Hard cases make bad law. The release on parole of the ‘black cab rapist’, John Worboys, is a hard case. But ministers should not be panicked into throwing open parole board decision–making to public inspection.
The police have blundered, the sentence was surely too lenient, and the failure to inform his victims was disgraceful. But it was not upon some careless whim that Parliament barred parole boards from giving reasons, and the new Justice Secretary, David Gauke, should think hard before reversing the interdiction.
Much of the furore provoked by the release of this serial attacker of women after ten years in prison really arises not from the parole board’s decision but the original sentence and the flawed prosecution process which helped produce it. Given Worboys’s conviction for only one rape, though there may have been scores more that the Metropolitan Police and the Crown Prosecution Service did not pursue, the indeterminate sentence with a minimum of eight years failed to reflect a terrible story, but judge and jury were not to know that; and once the sentence had been handed down it was inevitable that the parole board would be asked to consider release before Worboys was an old man and while memories of his atrocities were still relatively fresh.
And when the board did that it presumably based its decision partly on what had been proved in court, not on what arguably should have been proved in court. So we need to understand the circumstances in which the board found itself before we declare it obvious that its members should have taken a different decision. Not to have told Worboys’s victims of his impending release was an inexcusable administrative oversight; but this must be distinguished from the issue of whether parole boards’ decisions should be open to challenge.
For that would be the result of what is being called for. There can be no point — and there would fast be seen to be no point — in disclosing reasons for a ruling if the ruling were nevertheless final. Indeed the reasoning behind the demand for disclosure in the Worboys case must surely be that the ruling ought to have been challenged. Other such cases would sooner or later arise. The press would develop a case for discovering a sense of outrage every time a palpably unsavoury character was given parole.
It would then not be long before the demand arose for a procedure for appealing against a release on parole, either by victims, or the CPS, or a wider public, or a new body set up to allow or disallow appeals. These demands would often be made against the backdrop of a wave of media-driven or social media-driven indignation, with the original crime reheated for a new readership, and the victims paraded through the newspapers with their stories, their recollections and (often enough) their own voices raised against the granting of parole.
There would also have to be provision made for the redacting, where necessary, of information about parole boards’ reasons for rulings. There will obviously be a range of sensitivities and privacies — about victims, about psychiatric and medical opinion and advice, about the special and private circumstances of some prisoners, perhaps even about new suggestive evidence that has arisen — which might make it inappropriate to put some reasoning into the public domain.
The board could not just omit to mention such matters, which would often be germane to the decision taken; so it would have to disclose that there were matters it was not disclosing. This would then lead to new suspicions and challenges from those questioning the ruling. Calls would follow for an appointee or committee to see the redacted material and adjudicate on its suppression. The sort of thinking that is pushing us down roads like this arises from two modern tendencies of which we should be wary. The first is the growing presumption that everything can be challenged, appealed or ordered for review. The second is the growing centrality of the victim when things go wrong.
I’ve been struck over my own lifetime by the retreat of the idea that important decisions may be final. The advance of the judicial review has meant that ministers, civil servants, businesses and civil organisations have found that matters which had once seemed entirely their own affair are now subject (or, more distractingly, might prove subject) to judicial review. Before expelling a rogue member of a political party or awarding a franchise to a rail operator, you have to consider your vulnerability to challenge in the courts. When I first entered Parliament, it seemed unexceptionable that a Speaker’s ruling on whether to grant an emergency debate should be accompanied by the Speaker’s reminder that his decision was final and no reasons could be supplied. Today it sounds almost archaic.
To some degree these new vulnerabilities to challenge and appeal represent an advance for equity. But they can cause great uncertainty and interminable delay. There have to be limits. I think we’re nearing them.
The growing centrality of the victim may represent, likewise, an advance for compassion and fairness. But this can easily court a sort of retributive primitivism in our approach to law. We should care deeply for victims of crime. Perhaps (though I’m doubtful) the state should compensate them. We should be sensitive to their continuing hurt. But the law is there to protect society at large, and a victim’s view of what law should decree or how a miscreant should be punished should have no special status. The modern media, however, and many modern politicians, are beginning to speak as though the victim should be part of the judicial process itself. This may be prejudicial to justice.
I have no shred of sympathy for John Worboys. I am appalled that he should be let out. But I seek no way of challenging or reversing this decision. Perhaps I should reconsider my enthusiasm for a second EU referendum.
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