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”.

John Worboys and the Parole Board's power to release indeterminate sentence prisoners

It has been announced that the Parole Board will undergo a consultation on how its decision making process can be made more "transparent". The announcement came after widespread media and public outrage that the sex offender John Worboys is to be released from prison.

The Parole Board is an independent body which conducts risk assessments on prisoners who are eligible for release from custody, and determines whether or not they should be released.

Worboys: the index offences and sentence

Worboys was working as a black cab driver in London when he drugged, raped and sexually assaulted female passengers. He received his sentence in relation to 12 women however police fear he may have had up to 100 victims. He denied all charges. He was given a sentence of imprisonment for public protection ("IPP") with a minimum term of eight years. Although this sentence has since been abolished (meaning judges no longer pass this sentence), there are still thousands of prisoners serving this sentence. It is a type of indeterminate sentence, that is to say, it has no "fixed end date" or "Sentence Expiry Date". This sentence meant that the prisoner had to serve the specified minimum term in custody (in this case, 8 years). After serving the minimum term, the prisoner could ask the Parole Board to be released. Imposition of this sentence was reserved for offenders who were perceived to be a risk to the public but who could not be punished with a life sentence.If released, the offender would be subject to supervision in the community on licence for at least ten years. The Parole Board decided that in this case, Worboys should be released, subject to licence conditions.

Why are Parole Board hearings in private?

The legal reason why Parole Board hearings are not public is because the Board is bound by statutory rules which prevent proceedings being disclosed. In order to change this, legislative changes would be required.

The release test

The Parole Board's objective is to assess the risk a prisoner poses. In making its decision, the Board will consider a range of evidence, including reports from prison staff. It may also consider psychiatric or psychological reports, for example. The prisoner is entitled to make representations as to why he feels he should be released and how his risk could be managed in the community. As mentioned above, the Parole Board is an independent body. Its members come from a range of backgrounds, including experienced judges, psychiatrists, probation officers and lay panel members. In theory, a prisoner serving an IPP sentence could be detained in prison for the rest of his life if the Parole Board determine that he is not safe to be released.

Can a Parole Board decision be challenged?

Parole Board decisions can be challenged by way of judicial review. However, in the past, such challenges have only been made when a prisoner has been denied release. Additionally, such challenges are usually made by the prisoner himself.

Maintenance of innocence

The following is an extract from the Parole Board's Information for Victims  and relates to the issue of prisoners who maintain their innocence:

"If an offender continues to maintain their innocence, the Parole Board must assess whether their risk is still high enough that the public can only be protected by their continued imprisonment against the fact that they are unlikely to show any remorse, while they continue to deny their guilt. The Parole Board does not treat such offenders any differently or more leniently; we accept the Court’s verdict that they are guilty and assess them on the basis that they are guilty. However, denial of guilt is not a lawful reason by itself for the Board to refuse to release an offender."

What will happen next?

Worboys remains on licence and if he is found to be in breach of his licence, he may be recalled to custody. If recalled, he will remain in custody until the Parole Board deem he is once again suitable for release. In terms of the issues regarding transparency that this case has raised, the Parole Board is due to undergo a review of its procedures.

The Supreme Court rules a smoking ban cannot be enforced in English prisons

The UK Supreme Court has ruled that a prohibition on smoking cannot be enforced in prisons in England and Wales.

You can find the judgment and summary here.

The issue was brought to the Supreme Court by a serving prisoner at HMP Wymott, Paul Black. He complained that his health problems were being exacerbated by passive smoking. The Court held that health regulations do not apply to Crown premises, which includes prisons.

In 2015, Black was successful in the High Court, which ruled that the ban must also be applied to state prisons and other Crown premises in England and Wales. The Government however appealed this decision, after concern that a smoking ban in prisons could cause discipline problems and risk the safety of staff and inmates.

In its decision, Lady Hale, President of the Supreme Court, expressed "considerable reluctance" in concluding that when the Health Act 2006 was passed (the Act which made provision for the "smoking ban"), Parliament did not mean the ban to extend it to government or Crown sites. This implies that the prohibition applies only to offices, enclosed areas, bars and other public spaces. She said:

“Had Parliament intended part 1 of chapter 1 of the 2006 Act to bind the Crown, nothing would have been easier than to insert such a provision... The report of the health committee [at the time] does indicate that parliament was alive to the question of whether the smoking ban would bind the Crown and aware of the case for further exemptions if the act were to do so... It might well be thought desirable, especially by and for civil servants and others working in or visiting government departments, if the smoking ban did bind the Crown... But the legislation is quite workable without doing so.”

