Parole and early release: the criminal justice and immigration act 2008 changes in context

Criminal Law Review

Volumn , Issue 3, 2009, Pages 166-187

  Padfield, Nicola ^a  

^a UNIVERSITY OF CAMBRIDGE   (United Kingdom)

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EID: 62549093129     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (119)

1. N. Padfield, "The Parole Board in Transition" [2006] Crim. L.R. 3. I am very grateful to Professor Dirk van Zyl Smit, to Dr Leo Cheliotis and to an anonymous reviewer for their helpful comments on a draft of this article.
2. Indeed, the expression seems to be becoming more widely used: see, e.g. House of Commons Justice Committee. Fifth Report of Session 2007-08, Towards Effective Sentencing. HC Paper 184-I (Session 2007/08).
3. For a review of the "what works" literature on temporary release, see L. Cheliotis, "Reconsidering the effectiveness of temporary release: a systematic review" (2008) 13 Aggression and Violent Behaviour 153.
4. But see below: ECL prisoners, too, are now released under ROTL rules.
5. Rule 9 starts: "(1) The Secretary of State may, in accordance with the other provisions of this rule, release temporarily a prisoner to whom this rule applies. (2) A prisoner may be released under this rule for any period or periods and subject to any conditions. (3) A prisoner may only be released under this rule: (a) on compassionate grounds or for the purpose of receiving medical treatment; (b) to engage in employment or voluntary work; (c) to receive instruction or training which cannot reasonably be provided in the prison; (d) to enable him to participate in any proceedings before any court, tribunal or inquiry; (e) to enable him to consult with his legal adviser in circumstances where it is not reasonably practicable for the consultation to take place in the prison; (f) to assist any police officer in any enquiries; (g) to facilitate the prisoner's transfer between prisons; (h) to assist him in maintaining family ties or in his transition from prison life to freedom; or (i) to enable him to make a visit in the locality of the prison, as a privilege under rule 8. (4) A prisoner shall not be released under this rule unless the Secretary of State is satisfied that there would not be an unacceptable risk of his committing offences whilst released or otherwise failing to comply with any condition upon which he is released."
6. Many powers previously held only by the Comptroller (the representative of the state) have slipped relatively unnoticed to the directors of private prisons since the implementation of s.19 of the Offender Management Act 2007 (on November 1, 2007). They, in turn, can delegate decision making to a "suitably trained and operational experienced senior member of staff': see the PSI 11/2008 amendments to the Prison Discipline Manual (PSO 2000).
7. The 2006 statistics are taken from Offender Management Caseload Statistics 2006 (December 2007), Table 10.6a.
8. Thus, until she was moved from East Sutton Park the claimant in R. (on the application of X) v Secretary of State for the Home Department, the Governor of HMP Drake Hall and the Governor of HMP East Sutton Park [2005] EWHC 1616 (Admin) had been allowed regular release on ROTL to stay with her children overnight.
9. Although this was a decrease of 1% compared to 2005, it was an increase of 55% compared to 1996 (but the prison population is also that much larger, of course).
10. There were 319 temporary release "failures" in 2006, a decrease of 6% compared to 2005. The failure rate when compared to the number of licences issued was 0.1%, the same rate since 2000: Offender Management Caseload Statistics 2006 (December 2007), para. 10.14. But these "failures" (often technical failures) are not a useful measure of the effectiveness of ROTL: see M. Tonry, (1990) 36 Crime and Delinquency 174;
11. S. Turner and J. Petersilia, (1996) 76 Prison Journal 138. Do administrative concerns override rehabilitative objectives?
