Mr Guittard was an indeterminate public protection prisoner, who was approaching the expiry of his tariff. The Court said that the SSJ had acted unlawfully by refusing to consider the recategorisation and transfer to open conditions, outside of his parole review. The SSJ was also ordered to consider his suitability for a move to open conditions without delay.
The Judge commented that even though the SSJ had accepted that he had the discretion (authority) to consider the transfer of IPP prisoners to open conditions, without a Parole Board review/recommendation, no-one actually knew about this discretion! A change of policy was therefore required.
Following that judgment the Ministry of Justice adopted some informal criteria for considering a move to open conditions outside the usual parole process. In other words, if the Ministry of Justice felt, after reviewing a case, there was merit in a prisoner moving to open conditions this decision could be made administratively, without the need for a hearing.
The criteria were:
1. the parole dossier must contain evidence the prisoner has made significant progress;
2. there must be consensus amongst the reports he/she is suitable and safe for open conditions;
3. there are no areas of concern that would benefit from further exploration at an oral hearing;
4. it is demonstrated in the prisoner’s representations that there are clear benefits to transfer immediately.
The SSJ put in place unpublished departmental guidance titled “ISP Transfer to Open Conditions”. The guidance adopts criteria for “exceptional” progress justifying such a transfer. These criteria have not been tested in Court as to their reasonableness or legality. The question remains whether the criteria adopted are lawful?
Arguably they are not fair criteria for the exercise of the discretion.
The concerns that we have that apply to all Guittard applications include:
(1) Is the unpublished policy consistent with the published policies?
(2) Does the policy adopt an artificially high test and fail to allow proper consideration of the case? The fact that anything may be considered an area of concern is almost inevitably the position when a prisoner is recommended for open conditions by the Board. From experience a failure under this requirement is often cited by the MOJ to refuse an application under Guittard;
(3) Is it logical to set the bar higher than it is for the Parole Board? The Secretary of State refers life sentence and IPP prisoner cases to the Parole Board. Why isn’t an application under Guittard decided on the same factors as those under consideration by the Parole Board?
We are also concerned that some applications are not being properly dealt with by the prison authorities and MOJ; individual cases we have experience of do present further problems which will not apply to all prisoners. A successful application under Guittard will mean that a prisoner will not have to go through the daunting prospect of a parole hearing to get to open conditions. This process, without doubt, saves time, money and Parole Board resources. If a prisoner has an unsuccessful application under Guittard this will not impact upon any subsequent parole hearing. It must be remembered that an application under Guittard and an application to the Parole Board run alongside one another.
A prisoner does not need to use the same solicitors for the parole process as the Guittard process as, although they run alongside one another, they are separate and distinct processes. If you feel your case may warrant an application under the Guittard principles, or you have been refused a transfer to open conditions and wish to know whether you can challenge that in court, please contact Lisa Gianquitto, consultant for Carringtons Solicitors who can provide advice and where necessary obtain counsel’s opinion to assist you.
Co-Authors:Philip Rule, barrister specialising in prison law and criminal law, Castle Chambers
09, Lisa Gianquitto, consultant solicitor for Carringtons Solicitors
09, Lisa Gianquitto, consultant solicitor for Carringtons Solicitors
IPP – SOME QUESTIONS THAT NEED TO BE ASKED
By Simon Burrows – HMP Bullingdon
Habeas Corpus (enshrined in the Magna Carter 800 years ago) is the law that underpins the right to a fair trial in the British legal system. In it basic form it ensures that no one can be held without appearing before a judge / court to ascertain whether a prisoner is guilty or not guilty of a crime.
When a person was given an IPP (Imprisonment for Public Protection), the judge, in his sentencing remarks, would have calculated the tariff (i.e. the minimum length of time that person has to serve before eligible to seek parole) by taking the amount of time they would have been given had he / she been given a determinate sentence and then halving it. So, for example, if the offence the person had pleaded guilty to or been found guilty of would have merited a sentence of 6 years imprisonment, the tariff set under the IPP would be half of that sentence; so 3 years. However, because the judge has determined that the offence would merit 6 years, any amount that the prisoner serves over that length would be manifestly excessive because the person is being held longer than the crime justified.
