“… (2) It is the duty of the Board to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners. … (6) The Secretary of State may … give to the Board directions as to the matters to be taken into account by it in discharging any functions under this Chapter or under Chapter 2 of Part 2 of the 1997 Act, and in giving any such directions the Secretary of State must have regard to - (a) the need to protect the public from serious harm from offenders, and (b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation.”
“Introduction 1. In most (but not all) indeterminate sentenced prisoner (ISP) cases, a phased release from closed to open prison is necessary in order to test the prisoner's readiness for release into the community. It allows the testing of areas of concern in conditions that more closely resemble those that the prisoner will encounter in the community often after having spent many years in closed prisons. ISP's have the opportunity to take resettlement leave from open prisons and, more generally, open conditions require them to take more responsibility for their actions. 2. The main facilities, interventions, and resources for addressing and reducing core risk factors exist principally in the closed ISP estate. In this context, the focus in open conditions is to test the efficacy of such core risk reduction work and to address, where possible, any residual aspects of risk. 3. A move to open conditions should be based on a balanced assessment of risk and benefits. However, the Parole Boards emphasis should be on the risk reduction aspect and, in particular, on the need for the ISP to have made significant progress in changing his/her attitudes and tackling behavioural problems in closed conditions, without which a move to open conditions will not generally be considered. Directions 4. Before recommending the transfer of an ISP to open conditions, the Parole Board must consider:- * all information before it, including any written or oral evidence obtained by the Board; * each case on its individual merits without discrimination on any grounds. 5. The Parole Board must take the following main factors into account when evaluating the risks of transfer against the benefits:- a) the extent to which the ISP has made sufficient progress during sentence in addressing and reducing risk to a level consistent with protecting the public from harm, in circumstances where the ISP in open conditions would be in the community, unsupervised, under licensed temporary release ; b) the extent to which the ISP is likely to comply with the conditions of any such form of temporary release; c) the extent to which the ISP is considered trustworthy enough not to abscond. d) the extent to which the ISP is likely to derive benefit from being able to address areas of concern and to be tested in a more realistic environment, such as to suggest that a transfer to open conditions is worthwhile at that stage.…”
"6.2 In those cases where the Parole Board has made a positive recommendation, the process is as follows: * The Parole Board, having considered the prisoner's dossier containing all relevant reports, makes a recommendation for transfer to open conditions. * The respective PPCS Team Manager considers the Parole Board's recommendation and decides (on behalf of the Secretary of State) whether to accept or reject that recommendation, taking into account [the Directions] and the guidance to PPCS Team Managers at Annex J. The Team Manager must ensure that all of the papers considered by the panel when reaching its decision, including any reports submitted on the day of the hearing and any post-programme reports are considered. * The OMU [Offender Management Unit] Manager (or equivalent) must then arrange for the prisoner to be informed of the Parole Board's recommendation, reasons, including their advice on outstanding risk areas and to also inform them of the Secretary of State's decision for accepting or rejecting the Parole Board recommendation… 6.5 If the Team Manager is considering rejecting a recommendation to transfer a prisoner to open conditions, the case should be discussed with the Head/Deputy of Casework immediately and if necessary advice sought from legal advisors. A case can only be rejected with the approval of the Head of OMPPG. The parameters for rejecting a Parole Board recommendation for transfer to open conditions are very limited. The criteria for rejection are: * the panel's decision is inaccurate * the panel have acted irrationally, for example by recommending transfer to open conditions when most of the reports and especially the offender manager’s report and psychologist report favour retention in closed conditions."
“PPCS must consider the history of the case, the adverse developments/temporary removal from open conditions, and representations submitted and whether to: * issue a warning letter to the ISP; * Refer new information to the Parole Board for consideration in the context of an ongoing Parole Board review; * Refer a case to the Parole Board for its advice about the prisoner’s continued suitability for open conditions.”
"Release on temporary licence is the mechanism that enables prisoners to participate in necessary activities, outside of the prison establishment, that directly contribute to their resettlement into the community and their development of a purposeful, law-abiding life. The decision to allow temporary release must always be balanced by an active consideration, by means of rigorous risk assessment for maintaining public safety and the public's confidence in the judicial system."
