Protecting the public: Automatic life sentences, parole, and high risk offenders

Criminal Law Review

Volumn 1996, Issue 11, 1996, Pages 788-800

  Hood, Roger ^a   Shute, Stephen ^b  

^a ALL SOULS COLLEGE   (United Kingdom)

^b UNIVERSITY OF BIRMINGHAM   (United Kingdom)

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EID: 3242758408     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (37)

1. The Home Secretary's Foreword to Protecting the Public: The Government's Strategy on Crime in England and Wales, Cm. 3190 (1996), p.iv.
2. Protecting the Public, para. 10.11.
3. Protecting the Public, para. 10.4 (emphasis in the original).
4. Protecting the Public, para. 8.9.
5. Protecting the Public, para. 9.3.
6. The "relevant" offences are (a) violent offences: attempted murder, threat or conspiracy to murder (however, threat to kill was wrongly included as this is not a life-carrying offence), manslaughter, wounding with intent to do grievous bodily harm, robbery involving the use of firearms, possession of a firearm with intent to endanger life or to commit an indictable offence or to resist arrest; (b) sexual offences: rape, attempted rape, unlawful sexual intercourse with a girl under 13. See Protecting the Public, para. 10.8.
7. Home Office, Sentencing and Supervision of Sex Offenders: A Consultation Document, Cm. 3304 (1996), paras. 15-38. See also Chapter 8 of Protecting the Public, paras. 8.10-8.11.
8. Home Office, Sentencing and Supervision of Sex Offenders: A Consultation Document, Cm. 3304 (1996), paras. 15-38. See also Chapter 8 of Protecting the Public, paras. 8.10-8.11.
9. This system, under which all parts of the sentence are made to "count", was introduced in the Criminal Justice Act 1991, after a detailed examination of the subject by the Parole Review Committee, under the Chairmanship of Lord Carlisle. Central to the Review Committee's philosophy was the notion of "truth in sentencing". See The Parole System in England and Wales: Report of the Review Committee (Chairman, The Rt Hon. The Lord Carlisle of Bucklow, Q.C.), Cm. 532 (1988), paras. 242 and 280.
10. In the case of prisoners serving a sentence of between four years and less than seven years, the Board has power to order the release of a prisoner on parole. If the sentence is seven years or longer, the Board makes a recommendation to the Home Secretary. Only rarely is this recommendation not accepted.
11. Seen. 16 below.
12. Criminal Justice Act 1991, s.44.
13. Protecting the Public, para. 9.8.
14. Protecting the Public, para. 9.1.
15. Protecting the Public, para. 9.2.
16. Under these arrangements prisoners were eligible for release after serving one-third of their sentence. In practice it was very rare for long-term prisoners convicted of a violent or sexual offence to be released before having served at least half their sentence. However, whereas under the current system prisoners who are released after two-thirds of their sentence are still subject to supervision, under the old system only those released on parole were supervised. This meant that, in the period in which our sample was drawn, there was a greater readiness than at present to grant parole, at least for a short period, as this was the only means of ensuring that the prisoner was released under supervision rather than let out of the prison gates "cold". See Roger Hood and Stephen Shute, Parole in Transition: Evaluating the Impact and Effects of Changes in the Parole System: Phase One: Establishing the Base-Line, Oxford Centre for Criminological Research, Occasional Paper No. 13, 1994; Paroling With New Criteria: Phase Two: Evaluating the Impact and Effects of Changes in the Parole System, Occasional Paper No. 16, 1995; and "Parole Criteria, Parole Decisions and the Prison Population: Evaluating the Impact of the Criminal Justice Act 1991" [1996] Crim.L.R. 77.
17. Under these arrangements prisoners were eligible for release after serving one-third of their sentence. In practice it was very rare for long-term prisoners convicted of a violent or sexual offence to be released before having served at least half their sentence. However, whereas under the current system prisoners who are released after two-thirds of their sentence are still subject to supervision, under the old system only those released on parole were supervised. This meant that, in the period in which our sample was drawn, there was a greater readiness than at present to grant parole, at least for a short period, as this was the only means of ensuring that the prisoner was released under supervision rather than let out of the prison gates "cold". See Roger Hood and Stephen Shute, Parole in Transition: Evaluating the Impact and Effects of Changes in the Parole System: Phase One: Establishing the Base-Line, Oxford Centre for Criminological Research, Occasional Paper No. 13, 1994; Paroling With New Criteria: Phase Two: Evaluating the Impact and Effects of Changes in the Parole System, Occasional Paper No. 16, 1995; and "Parole Criteria, Parole Decisions and the Prison Population: Evaluating the Impact of the Criminal Justice Act 1991" [1996] Crim.L.R. 77.