There has always been the view that someone on IPP is being held partly as punishment for the crime and after that for public protection ‘in case’ they were to commit further crimes on being released. If this is the case, then under the Habeas Corpus Act, (which has never been repealed) all people who are now over twice their tariff (i.e. the full amount that would have been given had they received a determinate sentence) should now be taken back to court and tried for the ‘future offences’ that they have yet to commit. As this cannot be done, then all IPPs being held beyond twice their tariff should be released immediately. What this boils down to is a very old standing principle of Habeas Corpus versus ‘dangerousness’ or the law against opinion.
It could be argued that IPPs are ‘lifers’, in which case can the judicial system honestly say that people with IPPs of 72 days or less than 1 year tariffs have committed crimes that justify them being locked up, possibly, for the rest of their lives? I met one person with a 12 month tariff who is still in prison after 9 ½ years. When he is finally released he will spend the rest of his life on license. If this was the intention of the courts when they were handing out IPPs in the 7 year period before the sentence was amended then why did they not simply use existing legislation that enabled them to impose a life sentence? However, that is precisely what was handed down, only under a different title.
So, again, if the crime committed did not warrant a life sentence then being given an IPP is manifestly excessive. And how can it be argued any other way?
We have ended up with a system whereby anyone who now commits a crime of either similar or greater magnitude will receive a sentence which will be far less than that of a person who committed a similar crime, simply because they committed it between April 2005 and the December 2012. IPPs should be looked at again with a view to changing them to determinate sentences and finally correcting what the law has clearly identified as an unjust sentencing system. The financial savings would be massive as there are approximately 5500 IPPs costing around £192 million per year.
And please can we bear in mind the families of people serving IPPs who also suffer a huge amount.
Insidetime – the National Newspaper for Prisoners and DetaineesFebruary , Issue No. 188, page 7
POST TARIFF? VOTE FOR CHANGE!
Post date 2015 serving IPP prisoner calls for the implementation of Section 128 of LASPO
As a post-tariff IPP prisoner I read with interest a recent article in Inside Time concerning a House of Lords debate relating to the increasing number of IPPs still held well past their individual tariff dates. The debate, on 20th October 2014 centred around the abolition of the IPP sentence via the 2012 LASPO Act (Legal Aid, Sentencing and Punishment of Offenders Act 2012) and how specifically Section 128 of said Act had not been signed off nor implementation by the Justice Secretary. This section, as I understood the article, gave him the power and legal authority in law, since 2012, to amend the much derided and draconian released test then and it is still in place for every IPP prisoner.
For those readers with a determinate release date and other readers generally it has remained extremely difficult for any ‘on tariff’ or ‘post tariff’ IPP prisoners to demonstrate their individual ‘reduced dangerousness’. Why? Because the previous low threshold that was in place in order to give an IPP was and continues to be measured against an extremely biased high release threshold that even someone with the behaviour of Mother Teresa would struggle to meet.
Throughout the debate, various Lords made repeated reference to the fact that the Justice Secretary has consistently avoided any and all meaningful engagement on his refusal to enact Section 128. One can only imagine the huge fiscal cost upon the taxpayer, coupled with the emotional cost on those post tariff prisoners and their families because our Justice Secretary, empowered by Parliament, has ignored Section 128. The Lords, on the side of commonsense and fairness, to their credit, made a concerted and cogent presentation in forensically highlighting Mr Grayling’s failings, aiming to either shame him into correcting his now two-plus years of Ministerial inertia; or allowing the power of Section 128 of the 2012 LASPO Act to flow back to Parliament so that MPs can excise this judicial canker.
Unfortunately the motion was defeated at the voting stage which made me question what else could be done to address this ongoing Kafkaesque nightmare that myself and thousands of other post-tariff prisoners are still living. One needs to step back to try to get some perspective on why our present Justice Secretary has been so intransigent, not only towards Section 128 but also in correcting the iniquity of all those still serving IPP sentences, especially when he himself is on record in 2012 describing the whole IPP format as ‘A stain on the Criminal Justice System’. The man is media savvy, after all who else could sell a riot at HMP Northumberland last year as a ‘minor disturbance’, even though the Inside Time Mailbags reflected a major rather than a minor disturbance.
