Expert psychiatric reports for the Parole Board for England and Wales

Summary

The Parole Board for England and Wales advises on the release, recall and licence conditions of a small subgroup of prisoners serving determinate sentences and the majority of those serving indeterminate sentences. Since the establishment of the Parole Board in 1968, the parole process has been shaped and clarified by further legislation and case law. In certain scenarios, psychiatric expert evidence may be sought to inform the Board's determination of whether a prisoner can be safely released into the community. Psychiatrists preparing expert reports for the Parole Board should be familiar with the current operationalisation of parole. This involves an understanding not only of the functioning of the Parole Board, but also of the criminal justice context in which prisoners subject to parole are managed. Having set the scene, by describing the role of the Parole Board and the wider context, this article examines how to undertake assessments and complete psychiatric reports for the Board.

LEARNING OBJECTIVES

After reading this article, you will be able to:

• • understand the role of the Parole Board for England and Wales

• • contextualise the role of the Parole Board within wider criminal justice processes

• • identify the critical elements of a psychiatric report for parole hearings.

The origin of the early release and parole concept is debated but attributed, at least in part, to the ‘ticket-of-leave’ system of penal colonies (Guiney 2018). Convicts sentenced to transportation could be incentivised by a ticket-of-leave, meaning some restrictions were lifted and they could live more independently despite still living in a form of exile (Kercher 2003). It is this system that would have allowed Abel Magwitch, a fictional protagonist in Dickens's Great Expectations, to make his fortune as a sheep farmer despite transportation to Australia. Although in the mid-19th century, transportation was replaced by imprisonment and penal servitude, the notion of discretionary early release was preserved (Guiney 2018).

Since that time there have been a multitude of further changes, not least the requirement for supervision on licence and standardisation of decision-making (Guiney 2018). Even within the 55-year history of the Parole Board for England and Wales, a number of legal challenges have continued to shape existing rules (Ministry of Justice 2018a). The role of the Parole Board was initially outlined in Section 59 of the Criminal Justice Act 1967, and the following year it came into operation (Hardwick 2018). This article will focus on the Parole Board for England and Wales and it should be noted that although case law has relevance across nations, Scotland and Northern Ireland have separate and independent bodies.

The Parole Board for England and Wales

The Board has the status of an executive non-departmental public body and its sponsor is the Ministry of Justice (MoJ) (Parole Board for England and Wales 2023a). Owing to its relationship with the MoJ, it has been held that it is not a court in any ordinary sense, but is independent of the executive and should be treated as a court by witnesses (R (Bailey and Morris) v Secretary of State for Justice [2023]). Although the Secretary of State for Justice has the power to make rules governing the process, those powers should not be exercised in a way that interferes with the Board exercising its judicial responsibility in deciding whether or not to direct release.

The Criminal Justice Act 1967 created the Parole Board for England and Wales, and Schedule 19 of the Criminal Justice Act 2003 mandates that it comprise a chairperson and at least four other individuals who advise on cases referred by the Secretary of State for consideration of release, recall and licence conditions. All of these individuals are appointed by the Secretary of State. The annual report of the Board for 2022–2023 in fact mentions 292 members, who between them completed over 8000 oral hearings within 12 months (Parole Board for England and Wales 2023a). Board members are drawn from independent, judicial and mental health backgrounds and each serves a minimum 5-year term (Parole Board for England and Wales 2023b).

Having consulted paper-based evidence, and in some cases facilitated an oral hearing, the primary consideration in panel decisions is protection of the wider public (Ministry of Justice 2022) (the panel is described in ‘Appointing the panel and assessing the evidence’ below). A precautionary approach is recommended to decision-making (Ministry of Justice 2022), with the annual report for 2022–2023 summarising the proportion of referred cases directed for release at just under 1 in 4 (Parole Board for England and Wales 2023a).

Sentencing

Defendants convicted in criminal proceedings may be subject to a range of sentences, including discharge, fines, community orders, hospital orders or a custodial sentence. Of those offenders sentenced to a custodial sentence a small subset will be subject to the parole process. This subset comprises prisoners serving specific sentences and those being considered for re-release following recall prior to the sentence expiry date. The former group (Table 1) includes all those serving indeterminate sentences other than prisoners sentenced to whole life orders; the Sentencing Act 2020 specifies that those with a whole life order are not eligible for release. When a life sentence is imposed, the judge specifies the minimum term of imprisonment (the ‘tariff’) before parole eligibility. After that term is served, the Parole Board decides whether the offender should be released into the community.