"Exclusion from transfer to open conditions and from ROTL for any prisoner with a history of abscond, escape or serious ROTL failure during the current sentence. In the absence of exceptional circumstances, prisoners who are in closed conditions are ineligible for a transfer to open conditions; or to be afforded category D or "suitable for open conditions" status; or to take ROTL, if they have, during the current sentence: a. Absconded or attempted to abscond from open conditions; and/or b. Failed to return from a period of ROTL*; and/or c. Been convicted of a criminal offence that took place when they were on ROTL; and/or d. Escaped or attempted to escape from a prison or escort * The definition of a failure to return is as follows – where a prisoner has failed to return to an establishment from ROTL and Unlawfully at Large (UAL) contingency plans have been activated, including notification to the police, unless the prisoner surrenders to prison custody later the same day, or other exceptional circumstances apply (e.g. where following further enquiries, the Governor/Director is satisfied that the prisoner was unable to return as required due to circumstances beyond their control). Exceptional circumstances Transfer to open conditions: No exception will be made in relation to any prisoner serving a determinate sentence of any description. There is a very strong presumption that an ISP who has absconded from open conditions as part of their current sentence will not be eligible to return to open conditions. However, exceptionally, the prisoner might be assessed as to their suitability for open conditions once they have completed their tariff at the next, and each successive, parole review but only if the Secretary of State considers that the case meets the following criteria: * the prisoner has made significant progress in reducing their risk of harm and risk of abscond such that a further abscond is judged very unlikely to occur; AND they meet one or more of the following exceptions * there are compelling circumstances beyond their control which make a placement in open conditions necessary; or * a placement in open conditions is absolutely necessary, in that their need to provide evidence of reduced risk for their parole reviews and their need for resettlement work cannot be met in a progressive regime in closed conditions; or * preventing the offender returning to open conditions would in all the circumstances be manifestly unjust/unfair. It will be for NOMS to make the assessment as to whether the test of exceptional circumstances is met in each given case of an ISP with an abscond history, so that the Secretary of State will ask the Parole Board for advice on transfer as part of the ISP's next parole review only where NOMS decides that the test is met. Thus, Public Protection Casework Section (PPCS) will make it very clear where a case is being referred to the Board only for the purposes of holding an Article 5-compliant review to determine whether the offender should be released - and not for advice on transfer to open conditions. The progressive regime in closed conditions referred to above will be specifically designed for ISPs with an abscond history who are unable to satisfy the tests of exceptional circumstances, in order for the Secretary of State to seek the advice of the Parole Board on their suitability for open conditions. NOMS is planning for it to be up and running by the autumn of 2014. The regime is being designed so as to encourage prisoners to take more personal responsibility to produce the evidence which they need to secure release from custody on completion of tariff, with which they will be supported by relevant interventions and by appropriately trained staff. There will be a secure perimeter fence, in accordance with Category C conditions. There will be no entitlement to ROTL other than in exceptional circumstances. NOMS will ensure that report writers draw from evidence in the progressive regime when providing Parole Board Panels with their assessment and recommendations for the offender's post-tariff parole review. Again, it will be for NOMS to assess whether an offender is suitable for a place in the progressive regime in Category C conditions, and NOMS will produce guidance for report writers to ensure that they understand that the progressive regime operates in parallel to an open conditions regime from which an ISP with an abscond history is excluded."
