INDETERMINATE SENTENCES – INSIDE TIME LEGAL FACTSHEET 2014

Written 14th May 2014 by Olliers Solicitors

For those serving a life sentence progress through the system can often feel like a daunting and complicated procedure.

Progression to Release

Life sentences have developed over the years to the current situation where a specific system has been put in place to deal with what are referred to as indeterminate sentences. Originally, a life sentence was put in place for those over the age of 21 who had been convicted of murder. This has, however, developed through legislation and the sentencing exercise over time and there are now in place various types of life sentence which are in existence today. These consist of sentences of mandatory life (MLP), discretionary life (DLP), automatic life (ALP) and more recently indeterminate sentences for public protection (IPP).

Whilst mandatory life still exists as an available sentence for the offence of murder, discretionary life remains available in only limited circumstances where the offence crosses the appropriate level of seriousness. Automatic life sentences ceased to exist after 4th April 2005 and were in effect replaced by the IPP sentence which was itself removed as a sentencing option by the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) which came into force in May 2013.

Whilst some of the above therefore are no longer available as sentencing options, as all types of indeterminate sentences are subject to a minimum term and as release is at the discretion of the Parole Board there are many ALP, DLP and IPP prisoners who remain in the system.

The main policy guidance on life sentences within the prison estate is contained within Prison Service Order 4700 which, whilst a quite dated document, is regularly updated by new Prison Service Instructions (PSIs) which themselves adapt policy over time to reflect new legislation passed by Parliament.

The system originally was set up to deal with long term prisoners who would pass through ‘Stage 1’ and ‘Stage 2’ of their life sentence before there was any contact with an Offender Manager or before resettlement issues were considered. After sentence, all lifers were originally allocated to a Stage 1 Lifer Centre which was usually a Category B prison or part of the High Security Estate. The aim was for indeterminate sentence prisoners to slowly work their way through their sentence moving on to Stage 2, then further on towards achieving identifiable sentence plan targets to target risk reduction, and finally slowly towards release.

In reality, the first stage of the sentence was a period of instability where prisoners with lengthy sentences would have to come to terms with an extended period of imprisonment. It is not unknown for that initial stage to contain a large amount of adjudications and general poor behaviour in what was in effect a period of adjustment to a very lengthy sentence.

Sentence Planning

The policy for the management of indeterminate sentence prisoners (ISPs) has been reviewed as a consequence of the impact on the system of the introduction of IPP prisoners, often with much shorter periods of tariff.

The new policy as outlined in PSI 36/2010 makes it clear that the sentence planning process must now be realistic rather than aspirational and is intended to cover work firstly in custody and at a later stage should take account where possible of work in the community.

The purpose of sentence planning is to identify areas of risk to be reduced rather than to focus solely on completion of identified interventions.

Nonetheless, the majority of sentence planning will revolve around the completion initially of offending behaviour programmes which are identified through the sentence planning process to address specific areas of risk.

The policy makes clear that allocation and management of ISPs will be determined according to an individual’s risk levels and intervention needs and the purpose is to attempt to match available resources to an individual’s risk replacing the previous system of ‘lifer stages’.

Sentence planning is based primarily on offending behaviour programmes but also in practice will comprise a range of other work designed to address and reduce identified areas of perceived risk of harm that the individual presents to the public. Examples could include one to one work with an offender manager or with an offender supervisor or could take the form of psychological risk assessments.

The purpose of sentence planning is now to identify the risks to be reduced rather than to identify which interventions must be undertaken.

The policy indicates that ‘risk’ factors will be identified by reference to the following:

  1. The nature of the offence
  2. The circumstances of the offence and degree of interpersonal and other aggression used
  3. The presence of any special (pathological, sexually unusual or conspicuous) behaviour during or after the offence
  4. The offender’s offending history
  5. The motivation/triggers behind the offence
  6. Victim information
  7. Lifestyle and background
  8. Behaviour and attitude
  9. Presence of substance or alcohol misuse
  10. Mental health (including Personality Disorders)

Maintaining Innocence

Obvious problems will occur for those prisoners who maintain innocence with regard to the offence which resulted in their conviction. A large amount of offending behaviour coursework requires a prerequisite admission of guilt, specifically so in the case of, to use one example, the core SOTP programme which requires participants to directly discuss the index offence. The Controlling Anger and Learning to Manage It programme (CALM) also requires an element of admission.

