Emma Davies, partner at Hine Solicitors, together with Nicola Blackburn of the prison law department look at the change in principles and procedures governing applications by offenders for release on temporary licence.
Release on Temporary Licence (ROTL) has played an important role in public protection by allowing risk management plans for offenders to be tested in the community under strict conditions before they are released. The procedure for ROTLs, who is entitled to them and when, is contained in the relatively new Prison Service Instrument 13/2015. This article looks into the new “two tier” ROTL system and what this could mean for indeterminate sentenced prisoners.
What is ROTL?
Release on Temporary Licence (ROTL) is the mechanism by which offenders may undertake activities in the community that are necessary and/or which cannot be facilitated within prison. ROTLs will generally take place towards the end of an offender’s sentence and are to be used for rehabilitative purposes.
Who is entitled to ROTL?
The new provisions clearly state that that there is no presumption that an offender is entitled to ROTL.
All prisoners are entitled to be considered for ROTL save for:-
- Category A offenders (adult males) or restricted status offenders (adult females/young offenders);
- Offenders on the escape list;
- Offenders who are subject to extradition proceedings;
- Remand and convicted unsentenced offenders;
- Sentenced offenders who are remanded for further charges or further sentencing; and
- Offenders held on behalf of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Special Court for Sierra Leone (SCLS) or the International Criminal Court (ICC).
Offenders who have a history of escape, abscond or serious ROTL failure during their current sentence may no longer be deemed eligible to ROTL unless it can be argued that there are exceptional circumstances that mean they should.
In addition Category B offenders are not eligible to be considered for Resettlement Day or Overnight release.
What types of ROTLs are there?
There are numerous types of ROTLs that can be applied for and examples of the most common are listed below.
Resettlement Day Release (RDR)
Such release is for offenders to undertake activities that are linked to objectives in their sentence plans. Such as paid and unpaid work placements, training and education, maintain family ties or other activities linked to an offender’s sentence plan.
Resettlement Overnight Release (ROR)
This is to enable offenders to participate in overnight release and spend time at their release address re-establishing links with family and the local community.
Special purpose licence (SPL)
This is a short duration temporary release, often at short notice, that allows eligible offenders to respond to exceptional personal circumstances, such as medical treatment or compassionate release to visit dying relatives or other tragic personal circumstances.
What has changed?
In 2013 and 2014 there were a series of reports of serious offending and abscond of offenders who had been released on temporary licence. As a result a review was commissioned to look at the current set-up of ROTLs and the procedure for granting these. The review recommended not only to increase the stringency of ROTLs, but also to ensure they were granted with greater consistency. Prison Service Instrument 13/2015 was issued in an attempt to do this.
There is now a two tier approach to ROTL. More serious and high risk offenders are only considered under a new Restricted ROTL regime. Indeterminate sentence prisoners, all offenders subject to MAPPA and any offender assessed as high or very high risk are subject to Restricted ROTL. Standard ROTL will apply to all determinate prisoners who pose no higher than medium risk of serious harm and who are not eligible for MAPPA. Standard ROTL will essentially operate as ROTLs did before the change in procedure.
On arrival to an open prison, all Restricted ROTL cases will be considered for inclusion in the Enhanced Behaviour Monitoring (EBM) arrangements. These arrangements provide enhanced monitoring and this is meant to be done in collaboration with the offender to assist in their understanding of managing their own offence related risks more effectively.
The process includes a review by a psychologist to see whether the offender would benefit from an increased level of supervision or management throughout their time in open conditions. This information will then be fed back into a review of OASys and the resulting assessment and risk management information will be fed into the Restricted ROTL application process.
Further guidance was meant to be issued on the Enhanced Behaviour Monitoring arrangements and how it will work in practice. However, it is yet to be published. It is therefore unclear how the restricted ROTL process is currently being properly implemented. If you are experiencing difficulties as a result of this, a prison law solicitor may be able to assist you in attempting to overcome this apparent ‘catch 22’ situation. Although unfortunately this is not presently an area of work that attracts Legal Aid. If you are offender in your Parole process then this may be something that a solicitor can give assistance about.
What is the difference between Restricted and Standard ROTLs?
One of the main differences between Standard ROTL and Restricted ROTL is the application process. The stringency of considering ROTL applications for prisoners who would be considered for restricted ROTL is essentially as follows:
- the decision must be made by the governing or deputy governor;
- the board must be chaired by a senior manager deemed competent for the task by the governor
- the offender supervisor must be probation qualified
- the board must have a record of the views of the offender manager;
- the board must have before it an indication of whether the victim of the index offence has made any representations in relation to the release, including any request for conditions to be attached to the release;
- the board must have available the EBM case file review
- where the offender has been managed under EBM, the board must have available any information from the EBM monitoring process
Another main difference in terms of implementation is that at least the first three Resettlement Day Releases for restricted ROTLs must be supervised or accompanied.
Whilst this process is in its early days, offenders, particularly those serving an indeterminate sentence, may find themselves struggling to progress applications for ROTL in a reasonable timeframe for the following reasons:
- If considered suitable for the Enhanced Behavioural Monitoring arrangements, the prisoner will then require additional supervision and psychological input into their case. Such resources will of course take time to find and implement, potentially causing delays.
- The extra information required before a restricted ROTL application can be considered (as above) is greater than for standard ROTL. Ensuring all the relevant information is properly obtained may take time.
- Whilst supervised release is still release, the Parole Board will of course be far more interested in the prisoner demonstrating trustworthiness and manageability in the community, which will really only come from unescorted leave. If a minimum of the first three leaves therefore have to be escorted, indeterminate prisoners will likely need further time to acquire a sufficient number of independent leaves prior to a Parole Board review or oral hearing.
If you are an indeterminate sentenced prisoner approaching your Parole review and are experiencing difficulties due to the new ROTL provisions, consider speaking with a prison law solicitor to see if anything can be done to assist you. You should be able to access PSI 13/2015 within the prison library which will give you some guidance about what you should expect during the process and when you are eligible to be considered for temporary release.
If you need any help or advice with any prison law issues please contact the Prison Law Department at Hine Solicitors.
Telephone 01865 518971 or FREEPOST RTHU LEKE HAZR Hine Solicitors, Seymour House, 285 Banbury Road, Oxford, OX2 7JF.