The Parole Board Rules 2016

PART 1 Introduction

Citation, commencement and revocation

1.—(1) These Rules may be cited as the Parole Board Rules 2016 and come into force on 22nd November 2016.

(2) The Parole Board Rules 2011(1) and the Parole Board (Amendment) Rules 2014(2) are revoked.

Interpretation

2.  In these Rules—

“barrister” means an individual who has been called to the Bar by an Inn of Court, and is not disbarred by order of an Inn of Court;

“Board” means the Parole Board(3);

“Board chair” means the chairman of the Board appointed under paragraph 2 of Schedule 19 to the Criminal Justice Act 2003;

“case” means a matter which relates to the release of a prisoner, or a request for advice from the Secretary of State;

“determinate sentence” means a sentence of imprisonment or detention other than an indeterminate sentence;

“duty member” means a member of the Board appointed under rule 5(5);

“indeterminate sentence” means a sentence listed under section 34(2) of the Crime (Sentences) Act 1997(4);

“IPP sentence” means a sentence of imprisonment or detention for public protection listed under section 34(2)(d) or (e) of the Crime (Sentences) Act 1997;

“oral panel” means a panel which is appointed under rule 5(2) to determine a case at a hearing;

“panel” means a panel appointed under rule 5(1) or (2);

“panel chair” means the member who chairs an oral panel under rule 5(3);

“party” means a prisoner or the Secretary of State;

“prison” includes a young offender institution or any other institution where a prisoner is or has been detained;

“prison director” means a person appointed under section 85(1)(a) of the Criminal Justice Act 1991(5);

“prisoner” means a person detained in a young offender institution or detained or imprisoned in any other institution, excluding a person on remand;

“public holiday” means Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971(6) in any part of the United Kingdom;

“single member” means a member of the Board who has been appointed to constitute a panel under rule 5(1);

“solicitor” means a solicitor of the Senior Courts;

“working day” means any day which is not a Saturday, Sunday or a public holiday.

Application

3.—(1) These Rules apply to all cases referred to the Board (including cases referred before the date on which these Rules come into force).

(2) Cases referred to the Board before the date on which these Rules come into force continue under these Rules.

(3) Any steps taken in cases referred to the Board before the date on which these Rules come into force are deemed to have been taken under these Rules.

PART 2 General

Referral of cases

4.  A case is deemed to be referred to the Board on the date that the Board receives a referral letter from the Secretary of State.

Appointment of panels

5.—(1) For all cases which have been referred to the Board, the Board chair must appoint one member of the Board to constitute a panel to consider the release of a prisoner or advise the Secretary of State in accordance with Part 3 (proceedings on the papers).

(2) If following consideration on the papers under Part 3, a case must be considered by an oral panel under rule 16, the Board chair must appoint one or more members of the Board to constitute a panel to hear that case in accordance with Part 4 (proceedings before an oral panel).

(3) A panel appointed under paragraph (2) is to be chaired by—

(a) where a panel is constituted of more than one member, the member of the panel appointed by the Board Chair for this purpose;

(b) where a panel is constituted of only one member, that member.

(4) A person appointed under paragraph (1) may, in the same case, sit on an oral panel appointed under paragraph (2).

(5) The Board chair may appoint a member of the Board to carry out any function under rule 8, 9, 10, 12, 13, 15, 16, 20, 21, 22 or 26, or any other function as required, and such a member is referred to in these Rules as a “duty member”.

Representation

6.—(1) Subject to paragraph (2), a party may be represented by any person appointed by, or on behalf of, the party.

(2) The following may not act as a representative—

(a) any person who is detained or is liable to be detained under the Mental Health Act 1983(7);

(b) any person serving a sentence of imprisonment;

(c) any person who is on licence having been released from a sentence of imprisonment, or

(d) any person with a conviction for an offence which remains unspent under the Rehabilitation of Offenders Act 1974(8).

(3) Within 5 weeks of a case being referred to the Board, a party who has appointed a representative (or who has a representative who has been appointed on his behalf) must notify the Board and the other party of the name, address and occupation of the representative.

(4) If a prisoner does not have a representative, the Board may, with the prisoner’s agreement, appoint a representative on the prisoner’s behalf.

