End the continued debate on IPP prisoners

 What if ..... we

rethought parole?

 

 

1. Nicola Padfield reader in criminal and penal justice,University of Cambridge: Master of Fitzwilliam College

A brief history of parole in England and Wales….

 

 Introduction



2. A brief history of parole in England and Wales….

Parole Board was created by s. 59 of the Criminal Justice Act 1967 to advise Home Secretary on the release on license of prisoners serving determinate sentences after they had served one-third of their sentence (subject to a minimum of 12 months) (see s.60), on the release of life sentence prisoners  (see s.61) and the recall (i.e. the revocation of licenses) of prisoners on license (s.s. 62).

3.Huge changes over time

• Size, role and practice of the Board has changed enormously. 
• Shift from advisory body, to a body which makes decisions:  forced in particular by decisions of the European Court of Human Rights, successive Governments have made the Parole Board more ‘court-like’.
• But to what extent is it ‘court-like’?  Does it matter?

4.Two pieces of recent fieldwork

• July-Aug 2016:  19 cases listed for hearing at the Parole Board’s ‘hub’ in the Ministry of Justice (15 observed: 1 prisoner absconded; and 3 hearings deferred immediately before hearing)
• Jan-March 2017:  17 cases observed in prisons + interviews with participants(and see Understanding Recall 2011)

5.The challenge of long sentences

• Proportion of sentenced prison pop serving a life or indeterminate sentence for public protection (IPP) increased from 9% in 1993 to 19% in 2013, now down to 15% .
• Average time in custody for mandatory life sentences (for murder) increased from 13 years in 2001 to 17 years in 2016.
• June 2016: 11,359 (10,992 male; 367 female) indeterminate sentenced prisoners (those serving IPP and life sentences) in prison.
• 3,998 IPP prisoners on 30 June 2016 = a drop of 34% since June 2012 peak of 6,080. Over last 12 months, IPP population has reduced by more than 600 (13%).
• Most IPPs had a tariff length of four years or less.
• 60-70 prisoners serving a whole life sentence.

Crewe, B., Hulley, S., Wright, S. (2017) Swimming with the Tide: Adapting to long-term imprisonment 34 Justice Quarterly 517-541.

6.Whole life sentences

Hutchinson v UK [2017] ECHR 65:  Grand Chamber shrunk back from earlier decision in Vinter v UK (2016) 63 E.H.R.R. 1 . Majority accept that WLSs do not violate ECHR Art.3 because they give a prisoner a prospect of release and a possibility of review of the sentence (under vague s. 30 of the Crime (Sentences) Act 1997).  Cf.  CA in Attorney General's Reference (No.69 of 2013) [2014] EWCA Crim 188 ……. 

Dissenting Judge Pinto de Albuquerque is a hero:

“The majority’s decision represents a peak in a growing trend towards downgrading the role of the Court before certain domestic jurisdictions, with the serious risk that the Convention is applied with double standards”

7.The parole process

• Generic Parole Process for Indeterminate and Determinate Sentenced Prisoners; Parole Board Rules 2016.
• Public Protection Casework Section (PPCS) complete dossier and advises prisoner of commencement of parole process + their right to instruct legal reps.
• 26 week process, designed to ensure reports are prepared in time, but ironically ‘efficiency’ of process means that by the time case comes to be heard, reports are most often 6 months out of date.  So, dossiers have to be updated in final weeks or days before the hearing…..
• Member Case Assessment (MCA) process : single member of PB decides if should have an oral hearing.

8.Dossiers

Between 132 and 666 pages long (longest = recalls)

starts with Secretary of State’s terms of referral under s. 28 of the Crime (Sentences) Act 1997.  PB may only direct release or recommend open conditions:
“In any event, the Board is not being asked to comment or to make any recommendation about the security classification of the closed prison in which the prisoner may be detained; nor any specific treatment needs or Offending Behaviour work required; nor on the date of the next review”.
Why?

Many reports, + risk management plan

9.Hearings

• Pre-hearing
• Hearing
• Normally ‘offender sandwich’  (OS-Prisoner-OM) but many variations.
• Role of legal representative (and the importance of high quality legal advice throughout a sentence).
• Decision-making:  Quick consensus?  Perhaps, in prison, but in video hearings 10 of 18 were deferred or adjourned on the day:
• Deferrals: late or lost reports; illness; failure to meet legal rep…..
• Adjournments: started but not completed, faulty equipment or needing more reports.
• Decision-letters

10.Prisoners’ views

Some defended indeterminate sentences; many were resigned to, even accepting of, the failures and delays in the system.