“1. On25 April 2008 the Claimant pleaded guilty to wounding with intent to cause grievous bodily harm. He was sentenced undersection 225 of the Criminal Justice Act 2003 to imprisonment for public protection ("IPP") with a minimum term of 4 years 6 months less 291 days spent on remand, giving a "tariff" of 3 years 265 days. The tariff expired on9 January 2012 , that is to say over three years ago. 2. At a parole review in November 2012, the Parole Board recommended the Claimant's transfer to open conditions, which the Defendant accepted. The Claimant was transferred on18 January 2013 to HMP Stanford Hill, an open prison. His sentence plan included provision for town visits with progression to home leave on 'release on temporary licence' (ROTL). 3. For about five months the Claimant successfully complied with open conditions and had three separate days of ROTL without incident. On2 June 2013 , however, the Claimant missed the last train that would have returned him to prison by his due time of 7pm. His account of the events which followed was this: as it was his understanding that the prison would not accept late returns on a Sunday, in accordance with the prescribed procedure, he called the number the prison had provided for him to ring in the event of a problem while on ROTL. The first two times he rang the number the line was engaged, and on the third occasion there was no answer. He also tried to call a telephone number given in his licence booklet, but again there was no reply. There is no police station in Lewes; he surrendered to custody at Eastbourne police station, 20 miles away from Lewes, the next morning. He was returned to closed conditions on14 June 2013 .”
“The new SS [Secretary of State] referral note has not been finalised yet. Please advise the Panel Chair that the Parole Board should consider Mr Gilbert’s case in accordance with the existing referral note.”
“Your relationship with your wife has been under strain with the uncertainty of your release date and return to closed conditions and you have started the process of a legal separation, with the possibility of future divorce depending on how your sentence progresses. However, there appears to be no firm plans as yet due to the uncertainty of your progression… You will be allocated a new offender manager immediately after the oral hearing, whom you have yet to meet. Your offender manager thought you would cope with this change well but it will be another possible de-stabiliser for you to cope with. The plans for your release have been significantly adapted in recent times. Your offender manager had only learned on the morning of the hearing that you would be seeking release. When in open prison you had been expecting to begin resettlement leave to an Approved Premises in Sussex with a long term aim of settling with your wife in Sussex. Now that your relationship future is less certain, the release plan now includes Approved Premises in Staffordshire, where you have no current connections and no long term plans to settle. The Approved Premises placement is also complicated by the risk assessment concerning your index offence having been committed whilst you were in a hostel, and special arrangements would be in place. You felt that direct release would give you the same opportunities for testing and resettlement that would be offered through the open prison route. Your risk management plans would benefit from further testing before they could be considered, as robust. The short period that you spent in open prison had not afforded you the opportunity to fully plan for a safe release. The proposed licence conditions were accepted by you and appeared fair and proportionate to the risks you presented.”
“… Your representations state that you need to be tested in open conditions before the Parole Board will direct your release. Historically a period in open conditions has been an important factor in a Parole Board decision to release an indeterminate sentenced offender. However, significant numbers of such prisoners have been released from closed conditions. Moreover, you will be eligible to be considered for the Progression Regime, which is designed to operate in parallel to the open regime and to provide an alternative for prisoners such as you to demonstrate suitability for release.”
“36. Before the introduction of IPP sentences under theCriminal Justice Act 2003 ISPs were those who had been sentenced to life imprisonment (mandatory in cases of murder, discretionary in almost all other cases). The IPP legislation came into force in April 2005; it was amended to restrict the circumstances in which it could be imposed in 2009, and IPP sentences were abolished with effect from December 2012. 37. Only a small proportion of ISPs are released in any one year. From July 2005 to June 2010 the figures were between 1.5% and 2%; then 3.9%, 5.3%, 5.8% and 3.1% for the four years up to June 2014. The sharp fluctuations are no doubt largely attributable to the changes in the IPP legislation; but it should be noted that the figure has never exceeded 6%. 38. On the other hand, the Defendant's evidence tells us that 38% of the 444 prisoners serving IPPs and 17% of the 289 "lifers" released in 2012 were released from closed conditions; the equivalent figures in 2013 were 38% of the 431 IPP prisoners and 14% of the 329 "lifers" released. Mr Weisselberg QC for the Defendant submits that this is proof that release from closed conditions is not impossible. There is no evidence before us as to the characteristics (for example, the nature of the index offence) which distinguish those prisoners serving indeterminate sentences who are released direct from closed conditions from those who are not.”
