Whether a Prisoner has a
Parole Review approaching or they are in the early part of their
sentence, an understanding of the Parole Board’s policy in directing or
recommending release or transfer to open conditions is essential to
ensure effective and timely sentence progression.
The Parole Board is an independent
public body working within national government. It must operate under
the guidance and direction of the Secretary of State. However, one of
its most important functions is to assess prisoners’ risk in a way which
is fair. This should involve the Parole Board balancing the benefit to
the prisoner in progression or release against the risk that they may
pose to the public.
The test
When considering the case of a lifer or
indeterminate sentenced prisoner, the Parole Board should make one of
the following decisions;
- Direct the Prisoner’s release, either immediately or at a future date, for example when certain accommodation will be available.
- Make a recommendation to the Secretary of State that the prisoner progress to open conditions.
- Make no direction for release or recommendation for a progressive move and identify areas of outstanding risk.
When considering making any of the above decisions the Parole Board must consider whether “It is necessary for the protection of the public that the prisoner should be confined.”
For a prisoner to pass this test the Parole Board must be satisfied that;
“The lifer’s level of risk to the life and limb of others is considered to be no more than minimal”.
When looking at whether it is
appropriate for a prisoner to be transferred to an open condition
establishment, the Parole Board will additionally weigh up the risk to
the Public against the benefits for the prisoner. This will normally
involve consideration of a prisoner’s behaviour during their sentence
and whether they have demonstrated a reduction in their risk factors.
In terms of considering whether to
direct release the Parole Board will focus on whether the prisoner is at
a stage that they can now be managed in the community subject to
licence conditions and more often than not, the Parole Board will want
to see a successful period of testing in open conditions before release
can be directed.
Release or Open?
A prisoner will have the opportunity to
submit their own representations in support of their release or to ask
for a transfer to open conditions. It is important for prisoners to be
realistic. Although, the Parole Board is unlikely to release someone
from Category B or even C conditions, it is by no means impossible.
Advice from a Prison Law specialist should be sought to advise on the
prospects and merits of the representations.
Guidance has been issued by the
Secretary of State in relation to releasing prisoners from closed
conditions. Although this is only ‘guidance’ the Parole Board do appear
to be extremely hesitant to depart from it. Experience shows that in a
well argued and thought through case that the Parole Board will direct
release from closed conditions, but careful representations will be
needed to achieve this.
Conversely, an over optimistic
application for release can carry the risk of distracting the Parole
Board’s focus from considering the benefits of a more realistic transfer
to open conditions.
Parole Board guidance states that they
cannot normally be satisfied that the test for release is met until a
successful period of testing in open conditions has been completed and
this should only be departed from in exceptional circumstances. Early
and careful sentence planning and preparation is therefore critical if
the Parole Board is going to be asked to release a Prisoner from closed
conditions.
Examples of where a Parole Board may
consider release from closed are; on compassionate grounds, such as the
ill health or disability of the Prisoner or a close relative;
Circumstances where a Prisoner has previously been tested in open
conditions but was returned to closed conditions for a reason unrelated
to their risk, or if the Panel is considering the re-release of a
Prisoner who has been recalled to custody. In such circumstances a case
can be made that the prisoner has already completed this period of
testing. However, even in these cases, early advice from a Prison lawyer
is recommended. In addition, there is a ‘catch all’ provision which
states a Prisoner may be released ‘where there are other grounds
that dictate that any or further testing in open conditions is not
required to satisfy the Board about the prisoner’s level of risk’.
The Parole Board may also be persuaded
that a period of testing in open conditions is not required when a
prisoner can show a substantial and robust risk management plan
detailing clear and developed plans regarding accommodation and income. A
good relationship between Prisoner and Offender Manager (OM) is
particularly important as ultimately the OM will be responsible for
managing a prisoner’s risk on release and the Parole Board will want to
hear from them how they are satisfied they will be able to do this.
Being proactive and working with Probation from the outset and
approaching them with details of potential release plans will only serve
to stand prisoners in good stead when it comes to their Parole Reviews.
Is there anything else I can do?
As well as evidence from the OM, the
Parole Board will also consider evidence given by the Offender
Supervisor. This will focus on the work completed in custody and an
analysis of the progress made. Regardless of whether a Prisoner is
asking for release or a move to open conditions, evidence of risk
reduction is key as well as a prisoner being able to illustrate how
skills they have learnt have been put into practice. As they say the
‘devil is in the details’ and the Parole Board will therefore be looking
for evidence of a reduction of risk and any new skills and behaviours
that have been learnt, particularly if they are to be satisfied that a
period of testing in open conditions is not necessary.
Parole Boards do not just want to hear
that prisoners are making all the right noises in terms of risk
reduction they will also want to see clear evidence of it, as well as
considering finer details of proposed release plans.