12. R. (on the application of X) v Secretary of State for the Home Department [2005] EWHC 1616 (Admin).
13. R. (on the application of Churchman) v West Midlands Probation Board [2007] EWHC 1521 (Admin).
14. R. (on the application of Irving) v London Probation Board [2005] EWHC 605 (Admin).
15. Repealed by Sch.5 to the Offender Management Act 2007.
16. K. Dodgson and E. Mortimer, "Home Detention Curfew Orders: The first year of operation" (Home Office Research Finding No. 110, 2000);
17. K. Dodgson et al., "Electronic monitoring of released prisoners" (Home Office Research Study No.222, 2001).
18. The figure has remained relatively steady: on March 30, 2008 the figure stood at 2,470.
19. This was to "maintain public confidence in the HDC scheme": see the written ministerial statement of April 10, 2003.
20. The reasons have to be based on those "listed at para 5.38" but no such paragraph exists in PSO 6700!
21. It would appear that different rules are in place in different private companies, but this information is not easy to come by.
22. But as PSI 49/2007 reported: "So far, the BASS project has not delivered the number of places that was expected. With population levels remaining high, it is vital that Governors ensure that the fullest possible use is being made of this service for both HDC and bail. It is important to supply complete and accurate information to avoid delay." Encouragingly, additional external funding for extra bail information staff is being made available. But the scheme has also been much criticised: see fn.51 below.
23. Offender Management Caseload Statistics 2006 (December 2007), para.10.9.
24. R. (on the application of Price) v Governor HMP Kirkham [2004] EWHC 461.
25. R. (on the application of Cross) v Governor HM Youth Offender Institution Thorn Cross [2004] EWHC 149.
26. See also R. (on the application of Noone) v Governor of Drake Hall Prison [2008] EWCA Civ 1097.
27. Mason v Ministry of Justice [2008] EWHC 1787.
28. Hansard, HL, col.96 (June 19, 2007).
29. Jack Straw inherited the office on June 28, 2007.
30. David Hanson gave news of their implementation in the House of Commons a month later: Hansard, HC col.6WS Quly 16, 2007). By July 5, 2007 there had been 1,701 releases on ECL. Of these, 1,552 (91%) were men and 149 (9%) were women. The greatest number of releases was for offenders serving sentences for theft and handling, with 404 (24% of all releases). Some 1,412 (83%) of releases were from sentences of less than 12 months, with the remaining 289 (17%) from sentences of 12 months to less than four years.
31. The monthly Ministry of Justice statistical bulletin on ECL releases and recalls is available at http://www.justice.gov.uk/publicattons/ endofcustodylicence.htm [Accessed December 21, 2008].
32. As previously, the large majority were serving sentences of under 12 months (2,232 or 81%), and a majority were serving sentences of less than or equal to 6 months (1,953 or 71%). The remaining 513 (19%) were serving longer sentences.
33. See fn.5 above.
34. Which replaced the first PSI on the subject: PSI 27/2007.
35. PSI 26/2008, PSI 21/2008.
36. Though it is equally well known that re-offending measures are imprecise. See http://www.justice.gov.uk/publications/reoffendingofadults.htm [Accessed December 21, 2008].
37. Also Towards Effective Sentencing, Ch.4;
38. R. Burnett and S. Maruna, "So 'prison works', does it? The criminal careers of 130 men released from prison under Home Secretary, Michael Howard" (2004) 43 Howard Journal 390.
39. See Criminal Justice Act 1991 s.65.
40. The directors of some private prisons may have some involvement, despite the wording of PSI 2007/42.
41. See fn.27 above.
42. These sections were brought into force on August 1, 2008. Section 33 has already been amended by s. 146 of the Criminal Justice and Immigration Act 2008, adding a new exception where deportation would contravene the UK's obligations under the Council of Europe's Convention against Trafficking in Human Beings. On the 2007 Act, see J.A. Sweaney, "The Human Rights of Failed Asylum Seekers in the UK" [2008] P.L. 277.