Service of information and reports

7.—(1) Subject to rule 8, within 8 weeks of a case being referred to the Board the Secretary of State must serve on the Board and the prisoner’s representative (or the prisoner if there is no representative)—

(a) where a case relates to the initial release of a prisoner, the information specified in Part A of Schedule 1 to these Rules and the reports specified in Part B of that Schedule;

(b) where a case relates to the recall following release of a prisoner, the information specified in Part A of Schedule 2 to these Rules and the reports specified in Part B of that Schedule;

(c) where sub-paragraph (a) or (b) applies, any further information or reports which the Secretary of State considers relevant to the case, and

(d) where a case relates to a request for advice, any information which the Secretary of State considers relevant to the case.

(2) Subject to rule 8, the prisoner’s representative may disclose information and reports served under paragraph (1) to the prisoner.

Withholding information or reports

8.—(1) The Secretary of State may apply to the Board for information to be withheld from the prisoner, or from both the prisoner and their representative, where the Secretary of State considers—

(a) that its disclosure would adversely affect—

(i) national security;

(ii) the prevention of disorder or crime, or

(iii) the health or welfare of the prisoner or any other person, and

(b) that withholding the information or report is a necessary and proportionate measure in the circumstances of the case.

(2) Where the Secretary of State makes an application for information or any report (“the material”) to be withheld under paragraph (1), the Secretary of State must serve on the Board—

(a) the material, or a separate document containing the material, and

(b) a written application for non-disclosure, explaining why it is proposed to be withheld.

(3) On receipt of an application under paragraph (2)(b), the member appointed by the Board chair for this purpose (being either a panel chair, single member or duty member) must consider the application and may make directions as necessary to enable determination of the application.

(4) When the member appointed under paragraph (3) is satisfied that all relevant information has been served on the Board, that member must consider the application and direct that the material should be—

(a) served on the prisoner and their representative (if applicable) in full;

(b) withheld from the prisoner or from both the prisoner and their representative, or

(c) disclosed to the prisoner, or to both the prisoner and their representative, in the form of a summary or redacted version.

(5) If—

(a) a direction is given under paragraph (4)(a) and the Secretary of State intends to appeal against it in accordance with paragraph (8), or

(b) a direction is given under paragraph (4)(b) or (c),

the Secretary of State must, as soon as practicable notify the prisoner and the prisoner’s representative (if applicable) that an application has been made under paragraph (2)(b) and the substance of that direction.

(6) If the member appointed under paragraph (3) gives a direction under paragraph (4)(b) or (c) that relates only to the prisoner, and that prisoner has a representative the Secretary of State must, subject to paragraphs (7) and (8), serve the material as soon as practicable (unless the member directs otherwise) on the prisoner’s representative, if the representative is—

(a) a barrister or solicitor;

(b) a registered medical practitioner;

(c) a person whom the member appointed under paragraph (3) directs is suitable by virtue of their experience or professional qualification, or

(d) a special advocate who has been appointed by the Attorney General to represent the prisoner’s interests.

(7) The material must not be disclosed to the prisoner’s representative under paragraph (6) unless they first give an undertaking to the Board that they will not, without the consent of the member appointed under paragraph (3), disclose it to the prisoner or to any other person.

(8) Within 7 days of notification by the Secretary of State in accordance with paragraph (5), either party may appeal against that direction to the Board chair, who must notify the other party of the appeal; and if the Secretary of State appeals against the direction, the Secretary of State need not serve the material under paragraph (4) or (6) until the appeal is determined.

(9) Within 7 days of being notified that a party has appealed under paragraph (8), the other party may make representations on the appeal to the Board chair.

(10) If—

(a) the member appointed under paragraph (3) to determine an application under paragraph (1), or

(b) the Board chair determining an appeal under paragraph (8),

decides that any material which is subject to the application by the Secretary of State under paragraph (1) should be disclosed to the prisoner (in full or in the form of a summary or redacted version), the Secretary of State may withdraw the material within 7 days of that decision.

(11) If the Secretary of State withdraws any material in accordance with paragraph (10), no one who has seen that material may sit on a panel which determines the case.