With long waiting lists for transfers to
open conditions, it is now even more important that prisoners focus on
sentence planning issues at an early stage to ensure that they are doing
everything they can to progress within the Prison Estate toward
release. Even prisoners who are sometime away from a Parole review
should think about what they can do to help their case.
http://www.hinesolicitors.com/guidance-for-life-sentenced-or-ipp-prisoners-facing-the-parole-board/
Adjudications – fighting your corner
‘Nicking’s’,
‘Reports’, ‘Notices’, call them what you will, for many prisoners
adjudications are a part of everyday prison life. From the short-term
determinate prisoner looking to secure open conditions, to the
post-tariff IPP prisoner trying to avoid serving yet another year after
tariff, having an adjudication on your record can have a real impact.
What actually is an Adjudication?
Prisoners will no doubt be
aware that there are various processes in place that the prison use in
order to maintain discipline. The Adjudication system is known as the
formal discipline process and is used when a prisoner is suspected of
committing a disciplinary offence.
The authority to discipline
prisoners is contained in the Prisons Act 1952 and the 29 disciplinary
offences are detailed at Rule 51 of the Prison Rules 1999 (Rule 50 for
young offenders). The list of offences can also be found in the Prison
Discipline Procedures PSI 47/2011, which came into force on 1st October
2011 replacing the previous Prison Discipline Manual PSO2000 (Although
this manual still applies for adjudications that commenced prior to 1st
October 2011). PSI 47/2011 should be available upon request or at least
accessible within the prison library.
What will happen if I am Adjudicated?
If a prisoner is going to be
Adjudicated then the charge alleging one of the 29 disciplinary offences
“must be laid as soon as possible and, other than in exceptional
circumstances, within 48 hours of the discovery of the alleged offence”
(para 2.2 of PSI 47/2011). The details of the charge(s) will be provided
on a Notice of Report (Form DIS1 which prior to 1stOctober2011 was
known as F1127A&B).
The Notice of Report form MUST
give details of the adjudication (charge, time, date, rule broken,
reporting officer’s evidence and details and the time of the hearing).
A prisoner must then appear at
an adjudication hearing that “must then be opened, again other than in
exceptional circumstances, on the following day, unless that is a Sunday
or a public holiday in which case it will be opened the next working
day” (para 2.2 of PSI 47/2011). This hearing will be before a Governor.
If the charge is sufficiently serious the Governor must refer the case
to the Independent Adjudicator (District Judge). If this happens then a
hearing before the Independent Adjudicator must be arranged within 28
days of the referral being made by the Governor (para 2.26 PSI 47/2011).
Will the Police be Informed?
In some circumstances the
prison staff may feel that an offence is so serious that it should be
referred to the police. The Decision for referral to the Police is for
the adjudicator taking account of the individual circumstances of the
case. Even where the matter has been referred to the police disciplinary
proceedings will still be laid, except in the most serious offences
such as murder. In such cases an adjudication will proceed in the way
stated above and then be adjourned until the outcome of the police
investigation is known. If the police prosecution goes ahead then the
adjudication will not proceed. If a prisoner is not prosecuted in a
court then the adjudication may resume. However consideration needs to
be given as to whether it is right for the prison to proceed with an
adjudication in such circumstances (para 2.18 PSI 47/2011).
Who will fight my corner?
At the start of the hearing,
the Governor or Independent Adjudicator must ask the prisoner whether or
not he wishes to have legal advice. It is strongly advisable that a
prisoner always requests legal advice at the first hearing. A solicitor
can advise you as to whether the adjudication procedure has been carried
out correctly, confirm whether you have any defence to the charges and
of course make arrangements to appear at the hearing if your case has
been referred to the Independent Adjudicator.
If the matter is not referred
to the Independent Adjudicator then a prisoner is not entitled to have a
solicitor actually present at the hearing but a prisoner is still
entitled to request that the hearing be adjourned in order to obtain
legal advice. Arrangements should then be made to contact a solicitor
(if you have not already done so) so that advice can be given. The
solicitor may also draft representations for the prisoner to take to the
adjudication and read out or present to the Governor.
When a prisoner appears before
the independent adjudicator (District Judge) Solicitors can attend and
represent you and conduct a defence as in a trial court.
What happens at the hearing itself?
Adjudications are less formal
than Court proceedings but have a similar format. Prisoners are called
into the Adjudication room, usually on the segregation unit, and asked
to confirm their name, that they have received Notice of Report and
whether they understand the procedure.
Prisoners should be asked
whether they have had time to prepare a defence and whether they will be
submitting a written defence. An adjournment should be sought if you
are not fully prepared and you should seek urgent legal advice.
After a plea is taken and if
the hearing goes ahead, the Reporting Officer will then give evidence.