TABLE 1 Custodial prison sentences that are eligible for consideration of parole in England and Wales

Although, pursuant to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, imprisonment for public protection (IPP) sentences were abolished, in March 2023 there remained over 1300 IPP offenders in the prison estate, with 98% having served their tariff (Newson 2023). Additional legislation has been introduced for certain types of indeterminate sentence. Section 31A of the Crime (Sentences) Act 1997 introduced the right for individuals sentenced to imprisonment for public protection (IPP) or detention for public protection (DPP) to apply to the Parole Board for termination of their licence. Pursuant to the Police, Crime, Sentencing and Courts Act 2022, the Secretary of State is now required to refer eligible cases to the Parole Board for consideration of licence termination. The legislation also allows the Secretary of State to refer certain offenders, deemed high risk, to the Parole Board in lieu of automatic release.

If an offender has been released and recalled to prison, the question of their subsequent re-release is also a matter for the Parole Board. This applies to both determinate and indeterminate sentences (Parole Board for England and Wales 2023a).

Offender management

Once convicted of an offence, there are various mechanisms in place aiming to support the offender and protect the public, as well as to address key issues that may contribute to future offending. Existing offender management structures were reformed following Lord Carter's 2003 report highlighting the relative isolation of prison and probation services (Carter 2003). The report recommended a National Offender Management Service, which was established the following year, subsequently undergoing a name change in 2017 to Her Majesty's (HM) Prison and Probation Service (Ministry of Justice 2018b).

The role of overseeing sentences and rehabilitation involves a multitude of individuals and organisations, working together to support offenders and prevent recidivism. The Offender Management Act 2007 transferred to the Secretary of State the statutory duty to arrange provision of probation services. It also permits the sharing of necessary information between relevant parties in the offender management process.

MAPPA

Multi-agency public protection arrangements (MAPPA) were introduced in 2001 to manage offenders involved in serious violent or sexual offences (O'Hagan 2018). Sections 325–327 of the Criminal Justice Act 2003 explicitly outline which individuals are considered relevant sexual or violent offenders and which persons should cooperate with the responsible authority in managing associated risks. This ‘duty to cooperate’ for relevant agencies also applies to MAPPA, with the exact composition of representation depending on the offence and those at risk. These agencies can include social services and safeguarding teams, education and health organisations and government bodies (National MAPPA Team 2024).

MAPPA consists of four categories, which reflect the nature of the offence (i.e. registered sex offenders, violent and other sexual offenders, other dangerous offenders and terrorist or terrorist risk offender), and a further three levels of MAPPA management. The latter value indicates the intensity of agency involvement, which in turn defines whether the lead agency can manage the case through information sharing, or whether multi-agency oversight or senior representation are required (National MAPPA Team 2024).

OMiC, POMs and COMs

A variety of individuals and disciplines guide offenders through the support schemes and systems. Under the Offender Management in Custody (OMiC) model, each prisoner has an allocated keyworker who aims to help them work towards rehabilitation (Small 2023). A prison offender manager (POM) is part of a team called the offender management unit (OMU) and assists with case management while the offender is in prison, being replaced by a community offender manager (COM), also known as a probation officer, during pre-release or parole (National MAPPA Team 2024).

While in prison, a sentence plan is developed within 10 weeks for sentences over 10 months in duration, and 16 weeks for indeterminate sentences. This is developed according to a personalised risk and needs assessment, aiming to identify strategies that may reduce the risk of reoffending (HM Prison and Probation Service 2021). Sentence plans can be reviewed by both the POM and COM and this will occur when the prisoner is transferred or approaching parole or release, when objectives are met or, conversely, if there are concerns that limited progress is being made (National Offender Management Service 2014). Identification of any additional needs allows for alternative strategies and resources to be considered. Input from external disciplines, such as health professionals, can be requested where such needs are identified.

