“Saria’s Hart last words to prison staff
in a written note were: “I am done not being listened to anymore”. Her words
which were ignored during her last hours be heard now by the government,
parliamentarians and policy makers?
Before HM Senior
Coroner Peter NietoDerby Coroner’s Court 25 September – 3 October 2024
Saria Hart, 26,
died in hospital on 13 October 2019 after ligaturing at HMP Foston Hall nine
days earlier. She had been remanded to custody only seven weeks before. Now an
inquest found that serious failings by prison staff contributed to her death.
Saria was born in
Tamworth, the third of seven children. Her family describe her as a sociable
person with a big heart who loved being around people.
She had a long
history of anxiety, depression and self-harm.
On 14 August 2019,
Saria was arrested. During her arrest, she threatened to self-harm and take her
own life whilst holding a knife. Saria who was subsequently remanded to Foston Hall
on 16 August 2019.
Before Saria
arrived at the prison, the prison was informed that there was a self-harm alert
for Saria. Her medical record, available to the prison, also detailed her
history of self-harm and ligaturing in prison previously, including at HMP
Foston Hall.
Despite this,
following an initial screening and health assessment, no safety plan for
prisoners at risk of suicide or self-harm (known as an ACCT) was put in place.
On 3 October, Saria
was restrained by a number of prison officers following an incident on the wing
in which she was allegedly abusive towards staff.
As a result of
this, she was suspended from her job as a wing cleaner, was placed on a basic
regime losing access to certain privileges, and was placed in segregation
pending an adjudication.
The Custodial
Manager involved in this incident gave evidence at the inquest and stated that
“there was absolutely no need to segregate Saria”.
Later that day,
Saria passed a handwritten note to a prison officer detailing her intent to
take her own life if she lost her job. In response to this note, an ACCT was
put in place which detailed that Saria was to be observed twice an hour by
prison staff.
On 4 October,
during Saria’s ACCT assessment she disclosed that she wanted to die and that
she had plans to end her life and refused to hand over razor blades in her room
to staff. This information was not passed on to staff responsible for reviewing
the assessment and devising a plan to manage Saria’s risk.
At the inquest,
none of the staff conducting the ACCT assessment or review could be sure that
they had seen Saria’s note, which had prompted the opening of the ACCT in the
first place.
No steps were taken
to remove high risk items from Saria’s room, no referral was made to the mental
health team, and her observation level remained at two per hour.
Giving evidence at
the inquest, one member of staff suggested that there was a blasé attitude
towards notes from prisoners “threatening” self-harm or suicide, and that these
notes were not taken as seriously as they should be.
Saria was taken
straight from the review to an adjudication for the altercation which took
place on the previous day. She was found guilty and was further punished,
including by losing 50% of her earnings.
At 3.40pm, Saria
passed a second note to staff expressing her distress and further detailing her
intent to take her own life. No action was taken in relation to this note.
Shortly afterwards,
at 4.45pm, Saria was found ligatured in her cell by the same member of staff
that she had passed her second note to. An emergency ‘Code Blue’ was called and
Saria was taken to Royal Derby Hospital where she passed away nine days later,
on 13 October 2019.
The jury concluded
that Saria died by suicide. They found a number of serious failings by
the prison staff contributed to her death, including that:
All relevant
information / previous history was not available to be considered in the first
ACCT review;
After the
adjudication, no further ACCT case reviews was implemented and no adequate
immediate response was given to Saria’s note;
All previous
self-harm / suicide attempt history attempt history was not considered at the
first ACCT assessment review;
ACCT assessment
interview did not appropriately identify Saria’s triggers and risks.
The jury also
considered that the absence of Saria’s suicide note and ACCT document during
the ACCT review and adjudication on 4 October meant that key information
regarding her mental health and her risks was not considered and missed by
staff.
Karen Brown,
Saria’s mother said:“Saria, our riri, was a bubbly, cheeky girl who loved being
around people. We had our good days and our bad days like any other family, but
she meant so much to all of us. We all miss her dearly and still think about
her every day.
We are still so
hurt and angry that Saria died in circumstances where she was clearly begging
for help and nobody took any notice.
Five years on from
Saria’s passing, the jury has confirmed what we have always known – that more
should have been done to prevent Saria’s death.”
Erica San, of Bhatt
Murphy Solicitors, said: “A number of preventative and risk reducing
measures were available to the prison staff to manage Saria’s risk: a safer
cell with fewer ligature points, constant observations, removal of certain
dangerous items from her cell. Instead, prison staff ignored and dismissed
Saria’s cries for help.
The most recent
HMIP inspection found that the response to women in crisis was ‘too reactive,
uncaring and often punitive’. This was all too clear from the evidence heard at
Saria’s inquest, and there is no evidence that the attitudes of the prison
officers who remain at HMP Foston Hall have changed.”
Selen Cavcav,
Senior Caseworker at INQUEST, said: “Saria’s last words to prison staff in
a written note were: “I am done not being listened to anymore”. Will her words
which were ignored during her last hours be heard now by the government,
parliamentarians and policy makers?
Too many women like
Saria have been ignored, disciplined, segregated and punished instead of being
given the care they need and deserve.
Since Saria’s
death, 38 people have died in women’s prisons in the UK. Yet despite the long
catalogue of failures and warnings from inquests and investigations, we
continue to lock women up to die.
How many more women
need to die before we finally dismantle prisons and redirect resources to
holistic, gender responsive community services?”
For further
information or to note your interest, please contact Leila Hagmannon leilahagmann@inquest.org.uk.Saria’s
family are represented by Inquest Lawyers Group members Erica San of Bhatt
Murphy Solicitors and Matthew Turner of Doughty Street Chambers.
.................................................................................................................................................
Relatives of offenders serving
the now-abolished IPP prison sentence demand a parliamentary investigation into
mental health provision for their loved ones.
Families have called for an inquiry into mental
health provision for offenders languishing on indefinite jail terms - saying it
could "save lives".
Relatives of
offenders still serving a now-abolished open-ended jail term, known as
imprisonment for public protection (IPP), believe resources are so
"starved" that the remaining prisoners now have "life-long
mental health issues".
They have written
to parliament's Justice Select Committee urging it to hold an inquiry now a new
government is power.
In letters to the
committee seen by Sky News, family members directly attribute the deterioration
of their loved ones' mental health to the prison sentence which has no release
date and has been described as a form of "psychological torture" by human rights
experts.
There has been 132 deaths of those given an IPP sentence
Numbers raise
concerns over IPP indefinite jail terms after
deaths .Matthew Price took
his own life while on licence under an imprisonment for public protection (IPP)
sentence 10 years after his release from jail.John Hobson said Mr Price's
mental health "had been adversely affected" by the continuing impact
of the sentence. Coroner raises concern over indefinite jail terms after
man's death - BBC News
Clara White, whose
brother Thomas White has served 12 and a half years in prison for stealing a
mobile phone, told the MPs on the committee - which is yet to be formally set
up following the general election - that her brother now lives with psychosis
as a result of the IPP sentence.