Yet, for all that, he is an unreconstructed Right Wing stalwart whose thinly veiled capricious nature towards prisons and prisoners is more suited to back-bench posturing rather than front-bench ministerial rank. A view somewhat validated by his ill-judged and pernicious book ban, now ruled illegal by the High Court. Conversely it is easy to extrapolate that our present Justice Secretary’s non-endorsement of Section 128 is because he does not want to sully his image with compassion or anything as bother-some as improving a prisoner’s lot generally; let alone those still tainted and hampered by a sentence he himself voted to annul.
I must say that this article is not intended to be a constant diatribe against our Justice Secretary, but more of an expose of the dichotomy of the man and his public utterances. Moreover I do not want to appear as a proverbial lone voice ‘raging’ against the machine per se; far from it as lone voices count for nothing in prison, and to the minds of the Justice Secretary and his ilk prisons and prisoners do not win votes. Though one could imagine his change of attitude thinking of a 90,000 captive block vote!
The idea of voting does bring me onto the central tenet of my article regarding Section 128 etc. For whilst I cannot vote, my family and friends can. And they read the same Inside Time article and, like me, were ignorant of Section 128’s existence and subsequently were appalled at the inertia of the Justice Secretary in signing it into law. Especially as they have just had to share my latest knockback because I do not meet the present release threshold.
So here is a thought for every prisoner serving this draconian sentence, consider asking your own family, friends, etc to sound out their local MPs regarding both Section 128 and also the ongoing mismanagement of those still subjected to a sentence no longer in existence. Have them ask if he/she will support the activation of Section 128 in the first instance if elected. No support = No vote, it really should be that simple and in a marginal seat (of which there are a few) such votes collectively make a difference. These is an old adage in life that nothing changes if nothing changes.
Our present Justice Secretary, Chris Grayling, has had over 2 years to remove the last vestiges of what he has called this ‘stain on the criminal justice system’; his signature on Section 128 of the 2012 LASPO Act would be a major step in helping to remove this stain. So, again, get your people to vote in the General Election for an MP or party that will finally put an end to this Orwellian construct of a sentence.
One does not notice the passing of days in prison but the years stack up like flotsam at the high tide mark. I received a 14 month tariff that has long passed and, like many others, there is nothing tangible to aim for given the sheer indeterminacy of being an IPP prisoner. Vote for change.
Insidetime – the National Newspaper for Prisoners and Detainees February 2015, Issue No. 188, page 22
MENTAL HEALTHCARE IN PRISON
Know what you’re entitled to and who to contact for help when it’s not given
Polly McConnell & Charlotte Bull (Rethink)
After our article in August’s issue of Inside Time, we had a large number of letters about problems you’ve been having accessing prison healthcare. We also heard from a lot of people who were struggling to get a diagnosis in prison or felt that their mental illness was completely misunderstood by staff.
This is unacceptable and demonstrates the human cost behind the media headlines about prison budget cuts and staff shortages. It is the individual stories that we hear that demonstrate the true impact that bad decisions about the criminal justice system have on people’s lives.
We received a letter from Mark* who has a diagnosis of schizophrenia. Before he was in prison he took antipsychotic medication. In prison he was being seen by healthcare staff, but had not been prescribed medication. He was starting to hearing voices again and his family could his mental health was getting worse hen visiting him. We were able to work with Mark and his family to contact the prison. Eventually he was prescribed medication and his mental health improved. We heard from Mark* that a lot of other inmates were having the same problems as him – evidence of a widespread issue that needs addressing.
With this in mind, we wanted to let you know what your rights are when it comes to healthcare in prison. We think it’s important that you know what you are entitled to and what you can push for.
Everyone has the right to free healthcare in prison and the standard of that care should be the same whether you are on remand or serving a sentence.
