The Parole Board (Scotland) Rules 2022

Made: 20th December 2022

Laid before the Scottish Parliament: 22nd December 2022

Coming into force: 1st April 2023

The Scottish Ministers make the following Rules in exercise of the powers conferred on them by section 20(4), (4A) and (4B) of the Prisoners and Criminal Proceedings (Scotland) Act 1993[^f00001], and all other powers enabling them to do so.

PART 1 — Introduction

Citation, commencement and application

1

• (1) These Rules may be cited as the Parole Board (Scotland) Rules 2022 and come into force on 1 April 2023.

• (2) These Rules apply to every case referred by the Scottish Ministers to the Board on or after 1 April 2023.

Interpretation

2

In these Rules, except where the context otherwise requires—

• “the 1993 Act” means the Prisoners and Criminal Proceedings (Scotland) Act 1993,

• “the 1995 Act” means the Criminal Procedure (Scotland) Act 1995[^f00002],

• “the Board” means the Parole Board for Scotland,

• “casework panel” means the members appointed under rule 7(1) or, as the case may be, a single member appointed under rule 7(3), and references in Part 3 to a “panel” are to be construed accordingly,

• “chairperson of the Board” means the chairperson appointed under paragraph 1 of schedule 2 of the 1993 Act[^f00003],

• “damaging information” means information to which rule 9(1) applies,

• “dossier information” means the information sent to the Board under rule 5,

• “electronic communication” has the same meaning as in section 15(1) of the Electronic Communications Act 2000[^f00004],

• “indeterminate case” means— the case of a person sentenced by a court in Scotland to life imprisonment, detention without limit of time, or detention for life, the case of a person in respect of whom an order for lifelong restriction has been made under section 210F of the 1995 Act[^f00005], the case of a person to whom section 10 or 10A of the 1993 Act[^f00006] applies, the case of a person subject to an extended sentence by virtue of section 210A of the 1995 Act[^f00007], who— has been recalled to custody under section 17(1) of the 1993 Act, and is serving the extension period (within the meaning of section 210A(2)(b) of the 1995 Act) of that sentence. but only where that case is referred under section 2(5)(a), 2(5B), 2(5C), 2(6), 3A(2) or 17(3) of the 1993 Act[^f00008],

• “oral hearing panel” means the members appointed under rule 7(4), and references in Part 4 to a “panel” are to be construed accordingly,

• “party” in relation to a case referred to the Board means the Scottish Ministers and the person concerned,

• “person concerned” means the person to whom a case referred to the Board relates,

• “panel chairperson” means the chairperson of a casework panel or, as the case may be, the chairperson of an oral hearing panel,

• “risk management plan” means a risk management plan which is required to be prepared by virtue of section 6 of the Criminal Justice (Scotland) Act 2003[^f00009],

• “risk assessment report” means a risk assessment report prepared in respect of a person subject to a risk assessment order under section 210B of the 1995 Act, or, as the case may be, a report prepared under section 210D of the 1995 Act[^f00010], and

• “working day” means any day other than a Saturday, Sunday, or a day which is a bank holiday in Scotland under the Banking and Financial Dealings Act 1971[^f00011].

PART 2 — General Rules

Application and interpretation of Part

3

• (1) Subject to paragraph (2), and except where otherwise expressly provided, this Part applies to every case referred by the Scottish Ministers to the Board.

• (2) In the application of this Part to a case where the Board is considering whether to recommend the revocation of the person concerned’s licence and recall of that person to prison under section 17(1) of the 1993 Act[^f00012]—

• (a) rules 4 and 10 do not apply, and

• (b) in rule 5, the Scottish Ministers—

• (i) may send only the information and documents available to them at the time when the case is referred to the Board,

• (ii) are not required to send the dossier information to the person concerned.

• (3) In this Part, references to a “panel” in relation to anything done in respect of a case are to the casework panel or, as the case may be, oral hearing panel appointed under rule 7 to consider the case.

Notification of referral of case

4

When a case is referred to the Board the Scottish Ministers must at the same time notify the person concerned, in writing, that the case has been referred.

Scottish Ministers’ Dossier

5

• (1) When a case is referred to the Board, the Scottish Ministers must send information and documents to the Board and, subject to Rule 9, to the person concerned in accordance with this rule.

• (2) In every case, the Scottish Ministers must send—

• (a) as far as practicable and relevant to the case, the information and documents listed in schedule 1, and

• (b) any other information or document which the Scottish Ministers consider is relevant to the case.

• (3) Where the case relates to a person in respect of whom an order for lifelong restriction has been made under section 210F of the 1995 Act[^f00013], the Scottish Ministers must send—

• (a) a copy of the latest risk management plan approved by the Risk Management Authority[^f00014] in respect of that person, or

• (b) where no such plan has been approved, a copy of the risk assessment report relating to that person.