"From the year
2016 Thomas has been displaying religious hallucinations, religious delusions
and unusual ways of thinking," she wrote.
"The prison
environment and long 12-and-a-half-year incarceration is the reason Thomas now
lives with paranoid schizophrenia."
"The purpose of my letter is to ask will you consider
opening an inquiry into mental health provision," she added.
"I am certain this would save lives in custody."
What are IPP
sentences?
IPP sentences were
a type of sentence the courts could impose from 2005 until they were abolished
in 2012.
They were intended
for serious violent and sexual offenders who posed a significant risk of
serious harm to the public but whose crimes did not warrant a life term.
Although the
government's stated aim was public protection, concerns quickly grew that IPP
sentences were being applied too broadly and catching more minor offenders,
who often ended up serving years beyond their initial term.
The coalition
government scrapped the sentence in 2012, but the change was not applied
retrospectively, meaning nearly 3,000 prisoners remain behind bars - including
about 1,200 who have never been released.
To date, 90 people
serving IPP sentences have taken their own lives in prison.
In light of the
overcrowding crisis that has engulfed UK prisons, the Ministry of Justice is
under pressure from campaigners to consider a resentencing exercise for IPP
prisoners, which could result in them being given a release date for the first
time.
IPP has destroyed
us as a family'
Cherrie Nichol's
brother Aaron Graham was 26 years old when he was sentenced to two years and
124 days for committing grievous bodily harm in 2005. He remains in prison 18
years later.
In her letter to
the committee, Ms Nichol said her brother was now a "shadow of his former
self" and had suffered "catastrophic" mental health problems as
a result of his IPP sentence.
"Not knowing
where his life is going and when he may be released has painfully destroyed him
and us as a family," she wrote.
She said she did
not believe the prison service has been "properly equipped to deal with
the backlash of the abolished IPP", leaving many "languishing with no
hope and no future and professionals coming and going and not being able to
make decisions".
"We are
desperate as family members and campaigners to really push for you to
acknowledge the mental health issues caused by the IPP," she added.
Prisoners 'must not
be forgotten'
In a recent
interview with Sky News, Andy Slaughter, the chair-elect of the Justice Select
Committee, warned that remaining IPP prisoners must not be
"forgotten" by the government.
The Labour MP for
Hammersmith and Chiswick and former solicitor said it had been over a decade
since IPPs were repealed "but we still have this situation where over
1,000 people have never been released from prison".
"Everyone
admits this is wrong, everyone thinks a solution should be found for serving
prisoners, but there is this fear that resentencing will include dangerous
people," he said.
Mr Slaughter said a
resentencing exercise - which was also demanded by Bob Neill, the former
Conservative chair of the justice committee - "would allow each individual
case to be assessed in a transparent and professional way.
"It means that
it's not a quick and dirty solution, it's a proper solution that might take up
to two years to implement.
"Wholesale
change like resentencing is for the government to make a decision on - but
these are forgotten people in prison and I hope it is something that will be
high up the agenda."
A Ministry of
Justice spokesperson said: "It is right that IPP sentences were abolished.
We are significantly shortening licence periods for rehabilitated offenders to
give them the chance to move on with their lives.
"With public
protection as the number one priority, the lord chancellor is working with
organisations and campaign groups to ensure appropriate action is taken to
support those still serving these sentences."
Anyone feeling
emotionally distressed or suicidal can call Samaritans for help on 116 123 or
email jo@samaritans.org in the
UK. In the US, call the Samaritans branch in your area or 1 (800) 273-TALK.
...............................................................................................................................................
6th October 2024
Britain’s first IPP prisoner “lost” and fears he will never be be released.
Nicholas
Bidar was left broken and “humiliated” when a Parole Board panel
refused to recommend his release or move to open conditions earlier this year.
The 36-year-old was handed a IPP SENTENCE and to do an eight-year minimum aged just 20 in 2008.
But 16 years later, he is still being held in a Category A prison
with no
release date.
To raise awareness of his plight, he applied to be the first IPP
prisoner to have his parole hearing held in public after new laws came
into force to increase transparency around parole decisions.
head of the landmark hearing in
March.
Mr Bidar told The Independent how
the reality of his uncertain sentence has impacted him, adding: “Every day
feels like torture. I struggle daily to get through the day.”
He insisted his status has left
him a “political prisoner” after a 2021 parole review had recommended him for
progression to open conditions, but this was blocked by the secretary of state
for justice, who refused to downgrade him.
In their latest refusal, the
Parole Board admitted his Category A status was “interfering” with his progress
in prison and urgently called for this to be reviewed. But six months later, no
such review has taken place.
Now his family says he has
completely lost the person he was and he is losing hope of ever being freed
from maximum security HMP Long Lartin in Worcestershire.
“He has taken a massive step
back,” a family spokesperson told The Independent, adding there has been
“no progress” regarding his
categorisation.
“He’s gone from a state of
thinking, ‘I am going to be home at some point’, and now he says he’s never
coming home. It’s not happening. That’s his mindset – no one is going to help.
“He called us the other day, we
had a prison video call. He just said what is the point in my waking up anymore.
“It’s so difficult to hear that.
“It’s so difficult when he’s
seeing people walk out of the door. Some of these people have committed sexual
crimes or potentially murdered someone, and he’s there for a crime he committed
when he was 20.”
IPP jail terms were introduced
under New Labour in 2005 and saw offenders given a minimum tariff but no
maximum. They were scrapped in 2012 amid human rights concerns, but not for
those already detained.
Of 2,734 remaining IPP prisoners
with no release date, more than 700 have served more than 10 years longer than
their minimum tariff.
Know fault of their own.
The government is facing growing
pressure to resentence them after at least 132 inmates have taken their own
lives under the jail term, which has been branded “psychological torture” by
the UN.
But he insisted he had completed
his sentence plan and told the parole board members: “I’m not that person
anymore.”
Mr Bidar’s family fears that
without hope of being released, he will only decline in prison. They also
backed a private members bill tabled last month for all outstanding IPP
prisoners to be resentenced.
“If he stays in until he’s 40 or
45 things are not going to get better,” they added. “He’s not going to learn
any more lessons.
“He’s just going to deteriorate.
Keeping him in now doesn’t achieve anything.
It’s causing IPP prisoners like
him mental health problems.”
The family said conditions inside
the maximum-security prison were squalid – with Mr Bidar spending 23 hours a
day in a cell with only a bucket to use as a toilet. A recent water
contamination issue left him vomiting into the same bucket for weeks, they added.
“What he did was a long time
ago,” they said. “He was a young, stupid kid. But he just made the wrong choice
and I just think he needs one chance.”
