Jon Venables and the recall to custody of indeterminate sentence prisoners

Last week, it was reported that the man previously known as Jon Venables has been recalled to custody. Venables was originally convicted of the murder of toddler James Bulger when he himself was only eleven years old. Over the years, there has been great controversy around this case, especially surrounding the fact that Venables and his co-defendant Robert Thompson were granted lifetime anonymity and given new identities. They were both released in 2001.

Offenders may be recalled to custody for breaching the terms of their licence. It is not necessary for an offence to have taken place in order for an offender to be recalled. Indeed, many offenders are recalled for things like failing to attend multiple supervision appointments - matters which do not constitute a criminal offence. Conversely, a charge and even a subsequent prosecution does not necessarily mean that an individual on licence will be recalled to custody (see the case of Broadbent in the "Key Cases" section of this website). Recall can only be justified and should only be instigated if the risk that the offender poses is no longer manageable in the community.

What is the test for recall?

Prison Service Instruction 27/2014 summarises the test for indeterminate sentence prisoners, such as Venables:

"Test for Recall for indeterminate sentence prisoners

When making a request to recall an indeterminate sentence offender on licence, there must be evidence that there is an increased risk of harm to the public before recall is agreed.  The NPS/YOT must take into account the extent that the offender’s behaviour presents an increased risk of sexual or violent harm to others, regardless of the type of index offence for which he or she was originally convicted. Recall to prison does not depend upon a prosecution and conviction for a fresh offence, nor whether or not the licensee is to be tried for an offence.  The courts have held that it is for the Secretary of State and the Parole Board to maintain a balance between the risk to the community of releasing the prisoner and the liberty of the prisoner. [6.2]"

As mentioned above therefore, the issue is of risk and risk alone. At paragraph 6.3 and 6.4 further guidance is given:

"6.3.    In some cases, the Secretary of State and the Parole Board will not be concerned with crime at all, but there may be other factors, such as behaviour associated with the index offence, or the ability of the NPS/YOT to assess and manage the level of risk in the face of breaches of licence conditions which give reasonable cause for considering the licensee to be a risk to the public.

6.4.    Where the offender displays violent/sexual behaviour which in itself represents a risk of harm to the public, the need to recall in order to protect the public is clear and unambiguous. In other cases, the behaviour may not be of a violent or sexual nature, but does present a clear causal link to the behaviour exhibited in the index offence(s).  For example, the offender may have resumed substance abuse or re-established contact with other criminal associates both of which might be identified as critical risk factors. Where a causal link has been established, consideration must be given to whether this behaviour is likely to give rise to an increased risk of sexual or violent offending.  Where it does, then invariably recall must be sought. PPCS will make the final decision as to whether the test has been met."

So whilst in this case, a further offence has been alleged, the PSI makes it clear that further criminal activity is not the sole or decisive factor in considering recall. Paragraph 10.1confirms this:

" Recall can be requested where the offender is suspected of re-offending; there need not be a criminal charge or conviction as recall is based upon an offender’s behaviour whilst on licence and not upon a further conviction.  Consideration must be given to:

•    If the suspected behaviour is similar to previous offending;
•    If the suspected behaviour reflects a pattern of entrenched offending;
•    If the suspected behaviour constitutes an increase in Risk of Serious Harm."

In the case of Venables however, it has been reported that he has been charged with various offences related to indecent images of children. He will face trial in private at an unnamed court. He was recalled to custody in November last year after he was allegedly found with images of child abuse.

The CPS stated:

“The man formerly known as Jon Venables has been charged with offences relating to indecent images of children and will appear in the crown court... In order that justice can be done, no further details are being released at this stage and the proceedings are subject to reporting restrictions.”

What will happen after Venables' trial?

If Venables is found guilty or pleads guilty for these offences, he will be sentenced. He will have to serve the sentence the court hands down, but once that sentence is over, he will not automatically be released. He will the appear before the Parole Board who will determine whether or not he should be released.

What is the test for release?

The test for the release of indeterminate sentenced prisoners, which the Parole Board must apply in deciding whether or not to direct a prisoner’s release is whether the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined (section 28(6)(b) Crime (Sentences) Act 1997).

This test is commonly referred to as the “life and limb” test. It means that the prisoner must pose:

1. A danger of re-offending that would cause serious harm to the public; and
2. The level of that risk is “substantial” or “more than minimal”.