding on recall?

Question 33: If recall decisions were to be based on a wider range of factors, which specific issues should be taken into account?

Question 34: If any, what other suggestions do you have for improving the recall process in Scotland?

15.2 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

Options when considering a request for recall

15.3 Question 30 asked respondents for their views on the options currently available to the Parole Board when considering a request for recall. Note that this question allowed respondents to select more than one of the four choices offered; however, none of the organisations or individuals with no experience of custody did so. This may be because these respondents saw the choices as mutually exclusive. Table 15.1 shows that:

• Overall, 32% of respondents said ‘the current options are adequate’, 42% said ‘more options should be available’, and 3% said ‘one or more of the current options should be removed’.
• The overall pattern of response was similar among organisations and individuals. However, around a third of organisations (5 out of 16) said ‘other’ at this question.

* Individuals with no experience of custody

15.4 The 21 campaign respondents said more options should be available.

15.5 Respondents who said ‘the current options are adequate’ described them as ‘good’, ‘proportionate’, and ‘appropriate’. These respondents generally provided no additional comment.

15.6 Both organisations and individuals (particularly family / friends of a person in custody) who said ‘more options should be available’ to the Parole Board when considering a request for recall – and those who said ‘other’ – made three main points:

• The current options are ‘limited’, lack flexibility and proportionality, and fail to account for individual circumstances or the severity, context and intent of a potential breach.
• The current options are disproportionately punitive, resulting in too many people being recalled to prison for relatively minor breaches, and thus undermining rehabilitation.
• Unless there is evidence that the risk to the public is imminent, options other than recall should be considered as imprisoning people is costly and damaging to society as a whole – as well as to the individual returning to prison.

15.7 Victim support organisations, and family / friends of victims also thought the options available to the Parole Board should better reflect the seriousness of a breach. These respondents argued that a breach of a licence condition prohibiting contact with a victim or victim’s family should always be seen as serious and warrant immediate recall. Some also favoured removing the option of a warning letter in cases involving violent offenders who (they said) should be given strict parole conditions and be expected to comply with them.

Additional options for responding to potential licence breach / recall request

15.8 At Question 31, respondents often provided detailed suggestions about additional options for responding to a potential licence breach. A comprehensive list of these is not provided here. However, most suggestions could be seen as illustrating a relatively small number of general principles:

• Provide support: Respondents argued that unnecessary recalls were often related to common issues, such as relapse, mental distress or missed appointments. In their view, these were not public safety threats, but unmet health or social care needs which could be managed safely in the community without recalling a person to prison.
• Give people a chance to explain: Respondents thought that, when things go wrong, the Parole Board should get the full picture before deciding to recall someone. This should involve not only receiving reports from social work and / or the police but also allowing the person on parole to give an explanation.
• Give people a chance to put things right: Some respondents highlighted a need for better communication between social work and individuals on licence and the need to give people a chance to change in response to a warning letter.
• Introduce greater restriction on liberty in the community: Respondents thought the Parole Board should be able to amend a person’s licence conditions in response to a breach report, but also that these changes should be proportionate to the reported breach or risk, and able to be relaxed again if the person responds well.

15.9 Respondents argued that many decisions to recall a person to prison are based on low tolerance of risk by public authorities and attitudes to those who offend. They thought that the option to recall should always be grounded in verifiable evidence of the imminent risk of serious harm, not subjective perceptions, and that the reasons for recall need to be explained in writing to the person on parole and their representative.

15.10 Victim support organisations and family / friends of victims often had a different perspective on the level of risk they were prepared to tolerate, and thus the additional options that should be available to the Board. These respondents thought that any additional options made available to the Parole Board should be victim-centred and risk-informed. They argued that mistakes in this area can, and have, cost lives. They made several points:

• Victims should be informed and their views sought if an individual has breached their licence conditions. They should also be informed of the Board’s proposed response.
• If the person on licence has breached a condition which is intended to protect women and children, the person should be recalled immediately.
• It is not appropriate for the Parole Board to take no action when an individual breaks a licence condition. Some type of action should always be taken. In cases where ‘no action’ is ultimately taken, the reason for this should be documented and all relevant parties informed, including victims or their appointed support organisations.
• The effectiveness of a warning letter was questioned – it was suggested that a formal police warning should be issued.