A Ministry of Justice
spokesperson said: “It is right that IPP sentences were abolished. We are
significantly shortening licence periods for some rehabilitated offenders and
supporting those still serving these sentences.
HOWARD LEAGUE ARGUE THERE NOT GETTING THE SUPPORT
Sentence planning and progression
Sentence plans should form the basis of how time in prison is spent,
comprising (of) a bespoke set of goals tailored to a prisoner’s rehabilitative
needs. A well-designed plan will incrementally reduce risk so that the subject
is released back into society in a better position than when they arrived in
prison. Yet with staffing shortages, overcrowding, and excessive time spent in
cells, these plans are often lacking in detail, or absent
altogether.
Without a sentence plan, rehabilitative work fails to happen, and time
is wasted. Yet even those with sentence plans can struggle, particularly if
they are directed to complete courses which are not available at their
prison.
1.“Having been incarcerated four-plus years, I still have not received a
final sentence plan. My last meeting with a Probation Offender Manager was
November 2023, unannounced, no file evident in their presence and no knowledge
what I have achieved.” – Christian
2.“The panel at my 2023 hearing directed me to complete a ‘domestic
violence’ course. However, all establishments that I had been referred to have
rejected my case due to not suitable or don’t fit the criteria. Due to this I
am back to square one and as of 2024, I have not been accepted…Lack of courses
available and a huge lack of efficiency.” – Mohammed / Mumdy
3.“Lack of progression to category C conditions due to population pressure
and therefore access to courses, and ultimately category D, followed by
potential knock back at parole. Whilst I have only been at Cat C for seven
months, some have been waiting 18 to 36 months for a move.” – Dan
4“Let prisoners take their programs earlier on in their sentence so they
can progress, freeing up spaces in closed prisons for more deserving prisoners.
Also expand the amount of classes per year. At Swinfen Hall most of the
programs run once a year. There is no way everyone will do their program here
before they get released.” – Anonymous
Bureaucracy
The issues with sentence planning touch upon some of the wider
bureaucratic issues faced by people in prison. The archaic paper-based systems
in place were highlighted frequently in the responses that we received, which
are felt to erode trust and accountability.
5.“Since coming here, it took almost 2 years before I saw an Offender
Manager…My last jail you had a sentence plan meeting each year and had regular
contact with OMU.
A better communication would work well here. Easier Complaint
procedures and more openness on issues when dealt with.” – Brian
4.“All applications and complaints should be at least “Duplicate”. Video
cameras should be worn by all staff on landings at the first sign of an
altercation, turned on. Failure to do so should be punished. Real
accountability. Not just platitudes and inaction as well get rid of
obfuscation.” – Alphonso
5.“Make report writers accountable for misleading information, compelling
them to be clear, accurate, and tell the truth.” – Simon
6.“Poor internal communication, the intranet is used only a fraction of
what it could be used for…Open up technology access.” – Stephen
Staff
7.Good staff can be the difference between a productive prison and a
chaotic, pernicious custodial environment. But members wrote to us about staff
shortages, high turnover and inexperience on the landings.
8.“Prisons all appear to be short staffed and many staff are new with no
real life experience, they know nothing about our sentences and seem to think
issuing written warnings or adjudications is how to deal with minor issues.
Regime activities get cancelled last minute and we never know what our day will
be. It’s very frustrating and causes behaviour problems.” – James / Honest
Irish
9.“There is never money for anything, consistent high turnover of staff,
the use of teenagers straight from college as officers with little or no life
experiences. The lack of investment over decades, the increase of prisoner
population and lengths of sentences and the lack of rehabilitation has created
a prison system which is broken.” – Tahir
10“In all prisons we are hearing of prison staff shortage. In some places
it is blatantly seen that staff are changing routinely shifts and openly
abusing the system…prison officers tend to lock prisoners down during
association times, evening and at disrupting prisoners free time.” – George
11“Even here at a relatively relaxed prison with little of the drugs and
violence of other establishments, insufficient staff, lack of purposeful
activity and no rehabilitative culture leads to a community that results in a
mainly apathetic and cynical population – not a preparation for a positive
crime-free life on release.” – Bruce
Cost of living
Like those outside prison, people living in prison have been hit by the
cost-of-living crisis. Wages are low and inconsistent, and the provisions of
food and phone credit are limited. Issues like these have an immediate effect
on prison life, but also lead to debt, bullying, and further crime. At the same
time, members have noticed that some services in prison have been affected by
funding pressures.
“[L]ow wages, rising canteen prices and declining food variety and
quality impact prisoners’ daily lives.” – Bruce
“Prison wages is obviously a main point for everybody. Prisoners in debt
a big issue nationwide … DHL have the monopoly with their ‘canteen’ prices. Way
too expensive and lots of price increases and the prisoners wage stays the
same.” – Matthew
“Not being paid a decent wage, its slave labour and a job done in prison
made me £2 per day making settees chairs for council packs…This creates debt
bullying, self harm, depression, and I personally turned to drugs…Value
prisoners who work, give 75% wage to victims of crime (Charities) and 10% in
prisoner savings for release and 15% to spend in prison, pay us hourly wages
even 5 an hour, what a change this would make as victims deserve it, and
prisoners also deserve an average wage for work.” – Steven.
Our next blogpost will look at members’ observations on issues in the
wider criminal justice system, beyond prisons.
Charlie Poyser says: 27/24. I really don’t need to add anything to what’s already been said in this
blog post. Having been released in July, I can recognise all these comments as
a realistic appraisal of the state of the prison estate.
The Howard League | What the government should be focusing
on, according to Howard League members in prison
......................................................................................................................................................
12 August 2024
IPP prisoner. Alexander McColl
and Alexa Thompson succeed in quashing Parole Board failure to hold an oral
hearing
Mr Taylor was a
recalled IPP prisoner who sought re-release and applied for an oral hearing
before the Parole Board in order to present his case. On 29th June 2023,
the Parole Board decided on the papers that there should be no direction for
re-release and that an oral hearing could not be convened due to there being
outstanding risk reduction work to be completed. Further submissions were made
on behalf of the Claimant as to why the case should proceed to an oral hearing.
In a further decision on 4th July 2023 an oral hearing was again refused,
this time on the basis that the Claimant’s representations raised no new
matters that had not already been taken into account in the original decision
and there were therefore no grounds for overturning that decision.
The Claimant
challenged the decisions by judicial review, arguing that:
The refusal to
convene an oral hearing was procedurally unfair;
The Defendant
failed to give adequate reasons for its decision; and
In its second
decision, the Defendant erroneously treated the application for an oral hearing
as a review of the original decision, rather than focusing on whether an oral
hearing should take place.