43. UK Border and Immigration Agency (June 2007).
44. See PSO 6000, Ch.9; PSI 27/2004.
45. See para.7 of PSI 19/2008.
46. See in particular Council Framework Decision 2008/909/JHA of November 27, 2008 on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union; also the discussion in House of Commons European Scrutiny Committee, Thirty-ninth Report of Session 2005-06. HC Paper No.34-xxxix (Session 2005/06). Note too the European Court of Human Rights' jurisprudence: e.g. Szabo v Sweden (App. No.28578/03), judgment of June 27, 2006, where the applicant's complaint that his transfer to Hungary from Sweden resulted in a de facto 16-month increase in his term of imprisonment was held inadmissible: the Court (2nd section) held that "the possibility of a longer period of imprisonment in the administering State does not in itself render the deprivation of liberty arbitrary as long as the sentence to be served does not exceed the sentence imposed in the original criminal proceedings".
47. See also Recommendation 2003/22 of the Council of Europe on Conditional Release (Parole).
48. [2006] Crim L.R. 3, 22.
49. An oral hearing has been possible since the House of Lords recognised a common law/art.5(4) right to an oral hearing in R. (on the application of Smith) v Parole Board; R. (on the application of West) v Parole Board [2005] UKHL 1; [2005] 1 W.L.R. 350. But since February 2007 the Parole Board has adopted a policy that there must be valid reasons for an oral hearing. In 2007/08, there were only 36 DCR cases heard by oral hearing (44% of which were successful from the prisoner's perspective - release was directed).
50. Extended sentences for public protection introduced under the dangerousness provisions of the Criminal Justice Act 2003 (as opposed to the two different "extended" sentences of the Powers of Criminal Courts (Sentencing) Act 2000 ss. 85 and 86) are also included in the determinate sentence statistics: of the 1,269 extended sentence cases considered by the Board in 2007/08, release was directed for only 93 (7.3%). Of these extended sentence cases, 889 applied for an oral hearing but 430 were rejected: there were only 360 oral hearings of extended sentence cases. In 81 of these cases, release was directed: 22%. Release appears more likely after an oral hearing, but it may be that it is only the "likely candidates" who are granted an oral hearing. The Criminal Justice Act 2003 extended sentence is known in the Prison Service as EPP (extended sentence for public protection): see, e.g. PSI 27/2008.
51. During 2007/08, a total of 11,756 determinate sentence offenders were recalled to custody, up from 11,265 in 2006/07. That figure was an increase of 29% on the total number of offenders recalled during 2005/06 (8,680) and up from a mere 233 in 1996/97. 114 offenders on life licence were recalled to prison in 2007/08 compared with 178 in 2006/07. 926 formal "parolees" were recalled, as opposed to 1,210 in 2006/07, and 993 in 2005/06. In 2007/08, this meant 27.3% of those on licence were recalled (as opposed to 28% the year before). (Parole Board Annual Report 2007/08, and Offender Management Caseload Statistics 2006 (December 2007), paras 10.10-10.11).
52. See also N. Padfield and S. Maruna, "The Revolving Door at the Prison Gate" (2006) 6 Criminology and Criminal Justice 329.
53. R. (on the application of Brooke) v Parole Board [2008] EWCA Civ 29; [2008] 1 W.L.R. 1950.
54. R. (on the application of Cooper) v Parole Board [2007] EWHC 1292.
55. See also Smith v Ministry of Justice [2008] EWHC 2998 (Admin).
56. See D.A Thomas, "IPP amended" [2008] 5 Archbold News 5;
57. N.M. Padfield, "The Criminal Justice and Immigration Act 2008" [2008] 7 Archbold News 5.
58. See now Attorney General's Reference (No.55 of 2008) [2008] EWCA Crim 2790.
59. Barber [2006] EWCA Crim 162, [2006] Crim. L.R. 549;
60. Norman [2006] EWCA Crim 1792, [2006] Crim. L.R. 1072 (six conjoined appeals);
61. Gordon [2007] EWCA Crim 165, [2007] Crim. L.R. 402.
62. Though the private company ClearSprings was given a national contract to provide accommodation for those on bail and HDC in June 2007: see Probation Circular 33/2007 and National Probation Service Briefing Issue 42, May 9, 2008. This scheme has been much criticised in both the press and Parliament for lack of openness and consultation: see, e.g. Hansard, HC col. 142 (June 10, 2008).
