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

The post The Parole Board may have got it wrong but it should not be intimidated out of making unpopular decisions appeared first on BarristerBlogger.

Source: http://barristerblogger.com/2018/01/07/parole-board-may-got-wrong-not-intimidated-making-unpopular-decisions/

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