You can ask to see a doctor at any time by making a ‘general application’. The sort of help you will get will depend on your needs. If you have less severe mental health problems such as mild or moderate anxiety or depression, the doctor may arrange for therapy or counselling These are known as ‘primary services’.
If you have more complex mental health needs, such as severe depression, severe anxiety disorder, schizophrenia or bipolar disorder, the prison mental health team will probably be involved in your care. They are often called ‘in-reach teams’. They should offer services such as talking therapies, help with self harm and suicidal thoughts, medication and help for carers. In most prisons, a psychiatrist will visit at least once a week.
Some prisoners have severe mental illness that cannot be effectively treated in prison. The Mental Health Act is a series of measures which mean that a prisoner can be moved to hospital for mental health treatment. If you are sentenced, you could be transferred using section 47 of the Act. If you are on remand, section 48 would be used. If your mental health improves in hospital, you could be moved back to prison at any time.
These measures can make sure a prisoner gets the medical care and treatment they need. However, there are still very long delays for a transfer to take place, usually much longer than the 14 days stated in the Mental Health Act Codes of Practice. You should talk to a lawyer if you think that the Mental Health Act may apply to you.
But what can you do when what should happen isn’t happening?
In some places there are advocacy services that help people in prison. Advocates are independent people who can help you to get your views or concerns across. Advocates can be invaluable – they can act as very powerful voice on your behalf and can make all the difference if you are pushing for changes to be made to the way you are cared for. If you are struggling to get the healthcare you need and you can access an advocate, we strongly recommend that you make use of them.
There is also the prison complaints system. We’ve heard from prisoners who feel it’s not worth using, however we would encourage you to use it as much as possible. If there are others in a similar situation to you, you could think about all making complaints – it makes it much harder to ignore. Also think about trying to involve people outside of prison. If you have friends or family members who could write letters and make calls on your behalf, ask them to. You could also write to your local MP and make them aware of the problems that you are facing. Ask him/her if they are willing to get involved. There more people who can push for change the better.
Whilst there is never going to be a quick fix solution to getting better healthcare in prison, a combination of these different tactics can lead to positive results. Tony* received a life sentence and is currently in a secure hospital. He was sentenced to prison, transferred to hospital and diagnosed with schizophrenia. It took a long time to find a medication that worked for him, but with the help of an advocate and support from outside prison he managed to stabilise his mental health condition. He told us that he never felt so well and that he was so glad that he kept pushing for help and care.
The Rethink Mental Illness Advice Service provides practical information and advice to people affected by mental illness and their families at all stages of the criminal justice system.
Rethink Advice and Information Service, FREEPOST RRYH-TZBT-GEHU, 15th Floor, 89 Albert Embankment, London, SE1 7TP.
Tel: 0300 5000 927. We are open 10am to 2pm Monday to Friday.
*Names and some facts have been changed to protect client confidentiality.
Insidetime – the National Newspaper for Prisoners and DetaineesFebruary 2015, Issue No. 188, page 21
FEAR, BRUTALITY AND SECRECY
Sarah Baker looks back at the decades of state sanctioned abuse prisoners have suffered and asks has anything really changed?
I am not surprised that it has taken so long for the historic sexual and physical abuse investigation into Medomsley Detention Centre to take place, though I was overjoyed when 900 men came forward to highlight issues that have been occurring in prisons; detention and youth custody centres ever since they have been in existence. Almost all of the most brutal ‘alleged’ crimes would have taken place in secret, behind closed doors, in isolated segregation units and without any independent witnesses present. I would suggest that any prison staff who were present when the abuse took place are highly unlikely to come forward and give evidence against their colleagues who could in turn implement them in the abuse. I suspect that very little will happen as a result of this new investigation.
Maybe there is a slim chance that a few old scapegoats (usually those who have since died) will be thrown to the wolves, but experience tells me that the POA (Prison Officers Association) will protect its own as it always has done. In the past the POA have protected perpetrators of abuse at all costs and the prison system has a history of never admitting when its staff are at fault, just as it has never admitted that it has always been statistical failure to both its prisoners and society!
