No. You would not add those to a test because it would become completely unmanageable. The board takes those factors into account when making a decision, of course. The test that I read out has been examined by courts over the years and has been expanded and explained. Therefore, the things that the board takes into account include previous offending, conduct in prison, recommendations from social workers and the extent to which the offender has addressed his offending behaviour through programmes.
I see no reason why that ought not to be published somewhere as part of the board’s bread-and-butter work, but it should not necessarily be in the test. Those factors relate to how the test would be applied. For example, the board must be satisfied that continued imprisonment
“is no longer necessary for the protection of the public”.
You may ask, “Protection from what?” It is the protection of the public from the risk of harm. You may then ask, “How do you define ‘risk’, and how do you define ‘harm’?” The courts have done that over the years. “Risk” is loosely defined as contingent possibility, and “protection” is protection from harm. The courts have been notoriously slow to define what that means, but it is generally accepted that it has to be risk of physical harm and sexual offending. We think that, if the case merited it, that could move into such areas as psychological harm. It is a philosophical discussion that we could pretty much have all day, but those are factors to be taken into account in applying the test.
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If the board does not take sufficient factors into account—as in the Warboys case, for example, where the dossier omitted certain key documents and the board failed to take account of the importance of outstanding charges—the court can intervene and ask for the decision to be taken again, because the board was wrong when it declined to take account of outstanding charges.
The board in Scotland does that. That is part of our guidance that nothing is unavailable as evidence, and everything with a bearing on risk can be considered. The only question is what weight is applied to it.
The answer to your question is that such information should appear somewhere, and the public should know about it. It could go on the board’s website, for instance. We are in the course of revising all our guidance, which will be published on the website in due course. That kind of thing will be included.