Recorder Wright KC,
sitting as a Deputy High Court Judge, applying the Osborn principles,
found that procedural fairness required an oral hearing in order to facilitate
an effective assessment of risk. An oral hearing would have given the Claimant
the opportunity to demonstrate his ability to comply with licence conditions,
particularly as he had spent several years on licence in the community since
his initial release. An oral hearing would have also facilitated a better
assessment of risk, particularly in view of an absence of evidence from a
Prison Offender Manager.
On the second
ground, it was held that the reasoning of the Parole Board in the first
decision failed to provide sufficient detail to enable the Claimant to
understand why the decision to deny him an oral hearing had been made. The
second decision similarly was found to contain inadequate reasoning as ‘[t]hey
did not engage in any meaningful sense with the arguments that had been
raised’.
Finally, it was
decided that the Parole Board in its second decision erred in its approach by
approaching its task as a review of the first decision, rather than focusing on
the question of whether fairness required an oral hearing. The High Court
quashed the decisions of the Parole Board and directed that an oral hearing
should take place.
Alexander McColl drafted
the Detailed Statement of Grounds and Claimant’s Skeleton Argument. Alexa Thompson conducted
the substantive hearing in the High Court. Instructed by Matthew Bellusci of
Duncan Lewis Solicitors.has established a prison
law practice. She regularly represents prisoners before the Parole Board in
applications for release and moves to open conditions on behalf of lifers, IPP,
and determinate sentence prisoners. She also has experience of public law
challenges and recently appeared before the High Court in a successful judicial
review concerning the Parole Board’s failure to convene an oral hearing
in R
(Taylor) v Parole Board and Secretary of State for Justice [2024] EWHC
1363 (Admin).
The judgment of the High Court can be found here.
B e f
o r e :
Richard Wright KC
Sitting as a Deputy Judge of the High Court
____________________
Between:
|
The King (On the Application of Ezekel Taylor)
|
Claimant
|
|
- and -
|
|
|
The Parole Board for England and Wales
|
Defendant
|
|
- and -
|
|
|
Secretary of State for Justice
|
Interested Party
|
____________________
Alexa Thompson
(instructed by Duncan Lewis Solicitors) for the Claimant
The Defendant and Interested Party did not attend and were not represented
Hearing date: 30th May 2024
____________________
HTML VERSION OF APPROVED JUDGMENT
____________________
Richard Wright KC:
The Claimant Ezekel Taylor is a recalled IPP
prisoner. He challenges the decisions of the Parole Board taken on 19th June
2023 and 4th July 2023 refusing to grant him an oral hearing. The decision
that there should be no oral hearing became final on 25th July 2023. I
granted permission to bring this claim on 12th April 2024. The other
parties have remained neutral and taken no active part in the proceedings.
The Facts
On 25th June 2007, the Claimant was
made the subject of a sentence of Imprisonment for Public Protection. The
sentence comprised a custodial term of 5 years and 185 days for offences of
wounding with intent and possession of a firearm. He was on the same occasion
sentenced to an extended sentence of 12 months' imprisonment with a 12-month
extended licence for an offence of affray, and further concurrent sentence of 4
months imprisonment in respect of an offence related to the possession of
drugs.
The Claimant's tariff expired on 27th December
2012 and he was released on licence on 16th January 2018. He remained on
licence until 5th September 2022 until he was recalled to custody having
been charged with new offences of intentional strangulation and assault by
beating. The Claimant was in due course convicted of those new offences and
sentenced to 9 months imprisonment on 5 May 2023. His conditional release date
from that new sentence was the 18th September 2023.
Section 32 of the Crime (Sentences) Act 1997
gives the Defendant power to direct the release of recalled prisoners. In
accordance with that provision and following the expiry of the custodial
element of his new sentence on the 15th September 2022 the Interested Party
referred the Claimant to the Defendant via the Public Protection Casework
Section.
On 16th June 2023 a written application for
an oral hearing was submitted to the Defendant on behalf of the Claimant by his
solicitors. On 19th June 2023 the Defendant determined that there should be no
direction for release in the Claimant's case. That decision was made on the
papers without an oral hearing. The Defendant provided the following written
explanation for its decision not to hold an oral hearing in the Claimant's
case:
"In making this decision the panel has considered this case against
the principles set out in the case of Osborn, Booth & Reilly [2013] UKSC 61 concerning oral
hearings.
The panel does not find that there are any reasons for an oral hearing.
However, if it is believed that this case should proceed to an oral hearing,
further representations should be submitted to the Parole Board within 28 days
of receipt of this decision outlining why it should proceed to a hearing."
The decision went on:
"An oral hearing cannot be justified in the absence of
offence-focussed work to address the areas of risk that arise out of the new
conviction."
On 19th June 2023 the Claimant's solicitors
made written representations as to why his case should proceed to an oral
hearing. On 4th July the Defendant refused the Claimants request for an oral
hearing in these terms:
"The MCA Duty Member saw a dossier of 236 pages including a 'no
release' decision by an MCA member dated 19 June 2023. The dossier includes
legal representations dated 16 June 2023 which were considered by the MCA
member in reaching their decision.
Further representations dated 19 June 2023 have now been made. The MCA
duty Member has carefully considered those further representations and
concluded that they do not raise any issues which were not included in the
representations in the dossier dated 16 June 2023 and which were taken into
account in making the 'no release' decision. The MCA Duty Member therefore does
not find any grounds for overturning the 'no release' decision." [HB/271]
No application for reconsideration was
submitted by the Claimant and in accordance with the Parole Board Rules 2019,
and in particular with Rule 20(6)(a), the decision of the Defendant became
final on 25 July 2023.
The Claim
The Claimant advances three grounds of
challenge to the decision of the Defendant, these were helpfully set out in the
focused skeleton argument prepared by Alexander McColl and ably amplified
during the hearing by Miss Thompson.
Ground One is that the Defendant's refusal
on 19 June 2023 and 4 July 2023 to grant the Claimant an oral hearing before
refusing his application for release was procedurally unfair contrary to the
Claimant's:
(i) common law rights; and
(ii) his rights under Article 5(4) of the European Convention on Human
Rights ('ECHR');
Ground Two is that the Defendant, on 19 June
2023 and 4 July 2023, unlawfully failed to give any or any adequate reasons for
its decision to refuse the Claimant's application for release without an oral
hearing;
Ground Three is that the Defendant's refusal
on 4 July 2023 to grant the Claimant an oral hearing was procedurally unfair
and/or irrational in that it erroneously treated the application for an oral
hearing as a review of the 19 June 2023 decision, where it should have assessed
the necessity of an oral hearing.
Although the Claim relates to two decisions
(those of 19th June and 4th July, becoming final on 25th July), I treat the
Claim as being in effect against one overall decision taken by the Defendant,
namely, to direct 'no release' without convening an oral hearing.
