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Monday, 25 June 2012

Guidance for life sentenced or IPP Prisoners facing the Parole Board

Whether a Prisoner has a Parole Review approaching or they are in the early part of their sentence, an understanding of the Parole Board’s policy in directing or recommending release or transfer to open conditions is essential to ensure effective and timely sentence progression.

The Parole Board is an independent public body working within national government. It must operate under the guidance and direction of the Secretary of State. However, one of its most important functions is to assess prisoners’ risk in a way which is fair. This should involve the Parole Board balancing the benefit to the prisoner in progression or release against the risk that they may pose to the public.
The test
When considering the case of a lifer or indeterminate sentenced prisoner, the Parole Board should make one of the following decisions;
  • Direct the Prisoner’s release, either immediately or at a future date, for example when certain accommodation will be available.
  • Make a recommendation to the Secretary of State that the prisoner progress to open conditions.
  • Make no direction for release or recommendation for a progressive move and identify areas of outstanding risk.
When considering making any of the above decisions the Parole Board must consider whether “It is necessary for the protection of the public that the prisoner should be confined.”
For a prisoner to pass this test the Parole Board must be satisfied that;
“The lifer’s level of risk to the life and limb of others is considered to be no more than minimal”.
When looking at whether it is appropriate for a prisoner to be transferred to an open condition establishment, the Parole Board will additionally weigh up the risk to the Public against the benefits for the prisoner. This will normally involve consideration of a prisoner’s behaviour during their sentence and whether they have demonstrated a reduction in their risk factors.
In terms of considering whether to direct release the Parole Board will focus on whether the prisoner is at a stage that they can now be managed in the community subject to licence conditions and more often than not, the Parole Board will want to see a successful period of testing in open conditions before release can be directed.
Release or Open?
A prisoner will have the opportunity to submit their own representations in support of their release or to ask for a transfer to open conditions. It is important for prisoners to be realistic. Although, the Parole Board is unlikely to release someone from Category B or even C conditions, it is by no means impossible. Advice from a Prison Law specialist should be sought to advise on the prospects and merits of the representations.
Guidance has been issued by the Secretary of State in relation to releasing prisoners from closed conditions. Although this is only ‘guidance’ the Parole Board do appear to be extremely hesitant to depart from it. Experience shows that in a well argued and thought through case that the Parole Board will direct release from closed conditions, but careful representations will be needed to achieve this.
Conversely, an over optimistic application for release can carry the risk of distracting the Parole Board’s focus from considering the benefits of a more realistic transfer to open conditions.
Parole Board guidance states that they cannot normally be satisfied that the test for release is met until a successful period of testing in open conditions has been completed and this should only be departed from in exceptional circumstances. Early and careful sentence planning and preparation is therefore critical if the Parole Board is going to be asked to release a Prisoner from closed conditions.
Examples of where a Parole Board may consider release from closed are; on compassionate grounds, such as the ill health or disability of the Prisoner or a close relative; Circumstances where a Prisoner has previously been tested in open conditions but was returned to closed conditions for a reason unrelated to their risk, or if the Panel is considering the re-release of a Prisoner who has been recalled to custody. In such circumstances a case can be made that the prisoner has already completed this period of testing. However, even in these cases, early advice from a Prison lawyer is recommended. In addition, there is a ‘catch all’ provision which states a Prisoner may be released ‘where there are other grounds that dictate that any or further testing in open conditions is not required to satisfy the Board about the prisoner’s level of risk’.
The Parole Board may also be persuaded that a period of testing in open conditions is not required when a prisoner can show a substantial and robust risk management plan detailing clear and developed plans regarding accommodation and income. A good relationship between Prisoner and Offender Manager (OM) is particularly important as ultimately the OM will be responsible for managing a prisoner’s risk on release and the Parole Board will want to hear from them how they are satisfied they will be able to do this. Being proactive and working with Probation from the outset and approaching them with details of potential release plans will only serve to stand prisoners in good stead when it comes to their Parole Reviews.
Is there anything else I can do?
As well as evidence from the OM, the Parole Board will also consider evidence given by the Offender Supervisor. This will focus on the work completed in custody and an analysis of the progress made. Regardless of whether a Prisoner is asking for release or a move to open conditions, evidence of risk reduction is key as well as a prisoner being able to illustrate how skills they have learnt have been put into practice. As they say the ‘devil is in the details’ and the Parole Board will therefore be looking for evidence of a reduction of risk and any new skills and behaviours that have been learnt, particularly if they are to be satisfied that a period of testing in open conditions is not necessary.
Parole Boards do not just want to hear that prisoners are making all the right noises in terms of risk reduction they will also want to see clear evidence of it, as well as considering finer details of proposed release plans.
With long waiting lists for transfers to open conditions, it is now even more important that prisoners focus on sentence planning issues at an early stage to ensure that they are doing everything they can to progress within the Prison Estate toward release. Even prisoners who are sometime away from a Parole review should think about what they can do to help their case.

