The Parole Board may have got it wrong but it should not be intimidated out of making unpopular decisions

It is not surprising that the decision of the Parole Board to release the black-cab rapist John Worboys has sparked near universal outrage. The trial judge had passed a sentence of imprisonment for public protection (“IPP”), with a minimum term of 8 years imprisonment. That means that he could not be released until he had served at least 8 years, and thereafter could only be released if the Parole Board judged him “safe.” Once you take into account time served before his trial he has actually been in prison for over 9 years, the equivalent of a determinate sentence of at least 18 years imprisonment, significantly longer than the trial judge considered necessary for purely punitive purposes.

There are numerous reasons why his crimes were particularly chilling: they were premeditated – he carried what was termed a “rape kit” in his cab. His victims were attacked in a black cab, somewhere that most women would expect to be almost as safe as their own homes. He conducted what might reasonably be described as a campaign of rape and sexual assault lasting for years. At his trial he demonstrated no shred of remorse, contesting every allegation in the face of powerful evidence.

There is also good reason to believe that between 2002 and 2008 when he was finally apprehended, Worboys attacked over 105 women. Most were too disorientated to complain to the police at the time, largely because of the very drugs that he had administered in order to facilitate his sexual assaults. The figure of 105 victims, it should be said, has not simply been plucked out of the air or – as may occasionally happen – leaked by a vindictive ex-copper with a personal axe to grind. The Metropolitan Police were successfully sued (although they have appealed to the Supreme Court) by one of his earliest victims (known only as “DSD”) for failing to investigate her complaint properly, and Mr Justice Green accepted the number of 105 victims in his judgment.

Nevertheless, it is at times of the greatest anger that our judgement may be at its least reliable and so it is here. Some have blamed the Parole Board, some have blamed the sentencing judge Mr Justice Penry-Davey, some have blamed the Crown Prosecution Service (and particularly Sir Keir Starmer who was DPP when Worboys was originally prosecuted), and almost everyone has blamed the police including the Independent Police Complaints Commissioner, and Mr Justice Green who found that they failed to conduct a proper investigation of complaints which ought to have led to Worboys’s arrest long before 2008.

Amidst all this welter of recrimination we need to be careful not to lose sight of some fundamental legal principles.

The most important of these is that nobody should be punished for a crime unless they have actually been convicted of it in a properly constituted criminal court. Worboys was convicted by a jury of 19 sexual offences against 12 victims one of which was a rape, five were sexual assaults, one was attempted assault and the remaining twelve were offences of administering a substance with intent to engage in sexual activity. That is of course bad enough, but he has not been convicted of offences against the “in excess of 105 victims” that Mr Justice Green believed he had probably attacked.

Green J. made his finding in a civil case where the burden of proof is much lower than that applying in a criminal court, and in a case in which Worboys played no part and was not represented. Important though it is that proven wrongdoers are punished, it is even more important that we do not bend the law to punish people for crimes that they only “probably” committed.

Sir Keir has been criticised for not prosecuting Worboys for any of the other offences that he is believed to have committed. But that is to misunderstand both the law and what motivates Sir Keir. There has been no Director of Public Prosecutions, ever, who has tried harder to prosecute people for sex crimes. The most common criticism of his time in the office has been that he was, if anything, trigger happy with sex prosecutions. It is inconceivable that he would have been squeamish about trying to pin as much as possible on Worboys, had he had the evidence to do so. In fact, Sir Keir has said that he was not involved in the case anyway.

The CPS explained their reasons for limiting the number of cases prosecuted in a statement issued yesterday:

During the police investigation into John Worboys, files relating to 83 separate complainants were referred to the CPS.

Of those 83, 14 complainants formed part of the trial. In respect of the remaining complainants, the cases did not pass the evidential test.”

Did not pass the evidential test” means that the CPS thought that if the charges were added to the case they would probably result in acquittals.

The CPS also said that prior to the trial a further 3 complainants were judged to have “passed the evidential test,” but were not joined to the indictment because it was considered that the existing charges would enable the judge to pass an appropriate sentence.

We do not know exactly what allegations the other 3 complainants were making, but although the maximum sentence for rape was life imprisonment, for sexual assault it was 10 years and for administering a substance with intent,14. Three additional convictions for these offences is unlikely to have made a significant difference to the overall sentence.

It is easy to complain that there should have been prosecutions in respect of more of the complainants but that is to be wise, or quite likely unwise, after the event. There is more to prosecuting than simply bombarding the jury with all possible evidence; indeed part of the art of prosecution is to find the right balance between leading too little evidence and over-complicating a case with unnecessary charges and evidence. Adding complications to a case also adds to the opportunities for it to go wrong and adding weak counts to an indictment can be counter-productive to the strength of a case as a whole. And crucially, even if more convictions were achieved it would not necessarily have made the case as a whole seem significantly more serious.