The Law
In R (Osborn) v The Parole Board [2013] UKSC 61the Supreme Court reviewed the
relevant principles to be applied in relation to oral hearings. Lord Reed gave
the following general guidance at Paragraph 2 of his Judgement:
2. It may be helpful to summarise at the outset the conclusions which I
have reached.
i) In order to comply with common law standards of procedural fairness,
the board should hold an oral hearing before determining an application for
release, or for a transfer to open conditions, whenever fairness to the
prisoner requires such a hearing in the light of the facts of the case and the
importance of what is at stake. By doing so the board will also fulfil its duty
under section 6(1) of the Human Rights Act 1998 to act compatibly with article
5(4) of the European Convention for the Protection of Human Rights and
Fundamental Freedoms, in circumstances where that article is engaged.
ii) It is impossible to define exhaustively the circumstances in which
an oral hearing will be necessary, but such circumstances will often include
the following:
a) Where facts which appear to the board to be important are in dispute,
or where a significant explanation or mitigation is advanced which needs to be
heard orally in order fairly to determine its credibility. The board should
guard against any tendency to underestimate the importance of issues of fact
which may be disputed or open to explanation or mitigation.
b) Where the board cannot otherwise properly or fairly make an
independent assessment of risk, or of the means by which it should be managed
and addressed. That is likely to be the position in cases where such an
assessment may depend upon the view formed by the board (including its members
with expertise in psychology or psychiatry) of characteristics of the prisoner
which can best be judged by seeing or questioning him in person, or where a
psychological assessment produced by the Ministry of Justice is disputed on
tenable grounds, or where the board may be materially assisted by hearing
evidence, for example from a psychologist or psychiatrist. Cases concerning
prisoners who have spent many years in custody are likely to fall into the
first of these categories.
c) Where it is maintained on tenable grounds that a face to face
encounter with the board, or the questioning of those who have dealt with the
prisoner, is necessary in order to enable him or his representatives to put
their case effectively or to test the views of those who have dealt with him.
d) Where, in the light of the representations made by or on behalf of
the prisoner, it would be unfair for a "paper" decision made by a
single member panel of the board to become final without allowing an oral
hearing: for example, if the representations raise issues which place in
serious question anything in the paper decision which may in practice have a
significant impact on the prisoner's future management in prison or on future
reviews.
iii) In order to act fairly, the board should consider whether its
independent assessment of risk, and of the means by which it should be managed
and addressed, may benefit from the closer examination which an oral hearing
can provide.
iv) The board should also bear in mind that the purpose of holding an
oral hearing is not only to assist it in its decision-making, but also to
reflect the prisoner's legitimate interest in being able to participate in a
decision with important implications for him, where he has something useful to
contribute.
v) The question whether fairness requires a prisoner to be given an oral
hearing is different from the question whether he has a particular likelihood
of being released or transferred to open conditions and cannot be answered by
assessing that likelihood.
vi) When dealing with cases concerning recalled prisoners, the board
should bear in mind that the prisoner has been deprived of his freedom, albeit
conditional. When dealing with cases concerning post-tariff indeterminate
sentence prisoners, it should scrutinise ever more anxiously whether the level
of risk is unacceptable, the longer the time the prisoner has spent in prison
following the expiry of his tariff.
vii) The board must be, and appear to be, independent and impartial. It
should not be predisposed to favour the official account of events, or official
assessments of risk, over the case advanced by the prisoner.
viii) The board should guard against any temptation to refuse oral
hearings as a means of saving time, trouble and expense.
ix) The board's decision, for the purposes of this guidance, is not
confined to its determination of whether or not to recommend the prisoner's
release or transfer to open conditions, but includes any other aspects of its
decision (such as comments or advice in relation to the prisoner's treatment
needs or the offending behaviour work which is required) which will in practice
have a significant impact on his management in prison or on future reviews.
x) "Paper" decisions made by single member panels of the board
are provisional. The right of the prisoner to request an oral hearing is not
correctly characterised as a right of appeal. In order to justify the holding
of an oral hearing, the prisoner does not have to demonstrate that the paper
decision was wrong, or even that it may have been wrong: what he has to
persuade the board is that an oral hearing is appropriate.
xi) In applying this guidance, it will be prudent for the board to allow
an oral hearing if it is in doubt whether to do so or not.
xii) The common law duty to act fairly, as it applies in this context,
is influenced by the requirements of article 5(4) as interpreted by the
European Court of Human Rights. Compliance with the common law duty should
result in compliance also with the requirements of article 5(4) in relation to
procedural fairness.
xiii) A breach of the requirements of procedural fairness under article
5(4) will not normally result in an award of damages under section 8 of the
Human Rights Act unless the prisoner has suffered a consequent deprivation of
liberty.
In the course of her submissions before me
Miss Thompson referred to the decisions of the Administrative Court in R
(Stubbs) v The Parole Board [2021] EWHC 605 (Admin), R (Dich and Murphy)
v The Parole Board [2023] EWHC 945 (Admin) and R (Garmson)
v The Parole Board [2024] EWHC 1106 (Admin). Each of those
cases exemplifies the application of the Osborn principles to the individual
facts of each case. These are all necessarily fact specific decisions and no
point of general principle can be derived from them.
As regards the duty upon the Defendant to
give reasons for its decision the obligation was clearly articulated by Lord
Brown of Eaton-Under-Heywood in South Buckinghamshire District Council v Porter
(No 2) [2004] 1 WLR 1953, at para 36:
"The reasons for a decision must be intelligible and they must be
adequate. They must enable the reader to understand why the matter was decided
as it was and what conclusions were reached on the "principal important
controversial issues", disclosing how any issue of law or fact was
resolved. Reasons can be briefly stated, the degree of particularity required
depending entirely on the nature of the issues falling for decision. The
reasoning must not give rise to a substantial doubt as to whether the decision-maker
erred in law, for example by misunderstanding some relevant policy or some
other important matter or by failing to reach a rational decision on relevant
ground."
Submissions
Ground One – Procedural Unfairness
As to the first Ground Miss Thompson
submitted that fairness to the Claimant dictated that his case required an oral
hearing. She amplified that broad statement by reference to six factors:
(i) That there was a clear dispute arising from the Risk Management Plan
as to whether the Claimant's risk could be adequately managed in thecommunity.
(ii) The Claimant's Community Offender Manager had concluded that he had
a demonstrable ability to comply with a further period of licence conditions. A
face-to-face hearing would have enabled the Claimant to put his case
effectively and demonstrate his ability to comply.
(iii) The Claimant had not been allocated a Prison Offender Manager
during his recall to custody. The Defendant was therefore in possession of
incomplete information and that could be rectified at an oral hearing.
(iv) The Claimant had previously demonstrated an ability to comply with
licence conditions between 2017 and 2021.
(v) Without a further opportunity to consider whether he could again
comply at an oral hearing no fair conclusion could be reached in this regard.