Representations by and evidence of the parties

9.—(1) A party who wishes to make representations to the Board must serve them on the Board and the other party within 12 weeks of the case being referred to the Board.

(2) Any documentary evidence that a party wishes to present at their hearing must be served on the Board and the other party at least 14 days before the date of the hearing.

(3) Any party that wishes to present at their hearing documentary evidence which has not been served at least 14 days before the date of the hearing, must serve the material together with an application to the panel chair or duty member (as applicable) for permission to do so and must, as part of that application, give reasons for late service.

Directions

10.—(1) Directions may be given, varied or revoked at any time by the member of the Board appointed for this purpose, being either the panel chair, single member or duty member.

(2) Such directions may in particular relate to—

(a) the timetable for the proceedings;

(b) the service of information or a report;

(c) the submission of evidence;

(d) the attendance of a witness or observer.

(3) A direction given under this rule may not relate to withholding information or reports; such directions are governed by rule 8.

(4) A party may apply in writing for a direction to be given, varied or revoked.

(5) An application under paragraph (4) must—

(a) specify any direction or variation sought, and

(b) be served on the other party.

(6) Where a party has applied for a direction to be given, varied or revoked, either party may—

(a) make written representations about the application;

(b) where the application is being determined by panel chair or single member and that person thinks it necessary, make oral submissions at a directions hearing.

(7) The power to give directions may be exercised in the absence of the parties.

(8) The Board must serve notice on the parties of any directions given, varied or revoked as soon as practicable.

Directions hearing

11.—(1) A panel chair or a single member may hold a directions hearing.

(2) A panel chair or a single member must notify the parties at least 14 days before the day of the directions hearing of the date, time and place fixed for the hearing.

(3) A directions hearing must be held in private.

(4) At a directions hearing, unless the panel chair or single member directs otherwise, the panel chair or single member must sit alone.

(5) A directions hearing may proceed in the absence of a prisoner who is represented.

Adjournment and deferral

12.—(1) Any member of the Board who is conducting proceedings under these Rules may adjourn or defer the proceedings to obtain further information or for such other purpose as they consider appropriate.

(2) Where a member of the Board who is conducting an oral hearing adjourns or defers a hearing without a further hearing date being fixed, they must give the parties at least 3 weeks’ notice of the date, time and place of the resumed hearing (unless the parties agree to shorter notice).

(3) Any decision to adjourn or defer an oral hearing must be recorded in writing with reasons, and that record must be provided to the parties not more than 14 days after the date of the decision.

Time

13.—(1) Where the time prescribed by or under these Rules for doing any act expires on a Saturday, Sunday or public holiday, the act is deemed to be in time if it is done on the next working day.

(2) The panel chair, single member or duty member may change any time periods where that member considers that it is appropriate to do so.

PART 3 Proceedings on the papers

Consideration by single member appointed under rule 5(1)

14.—(1) Where a single member is appointed under rule 5(1) to consider the initial release of a prisoner serving an indeterminate sentence other than an IPP sentence, the single member must decide on the papers either that—

(a) the prisoner is unsuitable for release, or

(b) the case should be directed to an oral panel.

(2) Subject to paragraph (3), where a single member is appointed under rule 5(1) to consider the release following recall of a prisoner serving an indeterminate sentence other than an IPP sentence, the single member must direct the case to an oral panel.

(3) If the prisoner has notified the Board and the Secretary of State under rule 19(1)(a) that the prisoner does not want an oral panel to consider the case, the single member may decide on the papers that the prisoner is unsuitable for release, or direct the case to an oral panel.

(4) In any other case, including a case of a prisoner serving an IPP sentence, where the Board is considering the release of a prisoner, within 14 weeks of a case being referred to the Board, the single member appointed under rule 5(1) must decide that—

(a) the prisoner is suitable for release;

(b) the prisoner is unsuitable for release, or

(c) the case should be directed to an oral panel.

(5) When a single member appointed under rule 5(1) makes a decision that the case should be directed to an oral panel under this rule, that member may at the same time make any directions relating to the hearing that is to take place before an oral panel.

(6) Where the Board has a duty to advise the Secretary of State with respect to any matter referred to it by the Secretary of State, the Board may advise the Secretary of State without an oral hearing.

