Prisons are one of the many areas that require specific attention during the COVID-19 crisis, for obvious reasons. A substantial number of prisoners in close quarters, combined with a large turnover in buildings with limited ventilation and often poor cleanliness is a melting pot for the spread of the virus. Over 60 prisons have so far reported having prisoners test positive for the virus, and so it was no surprise to hear the Government announce some limited measures to try and reduce the strain on the prison service.
Pregnant prisoners, and those coming towards the end of their release date were to be temporarily released – although that system has been suspended due to some prisoners wrongly being released. The Parole Board have relaxed some rules, allowing a greater number of matters to be dealt with on the papers, but there are still many cases outstanding: The Board currently has conduct of 9,000 applications.
Fortunately, hearings have been able to proceed remotely, via a combination of video and telephone, albeit at a slower rate. Recent figures suggest that during March 2020, the Parole Board only heard around half of the cases they usually do. Part of that backlog is likely to be due to the immediate cancellation of face-to-face hearings and the inability to organise a remote hearing at short notice, but the drop-off remains concerning.
The Law
Whilst the criminal courts required specific legislation to be passed in order for many types of hearings to proceed, parole hearings already had the framework in place. Rule 15(1) of The Parole Board Rules 2019 states “an oral hearing must be held via video link, telephone conference or other electronic means if the duty member or panel chair so directs.” The Parole Board’s Guidance suggests that a case is unlikely to be suitable for a video-link where there are a large number of witnesses, particularly complex psychological issues, or the prisoner has particular needs or vulnerabilities.
That would seem to allow the majority of hearings to be conducted remotely. It would only be the most delicate and complicated cases where the Panel would need to assemble in person in the prison.
The Parole Board have released a guidance document reaffirming the need for the principles of protecting the public and fairness to remain during the pandemic.
Victims
Victims, or families of victims of offences, have a right to have a victim personal statement presented at Parole Board hearings. This can take a number of forms, often the statement will be written, and included in the dossier for the Panel to consider. In some circumstances, the victim will elect to attend the hearing in person to read their statement. The Parole Board have announced that victims will also be able to attend either via Skype or telephone to read their statement, should they wish, and have provided guidance to that effect.
In Practice
This week, I undertook a hearing conducted solely via telephone. I had not met my lay client before, and the first time I was able to speak to them was on the morning, before the hearing. I found it difficult to build a rapport with someone just over the phone. My client was nervous and undoubtedly stressed about the hearing, and it was difficult to allay those fears without being face-to-face with them. Despite that, they fully understood the need for the hearing to take place in the form that it did.
My hearing was on the more straightforward end of the spectrum. The required witnesses were the offender manager, the offender supervisor, and a psychologist. My client was in prison, and each witness, member of the board and myself phoned in to a central phone number provided by the Board. The usual issues with a telephone hearing arose, such as jilted and unnatural dialogue, and parties accidentally talking over one another.
As most witnesses who give evidence at hearings are professional witnesses, their demeanour rarely affects the credibility of their evidence. But for the prisoner, their manner in giving evidence can be very important. They are asked questions about their upbringing, their offending and the impact it can have, their experience in prison, and their plans for the future. It can be emotive, and the way in which the prisoner gives evidence can be very compelling, or equally very damning. By giving evidence over phone, it certainly does dilute the presentation of the prisoner’s evidence.
Another practical issue is the inability to take instructions during the hearing. My practice is to provide the prisoner with a pen and paper and tell them to make notes of anything they wish to raise, or if there is something disagree with whilst the witness is giving evidence. Although it may be possible to request a private discussion with your client during the hearing, the practicalities of ensure confidentiality, and the stability of the conference can make it very difficult.
All in all, the hearing was, practically and procedurally, a success. Most importantly, it was fair. My client had the opportunity to give their evidence, and to challenge the evidence given about them. A hearing of more complexity, or a prisoner with more vulnerabilities would make the procedure much more difficult: but in any event, the Board’s guidance would hopefully seek to avoid such a hearing taking place remotely.
The Future
Although these measures are a temporary stopgap as the world combats the pandemic, there are inevitably going to be questions in due course whether these measures can become the norm when the crisis is over.
Whilst the “make do and mend” approach is currently necessary to ensure justice can continue throughout the pandemic; the sticking plaster should not become permanent. Developments in technology may well smooth some out some of the creases. But there can be no equivalent for the prisoner facing the witnesses and the panel and having their representative by their side as they participate in what is undoubtably an extremely important few hours of their life.
For now, however, the Parole Board’s efforts to keep the wheels spinning in a fair manner ought to be commended.
Joshua Bowker
April 2020
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