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Tuesday, 1 January 2013

Understanding the importance of Licence Conditions.


 Emma Davies and Michaela Henderson-Thynne of Hine Solicitors explain what Licence Conditions are and the potential impact they may have on prisoners

Understanding the importance of Licence Conditions.

Prisoners who have been sentenced to a custodial sentence often think being in prison is the difficult and challenging part of their punishment. However, many prisoners find that it is when they are released that they start encountering problems. Current legislation and sentencing regime means that the vast majority of prisoners released from custody will be subject to a licence period and conditions upon release.

It is important to understand that when prisoners are released on licence they are effectively still serving their sentence, but in the community. The aim of any licence is twofold. The first aim is to instil rules so that a prisoner’s behaviour can continue to be monitored and secondly to assist in preventing the prisoner from re-offending by helping with their successful re-integration back into the community.

There are two types of licence conditions, standard conditions and additional conditions.

Standard licence conditions

All prisoners released on licence will be subject to a standard licence. This will usually contain six standard licence conditions, namely:-
1. To keep in touch with your supervising officer in accordance with any instruction you may be given,
2. If required to receive visits from your supervising officer at your home/place of residence,
3. To reside permanently at an address approved by supervising officer and notify them in advance of any proposed change of address or any proposed stay away from that approved address.
4. To undertake such work (including voluntary work) approved by your supervising officer and notify them in advance of any proposed change.
5. Not to travel outside the United Kingdom unless otherwise permitted by your supervising officer.
6. To be well behaved, and not to commit any offences or do anything which could undermine the purpose of your supervision, which is to protect the public, prevent you from re-offending and help you to re-settle successfully into the community.

Additional licence conditions
These can be imposed if an offender manager believes that the standard conditions are not by them self sufficient. In such cases any licence will explicitly state the additional conditions and their requirements. Detailed information regarding exactly what additional licence conditions can be imposed and the suggested wording of such licence conditions is set out within Annex A and B of Prison Service Instrument (PSI) 34/2011.

If however it is felt that standard or additional licence conditions are not sufficient to manage a prisoner’s specific risk factors, an offender manager can make an application to impose ‘bespoke’ conditions that is believed to be necessary and proportionate to manage a specific risk. In such cases a formal application needs to be made by the offender manager to the Licence variation team.

Who imposes additional licence conditions?

A prisoner’s offender manager will initially assess whether there is a need for additional licence conditions. These will be proposed prior to release. For fixed term prisoners, who know their release date, these will be approved by the governor on behalf of the Secretary of State. Prison governors may only approve requests for additional licence requirements and must not insert conditions that have not been recommended by offender managers. In the case of indeterminate sentence prisoners it will be for the Parole Board to decide on the appropriate conditions to be imposed when they make a direction for release.

The criteria for imposing licence conditions

Standard and additional licences conditions can only be imposed upon a prisoner if there are deemed lawful. They must therefore be necessary and proportionate in the circumstances. In order for the condition to be necessary there has to be no other means available or appropriate to manage a particular risk. For a condition to be proportionate it has to be the minimum restriction upon a prisoner’s liberty required to manage the risk. The aim licence conditions should not be to punish a prisoner further.

Issuing of licences and their conditions

A prisoner must be given a copy of licence and its conditions upon release from prison. Additionally prison staff must explain the licence conditions to the prisoners prior to their release from custody, to ensure that they fully understand the conditions imposed.

Challenging licence conditions

If a prisoner feels that any licence conditions imposed are not necessary or are disproportionate or most importantly does not understand the conditions being imposed, then they should initially consider speaking to their offender manager or contacting a prison law solicitor for further advice.

What if licence conditions are breached?

Breach of licence conditions will often result in a prisoner’s recall to custody. A licence can be said to have been to have been breached if:-
• A further offence has been alleged to have been committed;
• An offender manager believes that a prisoner’s behavior has deteriorated to such an extent that they are no longer manageable in the community,
• Or there has been a direct breach of the conditions that have been imposed.

The offender manager will consider the case and may in the first instance decide to give the prisoner a warning. However, the ultimate sanction will be that the prisoner’s licence will be revoked and the prisoner will be recalled to custody. This will usually be dependent on the severity of the breach.

How long can you go back to prison for when licence is revoked

The length of time a prisoner will spend in custody following recall will be dependent on the type of recall instigated. A recall can be for a fixed period of 28 days, which is known as a Fixed Term recall. However, many prisoners will find that they have been recalled following a Standard recall. This type of recall can result in the prisoners remaining in custody until their sentence expiry date or until the parole board deems that they are suitable for release.

If a prisoner has been recalled then they are advised to seek legal advice as soon as possible as representations can be made to seek re-release and if re-release is unsuccessful advice and assistance will usually be required to ensure that a prisoner is able to make successful progression through the prison system to secure their re- release at the earliest opportunity.

It is vital prisoners seek legal advice as soon as possible following any recall so that paperwork can be obtained, considered and detailed representations prepared and submitted on behalf of the prisoner outlining why they should be re-released on license once again.

Once the Parole Board are in a position to consider a case they will make a decision based on the papers provided to them including any representations submitted. The Parole Board will then make one of the following decisions:
• Order the prisoner’s immediate release back into the community;
• Make no recommendation for release;
• Direct that the matter be listed for an oral hearing so that oral evidence can be considered before they make one of the two decisions above.

What lessons can be learnt?

Licence conditions can easily be ignored by prisoners but if they are breached there are serious consequences which can ultimately impact upon a prisoner’s liberty, even following release from custody. The purpose of this article is to highlight the importance of knowing what your licence conditions are, if you are going to be released on licence, so that you can seek advice about challenging them if of course appropriate.

If you need any help or advice with any prison law issues please contact Emma Davies at Hine Solicitors. FREEPOST - RSTC-URCY-XYZL, Hine Solicitors, 149-151 Fairview Road, Cheltenham, GL52 2EX.http://www.insidetime.org/articleview.asp?a=1345&c=licence_to_thrill

Solicitor, Shahida Begum examines the delays in 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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