• (4) The information mentioned in paragraphs (2) and (3) must be sent no later than 10 working days after the case is referred to the Board.

Procedure applying to consideration of a case

6

• (1) An indeterminate case must be considered under the procedure in Part 4.

• (2) Any other case referred to the Board may be determined either—

• (a) by consideration on the papers under the procedure in Part 3, or

• (b) by means of an oral hearing under the procedure in Part 4.

• (3) In a case to which paragraph (2) applies, the Board may, on its own motion or on the application of the person concerned, and having regard to the interests of justice, choose whether the case is to be determined under the procedure in Part 3 or Part 4.

• (4) The Board may grant or refuse an application made under paragraph (3) and must give each party written notice of that decision and, where the request is refused, of the reasons for that decision.

Composition of panel to consider case

7

• (1) Subject to paragraphs (3) and (7), a casework panel of any 2 or 3 members of the Board is to be appointed for the purpose of—

• (a) exercising the functions of the Board under this Part (except where the context otherwise requires), and

• (b) considering a case which is to be determined under Part 3.

• (2) For the purpose of paragraph (1), one of the appointed members is to be designated as panel chairperson.

• (3) A casework panel may be formed of a single member of the Board in respect of a case which is to be considered for the purpose of—

• (a) making a recommendation under section 17(1) (revocation of licence) of the 1993 Act,

• (b) recommending that a licence condition in respect of the person concerned be included on release, inserted, varied or cancelled.

• (4) Subject to paragraphs (5), (6) and (7), an oral hearing panel of any 2 or 3 members of the Board is to be appointed for the purpose of considering a case which is to be determined under Part 4.

• (5) Where an oral hearing panel is appointed to consider an indeterminate case, the panel must include a legally qualified member who is to be appointed as chairperson of the panel.

• (6) Where an oral hearing panel is appointed to consider any case which is not an indeterminate case—

• (a) one of the appointed members who is a legally qualified member, or

• (b) if there is no legally qualified member on the panel, any other member,

is to be designated as chairperson of the oral hearing panel.

• (7) No member of the Board who took part in making a recommendation under section 17(1) of the 1993 Act in relation to a case may be appointed to consider the same case under section 17(3) of that Act.

• (8) In the event of the death, incapacity, or unavailability for any other reason of a member appointed under this rule—

• (a) if the absent member is the panel chairperson, or if the case was to be considered by a panel of 2 members or by a single member, a replacement member must be appointed,

• (b) in any other case, the case may be dealt with by the remaining panel members.

• (9) In this rule and rule 8, “legally qualified member” means a member who is —

• (a) a solicitor or advocate of not less than 10 years standing,

• (b) a current or former Senator of the College of Justice, or

• (c) a current or former sheriff principal, sheriff, or summary sheriff.

Preliminary hearings

8

• (1) A preliminary hearing for the purpose of any matter relating to a case is to be conducted in accordance with this rule.

• (2) Subject to paragraph (3), a preliminary hearing is to be conducted by—

• (a) the chairperson of the Board sitting alone or with other members, or

• (b) by another member or members appointed for that purpose.

• (3) A preliminary hearing relating to a case to be determined under Part 4 is to be conducted by the panel chairperson or by another legally qualified member appointed for that purpose, in either case sitting alone or with other members.

• (4) 10 working days’ notice must be provided to the parties of the date, time and place at which a preliminary hearing is to take place.

• (5) The person or persons conducting the hearing may require the parties to provide written representations on the matter or matters to be determined at the preliminary hearing.

• (6) Subject to paragraph (7), a preliminary hearing is to be held in private.

• (7) The parties are entitled to attend and be represented at a preliminary hearing and to make oral submissions at the hearing on the matter or matters to be determined.

• (8) Following a preliminary hearing the decision of the person or persons conducting the hearing is to be recorded in writing, together with a statement of the reasons for that decision, and sent to the parties within 10 working days of the conclusion of that hearing.

Non-disclosure of information

9

• (1) This rule applies where information mentioned in paragraph (2) is determined by the Scottish Ministers, a panel or the Board, as the case may be, to be information which should not be disclosed to the person concerned (“damaging information”) for one of the following reasons—

• (a) the disclosure would be likely to adversely affect the health, welfare or safety of any person,

• (b) the disclosure would be likely to result in the commission of an offence,

• (c) the disclosure would be likely to facilitate an escape from legal custody or adversely affect the safe keeping of any person in legal custody,

• (d) the disclosure would be likely to impede the prevention, investigation or detection of offences, or the apprehension or prosecution of suspected offenders,

• (e) the disclosure would be likely to have an adverse effect on national security,

• (f) the disclosure would be likely to otherwise damage the public interest.