Adjudications – fighting your corner

Adjudications – fighting your corner
‘Nicking’s’, ‘Reports’, ‘Notices’, call them what you will, for many prisoners adjudications are a part of everyday prison life. From the short-term determinate prisoner looking to secure open conditions, to the post-tariff IPP prisoner trying to avoid serving yet another year after tariff, having an adjudication on your record can have a real impact.
What actually is an Adjudication?
Prisoners will no doubt be aware that there are various processes in place that the prison use in order to maintain discipline. The Adjudication system is known as the formal discipline process and is used when a prisoner is suspected of committing a disciplinary offence.
The authority to discipline prisoners is contained in the Prisons Act 1952 and the 29 disciplinary offences are detailed at Rule 51 of the Prison Rules 1999 (Rule 50 for young offenders). The list of offences can also be found in the Prison Discipline Procedures PSI 47/2011, which came into force on 1st October 2011 replacing the previous Prison Discipline Manual PSO2000 (Although this manual still applies for adjudications that commenced prior to 1st October 2011). PSI 47/2011 should be available upon request or at least accessible within the prison library.
What will happen if I am Adjudicated?
If a prisoner is going to be Adjudicated then the charge alleging one of the 29 disciplinary offences “must be laid as soon as possible and, other than in exceptional circumstances, within 48 hours of the discovery of the alleged offence” (para 2.2 of PSI 47/2011). The details of the charge(s) will be provided on a Notice of Report (Form DIS1 which prior to 1stOctober2011 was known as F1127A&B).
The Notice of Report form MUST give details of the adjudication (charge, time, date, rule broken, reporting officer’s evidence and details and the time of the hearing).
A prisoner must then appear at an adjudication hearing that “must then be opened, again other than in exceptional circumstances, on the following day, unless that is a Sunday or a public holiday in which case it will be opened the next working day” (para 2.2 of PSI 47/2011).  This hearing will be before a Governor. If the charge is sufficiently serious the Governor must refer the case to the Independent Adjudicator (District Judge).  If this happens then a hearing before the Independent Adjudicator must be arranged within 28 days of the referral being made by the Governor (para 2.26 PSI 47/2011).
Will the Police be Informed?
In some circumstances the prison staff may feel that an offence is so serious that it should be referred to the police. The Decision for referral to the Police is for the adjudicator taking account of the individual circumstances of the case. Even where the matter has been referred to the police disciplinary proceedings will still be laid, except in the most serious offences such as murder. In such cases an adjudication will proceed in the way stated above and then be adjourned until the outcome of the police investigation is known. If the police prosecution goes ahead then the adjudication will not proceed. If a prisoner is not prosecuted in a court then the adjudication may resume. However consideration needs to be given as to whether it is right for the prison to proceed with an adjudication in such circumstances (para 2.18 PSI 47/2011).
Who will fight my corner?
At the start of the hearing, the Governor or Independent Adjudicator must ask the prisoner whether or not he wishes to have legal advice. It is strongly advisable that a prisoner always requests legal advice at the first hearing. A solicitor can advise you as to whether the adjudication procedure has been carried out correctly, confirm whether you have any defence to the charges and of course make arrangements to appear at the hearing if your case has been referred to the Independent Adjudicator.
If the matter is not referred to the Independent Adjudicator then a prisoner is not entitled to have a solicitor actually present at the hearing but a prisoner is still entitled to request that the hearing be adjourned in order to obtain legal advice. Arrangements should then be made to contact a solicitor (if you have not already done so) so that advice can be given. The solicitor may also draft representations for the prisoner to take to the adjudication and read out or present to the Governor.
When a prisoner appears before the independent adjudicator (District Judge) Solicitors can attend and represent you and conduct a defence as in a trial court.  
What happens at the hearing itself?