(vi) The Claimant had indicated an intention to appeal against his
conviction for the offence that had resulted in his recall. The Defendant could
not proceed on the basis that there was a reasonable prospect of the appeal
being allowed but equally it was wrong to treat his denial as false absent an
oral hearing.
In support of this final proposition Miss
Thompson relied upon the observation by Lord Bingham in R (Oyston) [2000] EWCA Crim 3552 that:
"In almost any case the Board would be quite wrong to treat the
prisoner's denial as irrelevant, but also quite wrong to treat a prisoner's
denial as necessarily conclusive against the grant of parole."
Miss Thompson submitted that the only reason
given for refusing an oral hearing, namely that 'An oral hearing cannot be
justified in the absence of offence-focussed work to address the areas of risk
that arise out of the new conviction' simply could not be sustained if fairly
balanced against the six factors that she had advanced in favour of such a
hearing. She submitted that fairness dictated that the Claimant should have an
opportunity at an oral hearing to demonstrate that such risk reduction work
could be carried out in the community.
Ground Two – Duty to Give Reasons
Miss Thompson submitted that the reasons
that were given in the 19th June decision were in the form of standard wording
drawn from the Defendant's Member Assessment Guidance from October 2022 and in
particular from Paragraph 6.9 of that Guidance:
It is strongly recommended that the standard form of words is used to
refer to the judgment in each case. This is because the text is comprehensive
and is based on legal advice and is, therefore, less open to challenge. It is
easy to insert this prepared standard wording in the paper decision template,
saving the member time in paraphrasing.
The panel has considered the principles set out in the case of Osborn,
Booth and Reilly (2013) UKSC 61 concerning oral
hearings. It has not found that there are any reasons to hold an oral
hearing. [but note whether any representations have been submitted].
Therefore, this case is not being directed to an oral hearing.
Although the following Paragraph of the
Guidance provides (Paragraph 6.10) that 'This wording should be expanded to
suit particular circumstances', there was no expansion in the Claimant's case.
It was submitted to me that it was necessary to give expanded reasons in a case
where the Claimant had requested an oral hearing and set out reasons for doing
so. It was argued that absent further reasons the Claimant could not engage
with the Defendant's application of the Osborn factors in his own case. Finally,
it was said that the Defendant's own Guidance envisaged that further reasons
should be given in a case such as this one.
As regards the decision of the 4th July it
was submitted that these merely parrot the earlier decision. Moreover, they
reject the submissions made in writing on behalf of the Claimant without
setting out any reasoning for doing so. Thus, it was argued these reasons were
themselves deficient.
In support of this ground Miss Thompson
submitted that the 4th July decision was irrational in that it failed to apply
the correct test, namely whether fairness required there to be an oral hearing.
In a linked point it was argued that 4th July assessment was approached as if
it were merely review of the 19th June decision.
This approach runs contrary to the decision is Osborn, and in particular
Paragraph 95 of the Judgement:
95. The unfairness which results from the board's treatment of the
request for an oral hearing as an appeal is illustrated by the case of the
appellant Booth, in which the ICM assessor identified the critical question as
being "whether the grounds of the appeal are justified and if an oral
hearing would make any material difference to the paper decision". The
request for an oral hearing was thus, decided on the basis that the earlier
decision was presumptively correct. This is to put the cart before the horse.
If fairness requires an oral hearing, then a decision arrived at without such a
hearing is unfair and cannot stand. The question whether an oral hearing is
required cannot therefore be decided on the basis of a presumption that a
decision taken without such a hearing is correct.
Decision
Ground One – Procedural Unfairness
As the Supreme Court made clear at Paragraph
65 of its Judgement in Osborn it is for this Court to determine for itself
whether or not it considers that a fair approach was followed by the Defendant:
"[the Court's] function [when considering whether a fair procedure
was followed by a decision-making body such as the Parole Board] is not merely
to review the reasonableness of the decision-maker's judgment of what fairness
required.".
I have examined that question applying the
general principles that were set out in Paragraph 2 of the Judgement in that
case.
In doing so I have come to the clear
conclusion that procedural fairness in this case required there to have been an
oral hearing. The Claimant had previously been released from his sentence on
licence and his risk had, for several years been successfully managed in the
community. An oral hearing would have afforded the Claimant an opportunity to
demonstrate that he could once again be successfully managed in the community
and that he was capable of complying with licence conditions. An oral hearing
would also have enabled the views of the Claimant's manager to have been
explored and tested. It is of course not the role of the Defendant to punish an
offender but rather to consider whether the risk that he may pose might be
managed on release in the community. An oral hearing would in my Judgement have
better enabled that assessment to take place, particularly in the light of the
absence of evidence from a Prison Offender Manager.
For all of these reasons and finding that
all of the arguments advanced by Miss Thompson (See Paragraph 17 above) in
favour of fairness requiring an oral hearing were equally well made out, I am
satisfied that the Claim succeeds in respect of Ground One.
Ground Two – Duty to Give Reasons
Through his solicitors the Claimant had set
out in writing on 16th June a number of cogent reasons why he argued an oral
hearing should take place. Following the decision on the 19th June further
detailed written submissions were provided on his behalf. In my Judgement the
reasons provided by the Defendant, both on the 19th June and the 4th July were
wholly inadequate. Whilst the Defendant was not obliged to accept the arguments
that had been advanced in writing it was at least required to demonstrate its engagement
with them at some stage of its decision making.
The written reasons given on 19th June
adopted the standard wording from the Defendant's own guidance, but that
standard wording did no more than set out the test that had to be applied.
There was no expansion of the reasoning that would have enabled the Claimant to
understand (See Paragraph 16 above) 'why the matter was decided as it was and
what conclusions were reached on the "principal important controversial
issues", disclosing how any issue of law or fact was resolved'.
The reasons given for the 4th July
decision were in my judgement similarly inadequate. They did not engage in any
meaningful sense with the arguments that had been raised in writing, either on
16th June or following the 19th June decision. It follows that when viewed as a
whole the decision that became final on 25th July was one in respect of which
the Defendant had failed to provide adequate reasons at any stage.
Ground Three – 4th July Decision Procedurally unfair / Irrational
It is clear to me that the criticism of the
4th July decision made by Miss Thompson is properly made out on the facts of
this case. The principal matter for consideration was whether fairness to the
Claimant dictated that there should be an oral hearing and yet that did not
feature in the decision that was communicated to the Claimant. Rather it is
clear to me that the decision maker fell into the error identified at Paragraph
95 in Osborn (above) and approached the review of the 19th June
decision on the presumption that it was correct and had not been displaced.
That was to fall into procedural error and arrive at an irrational decision.
This approach to also had the effect of compounding the unfairness that arose
from the failure to give adequate reasons for the original 19th June decision.
