Licensed to reoffend?

The commission of offences by prisoners who, but for their release on licence or otherwise, would still be in custody at the time of their offence has been a matter of public and political concern for over 40 years, at least since the conviction in 1970 of Donald Forbes for a murder committed six weeks after his release on licence for a murder in respect of which he had originally been sentenced to death.

Astonishingly to modern eyes, but in accordance with mainstream psychiatric opinion at the time, Forbes’s diagnosis as a psychopath was regarded as a mitigating factor that resulted in his sentence being commuted to life imprisonment. While the vast majority of offences committed by those released prior to the expiry date of their sentences are not nearly as serious, there is justifiable public concern when someone given a sentence of imprisonment commits a further offence while in the community prior to the sentence end date.

However, it also undeniable that providing supervision to long-term prisoners as they reintegrate into society after many years in custody has been beneficial in a great many cases. Parliaments have thus required, in assessing how best to protect the public, to balance these competing interests.

Towards 1993

The genesis of a formal system of early release on licence was the Criminal Justice Act 1967, which followed a study group paper, Crime – A Challenge to Us All, by Lord Longford in 1964, and introduced a formal system whereby offenders serving 18 months or more might be released to serve the final one-third of their sentence in the community. This replaced the previous ad hoc arrangements whereby prison governors could direct early release based upon prisoners’ industry and good conduct; despite that system not operating for close to half a century, the urban myth that prisoners are released early because of “good behaviour” still persists.

The Parole Board for Scotland was established in 1968. At that time it could only make recommendations, which the Secretary of State for Scotland could, and often did, decline to accept. By the 1980s, though, changed political attitudes and the change from a model of imprisonment based on theories of treatment to one based on punishment, combined with the growth of a movement to afford prisoners certain rights in custody, meant that the old model no longer fitted the system of the time. Thus it came to pass that in 1987 the Conservative Government set up the Carlisle Committee to review and report on parole and related issues in England & Wales.

A few months later a separate committee with a similar remit was set up for Scotland, under the chairmanship of Lord Kincraig. That committee issued its report, Parole and Related Issues in Scotland (Cm 598), in February 1989, and the Government’s response with the same title was issued in July of the following year. The new system, to be enshrined in legislation, was designed to ensure that release from prison prior to the expiry of the whole sentence was to be conditional, under supervision, with sanctions in the event of conviction of a new offence during the period served in the community being permitted by statute, and with social workers being given a duty to provide assistance to released prisoners who sought it.

In England & Wales, the recommendations as accepted by the Government found their way into the Criminal Justice Act 1991. Scotland later saw the passing of the Prisoners and Criminal Proceedings (Scotland) Act 1993; while the Act has been amended on numerous occasions in the past 21 years, the current system for release of prisoners is still recognisably that which came into force on 1 October 1993. In effect, decisions on the release of prisoners are quasi-judicial, not political (although as this piece was being written it was suggested that a future Conservative Government, if elected, might seek to repatriate these powers to Parliament by withdrawing from the European Convention on Human Rights).

Qualifying for freedom

That system (as originally enacted) divided prisoners into two categories – “short-term prisoners” serving sentences of less than four years, and “long term prisoners” serving four years and more. The term ‘‘sentence’’ does not in fact refer only to a single sentence. The Act, in s 27(5), specifies that consecutive terms and terms which are wholly or partly concurrent fall to be treated as forming a single term if the sentences were passed at the same time, or where the sentences were passed at different times and the person has not been released from the earlier sentence at any time between the passing of the first and subsequent sentences. This practice is known as ‘‘single-terming’’.

Section 1(1) provides that as soon as a short-term prisoner has served one-half of his sentence, the Justice Minister shall, without prejudice to any supervised release order to which the prisoner is subject, release him unconditionally. However, by virtue of s 16, commission of a further imprisonable offence during the period between release and the expiry of the sentence in full may result in the offender being sentenced to serve some or all of the unexpired portion of the sentence, in addition to any other sentence that may be imposed for the new offence.

Ministers having lost their power of veto with effect from 27 June 2003 (Criminal Justice (Scotland) Act 2003, s 28 (2)), s 1(2) currently provides that a long-term offender must be released on licence after serving two-thirds of the custodial term of their sentence, but may, if the Parole Board so recommends, be released on licence at any point between the halfway and two-thirds points of the sentence. The Board must not, however, make such recommendation unless it is satisfied that it is no longer necessary for the protection of the public that the offender continue to be confined.