Adjudications are less formal than Court proceedings but have a similar format. Prisoners are called into the Adjudication room, usually on the segregation unit, and asked to confirm their name, that they have received Notice of Report and whether they understand the procedure.
Prisoners should be asked whether they have had time to prepare a defence and whether they will be submitting a written defence. An adjournment should be sought if you are not fully prepared and you should seek urgent legal advice.
After a plea is taken and if the hearing goes ahead, the Reporting Officer will then give evidence. In most cases this will simply be a matter of him reading out the Notice of Report. The prisoner or the legal representative will then have the opportunity to ask the officer questions in relation to his account of events. It is important when doing so to consider each element of the offence(s) alleged.
Prisoners must also be given the opportunity to give their own evidence and at the end of the hearing submissions should be made as to why a prisoner the charge should not be proved if you have pleaded not guilty. Just as in the criminal Courts, the standard of proof that must be met before a prisoner can be found guilty is “beyond reasonable doubt”. If this high standard cannot be reached, then the charge should not be found proved.
What Sentence Will I Get?
If found guilty there is a broad range of punishments available to the Governor or Judge when passing sentence. An adjudicator should mark on the Notice of Hearing form (now referred to as a DIS7 formally known as a F256) the reasons why a particular sentence was given. Consideration should be given to relevant mitigating factors such as impact on the victim, early guilty pleas and the circumstances and seriousness of the offence. If appearing before the independent adjudicator there is a risk that a maximum of 42 additional days could be added to a prisoners sentence. It is strobgly advisable that in such cases you instruct an experienced Prison Law Solicitor to assist you and ensure that you are properly represented in order that they are able to mitigate on your behalf in advance of the passing of any sentence.
Can I Appeal?
If the adjudication took place in front of the Governor you can request a review under prison rule 61. To do so you must submit complaints form ADJ1 or contact a Solicitor who will write to the prison requesting a review of the adjudication. It is vital that the request for a review is made within six weeks of the date that the adjudication concluded. This review is considered on the papers only. If a prisoner is still unhappy with the decision then an appeal may be submitted to the Prison Ombudsman or Judicial Review proceedings may be considered.
Findings of guilt by an Independent Adjudicator can only be challenged by way judicial review. Judicial review is a highly specialised area of the law and you should therefore instruct a solicitor if you wish to pursue this avenue. An application for Judicial Review will be appropriate if it appears that the hearing was procedurally flawed or unfair.
Punishments imposed by an Independent Adjudicators can however be challenged in writing to  the Senior District Judge at the Chief Magistrates Office, it is wise to request that a solicitor do this for you. This application MUST be done within 14 days of the adjudication and could result in a punishment being reduced, upheld or quashed entirely.
The sting in the tail…
The unseen punishment that an adverse adjudication result carries is the fact it is always be on a prisoner’s record. It will be noted by every Parole Board, Re-categorisation clerk and when considering Release On Temporary Licence or Home Detention Curfew application for the remained of the sentence. This will not be mentioned when you are asked to enter a plea and it is therefore important that you carefully consider instructing a solicitor as soon as you get a “nicking”.
In summary, adjudications are a complex area of prison law and one which can have a hugely detrimental impact on your chances of progressing through the prison system, but you are not alone. You have the right to instruct a solicitor to fight your corner and in most cases this can be done on a legal aid basis subject to means testing.
HINE Solicitors have a specialist Prison Law department who assist prisoners Nationwide with adjudications whether it be by providing representations and advice  for a Governor’s Adjudication or attending and representing a prisoner in person before any Independent Adjudicator.