The parole process

Gathering the evidence

Those with a sentence eligible for parole should be identified on arrival to prison, or when their sentence is changed, and details centrally registered (Ministry of Justice 2023). The Generic Parole Process Policy Framework lays out a timeline for gathering relevant evidence, including expert reports, which is then reviewed by the Parole Board (Ministry of Justice 2023). A party wishing to call a witness must make a written application to the Board no later than 12 weeks before the oral hearing date (Parole Board Rules 2019 (SI 2019/1038): www.legislation.gov.uk/uksi/2019/1038/contents/made).

It should be noted that, although parole hearings occur for the most part in prison, they can be arranged while an offender is in hospital. This is often the case if a Mental Health Review Tribunal recommends conditional discharge of a patient detained under a section 49 transfer direction of the Mental Health Act 1983 (amended 2007) (Parole Board for England and Wales 2020). It is highly likely in such cases that input from the treating psychiatrist will be sought and therefore familiarity with the process and requirements is crucial in psychiatric practice. The psychiatrist should pay attention to whether they are being instructed as a professional witness, who assists the court in determining the facts of a case (for example in the context of being the treating clinician), or an expert witness, whose duty is to the court to provide an impartial medical opinion. The patient should be clear about the role of the expert witness and reminded that any information disclosed to them may well be fed back to the court.

When referring a case to the Parole Board, the Secretary of State is required to serve a risk management report prepared by a probation officer and current reports on risk factors, reduction in risk, and behaviour in the prison (Parole Board (Amendment) Rules 2023 (SI 2023/397): www.legislation.gov.uk/uksi/2023/397/made). These documents form part of the parole dossier. Although in 2022 the Secretary of State amended the Parole Board Rules so that prison and probation staff were prohibited from reporting their opinion on suitability for release or transfer (Parole Board (Amendment) Rules 2022 (SI 2022/717): www.legislation.gov.uk/uksi/2022/717/contents/made), following a claim by two prisoners (R (Bailey and Morris) v Secretary of State for Justice [2023]), there was a further amendment to the rules so that the authors of these reports may, if they feel able, include their opinion on whether the prisoner is safe to be managed in the community or moved to open conditions, i.e. an open prison (Parole Board (Amendment) Rules 2023 (SI 2023/397)). We will return to the parole dossier below.

The Secretary of State (or a third party authorised by the Secretary of State) may apply to the Board for certain material to be withheld from the prisoner and their representative on the grounds that disclosure would adversely affect national security, the prevention of disorder or crime, or the health and welfare of a person (including the prisoner), and that withholding the material is necessary and proportionate to the circumstances of the case (Parole Board Rules 2019 (SI 2019/1038)).

If there is a victim liaison officer (VLO), they should be notified about the application's progress and the victim provided an opportunity to submit a victim personal statement (VPS) (Ministry of Justice 2022, 2023). Furthermore, the victim can themselves request licence conditions to promote non-contact with the prisoner such as exclusion zones (Ministry of Justice 2022).

Appointing the panel and assessing the evidence

Once a case has been referred to the Board, the chair appoints one or more Board members as the panel (Parole Board Rules 2019 (SI 2019/1038)) to consider the release of a prisoner and this panel must decide whether the prisoner is suitable for release, unsuitable for release or whether the case should be directed to an oral hearing (Fig. 1). The panel may ask any question to satisfy itself about the risk of the prisoner.

FIG 1 The parole process in England and Wales (Ministry of Justice 2023). VLO, victim liaison officer.

A panel considering a request for advice from the Secretary of State about whether a prisoner should move to open conditions must recommend either that they are or are not suitable to move. The final decision ultimately lies with the Secretary of State (Parole Board Rules 2019 (SI 2019/1038)).

The application of a statutory release test essentially requires a judgement on whether a prisoner's release would jeopardise the safety of the public, with subsequent reviews for most prisoners occurring biennially (Ministry of Justice 2022). In accordance with the Crime (Sentences) Act 1997 (amended 2003), the Board must not give a direction to release a life-sentenced prisoner unless it concludes that confinement is no longer required for public protection. Application of this public protection test requires the risk posed to be either a psychological or physical ‘risk of serious harm’, although any risk deemed ‘greater than minimal’ should be considered (Parole Board for England and Wales 2022a: para. 3.7).

