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.

Prison Service Orders and Prison Service Instructions

What are Prison Service Orders and Prison Service Instructions?

Prison Service Orders ("PSOs") and Prison Service Instructions ("PSIs") are policy documents. These policies relate to all aspects of prison life and management.

Why are PSOs and PSIs important?

They are important because they impact upon prisoners' lives whilst in custody, for a wide range of issues, from sentence planning (PSI 41/2012) to non-slip shoes (PSI 57/2010). 

Furthermore, in much of the decision-making in prisons, wide discretion is afforded to those in charge. Failure to use that discretion reasonably or fairly could render the decision susceptible to judicial review. Successful challenges to such decision making could be based on a failure to comply with policy contained in a PSO or PSI. These documents are therefore vital to decipher what precisely the policy in relation to a specific issue actually is.

Where can PSOs and PSIs be found?

Here.

The Probation Service

The Probation Service is responsible for the supervision of offenders released from prison on licence and also those serving community sentences. Probation services are facilitated through 35 Probation Trusts, located throughout England and Wales.

The Probation Service's responsibility in criminal proceedings

During the course of criminal proceedings, Probation Officers are responsible for the preparation of  pre-sentence reports. These reports are of relevance not only at sentencing, but at any subsequent appeal, and also when an individual comes before the Parole Board).

The Probation Service's responsibilities with prisoners

In respect of individuals once they have been convicted, Probation Officers typically have the following involvement with prisoners:

• Assessing offenders;
• Giving evidence before the Parole Board as to the individual's progress in prison and whether or not he has sufficiently reduced his risk;
• Preparing the prisoner for release into the community;
• Co-ordinating offending behaviour programmes.

The Probation Service also manages approved premises or hostels for prisoners who are released on licence subject to a residence requirement.

For prisoners, the following Probation Officers are of particular relevance:

Home probation officers

"Home" probation officers are so named because they are based in the prisoner's home area. They are charged with the following duties:

• to work with the prisoner during and after sentence to assist in resettlement;
• to ensure licence conditions are implemented;
• to supervise the prisoner whilst he remains on licence;
• to act upon the victim of crime's concerns, if any;
• to make arrangements for the prisoner's release.

Seconded probation officers

The role of the seconded probation officer consists of the following:

• preparing risk assessments for prisoners being considered for early release;
• assisting prisoners with their sentence plan;
• running offending behaviour programmes.

Offender supervisor

The Offender Supervisor is the individual who delivers the day-to-day supervision of the prisoner through ensuring his sentence plan is executed.

Offender Manager

Usually this role is fulfilled by the offender's home probation officer.

Licence conditions

The Probation Service can also make recommendations as to licence conditions.


Judicial Review

Given that the Probation Service is a public body, decisions made by it can be challenged through judicial review.


Law and policy

Policy related to the Probation Service can be found here in the form or Probation Instructions. These policies apply to all Probation staff.

Ombudsmen

An Ombudsman is an official appointed by a government to investigate complaints against public authorities. Outside prison law, there are a wide range of Ombudsmen which cover all areas, including the Financial Services Ombudsman. Inside prison however, there are two Ombudsmen which are of particular relevance to prisoners:

1. Prisons and Probation Ombudsman;
2. Parliamentary Ombudsman.

Prisons and Probation Ombudsman ("PPO")

The PPO has the following responsibilities:

1. To investigate complaints it receives from prisoners;
2. To investigate deaths in custody.

The PPO is independent from the prison and probation services.

The relevant policy can be found here: PSI 58/2010

Why might a prisoner complain to the PPO?

If a prisoner has a grievance, and has complained through the prison service's internal complaints system, he may not be satisfied with the response he receives. Equally, he may not wish to commence legal proceedings in respect of this issue. In this case, he might find it useful to complain to the PPO who will investigate his complaint.

Will the prison read a prisoner's complaint to the PPO?

Letters to the PPO have the status of being "confidential", meaning prisoners have a right to confidential access to the Ombudsman. Confidential access mail cannot be opened or read by the prison unless there is reasonable cause to believe that its contents will endanger prison security, are criminal in nature, or that it is necessary to open them for the safety of others. It is not for the prison to decide whether or not the prisoner's complaint has sufficient merit to warrant a complaint to the PPO: that is for the prisoner to decide.