• changes in staff (“Every two years I get a letter saying I’m your new OM.  But they don’t get involved” or “I’ve had 8, nearly one a year: that’s really tedious and really painful.  They tell you to cultivate a good relationship but some don’t even write back to you when you write to them.  It’s impossible to cultivate a good relationship”)

• the delays, the wait for courses, the lack of resources, funding and resource issues, and, in particular, the lack of information: “and they never give you any reason why they cancel” . “It’s like when one cog in a gear box is out of sync – the whole thing will run for a while and then stop. One report writer fails to report and everything gets put back six months.  They tell you to use your time constructively, but you can’t”. 

11.Outcomes:  36 cases

10 mandatory life sentences

24 IPP

2 determinate sentences

The outcomes of the hearings were:

• For the 19 video hearings (Stage 1):  2 prisoners were released; 5 were recommended for transfer to open conditions, and 1 stayed in closed.  5 cases were deferred on the day; 5 were adjourned and 1 was cancelled.
• For the 17 oral hearings in prisons (Stage 2): 5 were released, 5 were recommended for open conditions:  and 2 stayed in closed conditions.  3 were deferred and 2 adjourned.

 

12.Desistance

• What do we know from the academic literature?  Does this help us evaluate Parole Board risk assessments? Halsey, M., Armstrong, R and Wright, S (2016) ‘‘F*ck it!’  Matza and the Mood of Fatalism in the Desistance process’ B J Crim (and Tony Bottoms):-
• Most offenders (even most persistent offenders) desist, and they do so largely on their own initiative.
• Factors influencing “pathways into crime” are not necessarily the same as factors influencing “pathways out of crime”
• Desistance is often a gradual, fragile, obstacle-strewn process.
• The need to individualise ‘treatment’ to be effective.
• The need for understanding support and  pro-social relationships: cf. lack of effective channels for resolving difficulties.

13.The barriers to release?

• Weak release plans: role of OM: OMs who did not appear to give preparation of realistic/robust release plans a high priority; accommodation issues

• Prison behaviour: proving it’s safe to release you when you are in prison is almost impossible?

• Offender Supervisors (OSs) don’t appear to have the authority to drive forward sentence/release plans; content themselves with routinized (template) report writing.

• Prison system culture: a culture of delay?

• Parole Board lack of authority

• Parole Board caution? Dogged focus on the index offence and risk assessment

14.A culture of delay?

• Bureaucratic system which appears to tolerate delays and inertia.  Unclear priorities and pathways. Prisoners are told that there is a target month for their hearing, but NAO (2017): oldest of the outstanding cases in Sept 2016 had a target date in 2009, with another 404 cases had target dates in 2015 or earlier.  In my small study, of the 17 oral hearings heard in prisons in early 2017, five had been referred some two years before the oral hearing eventually took place.

• In the processes that lead towards release, luck plays a significant role, e.g. in whether prisoners find staff who have the time and commitment to ‘champion’ their progress.    Undermines perceptions of legitimacy and can generate disaffection as well as dissatisfaction.

• There appears to be a culture of delay within both prison and parole processes. Should be required to be more pro-active in seeking ‘progression’ for prisoners, and less focused on offender ‘management’.

15. Law as a barrier to release

Currently s. 28(6) of the Crime Sentences Act 1997 (as amended) provides:

Parole Board shall not give a direction with respect to a life prisoner unless:

(a) the Secretary of State has referred the prisoner's case to the Board; and

(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.

A clear burden of proof should imposed on the State to justify continued detention.

Should the threshold for release be lowered?

Once a prisoner had served more than twice his minimum term in prison, should he be released ?

16.What’s different in France?

• See Herzog-Evans and Padfield (2015); Fassin, D. (2017) Prison Worlds: An ethnography of the carceral condition

Status of JAPs: the Governing Governor greeted the JAP in his office!

More feedback – the JAP monitor sentence implementation: does the personal involvement of judges result in better decision- making?  They get positive as well as negative feedback.

The content and importance of judicial training
Does the involvement of the judiciary protect the system from undue politicisation ?
Discussion of proposed conditions in a judicial forum can force someone to negotiate and to ‘sign up’ to release conditions.

Court architecture and video-hearings…

17.And Scotland?

• Parole Board more of a ‘tribunal’?
• Always chaired by a lawyer – is that helpful?
• OM often not a witness – is that helpful?  Still just as powerful?
• The ‘prison’ is represented at the hearing – why?
• Recall growing in Scotland too – ex-prisoners face the same challenges… accommodation, drugs and alcohol…..
• Too many postponements and adjournments….