With an absence of forensic evidence, I am sure that few, if any, alleged abusers will ever see the inside of a courtroom and be forced to account for any criminal actions. As far as circumstantial evidence is concerned, who would ever believe the word of an ex prisoner / criminal over that of a state-sanctioned turnkey? Unless there are staff whistleblowers or substantial forensic evidence or independent witnesses I can see this being quietly brushed under the carpet.
Whoever coined the phrase ‘Absolute Power Corrupts Absolutely’ could have been describing the thousands of prison officers and their union who have abused their positions over the years. Prisoners have suffered state sanctioned abuse for many decades, though these days they tend to describe it as ‘restraint’. I have been battered by prison staff in segregation units and hospital strip cells on numerous occasions and I invariably found governors, chaplains, doctors and members of the Board of Visitors turned a blind eye to my injuries were either self-inflicted or as a result of having to restrained. It is a well known fact that any member of staff who speaks out about the abuse dished out to prisoners by their colleagues will be ostracised be fellow staff and hamper their chances of further promotion. The British prison system is run on fear, brutality and secrecy.
As a child in youth custody I was mentally scarred by some of the scandalous things that I experienced, heard or witnessed. As male prison officers were hurting thousands of us children this mistreatment would be officially sanctioned by the government who promoted the ‘short sharp shock’, which was nothing short of a child abuser’s charter. It pains me to know that many of the ‘alleged’ abusers are still working in British prisons ad I can well imagine them whingeing to new recruits about how things were better in the ‘good old days’ when prison staff had the power of god over prisoners. I can remember when prison staff were regularly drunk on duty, drinking in their subsidised clubs over lunch break and then coming onto landings staggering, looking for a fight and stinking if alcohol. I remember prison staff wearing Robinson’s Jam golliwog tiepins and/or National Front badges openly, and not shy about calling black prisoners any abusive name you care to imagine. I never saw a black or ethnic minority member of prison staff until the mid to late 1980s. Institutional racism, homophobia and bigotry of every kind imaginable was the norm behind the walls of HMP. And for prisoners, there were no ‘good old days’.
The mentality of many of the ex-military staff who joined the Prison Service in the 1970s and 80s was often frightening. They seemed to have exchanged one institution for another, and brought with them their US and THEM ideology, often seeing prisoners as ‘the enemy’ who needed to be turned into submissive shells of human beings, by any means necessary!
With many officers, even today, working, eating, drinking and sometimes even living together, it is still nigh on impossible to get an officer to turn on a colleague who is corrupt, brutal or even mentally ill for fear of being ostracised by their colleagues. Some may say that I am throwing generalisations around like confetti, but I am speaking from experience and many reading this, those who suffered the brutality of the British penal system, will know that I speak the truth. I have spent years being locked up by so-called ‘officers’ who come to work and leave society’s concepts of right and wrong outside the gates as they try to impose their own warped ideas of middle-class morality on me.
Thankfully the open brutality from prison officers, which was commonplace before the Strangeways riots, is not a rarity. When officers used to give us a ‘hiding’ it was often as a deterrent to other prisoners and was done in full view of them. With more opportunities to report such abuses of power nowadays the staff tend to keep their hands to themselves unless they are overdoing their use of approved ‘control and restraint’ techniques. In the ‘good old days’ prison staff would just have mobbed us in the cell and thrown a mattress over us so as to stop any external bruises showing. However, I suspect that incidents of brutality in our prisons will continue to surface. As prison staff are basically paid to control us this ‘control’ has always been underpinned with the threat of violence on those of us who are unwilling or unable to submit to those in authority.
As the prison system is at present, thousands of us are serving our sentences full of prescribed anti-depressants to help us deal with the trauma brought on by the imprisonment itself. Without the prescription drugs there would be a vast increase in both suicides and self-harm. I predict that it will be only a matter of time before many of us succeed in bringing successful actions against the MoJ for post-traumatic stress disorders that our incarceration has caused. May the day soon come!
Insidetime – the National Newspaper for Prisoners and DetaineesFebruary 2015, Issue No. 188, page 20