One thing we do know is that the prosecution faced great difficulties anyway; most of the women who complained were in no position to identify Worboys (by an extraordinary twist of fate one victim – who did complain but in respect of whom no charge was ever brought – was actually taken to the police station in a taxi driven by Worboys himself). Scientific evidence was scant or non-existent, partly because most women only complained long after the event, and because, of course, the “date rape” drugs he used were designed to cause confusion and uncertainty in his victims. It is one thing to believe that Worboys probably committed numerous other offences, quite another to bring successful prosecutions. It is perhaps worth pointing out that even in the case of the fourteen women who ultimately gave evidence, the jury acquitted Worboys of offences against two of them.

Perhaps the original sentence was too soft, although an IPP is in all but name virtually identical to a life sentence. The minimum custodial element of the sentence (in other words the term deemed appropriate for purely punitive purposes) was 8 years, the equivalent of a 16 year sentence.

At the time he was sentenced, sentencing guidelines for rape and other sexual offences were a fairly recent innovation and they were significantly more lenient than those in place today. Indeed, the Ministry of Justice today suggested that sentences for sexual offences are today 30% longer on average than they were in 2010 (I don’t know why they chose 2010 for the comparison when Worboys was sentenced in 2009 but it probably makes no difference).

Under the current guidelines (introduced in 2013) the suggested starting point for “a campaign of rape” is a sentence “of 20 years and above” (and of course a life sentence is available). Under the guideline then in force (introduced in 2007) the suggested “starting point” for “repeated rape of multiple victims” was 15 years imprisonment. Given that Worboys had not been sentenced for the rape of multiple victims, and that he had received an IPP, one can understand why the Attorney-General, Lady Scotland, decided that he had not been treated unduly leniently.

Even if the sentence was unduly lenient, the time to correct that has long since passed. It would be wholly improper for the Parole Board to refuse to order release because it considered the original sentence too short. Its job is to decide whether a prisoner can be safely released. A Parole Board hearing is normally conducted in front of a Judge, a psychiatrist and a lay member of the Parole Board. Unless life or IPP prisoners are to be held in prison for the rest of their lives someone, or some panel of people has to decide when they are safe for release. Their means of doing so are blunt and they may get it wrong, but my experience of Parole Board hearings is that they are scrupulous and careful with decisions to release. His release is certainly not unconditional. It will be subject to strict licence conditions, and he remains liable to recall to prison by administrative diktat.

It may well be unsatisfactory that the Parole Board has not published its reasons for releasing Worboys but we cannot blame it for that; and nor does it make any sense to demand, as Yvette Cooper and other have, that they do so now. They would be breaking the law if they published their reasons. Rule 25 of the Parole Board Rules says:

Information about proceedings under these Rules and the names of persons concerned in the proceedings must not be made public.”

Of course, the secrecy means that the public can have no real idea why Worboys was considered safe and that may well be a reason for opening up the Parole Board to greater public scrutiny. It is not a reason for condemning their decision.

Many would like to know what attitude the Parole Board took to the allegations that Worboys had committed numerous offences with which he had never been charged. The Parole Board’s overall duty is to protect the public, but it also has a duty to treat prisoners fairly. A Parole hearing is not an appropriate forum for deciding the truth or otherwise of other serious allegations in what would in effect have been a second criminal trial. Did it take these allegations into account? Should it have done so? Did Worboys in fact admit them, or some of them, and if so which? It seems that we may never know the answers to these questions.

The Parole Board is certainly not beyond criticism. It is – as its Chair accepts – deplorable that Worboys’s victims were not kept informed, and it is perfectly possible that it has blundered badly in other respects.

The fact is that whenever Worboys was judged safe to release it would have caused huge controversy. There are no doubt many who believe that he should remain behind bars until he dies but he does not – certainly on the basis of crimes that he was convicted of – fall into the extreme category that we currently reserve largely for serial killers, of prisoners who can never be released.

Our prisons are full to bursting; many of them are in a disgusting state. One of the main reasons for that is that there are still thousands of IPP prisoners who have long since served their minimum terms but are still judged unsafe to release. The case of Worboys is high profile and well-publicised, but every day the Parole Board is making similar judgements about whether it is safe to release other prisoners.

It is very unsatisfactory that we do not know the reason that Worboys was judged safe to release. It would be even more unsatisfactory if the Board were to be intimidated by public outrage from taking difficult but legally correct decisions.