(7) The decision or advice of the single member must be recorded in writing with reasons for that decision, and the written record provided to the parties within a week of the date of the decision.

Provisional decision against release

15.—(1) Where a single member appointed under rule 5(1) has made a decision (referred to in this rule as a “provisional decision”) that a prisoner is unsuitable for release under rule 14(1)(a), 14(3) or 14(4)(b), the prisoner may apply in writing for an oral panel to determine the case.

(2) A prisoner who makes an application under paragraph (1) must serve the application, together with reasons for making the application, on the Board and the Secretary of State, within 28 days of the provision of the written record under rule 14(7).

(3) If no reasons have been served in accordance with paragraph (2) after the expiry of the period specified by that paragraph, a provisional decision made under rule 14(1)(a), 14(3) or 14(4)(b)—

(a) becomes final, and

(b) must be provided to the parties by the Board within 35 days of provision of the written record under rule 14(7).

(4) If reasons are served in accordance with paragraph (2), the decision whether the case should be determined by an oral panel must be taken by a member of the Board who—

(a) is a duty member, and

(b) is not the single member appointed under rule 5(1) who made the provisional decision.

(5) If the decision taken under paragraph (4) is that the case should not be determined by an oral panel, a provisional decision made under rule 14 becomes final.

PART 4 Proceedings before an oral panel

Consideration by an oral panel

16.  Where a single member has directed a case to an oral panel or where a decision that the case should be determined by an oral panel has been taken in response to an application under rule 15(1), the case must be considered by an oral panel within 26 weeks of the Secretary of State referring the case to the Board.

Oral panel decisions

17.—(1) Where an oral panel has been appointed under rule 5(2), a decision of the majority of the members of the oral panel is the decision of the oral panel.

(2) An oral panel that is unable to reach a decision in accordance with paragraph (1) must be dissolved by the Board chair, who must then appoint a new oral panel.

Notice of hearing

18.—(1) Before fixing the date of the hearing the Board must consult the parties.

(2) Within 5 working days of a case being listed, the Board must notify the parties of the date of the hearing.

(3) The oral panel must give the parties notice of the date, time and place of the hearing at least 3 weeks before the day on which the hearing is due to be heard, unless both parties agree to a shorter period.

(4) If applicable, the oral panel must give the parties notice that the hearing will be held via video link, telephone conference or other electronic means.

Notification by prisoner

19.—(1) A prisoner must notify the Board and the Secretary of State if—

(a) the prisoner does not want an oral panel to consider the case, or

(b) the prisoner does not want to attend a hearing which has been listed.

(2) A hearing may take place in the absence of a prisoner where a prisoner has notified the Board in accordance with paragraph (1).

(3) A hearing may take place where a prisoner has not notified the Board in accordance with paragraph (1), but neither the prisoner nor the prisoner’s representative are present at the hearing.

Witness

20.—(1) A party who wishes to call a witness at a hearing must make a written application to the Board, a copy of which must be served on the other party, within 20 weeks of the case being referred to the Board.

(2) A written application to call a witness must—

(a) include the witness’s name, address and occupation, and

(b) explain why the party wishes to call the witness.

(3) The member appointed by the Board chair for this purpose, being a panel chair, or duty member may determine an application to call a witness and must communicate this decision to the parties.

(4) The member appointed under paragraph (3) must give reasons in writing for any refusal to call a witness.

(5) Where—

(a) a member of the oral panel intends to call a witness, or

(b) the single member appointed under rule 5(1) has made directions to call a witness under rule 14(5), the member appointed by the Board for this purpose must notify the parties in writing within 21 weeks of the case being referred to the Board.

(6) Written notification from the member that it intends to call a witness must—

(a) include the witness’s name, address and occupation, and

(b) explain why the witness is being called.

(7) Where a witness is called under these Rules, it is the duty of —

(a) the party calling the witness in respect of a witness called by virtue of an application under paragraph (1), and

(b) the member of the Board appointed for this purpose in respect of a witness called under paragraph (5),

to notify the witness at least 2 weeks before the hearing of the date, time and place of the hearing and the need to attend.

Observer

21.—(1) A party who wishes to be accompanied by an observer must within 20 weeks of the case being referred to the Board—

(a) make a written application to the Board, and

(b) serve a copy of that application on the other party.

