Voices in Justice: Parole Reform in Scotland: Consultation Analysis

16. Re-release considerations (Q35–37)

Key points from Chapter 16

¨ There was no clear view about whether the re-release process works well, partly because it was common for respondents to say they were unsure about how the re-release process worked.

¨ Most respondents thought re-release hearings should have a set timescale, of either two or four weeks.

¨ In the main, respondents thought a timescale of two to four weeks would allow individuals to return to the community with minimum disruption; however, others thought it did not allow enough time for proper consideration of issues relating to the recall.

¨ Some respondents were concerned about protecting the rights of individuals on parole during the re-release process; others thought the process should be more victim-focused.

16.1 When someone is recalled to prison, a re-release hearing is held to consider if the person can be safely released and managed in the community or should remain in prison. The hearing is generally held within 6 to 8 weeks of recall, but there is no set timeframe in which this should take place. The consultation asked three questions about arrangements for re-release hearings.

Question 35: Do you feel that re-release process is effective at supporting the initial decision to recall?

Question 36: Do you believe there should be a firm timeframe set out for re-release hearings?

Question 37: If any, what other suggestions do you have on the format and timings of the Parole Board’s re-release hearings?

16.2 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

Effectiveness of the re-release process

16.3 Question 35 asked respondents if they thought the current re-release process was effective at supporting the initial decision to recall. Table 16.1 shows that:

• Overall, 47% of respondents said ‘yes’, 18% said ‘no’ and 4% said that re-release hearings could have a different format.
• A relatively large proportion of organisations (5 out of 16) and individuals (11 out of 56) said ‘not sure / no opinion’ in response to this question.

* Individuals with no experience of custody

16.4 The 21 campaign respondents said ‘not sure / no opinion’ at Question 35.

16.5 Respondents who thought the re-release process is effective emphasised the importance of taking the time to explore in detail, for everyone who is recalled, (i) the reasons for the decision to recall and (ii) whether the individual continued to pose an unacceptable risk to the public. It was acknowledged that recall decisions may sometimes be based on incomplete information, and further investigation might indicate that recall was unnecessary.

16.6 These respondents qualified their responses in the following ways:

• The current system works well in the context of a binary choice between licence supervision and return to prison with no other options.
• There can be an over-emphasis on the prison-based social work assessment when the individual and the circumstances of the breach are better understood within the community.
• The current system is satisfactory if the original decision to recall the individual was correct.

16.7 Respondents who answered ‘no’, ‘different format’, or ‘other’ at Question 35 often commented on timescales for hearings – views on this issue are covered at paragraphs 16.9–16.14. Other comments focused on the following:

• The decision to recall may be ‘unfair’, and / or the individual should have the right to challenge the decision. It was argued that recall is sometimes triggered (i) before a proper verification of the circumstances has taken place, and (ii) when the breach of conditions is ‘minor’ or ‘technical’, when no new crime has been committed, or when the breach has no impact on public safety.
• The re-release process is flawed. Respondents argued that (i) many hearings are a ‘waste of resources’ as no new information is available to alter the original decision, (ii) it makes no sense to have a re-release hearing if the individual’s sentence is due to expire shortly (for example, within 6 months), and (iii) re-release has become a ‘revolving door’ and undermines the seriousness of the breach and the initial decision to recall.

16.8 Victims offered a distinctive perspective. They thought that the current system prioritises offender progression and rehabilitation and allows for repeated breaches with minimal consequences. One victim support organisation said that the data indicate that most recalled individuals are not re-released, which raises concerns about the decisions to grant parole in the first place.

Timeframe for re-release hearings

16.9 Question 36 asked respondents if they thought there should be a firm timeframe set out for re-release hearings. Table 16.2 shows that:

• Overall, 65% of organisations and individuals thought re-release hearings should have a set timescale, of either two or four weeks.
• Around a fifth of individuals (11 out of 60) thought re-release hearings should be held whenever possible, with no set timescale. No organisation selected this option.

* Individuals with no experience of custody

16.10 The 21 campaign respondents thought re-release hearings should be held within two weeks of a person’s recall to custody.

16.11 Respondents who favoured a set timescale of two weeks said that hearings should be held promptly with the aim of re-releasing the individual as soon as possible, with any additional support or management put in place, if appropriate. Respondents said this would minimise disruption to existing arrangements in the community (housing, employment, benefits, etc.) and give certainty to the individual and their family. They also said this would prevent unnecessary detention for minor or technical breaches of licence conditions, and would ensure fairness, clarity, accountability, proportionality and the protection of human rights. Family / friends of a person with experience of custody and prisoner support organisations were among those offering such views.

16.12 Respondents favouring a four-week timeframe also said that this provided fairness, clarity and certainty for those involved. In addition, they thought four weeks was a realistic time period for the relevant agencies to gather the required information, carry out assessments, compile reports, and allow the issue to be considered properly. Those offering such views were mainly organisations and individuals working in the justice sector.

16.13 Among those who did not support a firm timeframe for re-release hearings, some thought that hearings should be held as soon as possible but did not think that two or four weeks was sufficient to allow for full investigation and consideration of the matter. In this context, one respondent suggested that there might be a maximum time set for at least a preliminary meeting to be held to set out plans for the case. Others made alternative suggestions about the timing of re-release hearings – for example, that hearings should be held after a year, or that timing should be based on the time left until sentence expiry.

