The Criminal Justice Act 2003 introduced new sentencing provisions which caused a great deal of controversy. The majority of that controversy was in relation to those sentenced to imprisonment for public protection (IPP). In recent weeks there has been much publicity regarding these sentences, which is mainly due to a significant case in the European Court and the imposition of the Legal Aid, Punishment and Sentencing of Offenders Act 2012.
This article does not seek to go into the issues raised as a result of those, but rather remind prisoners that IPP sentences, and the impact they have, remain for those who are subject to them. This article seeks to concentrate on what those subject to indeterminate sentences have to do in order to work towards their release from custody. Before being eligible to be considered for release, indeterminate sentence prisoners (ISPs) must serve a minimum period of imprisonment, known as their tariff, as well as demonstrate that they have reduced their risk to such an extent as to show that they can be managed in open conditions or be released on licence into the community.
Those serving an indeterminate sentence should be aware of the Indeterminate Sentence Manual (Prison Service Order 4700 Chapter 4) which has been updated by PSI 36/2010. This manual provides policy and guidelines for those who manage ISPs. It is important reading and deals with issues such as categorisation through to how prisoners who maintain their innocence should be dealt with.
ISPs need to show progression through their sentence and PSO 4700 Chapter 4 can be used as guidance for this. An ISP will be subject to the Parole process, which policy is governed by PSO 6010 entitled the “Generic Parole Process”. This PSO sets out clear guidance as to when those subject to an indeterminate sentence can expect to be subject to the Parole process.
Many ISPs will only be subject to post tariff parole review. This means that they will only have a parole review close to when they have served their full tariff. However, if a prisoner’s tariff is 3 years and over then they may be subject to review prior to their tariff expiring, which is more commonly known as a pre tariff review. If you think that you are eligible for a pre tariff review, or want to find out further information about this then you should consider contacting a prison law specialist who can advise you on this.
In any event, regardless of whether an ISP is subject to a pre tariff or post tariff Parole review, it will be the Parole Board who will recommend or decide the prisoner’s next step. In order to make a decision about this, the Parole Board will be provided with a document called a Parole Dossier. This is a bundle of paperwork consisting of documents such as a prisoner’s previous convictions, details of the index offence and reports following completion of offending behaviour courses. Most importantly it will contain a document known as the OASys assessment and reports from the ISP’s offender manager and offender supervisor who will make recommendations to the Parole Board about whether they should progress to open conditions or be released from custody
The Parole dossier is compiled by the prison where the ISP is located. Once it has been finalised it is sent to the Public Protection Casework Section (PPCS) at the Ministry of Justice who will then send it on to the Parole Board. If an ISP has nominated a solicitor to deal with their review then a copy of the dossier should be sent directly to them. In any event the prisoner must be provided with their own copy in accordance with paragraph 1.5.3 of PSO 6010. Once the dossier has been served on the prisoner they have 28 days in which to consider it and submit written representations for consideration by the Parole Board member who reviews their dossier. ISPs are advised tostrongly consider contacting a prison law specialist who can assist in the preparation of written representations for consideration by the Parole Board on their behalf. Many prisoners assume that simply because they are past their tariff expiry date that this means they will automatically be subject to an oral hearing before the Parole Board. This however is not the case. All Parole Reviews are now subject to a paper review in the first instance. This review will be conducted by an Intensive Case Management (ICM) member of the Parole Board. This is better known as an ICM assessment.
The purpose of ICM is to establish whether an oral hearing is needed or whether the case can be decided on the papers alone.
An oral hearing will normally be granted in two sets of circumstances: • Where the member considers there is a realistic prospect of release or a move to open conditions; or • In any case where the assessment of risk requires live evidence from the prisoner and/or witnesses.
If an oral hearing is required, the ICM process exists to ensure that oral hearings are effective and that the Parole Board has all the information necessary to make an informed risk assessment. If an oral hearing is not required, the ICM process ensures that the prisoner receives full reasons as to why the review has been concluded on the papers
If it is decided that a Parole Review should proceed to an oral hearing then the ICM Member will issue notification that a case should be put forward for a listing date and directions will be issued setting out what witnesses are required to attend at the oral hearing and whether any further information is required to be served. If a decision is made that the case is not suitable to proceed to an oral hearing then the ICM member will issue a paper decision. A prisoner will have 28 days to confirm whether they agree with this decision and if they do not they can make further representations as to why they believe that their case should proceed to an oral hearing if they feel that this is what is required. Once again prisoners are best advised to contact a prison law specialist who can provide advice on this point and prepare further representations where appropriate.
In some cases the ICM member will decide that they cannot make a decision on the papers but rather than request that the case be put forward for the listing of an oral hearing, will request that further information be provided and issue preliminary directions setting out exactly what information they need and when this should be served by.
The ICM member will also make decisions about whether to defer Parole Reviews once a dossier has been prepared and sent to the Parole Board. However, in the event that a prisoner is aware that they want to alter the time frame for the next Parole Review due to the fact they have offending behaviour courses to complete, for example, then they can make this request directly to the PPCS at the Ministry of Justice, who will consider revising the time table for the next review based upon any request received. This will be something to consider with a prison law specialist when looking at sentence planning issues and planning for progress through an indeterminate sentence. If a prisoner receives notification that their case has been put forward for an oral hearing this will be the prisoner’s chance to provide their oral evidence to a panel of the Parole Board. This is the only time that members of the Parole Board will have direct contact with the prisoner and can be an imperative part of properly demonstrating the position to the Parole Board in relation to areas of outstanding risk.
It is therefore important that written representations drafted for the ICM assessment contain all information relevant to an ISP’s risk and detail the progress they have made throughout their time in custody. Experience has shown that in some circumstances, a parole dossier fails to reflect the positive progress that has been made and it is not until legal representations are submitted that the ICM member considers this information. The preparation of written representations could therefore have a significant impact on whether an oral hearing is granted or not.
All ISPs are released on a licence and are supervised by the National Probation Service. Life sentence prisoners will be subject to licence conditions for the rest of their life and therefore their sentence does mean life. Prisoners who are subject to an IPP sentence will be released subject to a licence that will be in place for a minimum of ten years. If after this period it is deemed appropriate that they no longer be subject to licence then an application can be made to the Secretary of State for the licence conditions to be removed. This position will be very much dependent upon the Probation Service’s views and recommendations. To date no IPPs will have made such an application as the sentences did not come into force until 2005. IPPs must be on licence for at least ten years before they can apply to have their licence discharged.
Not all prisoners will be subject to a sentence for the rest of their life, unless of course they are subject to a life sentence. What is important is that all ISPs start to plan progression through their sentence as soon as possible upon their arrival into custody. Not only are prisoners entitled to representation throughout the parole process but they are also able to seek assistance from prison law specialists about matters such as sentence planning, access to offending behaviour courses and categorisation issues.
If you need any help or advice with any prison law issues please contact
Emma Davies and the Prison Law team at HINE Solicitors. FREEPOST – RSTC-URCY-XYZL, Hine Solicitors, 149-151 Fairview Road, Cheltenham, GL52 2EX or on 01242 256686.