Where an offender is released on licence, failure to comply with licence conditions, which need not and often does not involve the commission of a new offence, may result in the offender’s licence being revoked and his return to custody, which may be for a period equivalent to the whole period outstanding from the revocation order being granted until the end date of the sentence. (Where an offender evades capture for several weeks or months after the licence is revoked, the days unlawfully at large are not counted in determining the sentence expiry date.) With effect from February 2006, release on licence, with the prospect of recall to prison, also applies to sex offenders serving between six months and four years, but to no other defined category of offenders: s 1AA, introduced by the Management of Offenders (Scotland) Act 2005, s 15.

There is, of course, justifiable public concern where an offender either on licence or subject to s 16 commits a further offence during the currency of the period when they are serving their sentence in the community. While offences by those granted early release on parole are not unknown, the majority of such offences are committed by those released on “non-parole” licence at the statutory two-thirds point.

Thus, on 15 August the Government introduced the Prisoners (Control of Release) (Scotland) Bill. A very brief bill with only two substantive clauses, the other allowing ministers to release a prisoner up to two days early where they consider that would be better for the offender’s reintegration, s 1 proposes to disapply the compulsory release provisions of s 1(2) of the 1993 Act to a long-term prisoner whose sentence (or combined sentences when “single-termed”) is for a term of 10 years or more, or whose sentence is between four and 10 years and the term, or at least four years of the term, is attributable to a conviction giving rise to the notification requirements of the Sexual Offences Act 2003. Thus, in these cases, it falls to the Parole Board to determine whether public protection requires the prisoner’s continued detention, which may be up until the last day of the prisoner’s sentence. Where the Board directs that the prisoner remain in custody till the last day of the sentence, he will spend no time supervised in the community on licence.

Evidence based?

What is the reasoning behind this proposed change? Is there evidence, for example, that length of sentence is a particularly accurate predictor of future risk? Is there evidence that reoffending rates amongst sexual offenders released on licence are disproportionately high? If so, one might have expected details of Government research and relevant statistics to be revealed in the explanatory notes that accompany the bill, but they are not.

Length of sentence is generally understood to reflect the seriousness of the offence, particularly when viewed in the context of the perpetrator’s previous offending, and in modern times the stage in proceedings at which guilt was judicially determined. None of these are widely considered as determinative risk factors; relationship instability, lack of employment and accommodation, and association with negative peers, all of which can be found in persons serving far shorter sentences, are more generally recognised risk factors.

There has been a considerable amount of research in recent years into the treatment and management of violent and sexual offenders. See, for example the collection of essays published as Violent and Sexual Offenders: Assessment, Treatment and Management (eds J Ireland, C Ireland, P Birch: Willan, 2009). While recent Parole Board annual reports do not specify details of reasons for revocation of licence, figures in the 2005 and 2006 annual reports disclose that over these two years, 48 offenders granted early release on parole and 246 offenders granted statutory release at the two-thirds point of their sentence were recalled to custody. Of these 294 recalled prisoners, only four were facing fresh charges of a sexual nature, one of whom was initially sentenced for a drugs offence.

Of these licensees, 21 were on licence for sexual offending. Fourteen (66.7%) were recalled for non-compliance with supervision, three for offences of dishonesty, one for drugs offences, and three (14.2%) for further allegations of a sexual nature. Thus the evidence from less than 10 years ago does not seem to support the proposition that sexual offenders pose a greater than average risk. This seems to bear out the findings of Drs Hood and Shute in their research published as “Sex Offenders Emerging from Long-Term Imprisonment” (2002) Brit J Criminol 42, 371-394. In addition, Dr David Thornton’s Scoring Guide for Risk Matrix 2000 (February 2007 version) indicates that “there is a trend for older men to have lower sexual recidivism rates than younger men”.

At present, there seems to have been little completed research in the past five years that tends to negate the general consensus of previous years that reoffending rates among sexual offenders are no higher, and in some cases lower, than other offenders. Despite this, the explanatory notes reveal that at present only 8% of sexual offenders are granted early release on parole licence. While that group does include a larger than average number who deny their offending, evidence might suggest that some of the group could have been released earlier than they were.

As the bill makes its progress through the Parliament, it must be hoped that ministers can produce solid verifiable evidence that the bill’s objects are based on solid verifiable modern penological research, rather than a sop to politically motivated pressure groups. If, as is expected, around 140 offenders each year will spend longer in custody, it is essential that the longer time they spend in custody is based on the best possible research.

Cause célèbre: Donald Forbes

For some background to the case of Donald Forbes, who had a death sentence commuted to life imprisonment in 1958, and killed again six weeks after his release in 1970, see bit.ly/DonaldForbes