In most cases this will simply be a matter of him reading out the Notice
of Report. The prisoner or the legal representative will then have the
opportunity to ask the officer questions in relation to his account of
events. It is important when doing so to consider each element of the
offence(s) alleged.
Prisoners must also be given
the opportunity to give their own evidence and at the end of the hearing
submissions should be made as to why a prisoner the charge should not
be proved if you have pleaded not guilty. Just as in the criminal
Courts, the standard of proof that must be met before a prisoner can be
found guilty is “beyond reasonable doubt”. If this high standard cannot
be reached, then the charge should not be found proved.
What Sentence Will I Get?
If found guilty there is a
broad range of punishments available to the Governor or Judge when
passing sentence. An adjudicator should mark on the Notice of Hearing
form (now referred to as a DIS7 formally known as a F256) the reasons
why a particular sentence was given. Consideration should be given to
relevant mitigating factors such as impact on the victim, early guilty
pleas and the circumstances and seriousness of the offence. If appearing
before the independent adjudicator there is a risk that a maximum of 42
additional days could be added to a prisoners sentence. It is strobgly
advisable that in such cases you instruct an experienced Prison Law
Solicitor to assist you and ensure that you are properly represented in
order that they are able to mitigate on your behalf in advance of the
passing of any sentence.
Can I Appeal?
If the adjudication took place
in front of the Governor you can request a review under prison rule 61.
To do so you must submit complaints form ADJ1 or contact a Solicitor
who will write to the prison requesting a review of the adjudication. It
is vital that the request for a review is made within six weeks of the
date that the adjudication concluded. This review is considered on the
papers only. If a prisoner is still unhappy with the decision then an
appeal may be submitted to the Prison Ombudsman or Judicial Review
proceedings may be considered.
Findings of guilt by an
Independent Adjudicator can only be challenged by way judicial review.
Judicial review is a highly specialised area of the law and you should
therefore instruct a solicitor if you wish to pursue this avenue. An
application for Judicial Review will be appropriate if it appears that
the hearing was procedurally flawed or unfair.
Punishments imposed by an
Independent Adjudicators can however be challenged in writing to the
Senior District Judge at the Chief Magistrates Office, it is wise to
request that a solicitor do this for you. This application MUST be done
within 14 days of the adjudication and could result in a punishment
being reduced, upheld or quashed entirely.
The sting in the tail…
The unseen punishment that an
adverse adjudication result carries is the fact it is always be on a
prisoner’s record. It will be noted by every Parole Board,
Re-categorisation clerk and when considering Release On Temporary
Licence or Home Detention Curfew application for the remained of the
sentence. This will not be mentioned when you are asked to enter a plea
and it is therefore important that you carefully consider instructing a
solicitor as soon as you get a “nicking”.
In summary, adjudications are a
complex area of prison law and one which can have a hugely detrimental
impact on your chances of progressing through the prison system, but you
are not alone. You have the right to instruct a solicitor to fight your
corner and in most cases this can be done on a legal aid basis subject
to means testing.
HINE Solicitors have a
specialist Prison Law department who assist prisoners Nationwide with
adjudications whether it be by providing representations and advice for
a Governor’s Adjudication or attending and representing a prisoner in
person before any Independent Adjudicator.http://www.hinesolicitors.com/adjudications-fighting-your-corner/
It is widely accepted that prisoners who maintain their innocence
face huge difficulty when seeking release. They are required to
demonstrate to the Parole Board that their risk of harm is sufficiently
reduced to warrant release. This area of prison law is keenly debated
and is often the source of attention from prison action groups and the
media. Perhaps the most famous case is that of Stephen Downing; a
prisoner who served 27 years in custody for murder before having the
conviction quashed. Upon his release Mr. Downing raised serious concerns
that prisoners who maintain their innocence are discriminated against
by the Prison Service and the Parole Board.
In particular Mr. Downing claimed that if he had made a false
confession, and engaged in the associated offending behaviour
programmes, then he would have been released over a decade earlier. The
opinion of Mr. Downing is echoed by many prisoners who have had their
convictions overturned.
One of the most contentious issues surrounds the subject of the
‘Parole Deal’. This is when prisoners feel pressurised into admitting
guilt for an offence and undertaking offence specific behavioural work,
even though this may not be necessary. This is because the alternative
appears to be remaining in prison without progressing or clutching onto a
faint hope that the conviction will be overturned. This dilemma is
stressful for many prisoners and for a ‘lifer’ who maintains his
innocence the future is bleak.
The Law
The Parole Board is required to accept that a prisoner is guilty of
the offence for which they are convicted. The Parole Board has no
authority to overturn a Court’s decision as the prisoner’s guilt has
already been determined in a court of law. The Parole Board only has the
power to make an assessment of risk.
The Parole Board cannot refuse release on licence simply because a
prisoner maintains their innocence, or is unable to participate in
offending behaviour programmes which focus on the crime committed.