“44. The Secretary of State has recently introduced a Progression Regime. It has been designed for ISPs [indeterminate sentence prisoners] with an abscond history who are ineligible for transfer to an open prison and who will not be eligible for temporary release. 45. The Defendant states that "the regime does not seek to operate as a pre-cursor to open conditions but as an alternative to open conditions. The regime will not seek to test risk of abscond as the majority of prisoners will be released directly from the regime. The design of the Progression Regime has been informed by an analysis of recent cases where the decision of the Parole Board has been to release ISPs from closed conditions. The regime therefore seeks to reintroduce some of the freedoms, responsibilities, and obligations of daily life to both support offenders and test their readiness for release, with the aim of providing the offender with the opportunity to demonstrate new behaviours and to recognise and avoid behaviours associated with offending." 46. For each ISP, the regime is staged and structured around an individual progression compact and development plan based on the Enhanced Behaviour Monitoring ("EBM") Framework (an approach usually used within the open estate), with prisoners only progressing to the next stage when it is agreed at a regime board linked to the EBM Framework. 47. The institutional regime is based on an enhanced Category C 'core' day which provides a level of freedom 'out of cell' and within the establishment not usually enjoyed by Category C prisoners, in which ISPs are encouraged to become less reliant on staff prompting them to take part in the routine. 48. The regime will include the following features: * Prisoners are to be responsible for getting up on time, washing, dressing, food preparation and going to work without escort. Evenings will be structured for meetings, Night School, Open University work, charity work, studying, chaplaincy meetings/groups and completion of the evidence for their portfolios, whether this is for forthcoming parole or in relation to the enabling environment. * Work is a core feature of this regime in order for prisoners to develop the necessary skills to take up employment upon release. All prisoners will work and all jobs will be performance managed on their delivery and they will receive bonuses linked to a structured performance model including attendance and work ethic. * A 'Resettlement Campus' will provide tailored activities to address the factors which will make their release more successful, including 'through the gate' services linked to accommodation, or other identified needs. At HMP Warren Hill, prisoners will buy goods from a shop rather than being ordered and delivered by staff as in other prisons. A Café which will provide training for prisoners will also provide refreshments during visits, the frequency and duration of which will increase as prisoners progress through the three stages of the regime. * The community will be allocated a budget to manage for cleaning materials and consumables and will have peer-led prisoner information points to provide advice. There will be a Community Council chaired by prisoners who will produce action plans and minutes and propose events that are linked to charitable and reparation activity. * Prisoners will be expected to take responsibility for maintaining, identifying, and re-building protective relationships, which may involve family members or other supportive individuals. This will involve prisoners planning how the relationships important to their resettlement will be re-established and/or maintained. 49. Prisoners who had already received approval from the Secretary of State to be transferred to open conditions or a Parole Board recommendation at the time of the policy change in May, were assessed for the Progression Regime as a priority. The assessment process for suitability is managed administratively within NOMS and does not involve the Parole Board. 50. In December 2014, there were 26 offenders at HMP Warren Hill prior to its re-designation as the establishment for the Progression Regime. 27 offenders have been transferred since the Progression Regime started. The current capacity of the unit is 45. It is estimated that by the end of 2015 the regime will hold 197 prisoners at capacity at different establishments. 51. Evidence recently adduced in this claim indicates that the Claimant is doing very well indeed under the Progression Regime. It is rare, in judicial review cases brought by prisoners, for counsel for the Secretary of State to argue that the evidence indicates release on licence from closed conditions to be a real possibility: but that is what occurred at the hearing before us.”
“Even if we had upheld the lawfulness of the policy generally, we would have held that its application in the Claimant's case was unfair. His case was referred to the Parole Board to consider both whether to direct release and whether to recommend re-transfer to open conditions. Following the introduction of the interim absconder policy on21 May 2014 the Board gave directions enquiring of the Secretary of State, in effect, whether the latter referral was withdrawn. The answer was that the case should be considered in accordance with the existing referral note, and the Secretary of State made no submissions to the Board at or before the oral hearing. In those circumstances the Board's recommendation should have been considered by the Secretary of State on its merits, rather than being rejected on the grounds that the Claimant was no longer eligible for transfer.”