The use of progress hearings as an option when considering recall

15.11 Question 32 asked respondents for their views on enabling the Parole Board to set a progress hearing as an additional option in cases where the Board are deciding on recall. Table 15.2 shows that:

• Overall, 65% respondents said ‘yes’ and saw progress hearings as a way of providing alternative, individualised options, 13% said ‘yes’ but thought that progress hearings should not be an opportunity to make a decision on recall, and 10% said ‘no’, the current options available to the Parole Board are satisfactory.
• The most common response to this question both among organisations and individuals was ‘yes, progress hearings will provide alternative individualised options’ (8 of out 16 organisations, and 42 out of 61 individuals said this).
• However, compared to individuals, organisations were more likely to say ‘other’ or ‘not sure’.

* Individuals with no experience of custody

15.12 The 21 campaign respondents said ‘yes, but the progress hearing should not be an opportunity to make a decision on recall’.

15.13 Respondents who supported progress hearings as an option for the Parole Board when deciding on recall often saw these as an opportunity for the Board to tailor their response to a reported breach for each individual. Other perceived benefits were that:

• Problems could be addressed at an early stage and support provided to stabilise a person’s situation in the community, thus preventing unnecessary recall.
• The facts of the case could be explored in detail (including giving the person on parole the chance to explain themselves) before deciding whether to recall.

15.14 Those who were generally supportive of progress hearings being used in potential recall cases made a range of suggestions regarding possible implementation:

• Legal representation should be available to the person being considered for recall.
• The hearings should be supportive, not punitive.
• Hearings should be used at the stage at which recall decisions are being made but should not be used more widely (for example, they should not be used as regular progress hearings as discussed in Chapter 10).
• Impact assessments for the children and families of the person being considered for recall should be carried out as part of the process.

15.15 Other respondents identified issues or potential difficulties with the concept of progress hearings – in some cases echoing or reiterating comments made in relation to post-release progress hearings (see again Chapter 10). Specifically, there were concerns that additional Parole Board hearings would duplicate and potentially undermine existing oversight arrangements provided by justice social workers. Respondents also questioned how the proposed progress hearings would be resourced and how such hearings could operate in practice, given that decisions about recall often have to be made very quickly.

15.16 One statutory justice body set out a number of difficulties with the proposal and highlighted the need for the Scottish Government to:

• Clarify the rationale for introducing progress hearings following a breach of licence conditions
• Provide evidence to explain why the current management arrangements are inadequate
• Consider how the proposed progress hearings would interact with established processes
• Explain the legal basis for the Parole Board to take on a case management function and how this could operate without compromising the Board’s independence.

15.17 It was suggested that further discussion with a range of agencies would be necessary to develop this proposal.

15.18 Victims, family / friends of victims, and victim support organisations did not offer a unified view in their responses to the closed part of Question 32. Nevertheless, there were several common themes in the comments made by these respondents. Specifically, they thought:

• Recall should be the default response to any breach – especially in cases where an individual on parole has contacted, approached or threatened a previous victim or other women and children. To do otherwise compromises public safety.
• If there is the slightest concern about danger to the public, an individual should be recalled. If the Parole Board needs more information to assess risk, that should happen after recall, not instead of it.

15.19 These respondents were concerned that the primary purpose of this proposal appeared to them to relate to managing prison overcrowding. They also said that discussions about ‘minor’ breaches of licence conditions gave the impression that some breaches were acceptable.