Letters to the PPO from the prisoner must be marked "Confidential Access" to ensure that it is not opened.

How can a prisoner complain to the PPO?

Complaints must usually be in writing. A prisoner can write to the PPO himself, or can instruct his solicitor to do so on his behalf.

Within what time period must a prisoner submit a complaint to the PPO?

Complaints raised more than 12 months after the event complained of will not usually be considered by the PPO, unless of course the Prison Service is responsible for the complaint not being brought within that time. The Ombudsman does have a discretion to consider out-of-time complaints if there is a good reason to.

If I want to apply for a decision made by the prison or an associated body to be judicially reviewed, must I complain to the PPO first?

No. Whilst judicial review is a remedy of last resort, the PPO is not a remedy for judicial review purposes (ex parte Leech). Prisoners are not required to go to the Ombudsman first.

The Parliamentary Ombudsman 

The Parliamentary Commissioner for Administration ("PCA"), also known as the Parliamentary Ombudsman, investigates complaints about government departments.

If a prisoner has a grievance whilst in custody, he can write to a Member of PArliament requesting that his complaint is considered by the Parliamentary Commissioner for Administration.

The complaint must be made in writing within 12 months of the event which is the subject matter of the complaint. The MP then has the power to forward the issue to the PCA if he considers that the complaint is meritorious. The PCA will then decide whether or not to investigate the matter. It will only do so if the following two conditions are met:

1. that the complaint has merit and
2. there is likely to be a worthy outcome.

If the complaint does become the subject matter of investigation, the PCA may make recommendations to the prison. If the prison refuses to follow a recommendation, the prisoner may wish to contemplate instigating judicial review proceedings against the prison. 

Offender Managers

An individual who is incarcerated in prison is assigned an Offender Manager ("The O.M"). The Offender Manager is the member of staff who works with the offender during the prisoner's sentence. The O.M assesses what the offender's needs are, both whilst he is in custody, but also whilst he is serving the portion of his sentence in the community (on licence).

Usually, the O.M is the offender's home probation officer. This means that the O.M will be based in the prisoner's home residential area. 

Home probation officers have the following responsibilities:

• To assist in the offender's sentence management;
• To make arrangements for release;
• To supervise the offender whilst he is on licence;
• To consider and act upon victims' concerns;
• To implement licence conditions;
• To assist the offender's resettlement.

The  Offender Manager's role in the parole process

The O.M will draft reports which may be used and considered by the Parole Board when considering whether the offender should be released from prison.

Offender Managers and recall

If an individual on licence is suspected to have breached his licence, the O.M may recommend recall to custody.

OASys Reports

What is an OASys Report?

OASys, Offender Assessment System, is an IT based system used within the Prison Service and by the Probation Service.

An OASys report is a risk and needs assessment tool. All the information is stored on a database and can be printed out to form a report. It seeks to identify the offender's needs, risk factors and protective factors and classify these needs accordingly. 

OASys reports can be very lengthy documents indeed, and will typically contain the following information:

• Personal information (name, date of birth etc);
• Case identification (e.g. date of sentence, sentence length, court name and type);
• Sources of information which have been used to created the report (e.g. Pre-Sentence Report; Judge's comments/ sentencing remarks; previous OASys reports; victim statements; prison records; probation files; psychiatric/ psychological services);
• Release date;
• Home Detention Curfew date;
• Licence expiry date;
• Offending information (e.g. previous record; previous convictions);
• Analysis of offences (brief summary; whether the offence involved violence or had a sexual element etc);
• Details of the victim (age, ethnicity, relationship with offender);
• Evidence of motivations and triggers to the offending (e.g. sexual/ financial motivation);
• Whether the offending was part of a pattern of offending;
• Whether the offender accepts responsibility for the current offence, and if so, how much;
• Accommodation;
• Education, training and employability;
• Financial management and income;
• Relationships;
• Lifestyle and associates;
• Substance misuse;
• Emotional well-being;
• Thinking and behaviour;
• Attitudes;
• Risk to children;
• Risk to himself (e.g. risk of suicide, self-harm).