At present, the Ministry of Justice has introduced a smoking ban in some prisons in England and Wales.

Whilst this judgment may appear to be a victory for prisoners who support smoking in prisons, it raises questions which stretch beyond the custodial establishment. The wider issue relates to government properties, including courts and JobCentres. The effect of this judgment seems to be that  individuals working or visiting government properties are not afforded the same protection enjoyed in non-government properties which are bound to enforce the ban.

The Parole Board and Offending Behaviour Programmes

Last month, the Chair of the Parole Board, Professor Nick Hardwick, gave a speech to the Butler Trust at an event which marked the 50th Anniversary of the Parole Board of England and Wales. 

The Parole Board is the independent body that carries out risk assessments on prisoners to determine whether they can be safely released into the community.

The Butler Trust is a charity which “recognises, celebrates, develops and disseminates outstanding work and best practice across UK prisons, probation and youth justice.” Further information can be found here.

A transcript of Professor Hardwick’s speech can be found here.

The accompanying presentation can be found here.

A summary of the event can be found here.

In his speech, Professor Hardwick reflected upon the work the Parole Board has done over the past 50 years, and considered what the future of the Board’s work may involve.

Assessing a prisoner's risk involves taking into account “static” risk factors, such as the circumstances and gravity of the index offence. Other factors also play a part in the decision-making process, including what the prisoner has done to address his offending behaviour. To this end, offending behaviour programmes are offered in prisons, in an effort to assist prisoners to address their offending behaviour. It is hoped that such work will assist the prisoner in decreasing his risk. I have written about these courses in the past here. Professor Hardwick referred to these programmes in his speech, stating:

 “[…]we lose something if our decisions simply turn on risk algorithms and the statistical analysis of the effectiveness of off ending behaviour programmes and avoid moral and ethical judgement.”

The effectiveness of such programmes has been the subject of much dispute in recent times. In addition to this, the availability of specific programmes in certain establishments is another problem frequently encountered in practice.

In reality, prisoners often find themselves unable to demonstrate a reduction in risk without completing a relevant programme. Whilst the Parole Board may consider factors such as an exemplary custodial record and good behaviour in prison, it is unlikely that in the absence of specific offence-focussed work, the conclusion that an offender has adequately addressed his “risk factors” can safely be drawn.

This can be illustrated with reference to R (Gill) v Secretary of State for Justice [2010] EWHC 364 (Admin). A full transcript can be found here. In this case, the Court stated:

 “It is not uncommon for off ending behaviour programmes to be regarded as a requirement to demonstrate risk reduction before the Parole Board. Perhaps most notable in that regard are the comments of the law lords in R (on the application of Wells) v Parole Board [2009] UKHL 22; 2009 2 WLR 1149 , paras 26, 36. In her statement for this hearing, Dr Jo Bailey, the lead psychologist for the operations directorate of the National Off ender Management Service, emphasises that participation in off ending behaviour management courses is neither necessary nor sufficient to achieve release.

She explains that the Prison Service uses seven so-called pathways to reduce re-off ending as a basis for sentence planning targets of individuals:

(i) accommodation, Offending Behaviour Programmes and the work of the Parole Board.

(ii) education, training, employment,

(iii) mental and physical health,

(iv) drug and alcohol misuse,

(v) finance, benefit and debt,

(vi) children and families of off enders and

(vii) attitudes, thinking and behaviour.

Those involved in the risk assessment and management of off enders are to apply a holistic approach through the pathways model, as a means of achieving and demonstrating a reduction in the risk of re-off ending.” [39]

It is encouraging that the importance of factors other than the completion of courses are being highlighted once again, this time by the Chair of the Parole Board. However, for the time being, many prisoners feel that the completion of such courses still remains at the heart of risk reduction, and ultimately, to release. Nevertheless, Professor Hardwick’s focus on factors other than the completion of OBPs is hopeful. 

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Public Funding for Judicial Review: a Necessary Safeguard

This has been written in response to the recent cuts to criminal legal aid in prison law matters, a summary of which can be read here. This post seeks to explain why public funding for certain civil actions, specifically Judicial Review, is a safeguard for individual freedoms. 

Earlier this year, the Government announced, in keeping with its continued massacre of the publicly funded legal system, that it will now be more difficult for individuals to make applications for a decision made by a public body to be judicially reviewed. The Government has additionally drastically reduced the amount of legal aid available to prisoners pursuing such claims against the prison service and associated bodies.

