Recent reports suggest that some of the changes set out in the Ministry of Justice’s 2022 ‘Root and Branch Review of the Parole System’ may be brought forward in the Victims Bill.
One of the proposed reforms, which has been described as a ministerial 'veto', would alter where ultimate decision-making authority sits in respect of the release of certain prisoners. As illustrated by a very brief tour through the Parole Board’s historical development, this change should prompt real concern in terms of compliance with Article 5.
The proposed changes
At present, it is the Parole Board who decides whether prisoners serving various types of sentence should be released once they have spent the minimum period in custody.
The new proposals, set out at §§82-93 of the Root and Branch Review, would apply to a defined group of prisoners convicted of very serious offences such as murder and rape. The proposal is that in those cases, if the Parole Board decides that the test for release is met, the prisoner’s case would then be reviewed by His Majesty’s Prison and Probation Service officials. If these officials decide that Ministerial oversight is required, then the Secretary of State would personally review the case and decide either to release or not to release the prisoner. In other words, the changes would give the Secretary of State the power to refuse release where they disagree with the Board that the statutory test has been met.
A new route of appeal would be created, most likely to the Administrative Appeal Chamber. This would be on judicial review grounds, rather than a full rehearing.
The proposals also set out a variant on the approach described above where, instead of the Secretary of State alone reviewing the case, it would reviewed by a new panel which includes the Secretary of State along with other members. On this model, there would be no new appeal route. It is presently unclear which of these two options may be pursued.
The history of the Parole Board
Article 5(4) of the European Convention on Human Rights (ECHR) requires that post-tariff detention must be speedily reviewed by a court. Today, the Parole Board is recognised as a court for the purposes of Article 5(4) when deciding whether to direct a prisoner’s release . However, this has not always been the case.
The Parole Board was originally set up to advise the Home Secretary in relation to the release and recall of certain prisoners. After its introduction in 1968, the parole system operated until the 1980s without significant changes to its fundamental principles. At this point, it was a purely advisory body.
In 1988, the European Court of Human Rights (ECtHR) first addressed the question of whether review by the Parole Board met the requirements of Article 5(4) in Weeks v United Kingdom (1988) 10 EHRR 293. The case concerned a man who had been serving a discretionary life sentence for armed robbery, who was released and then recalled. The ECtHR held that the body tasked with reviewing the lawfulness of a prisoner’s detention under article 5(4) “must not have merely advisory functions but must have the competence to ‘decide’ the ‘lawfulness’ of the detention and to order release if the detention is unlawful.” The Parole Board did not satisfy these requirements.
Moreover, judicial review, while a “useful supplement” to the procedure before the Parole Board, could not cure the defects in the process such as to render it article 5(4)-compliant. The ECtHR said that this was because the scope of the control afforded by judicial review was not wide enough to bear on the conditions essential for the 'lawfulness' (in the sense of Article 5(4) of the Convention) of the prisoner’s detention.
Soon afterwards, changes were made to the Parole Board’s remit, giving it the power to order the release of post-tariff life sentenced prisoners.
The ECtHR’s analysis in Weeks was underlined in Thynne v UK (1991) 13 EHRR 666, which was decided in the same way on the Article 5(4) issue. Five years later, the Court in Hussain v UK (1996) 22 EHRR 1 once again adopted the identical approach.
This line of Strasbourg authority is now reflected in the domestic jurisprudence, which recognises that a Parole Board decision that a prisoner is safe for release amounts to a conclusion that the casual link between the sentence and the continued detention has been broken for the purposes of Article 5. An indeterminate sentence prisoner’s post-tariff detention is lawful only where it is justified on the grounds of risk. Article 5 therefore requires the Parole Board to have the power to direct release immediately where risk no longer justifies detention .
The Article 5 compliance of the proposed reforms
The central vice of the proposed reforms is now obvious. They involve a power to determine release, currently held by a judicial body, being removed and given to the executive (either alone, or sitting as part of a newly constituted panel).
As such, the Parole Board’s new role in the parole process would no longer, by itself, appear to satisfy the review requirements of Article 5(4). This is because the reforms would render the Parole Board an advisory, rather than decision-making, body for the purposes of reviewing the legality of ongoing detention.
Indeed, this appears to be the Secretary of State’s goal. When recently pressed on this point by the Justice Select Committee, the Secretary of State commented: “I think that the Parole Board’s function is mischaracterised as judicial” (see Q77). Such a remark sits in stark tension with the status of the Parole Board as a court. Put simply, the aim of the reforms seems to be to stop the Parole Board from having the powers of a court for the purposes of Article 5(4).
Crucially, the availability of judicial review was not enough to cure the advisory-only Parole Board’s review for Article 5(4) purposes in 1988, 1991 or 1996. Nothing since would appear to change the picture. It therefore seems that the proposed appeal mechanism to the Upper Tribunal on judicial review grounds will fail to cure any illegality.
The present position is that the Parole Board is a decision-making body that, in connection with release decisions, is a judicial authority acting as a court. This structure was set up, in part, to ensure compliance with the line of Strasbourg authority set out above. Repeatedly, the Strasbourg court found that that a Parole Board which cannot make release decisions does not offer the kind of review required by Article 5(4). Repeatedly, it noted that the availability of judicial review made no difference.
In this context, it is extremely difficult to see how the proposed changes would comply with the requirements of Article 5 ECHR. It remains to be seen whether this will be addressed or remedied in any draft clauses included in the Victims Bill.
 R (Giles) v Parole Board  1 AC, at §10.
 See, for example, R (Wells) v Secretary of State for Justice  1 AC 553, at §14; R (Gilbert) v Secretary of State for Justice  EWCA Civ 802, at §57.