16.14 However, other respondents (particularly victims, family / friends of victims, and victim support organisations) commented more generally on the issue of re-release. In the main, these respondents thought the current approach to re-release prioritised offenders’ rights over victims’ rights, and that set timescales for re-release hearings would undermine the seriousness of the original offence and the reason for recall. Respondents in this group often called for much longer timescales for hearings (a year or more) or argued that some offenders – including those who have breached conditions designed to protect victims in gender-based violence cases – should never be eligible for re-release.

Other suggestions about re-release hearings

16.15 Question 37 (an open question) asked respondents for any other suggestions on the format and timings of re-release hearings. Suggestions focused on four main issues:

• The provision of full information – respondents said this should be shared with all parties ahead of hearings, and would support transparency and understanding
• The importance of a victim-focused process including, for example, the right to be notified of, and to contribute to, the process – some said this type of approach may be compromised by fixed timescales for hearings
• Facilitating the involvement of those in custody – including by sharing of information, ensuring the right to representation, and communicating in plain language
• Improving the efficiency of hearings – including by the use of virtual meetings and pre-meetings, and the use of streamlined processes for straightforward cases.

Individuals with experience of custody

16.16 Questions 35, 36 and 37 in the prison questionnaire were similar (but not identical) to the online questionnaire.

Question 35: Do you feel that [the] re-release process works well?

Question 36: Do you think there should be a clear time when the re-release hearing should happen?

Question 37: What other suggestions do you have about the format and timings of the Parole Board’s re-release hearings?

Effectiveness of re-release process

16.17 There was a lack of consensus among individuals with experience of custody in their responses to Question 35. Of the 117 respondents who answered this question:

• 30 said ‘yes – the system works well because it makes it possible to look at all the important information again’
• 8 said ‘no – the decision to send the person back to prison has already been made, and sometimes there’s no need for another meeting to decide if they should come out again’
• 25 said ‘the way the re-release hearings happen could be done in a different way’
• 6 said ‘other’
• 48 said ‘not sure / no opinion’.

16.18 Respondents generally made fairly brief comments. Those who thought the current system was working well simply said it was good to let everyone – including the individual in custody – ‘have their say’ and to ‘give them a chance to explain their side of events’ once all the relevant information was available. In addition, some said the current process could work well if (i) legal aid were available for the individual in custody, (ii) adequate support in the community could be guaranteed on release and / or (iii) the people at the hearing had met the individual and ‘got to know them’.

16.19 Comments from other respondents generally focused on two main points:

• The process for the re-release hearing was unsatisfactory: (i) the process was too dependent on the views of social workers who did not have the relevant information or did not give a true account at the re-release hearing, (ii) sometimes prisoners are not given a chance to speak up for themselves, (iii) the re-release hearing was not independent – there was ‘group think’ involved.
• If nothing (untoward) relating to the safety of the public happened as a result of the breach of licence conditions, and / or if the individual who had been recalled was ‘doing well’ then they should be released.

Timeframe for re-release hearings

16.20 Most individuals with experience of custody thought that there should be a clear timescale for re-release hearings of either two or four weeks. Of the 122 respondents who answered Question 36:

• 49 said ‘yes, within two weeks of being recalled to custody’
• 34 said ‘yes, within four weeks of being recalled to custody’
• 6 said ‘no, it should happen when it is possible, but without any set timescales’
• 17 said ‘other’
• 16 said ‘not sure / no opinion’.

16.21 In general, individuals with experience of custody thought hearings should be held as soon as possible (i.e. within two or four weeks) after a person is recalled. They also said that:

• It was important to minimise the time spent in custody, because of the impact this could have on families, employment, housing, etc., and any progress made by person in the community.
• Early hearings would help ensure that the individuals concerned are kept informed and understand the situation and what is required of them
• Prompt re-release (where appropriate) would help address overcrowding in prisons.

16.22 Respondents who specifically favoured a two-week timeframe for hearings said that prompt consideration of re-release was important as the reasons for the recall were often minor or contested or turn out to be incorrect.

16.23 Respondents who specifically favoured a four-week timeframe thought this would allow the individual concerned to reflect on the recall and to take steps towards addressing any concerns. It would also give all parties time to prepare properly for the hearing.

16.24 Some who thought there should be a fixed timescale (either two or four weeks) nevertheless said that there should be sufficient time for information to be prepared and decisions to be taken, while others said that the individual circumstances of each case should be a factor in the scheduling of hearings.

16.25 Respondents who did not favour a fixed timeframe of two or four weeks made a number of comments and suggestions:

• They said the suggested timescales may be too soon to consider re-release or for the individual to demonstrate readiness to be released. They thought longer timeframes may be more practical, or allow more time to address the reasons for recall and prepare for possible re-release.
• They said that hearings should be held ‘as soon as possible’ and gave similar reasons to those who favoured a fixed timeframe of two or four weeks.
• They thought the timing of hearings should be up to the prison or the Parole Board.

Other suggestions about re-release hearings

16.26 Individuals with experience of custody made a range of suggestions about re-release hearings at Question 37. These included:

• The process for considering re-release should be tailored to each individual. Information, guidance and support should be provided for the individual involved.
• Recalled individuals should only be kept in custody if there are significant reasons to do so; however, some said that social workers are reluctant to recommend release.
• Hearings should be in-person, with all relevant people present, and not based on written reports. The recalled individual should be able to contribute to the process.
• There should be strict timescales for hearings. These should go ahead as planned and not be delayed. There should be automatic re-release if a hearing does not go ahead.