Before deciding on the prisoner's ‘suitability for release’ (Parole Board Rules 2019 (SI 2019/1038): Part B, para. 5(l)), there may be other matters to be determined, such as whether an allegation of violence in prison is accepted or whether the prisoner meets the criteria for a psychiatric diagnosis. The latter may be informed by expert evidence. If the Board determines that the prisoner is suitable for release, this is final unless an application is submitted for reconsideration within 21 days of the decision being issued. The prisoner must then be released. In the event of a decision based on reading the papers in the parole dossier that the prisoner is unsuitable for release, the prisoner is entitled within 28 days of receiving the decision to apply for an oral hearing (Parole Board Rules 2019 (SI 2019/1038)).

The process of assessing evidence has been amended as a result of significant recent case law. The Supreme Court judgment on the appeals of Osborn, Booth and Reilly in 2013 (R (Osborn) v Parole Board [2013]) resulted in an increase in the entitlement to oral hearings, the resource implications of which inevitably differ from pure paper-based assessments (Hardwick 2018). The ruling on Worboys in 2018 (R (DSD and NBV) v The Parole Board of England and Wales [2018]) involved a challenge on the decision to direct release. Guidance has since been provided to Board members to consider alleged offences in addition to those for which prisoners have been convicted (Parole Board for England and Wales 2023c), reflecting principles outlined by the Supreme Court (R (on the application of Pearce and another) v Parole Board of England and Wales [2023]). The Worboys ruling also successfully challenged the prohibition of publicising proceedings, and therefore the release of Parole Board decision summaries is now permitted (Jones 2020). These cases are frequently referenced in subsequent rulings and their premise used to guide modern decision-making.

Subject to specific conditions (e.g. alleged error of law, or procedural unfairness), there is a process of appeal against Parole Board decisions (Fig. 2). Reconsideration requests were introduced in 2019, allowing either the prisoner or the Secretary of State to challenge a decision. Later escalations include High Court judicial review, which may refer a case back to the Board but not replace the outcome itself, the Court of Appeal and finally the Supreme Court (Ministry of Justice 2022).

FIG 2 Escalation of disputes with the Parole Board for England and Wales (Ministry of Justice 2022).

Victims can request to attend parole hearings should they wish to do so and hearings can now be held in public in certain cases, previously having only occurred in private (Ministry of Justice 2022). This is a reflection of concerns about transparency and public understanding of decision-making, expanding on the access to written decision summaries (Jones 2020).

In instances where a prisoner is charged with a serious further offence (SFO), a referral is sent to the Parole Board in order that the circumstances be reviewed. An SFO is defined as a charge for any offence listed in Schedule 15A of the Criminal Justice Act 2003 (Ministry of Justice 2019), including various violent and sexual offences, allegedly committed within the probation supervision period or within 28 days of the supervision period terminating. In 2022–2023 the incidence of SFOs following release was recorded at 0.7% (Parole Board for England and Wales 2023a).

The role of the psychiatrist

The Parole Board has issued guidance to support Board panels in deciding when it may appropriate to seek a report from a psychologist or psychiatrist (Parole Board for England and Wales 2023d). With specific regard to a psychiatric report, the guidance advises that this may be used to assess risk where mental illness is a risk factor itself, has been of concern during the prisoner's sentence or may affect their ability to engage with any programmes or licence conditions. Equally, were the Board panel to have concerns of their own regarding a prisoner's mental health but there has been no or limited input from the in-reach mental health team, the panel may request direct psychiatric assessment.

The psychiatric report

The foundation of a psychiatric report for parole hearings is a good psychiatric assessment, bearing in mind the responsibilities of an independent expert (Rix 2020, 2023). The core elements should be supplemented by a more in-depth focus on specific areas. The choice of those areas is informed by the contribution they make to enhancing the psychiatrist's capacity to assist the Parole Board in assessing a prisoner's risk and determining whether they can be safely released into the community (Rix 2020). The psychiatrist should study the wording of the Parole Board's direction for a psychiatric report. Although the terms of the direction may be equivalent to a standard psychiatric assessment (e.g. psychiatric history, current presentation, diagnoses, treatment and mental health needs in the community), the detail of the direction may also require the psychiatrist to consider more specific issues (e.g. whether transfer to hospital is indicated). As well as understanding the specific issues arising in the case, the assessing psychiatrist should consider the Board's approach to decision-making (i.e. the Parole Board Decision-Making Framework; Parole Board for England and Wales 2022b). Key issues to be considered in the psychiatric report are outlined in Table 2.

