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).

Walker v Secretary of State for the Home Department [2008] EWCA Civ 30

Citation: Walker v Secretary of State for the Home Department [2008] EWCA Civ 30

Court: Court of Appeal (Civil Division)

Decision

In Walker, the Court of Appeal held that the Prison Service's failure to provide sufficient offending behaviour programmes was arbitrary and unreasonable, and therefore unlawful. This is of utmost relevance to prisoners serving indeterminate sentences whose release depends on risk reduction which in turn is largely dependent on the completion of such courses. The Court further held that whilst pre-tariff detention is for the punishment of offenders, detention after expiry of the minimum term is to protect the public from those who still pose a risk. Detention past the expiry of the minimum is only justifiable if the prisoner is still dangerous.

Offending Behaviour Programmes

What are offending behaviour programmes ("OBPs")?

OBPs are courses for prisoners which they complete whilst in custody. The central aim of all OBPs is to reduce reoffending. This is achieved through the courses by challenging behaviour and attitudes which contributed to the prisoner's offending. The content and structure of the courses are tailored to address an offender's needs and risks.

Examples of OBPs include:

• Sex Offender Treatment Programmes;
• Controlling Anger and Learning to Manage it;
• Healthy Relationships Programme.

You can find a fuller list of programmes here.

OBPs are not compulsory, however, as discussed below, they are instrumental in demonstrating risk reduction, which ultimately is at the heart of the question of release.

Risk reduction

Completion of OBPs is essential for an offender to demonstrate that he has reduced his risk. This is because OBPs seek to challenging offending behaviour. It follows that an offender who can demonstrate successful completion to the Parole Board is more likely to persuade the Board that he has addressed his offending behaviour and the risk he poses to the public or select individuals.

What if a prisoner refuses to attend an OBP?

As stated above, attendance on OBPs is not compulsory, however refusal to attend raises problems for indeterminate sentence prisoners. This is because their release is contingent on the Parole Board directing that they should be released.

Can a prisoner who denies his offence complete an OBP?

Generally, yes, as eligibility for most OBPs is not dependent on the prisoner accepting guilt. However, an exception to this is the Sex Offender Treatment Programmes. SOTPs require the prisoner  to give a full account of the offence.

Are all courses available at all prisons?

No, and this can cause problems, because completion of an unavailable course may be central to the individual's sentence plan. In these cases, the prisoner should apply to be allocated to another prison where the OBP in question is offered.

Problems and remedies in relation to the provision of OBPs

It has been previously held that the Prison Service's failure to provide sufficient OBPs is arbitrary and unreasonable and therefore unlawful (Walker v Secretary of State for the Home Department [2008] EWCA Civ 30). An individual who is facing problems in relation to OBPs, including prohibition of access to these courses, should seek legal advice. Judicial review could provide a line of redress for prisoners facing this problem.