Conclusion
For the reasons that I have set out above I
quash the decisions of the Parole Board of 19th June and 4th July (which became
final on 25th July) directing no release without an oral hearing. I direct that
there is to be an oral hearing before the Parole Board.BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2024/1363.html
October 2024
More calls for
action from our members in prison
Last week, we
shared the thoughts of
our members in prison on the day-to-day issues behind bars that the government
ought to focus on.
This blogpost looks
at what their responses tell us about wider issues, including the work of the
probation service, maintaining family ties, and sentencing, particularly
sentences of imprisonment for public protection (IPP).
It closes with some
reflections on the need for reform of the entire criminal justice system.
Probation
When we canvassed
our members in prison earlier this year, we received more complaints about the
probation service than observations on any other topic. And this was before the
announcement of the SDS40 early release scheme, which has added to probation caseloads.
Members offered some suggestions for how the service could be improved.
“My Probation
Offender Manager has a caseload of 80. That is unsustainable. I have spent my
sentence trying to engage with my sentence plan and Offender Manager only to be
ignored and rebuffed because I’m not in my release window.” – Simon
“(Probation) are
too risk averse and restrictive: this being at fear of reprisals for themselves
instead of focus on victims and prisoners. This often causes log jams in the
system. Although they are very busy they ignore prisoner communications and
regularly cancel appointments.” – Darren
“To deliver a
better service to the whole community, the focus should be on reducing
re-offending, through improved probation & rehabilitation … Meaningful
education & training so that those released can earn a living and most
importantly, effective support from a well-resourced probation service to
deliver quality resettlement provision and re-integration into the community,
which would protect the general public better and be seen to be a good use of
public funds.” – Bruce
“A major uplift in
probation recruitment and retention. This would probably mean more funding,
i.e. to increase wages.” – Charlie
“A large percentage
of people in prison have been recalled by Probation without following the rules
as laid down by a parole board I faced. Any one, or all 4 to be followed. 1. A
verbal warning. 2. A written warning. 3. A final written warning. 4. A last-chance-saloon
type of interview with the probation officer and Head of Probation Services.
Probation regularly skip these options, and they get away with it.” – John
Family
Many members wrote
to us about the importance of maintaining family ties, which can help to
prevent reoffending.
Despite a
government policy in
support of increasing family contact, prisoners are often left wanting. Many
are in prisons many miles from their families, making visits difficult and
often prohibitively expensive.
“Focus more on the
maintaining of prisoners’ family ties instead of sending people 3+ hours way
from their children!” – Lewis
“I am too far from
home and I want to be closer to family. I no longer have any care or enthusiasm
to jump hoops for Parole panel/probation etc. I only care about seeing my
family/daughter. Only god knows how long I have to live, so long as I have
regular visits, I’ll be happy.” – Mohammed / Mumdy
“I would look at
investing in some sort of travel service for prisoners’ families to access
prison visits. I would have lots of literature around the hall in regards to
LGBTQ+ topics & also about mental health and stop it being a taboo
subject.” – Ryan
IPP
The IPP sentence
remains a contentious issue. Although the sentence was abolished in 2012,
almost 3,000 people who were given it remain in prison today. Members wrote to
tell us how this injustice affects not only people serving the sentence, but
prisons as a whole.
“The fact that I,
and others are still serving sentences that are illegal is enough to affect us
all. We should not be here and one cannot blame the prison staff, but it should
be said, the rules in this establishment are changing for the worse.” – Anonymous
“It’s the not
knowing of when I’ll get released. I do not want to die in prison. I suffer
from depression and I have done since I was a child. The new governor has
implemented a new regime which is very unsettling for all the prisoners here.” – Dan
“Persecuted by an
obsolete law that was abolished 12 years ago, so that it’s legal for me to be
scooped up like a fish in a net, dumped into prison, and just left there, until
I can be dealt with. The ‘toxic legacy’ of IPP.” – John
“Not being able to
access many of the services that are for IPP prisoners. The units are too
small, 20 by 10 spaces on two units. IPP prisoners are there for a long time,
which prevents others taking part. There needs to be a larger unit utilized for
all life sentence prisoners, with the correct support in all jails.” – Robert
“Using judge’s
remarks, re-sentence all IPPs to the determinant sentence, which would have
been passed, making this exercise easier as it is already documented.” – Simon
“Well, I feel that
us IPP’s have had a rotten deal. And the recent IPP awareness week, you may
recall, boiled down to nothing really, just lip service. I’m now convinced that
nothing short of a full root and branch reform will make a difference. Anything
else is just sticking plaster really.” – Brent
Wider reform
The comment above
was one of several we received from members calling for far-reaching reform of
the criminal justice system. I will finish this blogpost with some more of
those calls for action.
“Stop playing to
the red-top tabloids with the ‘tough on crime’ mantra aimed squarely at locking
up more people for longer with no support and no rehabilitation in
deteriorating and under-funded conditions.” – Simon
“Take politics out
of the entire process. Put minimum standards of service into law with
associated budget provisions. Listen to and use the experience of the countries
that are doing it vastly more successfully, for example, Norway. Dissolve the
not fit for purpose IOPC [Independent Office for Police Conduct], IPCI
[Independent Prisoner Complaint Investigations], and CCRC [Criminal Cases
Review Commission] and start again with independent bodies with teeth,
integrity and backbone.” – Geoff
“There needs to be
a smarter use of prison as not all those in prison need the restrictions. Home
Detention. GPS tags are useful alternatives. ‘Unpoliticise’ the criminal
justice system. A full-time body, not politically affiliated, press or media
pressured, or vote driven. Justice systems not affected by general election.
Consistency.” – Darren
“An increase in the
funding, quality and range of activities within the mental health services.
Give everyone a personal counsellor and you’ll see a significant improvement in
behaviour, stability and reoffending. Relationships matter!” – Charlie
“There’s simply not
enough space to write what needs to be done. It is a total overhaul of
everything from community structures to rehabilitating offenders … An
unimaginable financial investment to catch up with decades of neglect.” – Tahir
.................................................................................................................................................
IST OCTOBER 2024
A Prisoner hoped
suicide would change IPP policy
A prisoner serving an endless IPP
sentence took his own life in his cell – leaving a note saying that he saw no
chance of ever being released.
Sean Davies, 30, died at
Swaleside prison in Kent, in February 2023 – a fortnight after the
then-Conservative government rejected a call by a committee of MPs for all IPP
prisoners to be resentenced.
Davies was issued with an IPP
sentence for an offence of violence in November 2012, just a month before they
were abolished. His minimum term was five years, meaning he was eligible for
parole in 2017, but he was repeatedly turned down for release.
In 2021 he transferred to
Swaleside to join the psychologically informed planned environment (PIPE) unit.
In April 2022 he was assessed as suitable for transfer to a category C prison,
but this was revoked that October after unprescribed medication was found in
his cell. Following this, he expressed feelings of hopelessness.