TABLE 2 Key considerations in preparing a psychiatric report for the Parole Board for England and Wales

a Sources of information accessed with the prisoner's informed consent wherever possible.

The parole dossier

A key source of background information is the parole dossier, which contains documents about the offender, their history, the risks they pose and the progress they have made (Parole Board Rules 2019 (SI 2019/1038)). These include reports by the community and prisoner offender managers, a list of previous convictions, a standardised risk and needs assessment (obtained using the Offender Assessment System (OASys) tool), the trial judge's sentencing remarks, and sometimes reports by other experts (e.g. psychological reports or previous psychiatric reports). In re-release cases, the dossier is also likely to include documents describing the previous licence conditions and the reason for recall. If the offender has had a period of hospital treatment during the sentence and psychological work was undertaken while in hospital, then the psychiatrist should consider whether this work has addressed factors relating to the risk of reoffending. If so, the psychiatrist's evidence may help the Parole Board and probation officers understand how this work (even though it may not be equivalent to ‘prison-based’ work), and its impact, is relevant to the assessment of risk.

Formulation of the prisoner's offending

Being mindful of the general evidence base on the factors known to be associated with the type of offending under consideration, the psychiatrist should strive to develop a case-specific explanatory formulation of the prisoner's offending (Nathan 2020, 2024). Using this formulation, the psychiatrist can then offer an informed opinion about the factors that are associated with an increased likelihood of reoffending and, critically, what can be done to mitigate those factors. Psychiatric expertise is likely to have been called on to assist in understanding the ‘psychiatric’ components of the explanatory formulation and the potential management plan. Thus, as well as considering the nature of any psychiatric symptoms or traits (and any associated diagnoses), the assessment should cover the relationship between these features and the potential for reoffending, what interventions have been offered, the response to those interventions, and the prisoner's view about any offers of future support and treatment. For instance, in the case of a patient with an enduring psychotic illness, the psychiatrist should explore the potential relationship between features of the illness and previous offending. In doing so, the psychiatrist should bear in mind that the relationship between psychosis and the potential for offending can be accounted for by different explanatory process (e.g. direct responses to command hallucinations, oversensitivity in light of background paranoia and/or general reduction in frustration tolerance due to ongoing symptoms) (Anderson 2022). Alternatively, if the patient experiences features of emotionally unstable personality disorder, exploring previous offences should take account of psychological process disturbances associated with borderline functioning, such as over-sensitivity to rejection, affective instability and/or prevailing negative affect. If the prisoner has previously been released and recalled, then the assessing psychiatrist should explore the reasons for recall, including the relevance of any mental state disturbance and adherence to available treatment.

‘Can be safely released into the community’

To understand how to formulate an opinion in the context of a report for a parole hearing, the psychiatrist needs to unpick the statement ‘can be safely released into the community’. First, they should consider the constituent elements of the ‘community’ that have a bearing on the potential for reoffending and particularly how they anticipate that the prisoner will interact with those elements of the community. They will need to consider whether the management plan includes the type of input indicated for identified ongoing clinical needs. If, for instance, the prisoner has an enduring psychotic illness, it is possible that community mental health services in the area to where the prisoner may be released have agreed in principle to offer ongoing care in the event of release. If not, then the psychiatrist should recommend that a referral is made. As with any psychiatric assessment, it is also necessary to take account of the relevance of wider social and interpersonal conditions to well-being and risk. In the context of a psychiatric report for a parole hearing, particular attention may be paid to the type of accommodation offered following release (e.g. approved premises), the proposed licence conditions and any specialist elements of the community management plan (e.g. offender personality disorder services). If the psychiatrist concludes that hospital treatment is required and that the criteria are met for admission under section 47 of the Mental Health Act, they should explain the type of treatment recommended, bearing in mind the availability of different treatments in hospital. This might include administration of medication under the Mental Health Act and specific psychological therapies.