It is widely accepted that prisoners who maintain their innocence face huge difficulty when seeking release. They are required to demonstrate to the Parole Board that their risk of harm is sufficiently reduced to warrant release. This area of prison law is keenly debated and is often the source of attention from prison action groups and the media. Perhaps the most famous case is that of Stephen Downing; a prisoner who served 27 years in custody for murder before having the conviction quashed. Upon his release Mr. Downing raised serious concerns that prisoners who maintain their innocence are discriminated against by the Prison Service and the Parole Board.
In particular Mr. Downing claimed that if he had made a false confession, and engaged in the associated offending behaviour programmes, then he would have been released over a decade earlier. The opinion of Mr. Downing is echoed by many prisoners who have had their convictions overturned.
One of the most contentious issues surrounds the subject of the ‘Parole Deal’. This is when prisoners feel pressurised into admitting guilt for an offence and undertaking offence specific behavioural work, even though this may not be necessary. This is because the alternative appears to be remaining in prison without progressing or clutching onto a faint hope that the conviction will be overturned. This dilemma is stressful for many prisoners and for a ‘lifer’ who maintains his innocence the future is bleak.
The Law
The Parole Board is required to accept that a prisoner is guilty of the offence for which they are convicted. The Parole Board has no authority to overturn a Court’s decision as the prisoner’s guilt has already been determined in a court of law. The Parole Board only has the power to make an assessment of risk.
The Parole Board cannot refuse release on licence simply because a prisoner maintains their innocence, or is unable to participate in offending behaviour programmes which focus on the crime committed. Indeed if the Parole Board does refuse a progressive move or release solely on these grounds then there will be argument that this is fundamentally wrong and such decision should without a doubt be challenged. However the problem for those maintaining their innocence is that the Parole Board often struggle to find evidence of risk reduction in the absence of successful completion of offending behavioural programmes.
Lowering Risk
The Parole Board’s principal function is to assess the risk to the public that the prisoner might pose if released.  In cases where the prisoner admits their guilt and engages with their sentence plan this can be evidenced through the completion of Offending Behaviour work and subsequent post programme reports, together with comments on behaviour in custody. The issue for those who maintain denial that they were responsible for the index offence is that they may be deemed unsuitable for behavioural courses and thus unable to evidence a reduction in their suggested risk factors that the course is set out to target. This is unsurprising as in offence related courses there is often a requirement that a prisoner discuss the circumstances surrounding the commission of their index offence. Naturally, if a prisoner denies having committed the offence how can they then proceed to discuss why or how the offence was committed? The result of this is that often parole dossiers are prepared, and probation officer reports are written, with limited information on which to assess a reduction of risk.
So how can those who maintain their innocence demonstrate a reduction in risk? Firstly it is important to remember that it is not solely offending behaviour programme reports which assist in suggesting the level of current risk. It is possible for reform to be demonstrated by a prisoner by him remaining adjudication free, gaining employment, undertaking educational or vocational courses and participating in voluntary schemes such as the ‘Buddy’ or ‘Listeners’ scheme. Holding the status of an enhanced prisoner is also beneficial, although establishments will argue that being unable to co-operate in the targets set out on a sentence plan can prevent this status on the Incentive Earned Privileges Scheme.
The Parole Board’s recently issued policy states that in order for release to be directed a prisoner should spend time in open conditions in order to demonstrate a sufficient period of testing in an environment with a less stringent regime. This does however work on the assumption that it is possible to progress to open conditions without engaging in specific offence related behavioural courses.
Suitable Courses
For those who have been convicted of a sexual offence the usual course of action is to be assessed for suitability for the Sexual Offenders Treatment Programme (SOTP) and possibly the Healthy Sexual Functioning programme (HSF). However, guidance from Prison Services states that neither of the courses are suitable for those who maintain their innocence. This creates a particular difficulty for prisoners who maintain their innocence as they will not be able to participate in those programmes and the very detailed Structured Assessment of Risk and Need (SARN) which follows completion of the SOTP, which is generally used by the Parole Board to assess risk will not be available for consideration.
Similarly for violent offences a level of admittance is required to be suitable for programmes such as Controlling Anger and Learning to Manage it (CALM) and the Cognitive Self Change Programme (CSCP). However the CSCP is normally for multiple conviction prisoners but admittance to incidents that did not result in a conviction, but did demonstrate the use of instrumental violence, may enable a prisoner to be admitted onto that course.
Cognitive skills programmes are not offence specific and as such it is possible to participate in Enhanced Thinking Skills (ETS) now more commonly known as the Thinking Skills Programme (TSP). This is a broad course that deals with a prisoner’s problem solving, impulse control and ability to put things into perspective. As such it is arguably a very valuable course to complete, if of course a prisoner is assessed as suitable. Alcohol and drug misuse courses are also not offence specific and subject to assessment for need are suitable for all who have had previous drugs/alcohol problems. These courses can prove particularly valuable if there is suggested to be a causal link between  drugs/alcohol and the offence. A prisoner need not always have be an addict to engage in these courses.
In summary it is clear that those who maintain their innocence must work harder and be more creative, in demonstrating that they have reduced their risk of harm and risk of reconviction. In such situations undertaking any available and suitable courses will always be important, as will be complying with the prison regime. Any positions of trust which can be achieved and maintained by prisoners will also demonstrate an ability to handle responsibility.
Parole Review
A rigid framework of assessment, predicated upon an admission of guilt, clearly excludes those maintaining innocence from presenting their case objectively. It is up to an expert prison lawyer to illustrate to the Parole Board that a prisoner in such a situation can be released safely by the drafting of detailed representations. These are absolutely vital, especially now there is no longer an automatic right to have an oral hearing, to ensure a prisoner’s review is correctly presented to the Parole Board.
Hine Solicitors Prison Law Department offer expertise in all areas of Prison Law and in particular have a dedicated team who are able to draft detailed written representations for consideration by the Parole Board to guarantee prisoners their best chance of success.
Contact our Prison Law Department who provide nationwide coverage.

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