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. 

x

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. 

R v Secretary of State for the Home Department, ex parte Zulfikar [1996] COD 256

Citation: R v Secretary of State for the Home Department, ex parte Zulfikar [1996] COD 256

Decision

Ex parte Zulfikar established certain principles which should be adopted by the Parole Board when a prisoner comes before it seeking a progressive move to open conditions and/ or ultimately release. Those principles are as follows:

1. Each case is decided upon its own merits and its own facts;
2. There is a presumption that the prisoner before it has been properly convicted, i.e. he was in fact guilty of the index offence;
3. The Parole Board must take into account any denial of guilt from the part of the prisoner;
4. The Board must also take into account if the prisoner has refused to participate in offending behaviour programmes in order to address his risk;
5. However, release cannot be refused purely because the prisoner denies his guilt, although in practice it is easy to see how denial makes a demonstration of risk reduction more difficult (i.e. a denier cannot demonstrate remorse for the offending, and there may also be difficulties in effectively engaging with offending behaviour courses).

R (oao Smith and West) v Parole Board [2005] UKHL 1

Citation: R (oao Smith and West) v Parole Board [2005] UKHL 1

Decision

Smith and West is authority for the principle that the Parole Board has a common law duty to ensure its procedure is fair when considering whether recalled prisoners should be re-released. In order to decide the matter of re-release fairly, an oral hearing may be required. If a prisoner is unfairly refused an oral hearing, his rights under Article 5 may be engaged and he may be entitled to claim damages.

R (Palmer) v Home Secretary [2004] EWHC 1817 (Admin)

Citation: R (Palmer) v Home Secretary [2004] EWHC 1817 (Admin)

Court: High Court (Queen’s Bench Division, Administrative Court)

Decision

When a prisoner is recategorised to a higher secuirty category, he must be given reasons why he has been recategorised.

This principle was restated in Palmer. The reason for this is if a prisoners wishes to appeal a decision as to his categorisation, he must know, as far as possible, the reasons why the decision was made in order that he may deal with allegations against him.

Collins J further stated that:

"He may, of course, not necessarily know the precise source of the information which is relevant to risk because, as is obvious, such information may come from informants, it may come from confidential police sources, or otherwise it may be necessary, in order to protect third parties, that the prisoner does not know the details."

Nevertheless, reasons must be given, whilst the source of the information giving rise to those reasons need not.