In relation to these proposals, the Secretary of State for Justice, Chris Grayling has said that "The vast majority of these types of complaint can and should be dealt with by the prison service's complaints system". Unfortunately the reality is that sometimes the prison service fails to address legitimate complaints and sometimes makes arbitrary and often unfair decisions. Equally, decisions that are made in good faith may be wrong in law. For these reasons, an avenue of legal challenge available to all is necessary to ensure that such bodies are held to account for their decisions, and that unlawful decisions are questioned. Public funding for prison law matters is therefore not only necessary to preserve individual rights and liberties, but also to ensure that the State is not acting unlawfully. 

One of the ways prisoners can legally challenge unfair, unlawful or arbitrary decisions made by the prison service is through Judicial Review. Judicial Review is a process which enables government and public bodies such as the Parole Board and Probation Service to be scrutinised by an independent eye, and rightly so. The potential of external scrutiny means that authorities are more likely to make fair and lawful decisions in any event, but equally, it means that mistakes in the process of decision making can be rightfully corrected. The cuts to prison law legal aid will mean that individuals who may have a legitimate claim for Judicial Reviewwill not be able to pursue this unless they can afford the services of lawyers, or have the necessary knowledge of public law and drafting skills to make an application as a self-representing claimant.

Often, complaints made by prisoners raise issues relating to equality and discrimination. Legislation such as the Equality Act 2010 applies to prisoners as it applies to other citizens. The law in this jurisdiction provides that the deprivation of one's liberty is punishment for criminal offences. Prisoners retain the right to be treated fairly and in accordance with prison rules and policy. Punishment does not encompass general infringement on basic rights, access to justice or discrimination at the hands of the prison system. Nor does punishment mean that prisoners may be treated unlawfully. These are all issues which many prisoners' complaints entail. Public funding for prisoners without adequate financial means for this purpose is therefore imperative. Whilst there may be some limited funding for certain exceptional claims which raise human rights issues, the current proposals are draconian and the potential ramifications have not been thought through.

Throughout history, lessons have apparently been learned in relation to prohibiting the ability of individuals to challenge government decisions. The proposed limitations to Judicial Review will have a similar impact in that society’s outcasts will not be able to challenge decisions which may not only be unreasonable, but illegal. To limit the mechanism of Judicial Review on multiple fronts, including both eligibility of applications andfunding for legal representation on such applications, will prove to be a very dangerous move indeed.

Changes to legal aid for prison law matters (in force as of 02 December 2013)

Below is a guide to the changes to criminal legal aid for prison law issues. 

In summary, criminal legal aid for prison law matters has changed in relation to the following areas:

(1) Treatment;
(2) Sentencing;
(3) Parole Board hearings;
(4) Adjudications.

Treatment 

"Treatment" encompasses the following:

• Communication;
• Visits;
• Living conditions.

There will no longer be any criminal legal aid for these matters. The Ministry of Justice advises that these grievances should be resolved by the Form COMP process.

Sentencing

The following still falls within the scope of criminal legal aid:

• Release date calculation issues;
• Parole Board reference issues (for indeterminate sentenced prisoners who are seeking release).

The following has been removed from the scope of criminal legal aid:

• Categorisation issues for Category B and below prisoners.

Parole Board hearings

Parole Board hearings fall within the scope of criminal legal aid only in those cases where the Board has the power to direct release. Hearings where the Board merely has the power to recommend transfer to open conditions without the power to direct release are no longer covered by criminal legal aid.

Adjudications

Criminal legal aid is now only available for the following disciplinary issues:

(1) If the case involves a criminal allegation and is referred to an Independent Adjudicator or;
(2) In Governor only hearings where the Governor decides that the Tarrant criteria is met and the prisoner requires legal representation. (Information on the Tarrant criteria can be found here)

New CRM3 form for solicitors etc

As of 11 December, this is the form to fill in if you are applying for legal aid for Parole and Adjudication representation: http://www.justice.gov.uk/downloads/forms/legal-aid/crime-forms/crm3-version-11-december-2013.pdf

Imprisonment For Public Protection and Licence After Release

Whilst the controversial IPP sentence has now been abolished courtesy of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, there are thousands of individuals still serving this sentence, and many more individuals on IPP licence after having been released from prison.

Individuals who were sentenced to IPP, and subsequently released, potentially remain on licence for the rest of their lives. However, such offenders can apply for an IPP licence to be cancelled after ten years. The consequence of this is that upon successful application, the individual will not be liable to recall to custody as he would have been had he been on a life licence. 

In order for an IPP licence to be discharged, an application must be made to the Public Protection Unit. A specialist legal practitioner in this field can assist with this. When considering whether or not the licence should be discharged, the PPU will seek advice from the Parole Board.