 

This is an updated version of an article that first appeared in teh Daily Telegraph on 4th January 2017

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

31 thoughts on “The Parole Board may have got it wrong but it should not be intimidated out of making unpopular decisions”

  1. I know of several women IPP’s all first time offenders prosecuted for minor arson crimes in which only property was damaged for which they received IPP sentences who are all significantly over their minimum term. None of them are serial offenders, none of whom are a danger to society like Worboys. All of whom admitted guilt before trial (unlike Worboys). One has to wonder why the parole board thinks these women are far more dangerous than Worboys and refuse to release them whereas he, just over his minimum term as an IPP, gets out, apparently at his first parole hearing.

    1. You’ll have no problem with me nipping round and setting fire to your home then if fortuitously only property damage occurred and I confessed before trial?!

      And if I then went on to start a minor fire on a Grenfell-like tower block?!?!

      Or are you only so considerate of the fair sex?!

      What if I were a woman, and I’d begun to satisfy my desire for attention, or for revenge for imagined wrongs, by setting fires instead of making false rape allegations?!?!?!!!!

  2. I think you mean 4th January 2018!

    It is particularly important that Lidington makes clear that he has no power to keep anyone locked up because the tabloid press so demand.

  3. “…we need to be careful not to lose sight of some fundamental legal principles.”

    “The most important of these is that nobody should be punished for a crime unless they have actually been convicted….”

    “…Important though it is that proven wrongdoers are punished, it is even more important that we do not bend the law to punish people for crimes that they only “probably” committed.”

    What concerns me about such cases is that he was sentenced to multiple terms to run concurrently and time on remand was taken into account.

    Say three people were charged with the same crime and spent the same time on remand, but the first was found innocent and freed, the second was found guilty of one instance and sentenced to the same time in prison as spent on remand and freed and the third found guilty of a hundred instances and sentenced to a hundred terms to run concurrently and immediately freed.

    Why has the first, totally innocent, person been subjected to the same punishment as the guilty serial offender?!

    1. The first is indeed a victim of injustice. As to the others: You normally get more for several offences but they will usually be concurrent to respect totality. We don’t need the American nonsenses of 3,000 year sentences or consecutive life sentences without parole – if you attempt suicide are you charged with attempted escape?

      1. Hardly explains why the Black Cab Rapist gets away with several times the one-off one-time never-repeated attacker’s sentence……

        All served concurrentlyb

        Or, conversely why the one-off one-time never-repeated attacker suffers the same punishment as the multiple attacker does!!!

  4. I’m not sure that the blame should be directed entirely at the parole board. The judge is really where the blame lies for the release. But of course, it is rare that the media (because often they rely of judges to ‘fairly’ adjudicate before them) or legal people, feel they are unable to be critical of judges as they are barred from, “bringing the administration of justice into disrepute”, as per the Code of Conduct.

  5. Oh lord where do I begin with all this ? Yet again it seems our judicial system is demonstrated not to be fit for purpose. Lets deal with Matthew’s commentary:

    1. Regarding Sir Kier – Politician says “it wasn’t me guv’ “. There’s a novelty. Starmer is, and always has been, a bleeding heart do-gooder.

    2. There were multiple offences but yet again we have concurrent sentences. Why do we not adopt the attitude that multiple sentences should be consecutive, as many other countries do ? I know there are sentencing guidelines but surely there has been so many of these cases the guidelines need to be reviewed.

    3. The minimum term was 8 years, not the maximum was 8 years. If this man is a prolific as everyone seems to indicate he cannot possibly be “safe” to release. How do we know what happened in prison? What treatment did he have? Has he acknowledged his crimes and responsibilities? According to someone who knows about such behaviour these people cannot be ‘cured’ as we would know it, treatment programs can only modify behaviour. Sure there will be license conditions, but are the police going to follow him 24/7/365 ? I doubt it somehow.

    4. Secrecy is a real issue in our judicial system. As members of the public we are entitled to know almost nothing. Starting from the Police, through the CPS, the court process, judicial judgements are not always made public and finally in the prison system itself with parole hearings. We are just patted on the head and told we shouldn’t concern ourselves with it all. This has to change. If dangerous criminals are to be released based on a decision by someone who is unknown and unaccountable to the public and the basis on which they base their reasoning is also secret, it is indeed a sorry state of affairs.

    5. The treatment of victims is abysmal in our system. Everything is geared to the protection of the offender. It does not come as any surprise that victims of this man weren’t informed. Will heads roll? Nope.