It is an open process, so the individual who is the subject of the report will often be aware of its content. If an individual refuses to engage in the OASys process, he is still entitled to a copy of it.

What kinds of needs may an offender have?

• Homelessness;
• Thinking skills;
• Relationship problems;
• Substance misuse.

Why is OASys significant?

OASys assesses risk. Risk is central to the question of release when an offender comes before the PArole Board. Sentence plans are drawn up based on the results of the OASys assessments. Many decisions relating to the individual's sentence plan are based on the accuracy of the OASys assment.

What decisions does OASys affect?

The OASys report will impact on:

• Categoratisation;
• Allocation;
• Incentives and Earned Privileges;
• Resettlement;
• Release;
• Parole review;
• Release on licence;
• Release on temporary licence;
• Drug and alcohol treatment;
• Work and education;
• Offending behaviour programmes.

It is therefore central to an individual's sentence plan.

Who has to undergo an OASys assessment?

The following individuals must undergo an OASys assessment:

• Young offenders with at least four weeks left on their sentence;
• Prisoners with sentences of four years or more;
• Lifers;
• Extended recall offenders (if their recall is for more than one year);
• Licence recall offenders (if their recall is for more than one year);
• All offenders sentenced under the Criminal Justice Act 2003.

Will the OASys report be reviewed?

Yes. It must be reviewed annually.

Can the content of the OASys/ sentence plan be challenged?

Yes. Firstly, the prisoner should attempt to resolve the matter internally through the complaints procedure. Alternatively, the sentence plan may be challenged via Judicial Review. Legal advice must be sought.

Life Sentences

What is a "lifer"?

A lifer is an individual in prison who is serving an indeterminate sentence (but NOT an IPP). Individuals who are serving indeterminate sentences, in contrast with those serving determinate sentences, have no automatic right to be released from prison.

Relevant statutes (click to view):

Murder (Abolition of Death Penalty) Act 1965;

Criminal Justice Act 2003;

Power of Criminal Courts (Sentencing) Act 2000.

How does the sentence work?

The lifer, like those servings IPPs, is required to serve a punitive period (also known as the minimum term, or the tariff) before they are eligible for parole on licence.

What happens when a lifer is released on parole?

He will be released on a life licence, meaning that he is liable to recall to prison at any time.

What types of life sentence are there?

There are several.

Life imprisonment

• Applies to adults convicted of murder and individuals aged 21 or over when the offence was committed;
• For the offence of murder, the convicted automatically receives a mandatory life sentence (Murder (Abolition of Death Penalty) Act 1965);
• The sentencing judge now sets the minimum term (sentenced imposed on or after 18th December 2003).

Discretionary life sentence

• Offenders aged 18 or over where the maximum sentence which can be imposed is life imprisonment;
• The offender must meet the criteria for risk and dangerous set out in s. 225 Criminal Justice Act 2003.

IPP

See the previous blog post: http://prison-law.blogspot.co.uk/2013/03/imprisonment-for-public-protection-ipp.html

Custody for life

• Applies to offenders aged 18 or over but under 21 on the date of conviction;
• It applies only to those offenders convicted of murder;
• It is an automatic/ mandatory sentence;
• It may be imposed as a discretionary sentence for offences other than murder. It can only be imposed under these circumstances if the offender was over 18 and meets the criteria for dangerousness, as set out in s. 225 CJA 2003.

Detention at Her Majesty's Pleasure

• For individuals over the age of 10 (which is the age of criminal responsibility in England and Wales), but under the age of 18 when the offence was committed;
• Reserved only for the offence of murder;
• Relevant legislation: s. 90 Power of Criminal Courts (Sentencing) Act 2000.

Can prisoners appeal the length of their tariff/ minimum term?

Yes.  Section 271 of the Criminal Justice Act 2003 provides defendants with a right of appeal against the duration of the minimum term. Legal advice must be sought by those wishing to appeal. It should be borne in mind that the test for the Court of Appeal when looking at appeals against sentence is whether or not the sentence (minimum term) imposed by the sentencing judge is excessive.