18. Under these arrangements prisoners were eligible for release after serving one-third of their sentence. In practice it was very rare for long-term prisoners convicted of a violent or sexual offence to be released before having served at least half their sentence. However, whereas under the current system prisoners who are released after two-thirds of their sentence are still subject to supervision, under the old system only those released on parole were supervised. This meant that, in the period in which our sample was drawn, there was a greater readiness than at present to grant parole, at least for a short period, as this was the only means of ensuring that the prisoner was released under supervision rather than let out of the prison gates "cold". See Roger Hood and Stephen Shute, Parole in Transition: Evaluating the Impact and Effects of Changes in the Parole System: Phase One: Establishing the Base-Line, Oxford Centre for Criminological Research, Occasional Paper No. 13, 1994; Paroling With New Criteria: Phase Two: Evaluating the Impact and Effects of Changes in the Parole System, Occasional Paper No. 16, 1995; and "Parole Criteria, Parole Decisions and the Prison Population: Evaluating the Impact of the Criminal Justice Act 1991" [1996] Crim.L.R. 77.
19. The Parole Board has now to be satisfied before granting parole that "the longer period of supervision that parole would provide is likely to reduce the risk of further imprisonable offences being committed . . . [and] the offender has shown by his attitude and behaviour in custody that he is willing to address his offending and has made positive efforts and progress in doing so [and] the resettlement plan will help ensure the offender's rehabilitation". See "Criminal Justice Act 1991: The Discretionary Conditional Release Scheme", Home Office Circular 85/1992, Annex D.
20. Before the new criteria were introduced, 63 per cent of "high risk" prisoners at last review were recommended for parole, but afterwards the release rate dropped to 33 per cent. See Roger Hood and Stephen Shute, "Parole Criteria, Parole Decisions and the Prison Population", op. cit., at p.84.
21. See Paroling with New Criteria, op. cit., para. 42.
22. Because it was unnecessary for each panel member to state explicitly that they regarded a prisoner as dangerous once one of their colleagues had done so, it is reasonable to infer that, in most cases where parole was refused at last review, the majority of the panel were agreed on the question of risk. We excluded from the analysis cases where the panel was so divided that the dossier was referred to another panel of the Board for further consideration.
23. Although there are no such studies in England, research on the release of presumed dangerous offenders in America has revealed that "psychiatrists and psychologists are accurate in no more than one in three predictions of violent behaviour . . . among institutionalised populations that have both committed violence in the past (and thus had high base rates for it) and who were diagnosed as mentally ill". It is widely recognised that there needs to be considerable advances in diagnosis and risk assessment if the accuracy of predictions of dangerous behaviour is to be improved. See John Monahan and Henry J. Steadman, "Towards a Rejuvenation of Risk Assessment Research", in Monahan and Steadman (eds.), Violence and Mental Disorder: Developments in Risk Assessment (1994, Chicago University Press), pp.1-17 at p.5.
24. In a handful of cases we encountered some difficulty in deciding whether or not an offence was "relevant". First, we were not always sure whether a particular offence is intended to be included amongst those which will attract the new provisions. For example, are conspiracy to rob, attempted robbery with a firearm, and attempted grievous bodily harm with intent "relevant" offences? As they were not included in the list in the White Paper we did not include them in the main body of the analysis. However, it is possible that they may be included in the forthcoming Bill. Buggery is not listed as a "relevant" sexual offence in the White Paper but since it is now classified as rape we regarded it as an offence qualifying for an automatic life sentence. Secondly, in a very small number of cases it was unclear from the list of previous convictions whether a person with a current "relevant" conviction also had a previous conviction for a "relevant" offence. For example, a previous conviction for "wounding" might be an offence of wounding with intent to cause grievous bodily harm (s.18 of the Offences Against the Person Act 1861) or the lesser offence of wounding without intent (s.20 of the Offences Against the Person Act 1861) for which the maximum sentence is five years. We only counted these previous convictions as "relevant" if they were clearly listed as "wounding with intent". Also, it was not always possible to tell whether a previous conviction for robbery had involved a firearm. Only if there was firm evidence of firearm use did we classify the offence as "relevant". However, we were left with just 11 cases which might have proven to be ALS qualified had the information on previous convictions for wounding or robbery been more precise. See n.23, below.