    6. Yet again we have the obligatory comment on the state of our prisons. Well here’s a novel idea – if you don’t like the state of the prison – don’t commit crime. Of course our prisons are so bad that Abu Hamza currently incarcerated in the US, is petitioning US authorities to come back to his cushy life in Bellmarsh as the US system is too harsh for him. Oh dear, how sad, never mind.

    7. The reason the tabloids and broadsheets (of all political persuasions Matthew) are in full cry about this is that it is an affront to the victims, the public and the notion of appropriate justice and punishment.

    Sadly over a period of decades our social institutions (Health, Education, Legal etc) have fallen victim to infiltration by the liberal left and what has happened here is just another example of the philosophy and policies they have put in place. Much of this happened in the Blair / Brown years where every institution was filled with Labour apparatchiks, Keir Starmer DPP turned Labour politician is a prime example. ‘Cultural Marxism’ and the ‘march through the institutions’ is alive, well and thriving, but ultimately we – society in general – will be the victims.

    1. ‘5. The treatment of victims is abysmal in our system. Everything is geared to the protection of the offender. It does not come as any surprise that victims of this man weren’t informed. Will heads roll? Nope.’

      There are people subject to the cruelty of the justice system in the instances of false allegations who would not remotely disagree with that. Simon Warr being a good example.

      And as Matthew pointed out in his article on that very case (http://barristerblogger.com/2017/04/18/presumed-guilty-simon-warr-review/):

      ‘Unfortunately, the tide is not running in favour of those who worry about wrongful convictions. Over the last forty years numerous changes in criminal evidence and procedure have been introduced, and (with the notable and very important exception of the Police and Criminal Evidence Act 1984), almost all of them have favoured the prosecution.’

      1. I read the blog in the link and have to say I was unaware of this man’s ordeal. What I can say and have said on other blogs is that I have deep concerns over the current slew of historical sex allegations and the methods of Inspector Knacker to secure evidence, concerns over the “evidence” itself and the current police view in these cases of ‘guilty until proved innocent’. It seems in these cases to an ordinary member of the public that some of the evidence is flimsy to say the least and it seems Plod takes it all in as absolute truth. The CPS have also rushed into the fray and jumped on the band wagon.
        As for the social media people, please don’t get me started on the ‘Twatterati’ and co, as I may end up writing a hefty tome.

  6. John Worboys had a very narrow and specific modus operandi. The parole board might well have thought that this could be managed in the community relatively simply by denying him opportunities to practice it again. He certainly won’t be able to go back to taxi driving, and that alone would remove the bulk of the “risk” if that’s his sole or primary area of criminal interest.

    Of course, that’s assuming that John Worboys was accurately convicted and his behaviour accurately reported.

    1. How would it be relatively simple to manage him in the community ? Because he can’t go back to taxi driving doesn’t mean he cant reoffend. So what do we do, put him under 24 hour surveillance for the rest of his days ? He was clearly a prolific and determined offender and brazen with it, and as psychiatrists acknowledge these sex offenders cannot be cured, their behaviour can only be modified.

      Just look at the case last week in London where a man was found guilty of murdering his partner. Common occurrence you may say, but it transpires that he’s already killed two previous partners in the 80’s and 90’s and he was freed to kill again.

      1. “How would it be relatively simple to manage him in the community ?”

        First two sentences of my post…. None of his crimes was committed outside the role of taxi driver. There’s nothing to indicate that he committed crimes in more varied situations. Take away the taxi driver context and the indicated risk is gone. Yes of course he might suddenly take up a completely new method of raping, but since there’s nothing to indicate that he will, no decision can be rationally based on the possibility, or on your beliefs in his behaviour or “cure.”

        1. Or perhaps the taxi is a method of convenience ? Simply removing it will stop his sexual predatory behaviour ? Your rational and logic is optimistic at best or naïve at worst.

          As for the “cure”, just do some basic research. My comment came from someone involved in offender management who I’m sure knows far more about the subject than me or you. I’ll take their word if that’s OK with you.

          1. The Parole Board members can only make decisions based on the information put in front of them. Speculating about John Worboys taking up completely new methods of raping after his release is not allowed, by law. YOU, and other, might fear that he might start to rape on trains or buses, but it’s not lawful to imprison him for what some people think he might do in the future.

            You shouldn’t take the word of someone who works in offender management, for two reasons. Firstly, they have a vested interest in raising perceived risk because it’s job security and industry security insurance for them. Secondly, they are thoroughly tainted by ideology alien to a liberal democracy, specifically Marxist criminological theory. You yourself have been hoodwinked by this, believing that men should be punished for who or what society says they are or how society categorises them, rather than deeds that they’ve done.

