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 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.
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.
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.
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.