The Prison Service and Probation Service will always start from the assumption that a finding of guilt beyond reasonable doubt by the court is correct, they will not act as the Court of Appeal and will consider any conviction to be safe until the Court of Appeal deems otherwise and sentence planning therefore will proceed on that basis.

Maintaining innocence does not present an automatic bar to progression and release. The reality is, however, that if the Prison Service or Probation Service cannot recognise any risk reduction, it becomes difficult for a prisoner to lower his security category and progress through the system.

However, an individual can maintain innocence and still engage in the risk assessment process; address and reduce identified risk factors; and undertake programmes such as Thinking Skills which is not offence focused allowing for progress through the system to be achieved.

The Parole Board will take account of the fact that a prisoner has maintained innocence throughout the duration of their sentence and it is possible for that individual to be released. However, in real terms the Parole Board undertakes what is in essence a risk assessment exercise and it becomes difficult for the Parole Board to direct release if they feel there are unaddressed areas of risk which still exist and which could affect the safety of the public if an individual is released back into the community.

IPP Short Term Prisoners

The impact of the IPP sentence on progress through the system has been significant. Whereas originally the procedures which were in place were designed to deal with medium to long term indeterminate sentence prisoners, the influx of short term indeterminate ISPs has essentially created a bottleneck in the system. The IPP sentence itself is clearly an example of poorly considered political policy being translated into bad legislation and it is clear the potential ramifications for the Prison Service were not fully considered.

The Prison Service found itself having to deal with prisoners who were subject to what is essentially a life sentence with minimum terms that on some occasions were no longer than twelve months. As those with short tariffs were also subject to the Parole Board procedure in terms of release the system simply was not able to cope.

This meant that courses were unavailable, risk assessments were not carried out in time for reviews and most unfortunately of all, a large amount of short term ISPs found themselves in the position of being over tariff with no visible date of release.

There remains within the prison estate a large amount of over tariff IPP prisoners who, as a consequence of ill thought out legislation, remain in the system attempting to obtain release.

The policy with regards to short tariff ISPs has now been amended to take account of the nature of the sentence and attempts to deal with the situation arising out of much shorter tariffs.

Short tariff ISPs are considered to be those with a tariff of three years or less and the policy recognises the need to treat this category of prisoners differently to take account of the short tariff. The amended policy attempts to ensure that the Parole Board has the appropriate information to allow it to make a risk based decision as to whether a prisoner should be released. In particular:

  • All ISPs should be prioritised for interventions and offending behaviour programmes according to the risk of harm they pose and the length of time to tariff expiry. It remains the responsibility of the ISP to address the risk of harm they present but they must be offered reasonable opportunity as far as possible given the available resources to address their risk factors in time for their Parole Board review.
  • Sentence planning meetings should take into account the time an ISP has until their Parole Board review when considering the tailoring of interventions to assist the ISP to reduce their risk of harm.
  • The initial sentence planning meeting and any additional risk assessments are to be completed as quickly as possible as the maximum time allowed may overrun the offenders Parole Board review (PSI 36/2010).

The result of this shift in policy is that there is an impact on those with longer tariffs, those prisoners will not be treated as a priority in terms of obtaining access to sentence planning targets and offending behaviour courses. Those with longer tariffs will wait longer to access sentence plan targets, and will not therefore be expected to meet all sentence planning targets within the first few years of sentence.

For those with very long tariffs it may be the case that sentence plan targets only become available after a significant period of the tariff has been completed as the priority will be to deal with those subject to short tariffs.

