The Police, Crime, Sentencing and Courts Bill is to be considered by Members of Parliament at a second reading on Monday 15 and Tuesday 16 March. Three of the sections which impact on the release of serving prisoners require cautious consideration.
Section 108 Power to refer high-risk offenders to Parole Board in place of automatic release
This provision will add to the existing release provisions and include a new power for the Secretary of State if he or she is of the, ‘requisite opinion’ that an offender will commit a further specified offence or murder. The power will allow the Secretary of State to serve a notice, preventing the prisoner’s immediate release and instead referring the case to the Parole Board to determine whether the prisoner may be released.
The draft section includes a statutory right to refer the matter to the High Court if, ‘the prisoner’s release has been delayed by the notice for longer than is reasonably necessary in order for the Secretary of State to complete the referral of the prisoner’s case to the Board.’ There is no statutory right to refer the matter to the High Court is the prisoner disagrees with the Secretary of State’s assessment that he will commit a further specified offence.
This provision will inevitably politicise the administration of sentences. At present, in the event that it is assessed that a prisoner continues to pose a public protection risk upon release they will be managed, ordinarily, by licence conditions and by ancillary orders. The proposed change in the law will see the Secretary of State identify and refer particular cases to the Parole Board. The net result being that some offenders will serve the entirety of their sentence in custody, they will be released with no licence supervision at all. The obvious question is why the Secretary of State would not refer a case to the Parole Board once highlighted, there being no political risk in doing so.
The wording of the statutory appeal to the High Court is odd, the focus being on delay as opposed to whether the Secretary of State’s analysis of risk is correct. A process whereby the Secretary of State was required to apply to the High Court to prevent automatic release would have an obvious advantage in terms of transparency. Likewise, such an approach would have inbuilt safeguards, especially for those prisoners with cognitive impairment, learning difficulties or mental health problems who may not be able to meaningfully participate in the representations process described in the Bill.
Section 110 Responsibility for setting licence conditions for fixed-term prisoners
Section 110 proposes further amendments to section 250 as to licence conditions. The current iteration of section 250 has been in force since 1 December 2020 and is a patchwork of amendments.
The references to licence conditions in the white paper, ‘A Smarter Approach to Sentencing’ are not as obviously realised in the text of the Bill. Section 250 is labyrinthine and not user friendly, the latest amendment will do little to relieve this.
Section 113 Power to change test for release of fixed-term prisoners following recall
Section 113 proposes to empower the Secretary of State to change the test applied by the Parole Board when determining whether a recalled fixed term prisoner ought to be released into the community on licence.
It is disappointing that the Secretary of State is simply empowered to determine this change, as opposed to the test being debated in Parliament. Again, the white paper gives little suggestion as to how the Secretary of State may exercise this power.
Each provision highlighted above appears on first blush to be technical. However, each has substantive impact on how fixed term prisoners are released and managed on licence. Each provision above militates towards less time in the community on licence and more time in custody. Such an approach has an impact on rehabilitation, resettlement and the supervision of offenders when the custodial aspect of their sentence comes to an end.
Ian Brownhill is a public law barrister at 39 Essex Chambers and a Trustee of the Sentencing Academy