25. We have not given information on refusal rates in this Table because it includes cases which were decided under both the old and new criteria. See n.17, above.
26. If conspiracy to rob and attempted robbery and attempted grievous bodily harm with intent were eventually included as "relevant" offences in the new Criminal Justice Act, the ALS category would only increase from 15 to 20 cases: eight "not high risk" and 12 "high risk". This would not change the findings significantly. There were a further 11 prisoners (seven "high risk" and four "not high risk") who had a "relevant" current conviction but whose record of previous convictions did not specify with sufficient clarity whether they had a "relevant" previous conviction. If all these doubtful cases were included as ALS qualified, they would still only account for 9.6 per cent of all last review cases (31/324) and 17 per cent of the "high risk" cases: 19/113.
27. If attempts, conspiracies and doubtful cases were included amongst the ALS-qualified, as in n.23, the number of ALS-qualified cases would be 13 (two released and 11 refused). Thus, amongst those refused parole on grounds of danger, the ALS-qualified cases would have accounted, at the most, for 24 per cent: 11/46.
28. See n.7 above.
29. When all non-ALS qualified "high risk" last review cases in our sample (N = 103) were analysed (i.e. both under the old and new criteria) the proportion of sex offenders was found to be similar (32 per cent) and the proportion amonst those refused was also similar (29 per cent of 52).
30. The Parole System in England and Wales: Report of the Review Committee, op. cit., para. 233.
31. It costs on average £2,000 per month to keep a prisoner in custody. It is difficult to estimate how much the proposed new scheme will cost, but for ease of illustration let us assume that the average sentence length of those at present being considered for parole is six years (although it is in fact probably more than seven years). Even if all prisoners sentenced at present to six years have their sentences reduced to four years under the new system and earn maximum remission of sentence, they will serve on average four months longer than similar prisoners released on parole under the present system. If this were to affect 1,000 prisoners the new system would cost £8 million a year, but it could affect as many as 2,000 prisoners, or even more, costing at least an extra £16 million per annum. But of course sentences may not be shortened by so much. The longer the average sentence served the higher the cost will be. Although the new system would produce a saving in the cost of administering the parole system for determinate sentence prisoners, this would be well short of £1 million, perhaps nearer £500,000.
32. It is a criminological commonplace, of course, that the best predictors of future criminality are age and previous criminal history, but presumably these are not to be taken into account as such in calculating the number of days of remission earned. While it is known that persons convicted of violence have a heightened probability of being disciplined for violence in prison, all studies have shown that predictions of dangerousness on the basis of clinical judgements relying on interviews and recorded information are very unreliable. See, for example, D. A. Clark, M. J. Fisher and C. McDougall, "A New Methodology for Assessing the Level of Risk in Incarcerated Offenders" (1993) 33 British Journal of Criminology 436. A greater investment of research on this subject is sorely needed.
33. See C. P. Nuttall et al., Parole in England and Wales, Home Office Research Study, No. 38 (1977), pp.23-39, at p.39.
34. Although there is the caveat that an automatic life sentence need not be imposed if there are "genuinely exceptional circumstances", it is stated that this power is to be invoked only in "occasional quite unforseen circumstances", which would have to be explained by the court. See Protecting the Public, para. 10.10.
35. See, for example, JUSTICE, Sentenced for life. Reform of the law and procedure for those sentenced to life imprisonment, (1996, London).
36. For example, see Sir Leon Radzinowicz and Roger Hood, "A Dangerous Direction for Sentencing Reform" [1978] Crim.L.R. 713, and "Dangerousness and Criminal Justice: A Few Reflections" [1981] Crim.L.R. 756.
37. For example, see Sir Leon Radzinowicz and Roger Hood, "A Dangerous Direction for Sentencing Reform" [1978] Crim.L.R. 713, and "Dangerousness and Criminal Justice: A Few Reflections" [1981] Crim.L.R. 756.