The Parole Procedure

An ISP prisoner has the opportunity of potentially having his case considered by the Parole Board three years before the expiry of his minimum term (this excludes short term ISPs for obvious reasons). It used to be the case that all ISP prisoners would automatically be considered for what is known as a Pre Tariff Review. This was a formal review with a parole dossier being completed and if the case was suitable the Parole Board would consider at an oral hearing an applicant’s suitability for a transfer from the closed to the open estate pre tariff.

This system allowed a suitable candidate the opportunity of spending a period in open conditions before tariff expiry to establish a release plan, to indicate that they can comply with the lesser conditions of security within the open estate and to have the opportunity of release on temporary licence in the community to demonstrate that they could comply with supervision on life licence in the community.

Cases are not now automatically referred to the Parole Board, ISPs serving more than three years are entitled to have their cases reviewed up to three years before the expiry of their tariff. A Sentence Planning Review Meeting (SPRM) will take place and a decision will be made usually by a Governor whether to refer the case to the Parole Board.

The role of the SPRM is not to conclude whether an ISP should be transferred to the open estate but to consider whether there is evidence to conclude that a panel of the Parole Board might itself reasonably conclude that a prisoner could be safely transferred.

The SPRM will consider whether or not an applicant meets the criteria for a referral and will communicate the decision to the applicant (an application can also be referred on the basis of ‘exceptional progress’ or through a direct application to PPCS for a consideration by the Secretary of State without the matter being referred to the Parole Board subject to very specific criteria).

The Generic Parole Process

All ISPs will have their cases referred to the Parole Board shortly before the expiry of their tariff, which will usually be 26 weeks before tariff expiry date. At the commencement of this process, the prison concerned will request all the reports necessary to form the dossier. The dossier will then be served on the Parole Board, the Parole Board will provide it to a panel (under the ICM procedure) and that panel will consider the dossier. This will be a paper review and it is at this point that a solicitor usually will have considered the dossier and submitted representations requesting an oral hearing take place subject to the Parole Board criteria.

The ICM procedure is to decide whether the case should be referred to an oral panel for a full hearing. If a case is deemed suitable the panel will issue ICM Directions which will usually request further reports to be prepared just before the hearing to assist the panel at the hearing and the matter will then be put forward to be listed for a date for the hearing to take place.

In order to obtain an oral hearing the applicant must meet the criteria as laid down by the Parole Board. There is no automatic right to an oral hearing. The Oral hearing guidance makes it clear that there must either be a realistic chance of release or a move to open conditions or the assessment of risk requires live evidence from the applicant/witnesses. An oral hearing will not normally be granted if there is no realistic prospect of release or a transfer to open conditions. If the Parole Board decide that the case does not warrant an oral hearing then detailed reasons will be provided.

The Oral Hearing

Once a hearing has been granted the matter will be given a date for hearing and listed to take place at the prison which holds the applicant (this can sometimes be done by way of a video link but it is recognised that it is often inappropriate for release hearings to be done this way).

The Parole Board at the hearing has the power to recommend a transfer to open conditions (a decision which must be ratified by the Secretary of State) or direct release (a decision which is binding on the Secretary of State).

When considering suitability for open conditions the Parole Board will take account of the factors contained within Directions to the Parole Board under section 32(6) of the Criminal Justice Act 1991. The Parole Board will consider the Directions and decide whether on the facts an applicant’s risk is such that it is capable of being managed in open conditions.

The Parole Board issues guidance on open conditions and the basic position is that the Parole Board cannot ultimately be satisfied about risk until and unless a successful period of testing in open conditions has been completed. This does not rule out the possibility of being released directly from closed conditions but in reality the majority of ISPs will be required to undergo a period in open conditions so that the skills they have learned can be put into practice in both open conditions and in community through release on temporary licence.

The test for release is:

“the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined” (section 28 Crime (Sentences) Act 1997).

Further Reading

PSI 22/2009,36/2010,36/2012
Parole Board Website, Parole Board Hearings – Arnott and Creighton

Jeremy Pinson

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