63. The statutory formula of s.246(2) of the Criminal Justice Act 2003 had already been amended by the Domestic Violence, Crime and Victims Act 2004 Sch.6 para.3(b).
64. i.e. s.247(2)(b) and (3)-(6).
65. This change took effect as of June 9, 2008: see the Criminal Justice and Immigration Act 2008 (Commencement No.1 and Transitional Provisions) Order 2008 (SI 2008/1466).
66. See PSI 2008-17.
67. R. (on the application of Hindawi and Headley) v Secretary of State for the Home Department [2006] UKHL 54; [2007] 1 A.C. 484.
68. See N. Padfield, "Distinguishing the Unlawful from the Unjustifiable in the Rules on Early Release from Prison" [2007] C.L.J. 255. This section came into force on July 14, 2008: see the Criminal Justice and Immigration Act 2008 (Commencement No.2 and Transitional and Saving Provisions) Order 2008 (SI 2008/1586).
69. See fn.41 above.
70. ss.29-32 also came into force on July 14, 2008 (see above). [58a] i.e. an offence specified in Sch.15 to the 2003 Act.
71. See monthly prison statistics available at http://www.hmprisonservice. gov.uk/resourcecentre/publicationsdocumems/index.asp?cat=85 [Accessed December 21, 2008], as well as the annual Offender Management Caseload Statistics. Perhaps there will be improvements in accessibility following the July 2008 Ministry of Justice consultation paper on proposals to improve the presentation of statistics on prisons and probation, sentencing and re-offending.
72. Published in December 2007.
73. Towards Effective Sentencing. See also N. Padfield, "Securing the Future? Lord Carter's Narrow Approach" (2007) 50 J.P. 876, and at [2008] 4 Archbold News 5.
74. For other comments on the rising prison population, see also Lord Justice Gage's Sentencing Commission Working Group's report, Sentencing Guidelines in England and Wales: an evolutionary approach (July 2008).
75. This "Lockyer Review", commissioned in April 2007, reported internally in August 2007, but it was not until July 14, 2008 that the Government published it, in response to a freedom of information application: see ISP Review Group, Final Report, August 17, 2007 at http://www.justice. gov.uk/foi-indeterminate-sentence-prisoners.htm [Accessed December 21, 2008]. Its key principles (including the need to "front-load" offender assessment in order to facilitate sentence progression and that resources should follow risk not sentence) merit wider discussion.
76. House of Commons Justice Committee. Fifth Report of Session 2007-2008, Towards Effective Sentencing.
77. Secretary of State for Justice v Walker and James [2008] EWCA Civ 30; [2008] 1 W.L.R. 1977.
78. The words of the Lord Chief Justice in Brooke [2008] EWCA Civ 29; [2008] 1 W.L.R. 1950 at [3].
79. See http://inspectorates.homeoffice.gov.uk/hmiprisons/inspect-reports/ hmp-yoi-inspections.html/549198/ [Accessed December 21, 2008].
80. Though they were somewhat critical of the Ministry of Justice's failure to produce some data (see para.3.8).
81. See para.3.37.
82. Ezeh v UK (2002) 35 E.H.R.R. 28 ECtHR, upheld in Young v UK (2007) 45 E.H.R.R. 29 ECtHR.
83. R. Hood and S. Shute, "The parole system at work: a study of risk based decisionmaking" (Home Office Research Study No.202, 2000);
84. N. Padfield and A. Liebling, "An Exploration of Decision-Making at Discretionary Lifer Panels" (Home Office Research Study No.213, 2000);
85. N. Padfield, Beyond the Tariff: Human rights and the release of life sentence prisoners (2002).
86. Parole Board, Annual Report 2007/08, p.20.
87. Parole Board, Annual Report 2007/08, p.20.
88. R. (on the application of Johnson) v Secretary of State for the Home Department [2007] EWCA Civ 427; [2007] 1 W.L.R. 1990.