Other factors to be taken into account in recall decisions

15.20 Question 33 (an open question) asked respondents about the specific issues that should be taken into account if recall decisions were to be based on a wider range of factors than at present. Most commonly, respondents highlighted:

• Risk to the public and / or to any specific individual
• Number and frequency of breaches
• The seriousness of the breach
• Intent and context of the breach (is it deliberate, or the result of confusion / learning disability / administrative error)
• Whether a breach occurred due to lack of support with (for example) housing, mental health or addition issues, and whether providing support could get the person back on track
• The level of family / community support available to the person
• The person’s progress and attempts at reintegration (for example, employment or community engagement)
• Motivation behind complaints about non-compliance (considering the possibility of false accusers or malicious complainants)
• Views of the family of the person on parole and of victims and their families.

15.21 Victims, family / friends of victims and victim support organisations thought that any decisions regarding recall should, first and foremost, prioritise victim / public safety. These respondents said the following issues that should be taken into account:

• Behavioural deterioration (including behaving in a threatening manner – i.e. stalking coercion or violence)
• Substance misuse
• Refusal to engage with supervision
• Mental health concerns (in particular, they thought depression or suicidal ideation should be treated seriously as individuals in crisis may not only pose a danger to themselves, but also to others)
• Any breach of conditions relating to exclusion zones or unauthorised proximity.

15.22 These respondents commented that there is no clear means for victims or communities to report behaviour which they have observed and which could usefully inform any decision about recall.

15.23 Finally, there was an alternative view that there is no need to take any additional issues into account when making a decision about recall – as the current processes were adequate. It may not be possible (in terms of the time / resources available) for the Parole Board to consider a wider range of factors in their decisions to recall a person.

Any other suggestions for improving the recall process

15.24 A final open question in this section – Question 34 – asked respondents for any other suggestions for improving the recall process. Different respondent types offered distinct views as set out below.

15.25 Family / friends of people with experience of custody and prisoner support organisations suggested the recall process could be improved by:

• Giving families and support workers a greater role in tackling problems before recall becomes necessary
• Communicating in plain language, so the person on parole and their family fully understand why a person is being considered for recall
• Introducing greater transparency, proportionality and independent oversight to the recall process
• Introducing a right to appeal to an independent tribunal if a person is being recommended for recall.

15.26 Victims, family / friends of victims and victim support organisations suggested the recall process could be improved by:

• Notifying victims and involving them meaningfully in recall decisions
• Providing independent oversight in cases where the Parole Board takes no action in response to a recall request
• Putting in place interim protective measures for victims (e.g. increased supervision, electronic monitoring, victim safety planning) during breach investigations
• Applying escalating penalties to each breach
• Introducing mandatory victim impact assessments after each breach
• Providing mechanisms for members of the public to report suspected breaches
• Ensuring that processes are in place to support the prompt detention of individuals breaching licence conditions relating to the protection of women and children.

15.27 Several justice professionals and local public sector justice organisations raised concerns about the timing of progress hearings (if introduced) and timescales in general. These respondents emphasised the need to act urgently and for current processes to be faster. At the same time, they highlighted a lack of time (in some cases) for the Board to access all the information it needs to make an informed decision. Some respondents suggested ways of reducing delays in the process, for example, by: (i) enabling the police to communicate directly with the Parole Board (rather than going through social work) in cases which may require urgent action, and (ii) making greater use of multi-disciplinary case conferencing.

15.28 The point was also made that there needs to be a more consistent approach within social work about which matters are referred to the Parole Board for potential recall. It was suggested that improved guidance for, and decision-making by, supervising officers could help with this.

Individuals with experience of custody

15.29 Questions 30 to 34 in the prison questionnaire were similar (but not identical) to those in the online questionnaire.

Question 30: What do you think about the options the Parole Board has when someone breaks their licence conditions?

Question 31: If someone breaks a parole rule and might need to go back to prison, what else should the Parole Board be allowed to do?

Question 32: Should the Parole Board be allowed to check on someone’s progress instead of sending them back to prison right away?

