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Wrongful convictions: The "parole deal" and the "probation pact"

Updated: Sep 20, 2023

I have written much about the so called "parole deal" (see here, here and here), which sees indeterminate sentenced prisoners maintaining innocence trapped in prison unable to make progress or be released if they will not admit their guilt, show remorse for their crimes and comply with their sentence plans. The possibility that the prisoner maintaining innocence may, in fact, be innocent, is not something that the Parole Board can consider as it is mandated to not look behind the conviction and, instead, work on the basis that the prisoner maintaining innocence was found guilty at court and so is in denial of their guilt.

I have also written how this position is untenable as it fails to take into account the hundreds of successful appeals each year in the appeal courts, which illustrate that prisoners maintaining innocence may well be legally guilty, but they may also be factually innocent (see here). To strengthen this standpoint further, I have written about how it is also possible that innocent victims of wrongful convictions and imprisonment are convicted when no crime actually occurred (see here).

The parole deal first came to public attention when Stephen Downing overturned his conviction for the murder of Wendy Sewell after spending 27 years in prison maintaining his innocence. It was reported in the media at the time that had Downing acknowledged guilt in prison, confronted his offending behaviour and, thus, demonstrated a reduced risk of reoffending to the satisfaction of the Parole Board, he would, more than likely, have served around twelve years. It was also reported that during his wrongful imprisonment he was deprived of better jobs, training opportunities and parole consideration to put pressure on him to admit his guilt on the basis that he was – in the words of the Home Office – IDOM, ‘in denial of murder’ (see here).

Other high-profile successful appeals quickly followed, such as Robert Brown’s (see here) and Paul Blackburn’s (see here) quashed convictions by the Court of Appeal (Criminal Division) in November 2002 and May 2005, respectively. Both had served 25 years in prison for crimes that they had also always maintained that they did not commit. Like Downing, Brown and Blackburn were estimated to have served over double the time in prison that they would have been likely to serve had they acknowledged their guilt and confronted their offending behaviour while they were in prison to show their remorse and a reduced risk of reoffending. Like Downing, Brown and Blackburn, too, were regarded by the various post-conviction agencies charged with the management and treatment of indeterminate life sentenced prisoners – prison, probation, psychology and parole staff – as ‘in denial’ of their crimes.

A current victim of the parole deal is Clive Freeman who was convicted of the murder of Alexander Hardie. Mr Freeman is currently in his 36th year of incarceration for an alleged crime that he would have spent 13 years in prison for if he had admitted his guilt, shown his remorse and complied with his sentence plan (see here). Mr Freeman who has always maintained his innocence has just submitted his fifth (5th) application to the Criminal Cases Review Commission (CCRC). It has so far rejected four (4) applications from Mr Freeman, despite having nine (9) of the most eminent experts in the World saying that no crime actually occurred, and that Mr Hardie was not murdered. This was also the original finding of the police forensic pathologist in his first and second post-mortems, but who changed his opinion during his third post-mortem and will not accept the growing number of global experts who say that he was mistaken to do so (see here).

Against this background, the purpose of this article is to add the Probation Service to the list of agencies of the criminal justice system that seem unable to even consider the possibility / reality of miscarriages of justice and that some of its clients who say that they are innocent may well be telling the truth; might well be innocent victims of false allegations and wrongful conviction and imprisonment.

This emerged recently in a case that has featured on one of the Empowering the Innocent (ETI) websites, CCRC Watch or False Allegations Watch (FAW), but who understandably wants to remain anonymous. We were told that their probation officer recently threatened them with recall back to prison if they refuse to comply with an order to attend a community rehabilitation course that requires an admission of guilt. This is despite the probation officer knowing that their client has always maintained their innocence, something that they have discussed together on numerous occasions, and that the person in question is currently making an application to the CCRC.

It would be an understatement to say that this has caused much distress and anxiety for the former prisoner maintaining innocence, who was not subjected to the parole deal when they were in prison as their sentence was a determinate one and they were released on probation at the half way point.

They have now experienced the intransigent force of the criminal justice system in the form of their probation officer who doesn't care whether they are innocent as they claim or whether they actually committed the alleged offence that they were convicted of. Compliance is what is required with no questions asked or the probation service user will be recalled back to prison and there is nothing they can do about it. The probation officer cares nothing for the possibility that their client may jeopardise their appeal by attending a course that requires them to admit to the index offence; the offence that they were convicted of.

The parole deal has been likened to what political philosophers describe as a throffer – the combination of an offer or promise of a reward if a course of action is pursued, with a threat or penalty if this course of action is refused (see here). This plays out with the prisoner being offered an enormous range of incentives including more out-of-cell time, more visits and a speedy progress through the system, to follow the course of action desired by the prison regime – to go on an offending behaviour course to ensure that the prison’s performance target is met. This is made to appear as an entirely rational and subjective choice, especially as it will be the basis for ensuring early release through parole. At the same time, if the prisoner does not go on a course and accept guilt for criminal offences that they did not commit, the threat of continued imprisonment remains, as the prisoner will be deemed too much of a ‘risk’ for release at all.

In the same way, what I am describing here as the "probation pact" is a classic form of coercion that gives the subordinate probation client no meaningful choice. They must obey what the probation officer says or they will be reincarcerated.

In response, the probation client maintaining innocence has no real option but to enter into an unholy alliance with the probation officer; a pact where they must not assert their innocence as it does not fit with the probation regime, which is also mandated not to look behind the conviction and to even consider the possibility that the client, human being, sitting in front of them may be innocent.

I wonder what the individuals who made up the parole hearings that contributed to Stephen Downing, Robert Brown and Paul Blackburn spending more than double the time that the court that gave them their sentence thought when their convictions were overturned.

I wonder what those who decided in the parole hearings that Clive Freeman must remain in prison, despite being 23 years past his tariff date set by the court.

I wonder what the specific probation officer being referred to here will think if their client overturns their conviction.

Will any of the individuals cited above reflect on their actions and take some responsibility for the additional damage and harm that they caused to established victims of miscarriages of justice or are causing to a potential innocent victim of wrongful conviction and imprisonment? Or, will they continue to believe that innocent victims do not get wrongly convicted as it allows them to care nothing for innocent victims of wrongful convictions, continue in the work that they do, and collect the salary that they receive for their own subjugation to a system that will not be questioned?

My hunch is that it will be the latter.

By Michael Naughton

Dr Michael Naughton is the Founder and Director of Empowering the Innocent (ETI). He holds a Readership in Sociology and Law at the University of Bristol. Click here for more about Michael.

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