89. Hindawi [2006] UKHL 54; [2007] 1 A.C. 484.
90. It was to deal with the declaration of incompatibility in Hindawi that Parliament passed s.27 of the Criminal Justice and Immigration Act 2008 (see above). Further analysis of this case, including why Clift lost his appeal, is available in Padfield, "Distinguishing the Unlawful from the Unjustifiable" [2007] C.L.J. 255.
91. R. (on the application of Black) v Secretary of State for the Home Department [2008] EWCA Civ 359; [2008] 3 W.L.R. 845.
92. Johnson [2007] EWCA Civ 427; [2007] 1 W.L.R. 1990.
93. R. (on the application of Hill) v Secretary of State for the Home Department [2007] EWHC 2164.
94. Hill [2007] EWHC 2164 at [48].
95. R. (on the application of Banfield) v Secretary of State for Justice [2007] EWHC 2605.
96. R. (on the application of Mitchell) v Secretary of State for the Home Department [2008] EWHC 1370.
97. R. (on the application of Lowe) v Governor of Liverpool Prison [2008] EWHC 2167.
98. Gibson, Kelly and Bailey v Secretary of State for Justice [2008] EWCA Civ 177; [2008] 3 All E.R. 844.
99. Criminal Justice Act 2003 (Commencement No.8 and Transitional and Saving Provisions) Order 2005 (SI 2005/950).
100. Noone [2008] EWCA Civ 1097.
101. See the discussion by several authors, including the Chairman of the Parole Board, in N. Padfield (ed.), Who to release? Parole, fairness and criminal justice (2007).
102. Brooke [2008] EWCA Civ 29; [2008] 1 W.L.R. 1950.
103. R. (on the application of Girling) v Parole Board [2006] EWCA Civ 1779; [2007] Q.B. 783.
104. Brooke [2008] EWCA Civ 29; [2008] 1 W.L.R. 1950 at [36].
105. Annual Report 2007/08, p. 15.
106. See D. Van Zyl Smit, (1994) 13 Criminal Justice Ethics 31;
107. see also J. Jackson, [2007] Crim. L.R. 417, 440 on the possible procedures for such courts.
108. A Review of the Sentencing Framework (The Halliday Report) (July 2001).
109. This author welcomes the initiative of Justice which is currently carrying out a project on parole.
110. The language of the Ministry of Justice's Consultation Paper on Titan prisons (2008).
111. The language of the Justice Committee of the House of Commons, Towards Effective Sentencing.
112. This has been well catalogued: see, e.g. M. Feeley and J. Simon, "Actuarial Justice: the Emerging New Criminal Law" in D. Nelken (ed.), The Futures of Criminology (1994);
113. M. Feeley, "Crime, Social Order and the Rise of Neo-conservative Politics" (2003) 7 Theoretical Criminology 111.
114. D.W. Fitzgibbon, (2008) 55 Probation Journal 55;
115. A. Mehta, (2008) 55 Probation Journal 189.
116. This article has focused on adult offenders: the need for individualisation is even greater in the case of child offenders; see Howard League for Penal Reform's Parole 4 Kids: A Review of the Parole Process for Children in England and Wales (2007), on the need for a child-centred approach to the parole process for offenders aged under 18, criticising the current methods for assessing the risk posed by young offenders.
117. Halliday Report, recommendations 19-22.
118. Again, it is important to bear in mind the aspirations of the Recommendation of the Council of Europe on conditional release (parole) adopted on September 24, 2003 (Rec 2003/22).
119. M. Paparozzi and M. Demichele, "Probation and Parole: Overlooked, Misunderstood, and Under-appreciated - but why?" (2008) 47 Howard Journal 275.