• (2) The information is any—

• (a) dossier information relating to the case,

• (b) other information identified by the Scottish Ministers as relevant to the case,

• (c) written representations made by a victim in relation to the case, a family member of such a victim, or a family member of the person concerned or any written record of oral representations made by such a person,

• (d) other information or document provided in relation to the case.

• (3) Where this rule applies—

• (a) the damaging information is not to be sent to the person concerned,

• (b) a written notice is to be sent to the person concerned—

• (i) informing that person that certain information has not been sent to them because it has been classed as damaging information,

• (ii) specifying the reason, of those listed in paragraph (1), for the information being classed as damaging information, and

• (iii) setting out, as far as is practicable without prejudicing that reason, the substance of the damaging information.

• (c) if the notice mentioned in sub-paragraph (b) is sent by the Scottish Ministers, a copy of the notice is to be sent to the Board at the same time.

• (4) The panel is then to consider the damaging information and determine whether it is material to their consideration of the case.

• (5) If the panel determines that the information is not material to their consideration of the case, the case may be determined without having regard to that information.

• (6) If the panel determines that the information is or could be material to the case, it may make arrangements for the withholding of the information from the person concerned to be scrutinised at a preliminary hearing or such other proceedings as the panel considers appropriate.

• (7) For the purpose of paragraph (6), the arrangements may include the appointment of a special advocate to review the damaging information and make representations to the panel as to—

• (a) the justification for withholding the information from the person concerned, and

• (b) whether the interests of justice, balanced against that justification, require any additional disclosure of any part of the information to the person concerned.

• (8) The special advocate must not disclose the content of the damaging information to the person concerned, their representative, or to any person who is not a member of the panel.

• (9) Following any steps taken under paragraph (6), the panel must determine whether any further disclosure of the information to the person concerned is required in the interests of justice, and, if so, must make arrangements to send that information to that person as soon as possible.

• (10) In this rule—

• “special advocate” means an independent solicitor or advocate,

• “victim” means any victim of the offence for which the person concerned’s current sentence was imposed.

Written representations

10

• (1) The person concerned may submit written representations in relation to their case, together with any other information or document which that person considers to be relevant and wishes the panel to take into account, within four weeks of the date on which the dossier information is sent to the person under rule 5.

• (2) Subject to paragraph (3), where any other information, or any written notice under these Rules, is sent to the person concerned, that person may submit representations on that information or notice within four weeks of the date on which the information or notice was sent.

• (3) Where information in relation to a case is provided to the Board or to a panel at a time which does not allow the period of four weeks mentioned in paragraph (2) to be made available, the panel must allow 5 working days (or such shorter period as appears to be in the interests of justice, having regard to the nature of the information) for the person concerned to submit representations.

• (4) Representations under paragraph (2) may, in particular, include representations about the non-disclosure of any damaging information to which a written notice under rule 9(3)(b) relates.

Matters to be taken into account

11

• (1) In considering a case, the panel must take into account the likely impact of any of its decisions on the safety and security of any victim or of any family member of a victim.

• (2) In its consideration of the case, the panel may also take into account any matter which it considers to be relevant to the case, including—

• (a) the nature and circumstances of any offence of which the person concerned has been convicted or found guilty by a court,

• (b) the conduct of the person concerned over the duration of their current sentence or sentences,

• (c) the risk of the person concerned committing any offence or causing harm to any other person if that person were to be released on licence, remain on licence or be re-released on licence (as the case may be),

• (d) what the person concerned intends to do if released on licence, permitted to remain on licence, or re-released (as the case may be), and the likelihood of that person fulfilling those intentions,

• (e) the effect on the safety and security of any other person (including in particular any family member of the person concerned), were the person concerned to be released on licence, remain on licence, or be re-released on licence (as the case may be).

• (3) In this rule, “victim” means a person against or in respect of whom an offence has been committed by the person concerned.

• (4) Paragraph (1) does not oblige the panel to seek supplementary information relative to a victim or family members of a victim.

Additional matter to be taken into account in certain cases

12

• (1) This rule applies to a case where—

• (a) the person concerned is serving a sentence imposed following a conviction for murder or culpable homicide imposed by a court in Scotland, or for an equivalent offence imposed by a court elsewhere in the United Kingdom, and

• (b) the victim’s remains have not been recovered.

• (2) Where this rule applies the panel must, when making any decision as to the release of the person concerned (other than a decision as to release under section 3A(4) or 17(4) of the 1993 Act) take into account whether—

• (a) there are reasonable grounds to believe that the person concerned has information about how or where the victim’s remains were disposed of, and

• (b) the person concerned has not disclosed that information.