Written evidence from JUSTICE (PCS0375)

Introduction

1.     JUSTICE is an all-party law reform and human rights organisation working to strengthen the justice system. It is the UK section of the International Commission of Jurists. Our vision is of fair, accessible and efficient legal processes in which the individual’s rights are protected and which reflect the country’s international reputation for upholding and promoting the rule of law.

Referring Cases to the Parole Board – Part 7, Clause 108

2.     The Terrorist Offenders (Restriction on Early Release) Act 2020 (“TORER”) introduced new provisions which require that a prisoner who has been convicted of a terrorism offence specified in Schedule 19ZA, or any other offence in the schedule which the court deems to have a terrorist connection, may only be released from the two-thirds point of the custodial period upon direction by the Parole Board instead of being entitled to automatic release at the mid-point of their sentence.

3.     Clause 108 of the Bill builds on this approach and would give the Secretary of State the power to prevent any prisoner sentenced to a fixed term sentence being automatically released by referring them to the parole board, “if the Secretary of State believes on reasonable grounds that the prisoner would, if released, pose a significant risk to members of the public of serious harm occasioned by the commission” of a range of specified violent, sexual or terrorist offences.[1] An individual would then only be released following a decision of the Parole Board.

Concerns

4.     Clause 108 significantly increases the power of the Secretary of State to determine which prisoners can and cannot be automatically released. In the White Paper, this power was said to only be intended for a small number of individuals.[2] However, the criteria for the power are broad and apply to a significant number of prisoners. The drafting of clause 108 creates the danger that the power could be used more widely than envisaged in the White Paper. This would undoubtedly put pressure on the Parole Board. Although it has reduced its backlog, the Parole Board still has issues with cases being significantly delayed.[3]

5.     In addition, clause 108 would also incur serious inadvertent consequences. By potentially requiring that a SDS prisoner serve additional time in prison, the amount of time that they would spend in the community under supervision from the probation service, would correspondingly decrease. This means less time for rehabilitation and reintegration into society, thereby risking increased rates of reoffending. This not only has negative consequences for the prisoner, but also for the general public at large, as noted above. 

6.     JUSTICE is also concerned that clause 108 risks violating Article 5 ECHR.[4] Prisoners would only be released at the direction of the Parole Board. The Parole Board’s October 2019 guidance suggests that the three parameters used for this decision making are: “analysis of offending behaviour (the past); analysis of the evidence of change (the present); and analysis of the manageability of risk (the future)”.[5] The guidance also provides that “evidence of change” includes “engagement with programmes/therapy and other opportunities, educational and vocational achievements, and use of new skills”[6].

7.     This requirement is similar to Imprisonment for Public Protection (“IPP”) sentences. These sentences required that a prisoner remained in custody indefinitely beyond their tariff until they had undertaken certain courses to demonstrate that they were not dangerous. In James, Wells and Lee v United Kingdom[7], these sentences were held to be in breach of the Article 5 ECHR right to liberty. This was due to the considerable length prisoners served over their tariff due to relevant courses being unavailable.

8.     Following the judgment in James, IPPs were repealed, but this change was not applied retrospectively. As such, many are still in prison on IPP sentences, having not been able to demonstrate to the Parole Board that they are suitable for release. The Prison Reform Trust and University of Southampton[8] found that current IPP prisoners are still reporting difficulties accessing required courses, with one prisoner quoted as stating:

“Prisoners are told they have got to do these courses. But either they are not available because they are full up, or they don’t run them, or you have got to wait years for them … How are they supposed to achieve the unachievable?”[9]

9.     Given the current strains on prisons, JUSTICE considers that there is a serious risk that the proposals in this Bill will violate Article 5 ECHR by unlawfully extending custody due to a lack of appropriate rehabilitative courses. Prisoners must be provided with appropriate courses so that they may meet the requirements of the Parole Board.

10. JUSTICE is also concerned that clause 108 risks violating Article 7 ECHR.[10] This Article entrenches the prohibition on retrospective punishment. The power in clause 108 could be used for prisoners sentenced before the Bill became law. Although the clause does not change the legal penalty that a prisoner will receive, it does change when they are released from prison. We therefore consider that this redefines the scope of the penalty imposed, which would breach Article 7 ECHR.[11]

11. Clause 108 would also give the Secretary of State the power to retrospectively modify the SDS imposed by the sentencing judge into a sentence more akin to Extended Determinate Sentences (“EDS”). Currently prisoners given an SDS are entitled to automatic early release. Those convicted who are considered ‘dangerous’ can be given an EDS. One aspect of these sentences is that release during the custodial period of the sentence is at the discretion of the Parole Board. The White Paper stated that the purpose of the new power was for prisoners, “whose offending behaviour and assessment of dangerousness at the point of sentencing did not meet the threshold for imposition of a sentence with Parole Board oversight”.[12] It appears clause 108 was designed to give the Secretary of State the power to impose restrictions found in an EDS when a sentencing judge at the point of sentencing could not assess the person convicted as ‘dangerous’.

12. Clause 108 would therefore go beyond just a change to the arrangement of early release and would instead be a change to the sentences imposed by the sentencing judge. This change would redefine the scope of the penalty imposed in a way that was not reasonably foreseeable by the person convicted and therefore risks breaching their rights under Article 7 ECHR.

13. It is equally concerning that the Bill would empower the Secretary of State to, in effect, impose a sentence different (and indeed more severe) than that already determined by the original judge. Both Article 6 ECHR, which safeguards the right to a fair hearing, and the principles of procedural fairness demand that the imposition of a sentence must be made by an independent and impartial tribunal. In Findlay v United Kingdom,[13] the ECtHR held that the power to give a binding decision which may not be altered by a non-judicial authority is inherent in the very notion of a “tribunal”.[14] As a result, conferring a power to the Secretary of State that allows them to alter the sentence handed down by a judge risks violating Article 6(1). Furthermore, any decision taken by administrative authorities which themselves do not satisfy these requirements must be subject to subsequent review before a tribunal that does.[15] Finally, in light of the emphasis placed on the importance of the independence of the judiciary from the executive in the ECtHR’s jurisprudence on Article 6 ECHR, it is likely that granting judicial powers to a member of the executive would risk a serious violation.[16]

14/05/2021