Question 33: What other things should the Board think about before deciding if someone needs to go back to prison?

Question 34: What else could be done to make the recall process better?

Parole Board options when someone breaks their licence conditions

15.30 At Question 30, around half of individuals with experience of custody said that more options should be available to the Parole Board when someone breaks their licence conditions. Of the 118 who answered this question:

• 12 said ‘the current options are good’
• 53 said ‘the Board should have more options’
• 7 said ‘one or more of the current options should be removed’
• 20 said ‘other’
• 28 said ‘not sure / no opinion’.

15.31 Those who said the current options are good typically thought that if a person breaks their licence conditions on purpose, then they should have to deal with the consequences.

15.32 Respondents who selected any of the other choices at Question 30 thought the Parole Board needed greater flexibility and discretion to respond to (what were described as) ‘minor’ or ‘less serious’ breaches which do not compromise public safety.

Other options for the Parole Board when someone breaks a licence condition

15.33 In relation to Question 31, individuals with experience of custody thought that other options available to the Parole Board could include (i) adjusting the licence conditions to increase the individual’s restrictions in the community (including the use of home detention), (ii) providing greater support (for example with addiction or housing), (iii) arranging a hearing to discuss the issues directly with the individual, and (iv) getting all the facts before deciding on recall. These respondents thought recall should only be used after other options have been tried first. There was also a recurring suggestion that legal representation (and legal aid) should be available to individuals who are being considered for recall.

Progress hearings when recall is being considered

15.34 At Question 32, most individuals with experience of custody agreed with the idea that the Parole Board should be able to hold a meeting to check on someone’s progress instead of sending them back to prison right away. Of the 119 who replied:

• 82 said ‘yes – I think this is a good idea because it gives the Parole Board more choices and helps experts make decisions that fit each person better’
• 24 said ‘yes’ – I think this is a good idea, but the meeting should only be to check how the person is doing; it should not be used to decide if the person should go back to prison’
• 2 said ‘no’ (the options the Parole Board has are OK)
• 6 said ‘other’
• 5 said ‘not sure / no opinion’.

15.35 There was little additional comment at this question. Respondents often referred back to comments made at Question 30, or they made comments such as ‘everyone’s situation is different’, ‘this is fairer’, or ‘prison should be a last resort’. They also welcomed the possibility that the person on parole would be given the chance to explain themselves, and that any problems they may be having with social work could be addressed.

Other things the Parole Board should consider before deciding on recall

15.36 Individuals with experience of custody made a range of suggestions at Question 33 about other things the Parole Board should think about before deciding if someone needs to go back to prison. These related to:

• Current licence conditions: Some thought licence conditions are not always realistic, manageable or relevant for the person on parole. Others thought that, if a person is breaking their licence conditions, they may need to be more restrictive.
• The relationship between the person on parole and their social worker: Some said that breakdowns in the relationship between a person on parole and their social worker can result in the social worker being more likely to recommend recall.
• Progress in relation to reintegration: Employment status, housing status, lifestyle and availability of family support were all seen to be important factors to consider.
• The impact on the person’s family: Some thought that the effect of recall on the family of the person on parole should be considered.
• Whether support services have been adequate: Some respondents said the Parole Board should consider whether the person needs more support, particularly from addiction and / or mental health services.
• The nature of the breach: Some said a person should be sent back to prison if they commit another crime, are a danger to society, or frequently break their parole conditions, but should be given another chance for minor, or one-off breaches.

Other suggestions for making the recall process better

15.37 Question 34 in the prison questionnaire asked what else could be done to make the recall process better. In most cases, respondents reiterated points already discussed at Questions 30 to 33. Additional themes in the responses to Question 34 included the following:

• Set clear – much shorter – timescales for re-release.
• Provide a better explanation of the parole and recall processes to people in prison before they are released.
• Provide a mechanism for appealing a recall decision.