In September 2022, the House of
Commons Justice Select Committee issued a report calling for the resentencing
of all IPP prisoners. On 10 February, 2023, Davies was informed that
then-justice secretary Dominic Raab had rejected this recommendation. He took
his own life in the early hours of February 25.
His inquest
in August concluded
that insufficient welfare checks and a lack of communication between staff
played a part in his death. A report by Patricia Harding, senior coroner for
mid Kent and Medway, stated: “Mr Davies left a note stating that he had taken
his own life because of the IPP sentence.
He expressed frustration at the slow
progress of his sentence, re-categorisation, and concerns about how the Parole
Board would view this and his past behaviour. He saw no chance of being
released.
"He went on to say he hoped that his death would contribute to
changing the laws of the IPP sentence.”
...........................................................................................................................................
IPP licence reform
takes effect in November
A change in the law which will
help people on Imprisonment for Public Protection (IPP) sentences to move on
with their lives will take effect in November.
The Victims and Prisoners Act
2024 was passed by Parliament in May, days after the general election was
called. It includes major reforms to the way IPP licences can be terminated,
but these cannot take effect until the new Government sets a commencement date.
Last week, Justice Secretary
Shabana Mahmood told the House of Commons that the changes would be implemented
in phases. ‘Phase 1’ will start on November 1, when sections 66 and 67 of the
2024 Act will come into force, followed by ‘Phase 2’ on February 1, 2025.
More than 8,000 IPP sentences
were handed down between 2005, when they were introduced, and 2012, when they
were abolished. People on IPP sentences must serve a minimum custodial period,
or tariff, but then remain in custody until the Parole Board deems them safe to
release. When they leave prison they do so under a ‘lifelong’ licence, allowing
them to be recalled at any time – until the licence is terminated.
At the moment, termination of an
IPP licence can only be granted by the Parole Board after the ‘qualifying
period’ has passed. Currently, the qualifying period is 10 years after a person
has first been released. Once the 10-year point has passed, people should be
automatically referred to the Parole Board every year for consideration.
From November, anyone serving an
IPP will be eligible for a termination review by the Parole Board three years
after their first release, instead of 10 years. Anyone who was sentenced when
they were under 18, and therefore received a Detention for Public Protection
sentence, will be eligible after just two years.
Everyone on IPP or DPP sentences
will also benefit from a new ‘sunset clause’, which means that their licence
will automatically end if it has remained in force for two years continuously
in the community after their new qualifying period has ended. If a person
is recalled within the two-year period, ordinarily it will ‘reset the clock’
and they will have to wait another two years until the licence expires.
From February, when Phase 2
commences, the qualifying period for all other purposes, including when the
Secretary of State must refer a DPP or IPP licence to the Parole Board for
consideration of licence termination, will be two and three years respectively.
...............................................................................................................................................
8th October 2024
SDS40 – The impacts on your liberty
Its a slap in the face” to IPP prisoners, languishing inprison
early release scheme has seen around 1,700 prisoners released under measures reducing the length of time some inmates must serve in jail from 50 to 40 per cent of their sentence.
By the end of October, the total is expected to reach around 5,500, as more walk free from jails in England and Wales to free up prison cells.“Meanwhile, the scheme was branded a “slap in the face” to almost languishing on abolished sentences, despite more than 700 having served at least 10 16 years longer than their sentence . Releasing IPP prisoners would empty up to four entire prisons.
...The Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2024, commonly known as SDS40, was approved on 29 July 2024. provides that prisoners will be automatically released on licence after having served 40% of their sentence instead of 50%. applies to standard determinate sentences only and excludes EDS, IPP and Life sentences.
SDS40 will be implemented in two phases: namely 10 September 2024 for eligible sentences of under five years, and 22 October 2024 for eligible sentences of over five years. It is very important to note that this is a temporary measure to address prison overpopulation which will be reviewed in 18 months. Therefore people who are currently eligible and their SDS40 release date falls after 18 months, should appreciate that SDS40 may no longer apply at that time. The continued operation of SDS40 will be dictated by prison capacity at that time.
SDS40 would only apply to:
1. Someone serving an eligible standard determinate sentence.
2. Someone currently in prison and has not been released.
3. The sentence is not expressly excluded (like sexual offences, domestic abuse offences, breach of non-molestation order, national security offences, and violent offences with a sentence of over 4 years).
It is important to note that unlike HDC, the prison service has no discretion for SDS40 and have to release the eligible prisoner by law. Eligibility is solely dependent on the index offence for which he is imprisoned, and any previous offences are irrelevant. For example, someone who had a previous sexual offence but is currently in prison for a theft would be eligible, as the sexual offence is irrelevant for SDS40.
It would be very important to note that if someone is recalled on SDS40, they will return to prison to serve the remaining 60% of their sentence unless they are released by the Parole Board or by Executive release. There will not be another release at the 50% point as is sometimes the case with some HDC recalls.
As licence periods are increased, people should be careful as the chances of being recalled will also be higher. It is very important that people do not get complacent about this and make sure that they have a very robust release plan in place. As probation and other support agencies will be under a lot of pressure, it would be advisable to do your best to ensure that you have a robust plan to reduce the possibility of recall.
SDS40 also has an impact on people who have been recalled previously and have been sentenced to a further concurrent offence as it would bring forward the date when they will be reviewed by the Parole Board. For example, if a recalled IPP prisoner has been sentenced to a concurrent 40 months for a further offence of burglary, he would become eligible for parole after 16 months under SDS40 and not 20 months.
The criteria and procedure for HDC and SDS40 are completely different and should not be confused. A prisoner might be eligible for both HDC and SDS40, which in the majority of cases will bring forward their HDC Eligibility Date (HDCED). We anticipate that some prisons would get these calculations wrong and would therefore advise that you request your sentence calculation sheet at the outset to check whether the prison have not made any mistake. After the implementation dates, sentence calculation sheets should be amended to reflect the new CRD and the new HDCED. In case of any discrepancies, we would advise that you contact a prison law specialist who would be able to assess the information and advise you accordingly.
SDS40 does not apply to civil terms of imprisonment; defaults of fines; confiscation orders; terms for contempt; as they are not sentences.
Therefore it could be concluded that SDS40 could bring your release closer, which can be quite significant for people serving long determinate sentences and recalled prisoners serving a concurrent eligible determinate sentence. There can be significant periods of time at stake, and we would advise that you seek legal advice from Reeds Solicitors in case of any doubt about this policy or indeed any other areas of law. We can offer a fixed fee for dealing with such matters.
Dary Makoona is a Prison Law Solicitor & Nicola Maynard is Head of Prison Law/Partner at Reeds Solicitors
...................................................................................................................................................
Links
Saria Hart: Jury finds serious failings by staff at HMP Foston Hall contributed to self-inflicted death | Inquest
Man sentenced to two years in prison 'destroyed' after serving 18 years - as families call for inquiry | Politics News | Sky News