The second important consideration about the test of whether a prisoner can be safely released into the community is its categorical nature. There is a more fundamental issue of whether a question about the future that is framed in an overtly categorical way can be answered by an expert who strictly adheres to the responsibilities incumbent on an expert witness (not to stray beyond the bounds of their expertise). Although risk assessment tools may help to guide clinical decision-making or to allocate resources (Whiting 2023), there is not a strong empirical basis supporting their use to make categorical risk estimates (e.g. low/medium/high risk) at a single point in time in an individual case (Scurich 2018). The Parole Board may, however, place reliance on these if they are made available. The expert can deal with this dilemma in different ways. For instance, if the expert is inclined to offer a categorical prediction, then it should be heavily qualified with a caveat about the unreliability of such predictions at a point in time in an individual case. Although we would advise against the quantification of future risk (e.g. in terms of a percentage), if the expert believes there is a case for doing so, then any numerical estimate of risk should be accompanied by an explanation of how this figure has been derived and its meaning for an individual case. Alternatively, the expert could articulate the risk and protective factors for recidivism and the steps that can be taken to mitigate the former and amplify the latter but stop short of opining on the ultimate question of whether the prisoner can or cannot be managed in the community. It can be particularly helpful if the report writer studies and comments on the risk management plan for release and highlights any gaps, and how these gaps may be addressed.

As well as undertaking an assessment interview and reviewing the available documents, the psychiatric opinion can be additionally informed by speaking to key individuals. With the patient's consent, it may assist to liaise with the community and prison offender managers and, if they have been involved, the prison mental health team. It is imperative that, when obtaining informed consent at the outset, the psychiatrist clearly explains the purpose of their involvement with particular regard to risk assessment and decision-making by the parole board. Although the psychiatrist should endeavour to obtain the patient's consent, if the patient refuses to agree to the psychiatrist contacting a person or accessing information critical to understanding risk and reaching an opinion about risk management, then the issue should be raised with the Parole Board case manager. The panel chair has the authority to direct access or contact.

The parole hearing

Having completed their report, the psychiatrist may be required to attend the parole hearing. The hearing starts with the chairperson explaining the nature of the referral, the role of the panel and its independence, and checks that all parties have the same dossier with all reports. The prisoner or their legal representative states their application. Mostly it is for release, but sometimes if there is still outstanding offending behaviour work or other issues, they may invite the panel to conduct a risk assessment, or in the case of a life-sentenced prisoner, consider transfer to an open prison. The order of witnesses, including the psychiatric witness, is agreed. The hearing is recorded. Usually, witnesses are not asked for their opinions about release or transfer until they give their evidence, but they may be asked at the start if they have not given a view or there has been a significant change.

Conclusion

The multidisciplinary Parole Board for England and Wales has responsibility for directing release or transfer of certain offenders. Now an independent body abiding by government-set rules, its members have for over 55 years formed decisions by balancing risk to the public, rights of the prisoner and relevant legal guidance. Those working in the field of psychiatry will be familiar with assessment of risk and its role in enforced detention. However, the requirements of the Parole Board differ from those of the Mental Health Act. An understanding of the Board and its process is crucial to ensure that any information provided to it is appropriate, while an awareness of sentencing sheds light on which offenders may be eligible for parole and what conditions they are subject to. Knowledge of the parties and resources available allows these to be factored into any suggestions for support and monitoring of offenders, both before and after their release.

Where psychiatric elements are proposed to be at play, the Parole Board may request an expert report. In such cases they will provide direction on the questions they want the psychiatrist to answer and it is these that form the basis of the report. Consideration can be given to how any such symptoms may be managed in the community to mitigate their impact on the risk of recidivism. Either a formulation or a more categorical response can be submitted, so long as adequate rationale is provided. The relationship between psychiatric symptoms and offending behaviour may well be explored but the psychiatrist should be aware of the limits of their own knowledge base and expertise.

The expert report forms one component of a wider evidence dossier and is considered by the Board in conjunction with other information sources. Writing the report is a skill in its own right, a skill not necessarily commonplace across the field of psychiatry. This article serves to inform psychiatrists of all levels of experience, providing an overview of the system within which the report finds itself and guidance as to how it can be constructed.