Indeed if the Parole Board does refuse a progressive move or release
solely on these grounds then there will be argument that this is
fundamentally wrong and such decision should without a doubt be
challenged. However the problem for those maintaining their innocence is
that the Parole Board often struggle to find evidence of risk reduction
in the absence of successful completion of offending behavioural
programmes.
Lowering Risk
The Parole Board’s principal function is to assess the risk to the
public that the prisoner might pose if released. In cases where the
prisoner admits their guilt and engages with their sentence plan this
can be evidenced through the completion of Offending Behaviour work and
subsequent post programme reports, together with comments on behaviour
in custody. The issue for those who maintain denial that they were
responsible for the index offence is that they may be deemed unsuitable
for behavioural courses and thus unable to evidence a reduction in their
suggested risk factors that the course is set out to target. This is
unsurprising as in offence related courses there is often a requirement
that a prisoner discuss the circumstances surrounding the commission of
their index offence. Naturally, if a prisoner denies having committed
the offence how can they then proceed to discuss why or how the offence
was committed? The result of this is that often parole dossiers are
prepared, and probation officer reports are written, with limited
information on which to assess a reduction of risk.
So how can those who maintain their innocence demonstrate a reduction
in risk? Firstly it is important to remember that it is not solely
offending behaviour programme reports which assist in suggesting the
level of current risk. It is possible for reform to be demonstrated by a
prisoner by him remaining adjudication free, gaining employment,
undertaking educational or vocational courses and participating in
voluntary schemes such as the ‘Buddy’ or ‘Listeners’ scheme. Holding the
status of an enhanced prisoner is also beneficial, although
establishments will argue that being unable to co-operate in the targets
set out on a sentence plan can prevent this status on the Incentive
Earned Privileges Scheme.
The Parole Board’s recently issued policy states that in order for
release to be directed a prisoner should spend time in open conditions
in order to demonstrate a sufficient period of testing in an environment
with a less stringent regime. This does however work on the assumption
that it is possible to progress to open conditions without engaging in
specific offence related behavioural courses.
Suitable Courses
For those who have been convicted of a sexual offence the usual
course of action is to be assessed for suitability for the Sexual
Offenders Treatment Programme (SOTP) and possibly the Healthy Sexual
Functioning programme (HSF). However, guidance from Prison Services
states that neither of the courses are suitable for those who maintain
their innocence. This creates a particular difficulty for prisoners who
maintain their innocence as they will not be able to participate in
those programmes and the very detailed Structured Assessment of Risk and
Need (SARN) which follows completion of the SOTP, which is generally
used by the Parole Board to assess risk will not be available for
consideration.
Similarly for violent offences a level of admittance is required to
be suitable for programmes such as Controlling Anger and Learning to
Manage it (CALM) and the Cognitive Self Change Programme (CSCP). However
the CSCP is normally for multiple conviction prisoners but admittance
to incidents that did not result in a conviction, but did demonstrate
the use of instrumental violence, may enable a prisoner to be admitted
onto that course.
Cognitive skills programmes are
not offence specific
and as such it is possible to participate in Enhanced Thinking Skills
(ETS) now more commonly known as the Thinking Skills Programme (TSP).
This is a broad course that deals with a prisoner’s problem solving,
impulse control and ability to put things into perspective. As such it
is arguably a very valuable course to complete, if of course a prisoner
is assessed as suitable. Alcohol and drug misuse courses are also not
offence specific and subject to assessment for need are suitable for all
who have had previous drugs/alcohol problems. These courses can prove
particularly valuable if there is suggested to be a causal link between
drugs/alcohol and the offence. A prisoner need not always have be an
addict to engage in these courses.
In summary it is clear that those who maintain their innocence must
work harder and be more creative, in demonstrating that they have
reduced their risk of harm and risk of reconviction. In such situations
undertaking any available and suitable courses will always be important,
as will be complying with the prison regime. Any positions of trust
which can be achieved and maintained by prisoners will also demonstrate
an ability to handle responsibility.
Parole Review
A rigid framework of assessment, predicated upon an admission of
guilt, clearly excludes those maintaining innocence from presenting
their case objectively. It is up to an expert prison lawyer to
illustrate to the Parole Board that a prisoner in such a situation can
be released safely by the drafting of detailed representations. These
are absolutely vital, especially now there is no longer an automatic
right to have an oral hearing, to ensure a prisoner’s review is
correctly presented to the Parole Board.
Hine Solicitors Prison Law Department offer expertise in all
areas of Prison Law and in particular have a dedicated team who are able
to draft detailed written representations for consideration by the
Parole Board to guarantee prisoners their best chance of success.
Contact our Prison Law Department who provide nationwide coverage.http://www.hinesolicitors.com/prisoners-maintain-innocence/
