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Friday, 5 October 2012

IPP Solicitor, Shahida Begum examines the delays in D transfer's

He climbed until he saw
By Shahida Begum , from insidetime issue  2012
Solicitor, Shahida Begum examines the delays in transfer to Category D prisons

A transfer to open conditions is a significant step for any indeterminate sentence prisoner.  It is often only when a prisoner is transferred to open conditions, where he can be more fully tested, that the Parole Board will recognise his ostensible transformation from ‘caged animal’ to human being.  If he is able to evidence the transformation, the Parole Board is more likely to find him fit for society.
In recent years prolonged delays in transferring prisoners to open conditions has become widespread.  Prisoners have been forced to sit and wait with their minds having little to contemplate except hopes of eventual release.  As indicated above, any such delay is significant, as an indeterminate sentence prisoner’s security category has a direct bearing on his prospects of release.
There have been a number of legal challenges to this delay.  The first of such challenges, and all of the lead claims, were brought by Michael Purdon solicitors, who have made much of the running on this issue.  Jude Bunting of Tooks Chambers has worked with Michael Purdon solicitors and other solicitors firms, on this issue.
The two lead claims, Smith and Haines, argued that the delays in transferring indeterminate sentence prisoners are unlawful, given that the Secretary of State for Justice is under a public law duty to provide such prisoners with the systems and resources that prisoners serving those sentences needed to demonstrate to the Parole Board by the time of the expiry of their tariff periods, or reasonably soon thereafter, that it was no longer necessary for the protection of the public that they should remain in detention (see, for example, R. (Cawser) v Secretary of State for the Home Department [2003] EWCA Civ 1522, Walker v Secretary of State for the Home Department [2008] 1 W.L.R. 1977, and Wells v Parole Board [2010] 1 A.C. 553).
In Smith and Haines, the Secretary of State has accepted that there had been an unreasonable delay in transferring the claimants to open conditions due to there being insufficient places in those prisons, and that the failure to make sufficient places available so as to enable them to be transferred within a reasonable period of time amounted to a breach of the public law duty to do so.
The only outstanding issue, namely the legality of the Secretary of State’s policy of not transferring pre-tariff prisoners to open conditions pending the reduction in the overall backlog, will be tested by the Courts in an upcoming claim, Haney, which is due to be decided in the coming months.
In October 2011, the Secretary of State recognised some of the problems, and introduced a new prioritisation policy.  However, this policy has so far only affected post-tariff prisoners.
There are few precise figures as to how many indeterminate sentence prisoners, who have been approved for transfers to open, remain in closed conditions.  The Secretary of State has indicated that the prioritisation policy has had an effect in clearing the backlog.
It is highly questionable whether the Secretary of State’s decision to prioritise post-tariff over pre-tariff prisoners for transfer to open conditions was reasonable. Distinguishing between the status of a prisoner on the basis that one set is likely to have served a longer period in custody because the government is still working to improve the efficiency of the prison service so they get better at managing queues, is arguably unlawful.To that end, after pressure from various prisoner representatives, the National Offender Management Service repeatedly suggested that a “review” of the position of pre- tariff prisoners would take place in “early 2012”.  More recently, the National Offender Management Service has made a further concession.  Indeterminate sentence prisoners who have been approved for transfer to open conditions but remain in closed conditions will now be entitled to apply for, and if risk-assessed as suitable, undertake releases on temporary licence (“ROTLs”).  Apparently, a PSI is now due to be published at the end of June 2012 which will set out the new policy on ROTLs.
During a pre-tariff prisoner’s wait for a delayed transfer to open conditions, they may use this upcoming PSI and ask for prison governors in the closed estate to assess them for ROTLs.
An important priority is to ensure that all prisoners regardless oftheir status are provided with the support and necessary resources to demonstrate a reduction in risk. It is hoped that the new PSI will ensure that any proper consideration by the Parole Board will not diminish as a result of the operation of the current 2011 policy.A refusal to consider indeterminate sentence prisoners for whom the Secretary of State has approved transfer to open conditions pursuant to the new policy may well lead to judicial review proceedings.  Shahida Begum is a Criminal Solicitor at Cooper Rollason solicitors LLP.  She is also a member of Midlands Human Rights Lawyers Group, Human Rights Lawyers Association, and the founder of CEIA a charity specialising in human rights advocacy.
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Comments about this article
10/7/2012 B Mills
It is important that those serving indeterminate sentences are given the chance to prove their readiness to return to society and to be able to serve their sentence in the knowledge that they will be treated fairly and in with the same rigour as the law which sentenced them.How can we expect individuals to respect the system and strive to deliver a level of confidence to the Parole Board when they constantly see the light at the end of the tunnel being extinguished?When one see those who have committed acts of terrorism and extreme violence claiming that their right to a family life exculdes them from extradition what hope is there that the "lifer" will keep his head down and get on serving his time with the knowledge that he is unlikely to be treated faily and in accordance with the law by "The System"?I have no axe to grind other than to see the law and it's intentions applied fairly ot everyone.

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