 

18.Re-thinking parole

• What is it for?
• If the PB is worth having, its role and independence should be strengthened
• Process improvements should include:

a clear burden on the state to prove the necessity of post-tariff detention;

a commitment to avoid delays and to create a culture of urgency;

a review of the style and content of dossiers;

• Prisoners should be given much more support in the parole process.  This includes:

-providing more independent advice and mentoring throughout a prison sentence;

-imposing on prison and probation authorities a legal duty to provide rehabilitative opportunities for prisoners, including a duty to progress prisoners to open conditions, without necessarily waiting for a parole hearing.

-let’s worry about recall/breach as much as release …..

19.Re-thinking the context of parole

• Many of our prisons are a disgrace, as is the size of the prison population.
• The injustice of social/economic inequality.
• What are prisons for?  Let’s re-think the justifications.
• What is post-custody supervision meant to achieve?
• Does it?
• Rethinking the enforcement of supervision in the community.

How do we effect change?

References

Herzog-Evans, M.  and Padfield, N. (2015) The JAP: lessons for England and wales?  Criminal Justice Alliance.  http://criminaljusticealliance.org/wp-content/uploads/2015/04/cja_policy-briefing3_200315.pdf.

National Audit Office (2017)  Investigation into the Parole Board.
Padfield, N., Liebling, A. with Arnold, H. (2000) An exploration of decision-making at discretionary lifer panels, Home Office Research Study No 213.

Padfield, N (2011) An Entente Cordiale in Sentencing? 175 Criminal Law and Justice Weekly 239-42, 256-9, 271-4 and 290-293 (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2239618)

Padfield, N., Van Zyl Smit, D. and Dünkel, F. (eds) (2010) Release from prison – European policy and practice, Willan

Padfield, N. (2013) Understanding Recall 2011

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2201039

Do contact me on nmp21@cam.ac.uk

KATHERINE GLEESON

presented was 2 power points on the day
waiting on speaker for the other one.
Population and capacity Briefing 30 june -2017
https://www.gov.uk/government/statistics/prison-population-figures-2017

 

Comments

Jez

The critical thing about this news is those IPP sentenced prisoners who were told they needed to do these courses before they would even be considered for release have been forced to do a course that increases their perceived risk score. This could happen with other courses as well as they are not tried and tested. They are simply a scene to be doing measure by the government for addressing the risk of reoffending.

If an IPP is now out on licence they could well find that their perceived risk goes up due to no fault of their own, it’s just the way the MOJ software works. The risk calculator built into the Oasys score will bare in mind those revelations that they are 25% more likely to be convicted of another offence because they did the course.

However if they are still in prison its worse!

If they did the courses because they were told they needed to do them to be considered for release and they still haven’t been released yet, then their perceived risk score will most likely go up now based on this revelation and that will reduce their chances of being released. They should be able to claim damages but that will require legal action and it still doesn’t get them out.

We of course need to get the full report which as mentioned in the article, the former Justice secretary Lizz Truss made secret. I will write to my MP and the justice secretary but don’t hold your breath.

Obviously the crimes committed by the people mentioned in the article are horrific and we are always going to have to face the fact that there are a few very dangerous people out there but the vast majority of IPP prisoners simply want to get on with their life. So why should they be at the worst end of this government cock up?

An IPP has to show willing if they want to get released, so whether they committed the crime or not they will most likely do these courses. Now due to no fault of their own they could well suffer because of it, face an even longer delay because they did what they were encouraged to do and engage with the system. We need to challenge the Justice Secretary to confirm or deny whether this revelation will have an effect on the perceived risk calculation on prisoner’s Oasys reports. He will then have to contact the MOJ for clarification but as the IBM software compiles reconviction rates automatically it’s hard to see how this will not affect their Oasys risk score because it’s all built in.

I am also writing to the Safari newsletter (Supporting All Falsely Accused with reference information). They are a fabulous organisation which I would recommend anyone maintaining their innocence gets in touch with. I will also refer them to the article and I’m sure they will contact the Justice Secretary as well.

If you take this revolution at face value you may take the view understandably that courses can make people more dangerous. So I would suggest that a full examination on all courses should be done. A serious rethink needs to occur when things are found to cause even more victims! What shouldn't happen is more untested courses are put immediately into circulation which is exactly what this government has done!

This doesn't reduce crime it just creates more injustice.

http://www.dailymail.co.uk/news/article-4635876/Scandal-100million-sex-crime-cure-hubs.html

 

 

 

 

 

 

 http://www.bbc.co.uk/news/uk-40491331