  7. What is important is that the Parole Board – like the judiciary – remain independent of Ministers and of the three P-for-pernicious influences on Ministers which are

    Party backbenchers
    Press
    Polls.

    1. Andrew, independence is fine but what about accountability for their decisions ? To whom are the parole board accountable and how ?

      1. You can have independent or you can have accountable; but you can’t have both at the same time. With the Parole Board, as with the judiciary, I prefer independent – not least because accountable will end up with being accountable to Ministers who are frightened of the tabloid press.

        1. Are they mutually exclusive ? I don’t think they are or should be. Unfortunately this sort of thinking breeds mistrust in the system through lack of transparency. This is the very reason there is a public backlash and why ministers then get involved to placate the public. I’m afraid this independence comes across as arrogance. As I said above just pat the proles on the head and tell them to run along nothing to see here.

  8. Refreshing to see a balanced article on this topic, and deals with the facts, rather than stirring hysteria. He will have served almost ten years, although the crime is serious, it still seems like a long sentence to me, and I can believe it’s possible for someone to be assessed as “safe” in terms of reoffending. Of course just because he will be released from prison doesn’t mean that his sentence has finished. People change a lot over ten years. Generally we imprison for people too long in this country. Suggestions that reinvestigations should take place seems pointless, the time for that passed long ago, and reinvestigating because someone has served their sentence and an independent parole board assessed him suitable to be released isn’t a reason. One purpose of prison is rehabilitation – isn’t it a good thing that he is now considered suitable to be released.

    1. And if there were new evidence, what are the chances of a fair trial after the media attention this wretched man has had over the last ten days?

      1. Was the trial fair in the first place ? It did seem that the police and CPS took the easy route first time round. No doubt if the full scope of offences had been investigated properly and more put before the court, the sentence may have been somewhat different.

    2. @Richard

      According to the TV news he was assessed 12 months ago and was deemed not suitable to be sent to an open prison – so what’s changed ? As I understand it, if he had received a ‘normal’ prison sentence it would have been 16 years. However with all the factors taken into account he would actually be inside for 8. Therefore they applied the same logic to the IPP sentence which seems strange to me.
      One purpose of prison is rehabilitation as you say, but the lack of transparency and secrecy surrounding parole boards means there are more questions that answers.
      As for reoffending, I go back to the comments made to me by someone involved in offender management, based on the prolific amount of attacks allegedly carried out by Worboys its highly unlikely he is “safe” in the sense we would consider the meaning of “safe”. At best his behaviour can be modified.

  9. The problem I have with this is that he was tried only for a subset of the crimes he “probably” committed. If he “probably” committed 105 sexual assaults and was tried for only 6 (plus others that are not sexual assaults or attempted sexual assaults) there are 99 remaining crimes of which the perpetrator has not been identified. That is, between 1 and 99 sexual attackers unpunished. Whereas the decision relating to the handling of the rapist in this situation might or might not be just, the doubt relating to the other unpunished crimes is the root of the frustration being expressed.

  10. @ Randall

    I did not speculate on Worboys at all, I merely responded to your naïve assumption that taking away his taxi would stop him being a sexual predator. He may or may not have had treatment and behaviour modification, but this highlights one of my other points i.e. lack of transparency – we just don’t know. I go back to the person involved in offender management, prisoners are offered treatment but they are under no obligation to take it, although not doing so may adversely impact their stay at HM’s pleasure.
    The fact that you would summarily dismiss the knowledge and experience of someone involved in offender management as being some kind of ‘jobsworth’ means I really can’t take you seriously. But have no fear, just keep reading the Guardian and I’m sure it will reassure you of your expertise.

  11. Worboys of course remains subject to an ISPP, and always subject to recall to prison should his behaviour cause any concern.

    On the other hand the recent conviction of the stalker of Emily Maitliss will be free whatever happens after 4 years – after his second term of imprisonment.

    It seems to me that however you look at it we need a better way of dealing with offenders such as these.

    1. The compensation ‘Me, I’m a victim’culture is here and being stimulated by organisations driving traffic to their inquiries and websites. So I have decided to use legal technology to drive some of this traffic to my own website and for them to see the other side of the fence. ‘the truth project’ are promoting at great expense to the public purse, for people to come forward to the inquiry website and communicate their individual stories. So for the mercenary among them to see the other side of the fence I have secured the registration of thetruthproject.co.uk (not to be mistaken for the .org.uk domain namesake in use). For those technophobes who always manage to type the wrong URL (that’s the http:// thingy bar on the top) I am sorry for the inconvenience , but maybe they can understand the carnage caused by any false allegations.

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