(2) The member appointed by the Board chair for this purpose, being a panel chair or duty member, may determine an application for a party to be accompanied by an observer and must communicate this decision to the parties.

(3) Before granting an application under paragraph (2), the member appointed under paragraph (2) must obtain the agreement of—

(a) where the hearing is being held in a prison, the prison governor or prison director, or

(b) in any other case, the person who appears to the panel chair or duty member to have the authority to agree to the admittance of the proposed observer to the premises.

Location and privacy of proceedings

22.—(1) A hearing must be held via video link, telephone conference or other electronic means if—

(a) the member appointed by the Board for this purpose (being either a panel chair or duty member) so directs, or

(b) the single member appointed under rule 5(1) so directs under rule 14(5).

(2) In any other case, the hearing must be held at such place as the member appointed by the Board for this purpose, or the single member appointed under rule 5(1), with the agreement of the Secretary of State, direct.

(3) A hearing must be held in private.

(4) In addition to any witness who has been called under these Rules, and any observer whose attendance has been approved under rule 21, the panel chair or duty member may—

(a) admit any other person to the hearing, and

(b) impose conditions on that person’s admittance.

(5) At the hearing the parties may not challenge the attendance of any witness who has been called under these Rules, or observer whose attendance has been approved under rule 21.

Hearing procedure

23.—(1) At the beginning of the hearing the panel chair must—

(a) explain the order of proceeding which the oral panel plans to adopt, and

(b) invite each party present to state their view as to the suitability of the prisoner for release or for transfer to open conditions, as applicable.

(2) The oral panel—

(a) must avoid formality during the hearing;

(b) may ask any question to satisfy itself of the level of risk of the prisoner, and

(c) must conduct the hearing in a manner it considers most suitable to the clarification of the issues before it and to the just handling of the proceedings.

(3) The parties are entitled to—

(a) take such part in the proceedings as the oral panel thinks fit;

(b) hear each other’s witnesses and representations;

(c) put questions to each other;

(d) call a witness who has been called in accordance with rule 20, and

(e) question any witness appearing before the oral panel.

(4) If, in the opinion of the panel chair, any person at the hearing is behaving in a disruptive manner, the panel chair may require that person to leave.

(5) The panel chair may permit a person who was required to leave under paragraph (4) to return on such conditions as the panel chair may specify.

(6) An oral panel may produce or receive in evidence any document or information whether or not it would be admissible in a court of law.

(7) No person is compelled to give any evidence or produce any document which they could not be compelled to give or produce on the trial of an action.

(8) The panel chair may require any person present to leave the hearing where evidence which has been directed to be withheld from the prisoner or their representative is to be considered.

(9) After all the evidence has been given, if the prisoner is present at the hearing, the prisoner must be given an opportunity to address the oral panel.

The decision

24.—(1) The decision of the oral panel must be recorded in writing with reasons, and that record must be provided to the parties not more than 14 days after the end of the hearing.

(2) The recorded decision must refer only to the matter which the Secretary of State referred to the Board.

PART 5 Miscellaneous

Disclosure of information

25.—(1) Information about proceedings under these Rules and the names of persons concerned in the proceedings must not be made public.

(2) A contravention of paragraph (1) is actionable as breach of statutory duty by any person who suffers loss or damage as a result.

Transmission of documents etc.

26.  Any document required or authorised by these Rules to be served or otherwise transmitted to any person may be transmitted by secure electronic means, secure postal delivery or courier delivered—

(a) in the case of a document directed to the Board, to the office of the Board or the Board’s email address, or

(b) in any other case, to the last known address or email address of the person to whom the document is directed.

Error of procedure

27.  Where there has been an error of procedure by either party or by the Board, such as a failure to comply with a rule—

(a) the error does not invalidate any step taken in the proceedings unless the member appointed by the Board for this purpose, being either a panel chair, single member, or duty member directs otherwise, either on the application of a party or in the course of conducting the proceedings, and

(b) the panel chair, single member or duty member may make a direction or take any other step that it considers appropriate.

Sam Gyimah

Parliamentary Under Secretary of State

Ministry of Justice

31st October 2016