Well Done or Too Rare? Why MPs need to ask about the Early Release of Prisoners

Questions in Parliament on Monday for Justice Secretary Robert Buckland and his ministerial team. No doubt MPs will want to know how the various elements of the justice system are adapting to the demands of lockdown, but it is the prisons about which they should be most concerned. In particular, they should ask why plans to reduce the population -considered necessary to minimise infection risks for prisoners and staff - are progressing so slowly.   

The overview of the eligibility criteria for the End of Custody Temporary Release scheme, published on Friday, offers some clues. The process looks complicated, with prisoners having to meet four sets of conditions if they are to be released on an electronic tag up to two months before their normal release date.

There are the legal parameters set out in the Statutory Instrument- basically a prisoner must be serving a standard determinate sentence with an automatic release point or be in custody for fine default or contempt. There are criteria set out in Directions from the Justice Secretary. So far he has issued two of these- on 7 and 24 April setting out exclusions and requirements relating to the offence committed by the prisoner, the length of sentence and the risks they pose.  A list of prisoners eligible for release based on the legal and Direction Criteria is being drawn up nationally.

Prisoners on the list must then be assessed locally to see if they fit so called Policy criteria- do they have suitable accommodation? Can their healthcare, including any Covid-19 considerations, be safely managed post-release? In bold type, it’s stated that “Fundamentally, they must not present a level of risk of harm, reoffending, failure to return or other significant challenge that cannot reasonably be managed in the community.”

There is a very strong presumption that prisoners who do not meet these policy conditions should not be released “unless there are exceptional circumstances to depart from this”.  The local assessment process includes some additional issues - previous failures on ROTL and behaviour such that the Governor considers it unlikely that the individual can be trusted to complete the licence.  Final decisions on release are not however made by the Governor but centrally on behalf of the Secretary of State to maintain consistency in decision-making.

Looked at one by one, many of these considerations look reasonable. For any Temporary Release provisions , the Secretary of State must be satisfied that there would not be an unacceptable risk of a prisoner committing offences or failing to comply with conditions whilst released; and the arrangements should not undermine public confidence in the administration of justice.

But taken as a whole, the process they give rise to looks cumbersome, demanding and unrealistic. How, for example, can Governors ensure that a release would not put the offender or others at any health or Covid-19 risks?  Surely the lockdown is in place precisely because we are all subject to such risks.

There are some apparent inconsistencies too.  The 7 April Direction requires prisoners to be assessed as having a low or medium Risk of Serious Harm level- but the overview guidance says that the process aims to ensure that “only …the appropriately low-risk are released”.  

Puzzling too is why despite a presumption that those who meet the statutory and policy criteria should be released, “not everyone who meets the eligibility criteria has to be or will be released”. The government says that releases may be targeted at specific prisons to relieve particular pressures in relation to Covid19. It’s true that overcrowding is concentrated in local prisons. But with the system 6,000 above its uncrowded capacity, it’s hard to see why anyone who meets the rigorous criteria for being allowed out should not go home- subject to the stringent conditions spelled out in the guidance.  This would give much needed breathing space to prisons of all kinds which are trying to manage with 80% of their staff at work.

Moreover, the most recent policy framework for Release on Temporary Licence makes much of Procedural Justice – the idea that when people believe the process of applying rules is fair they are much more likely to respect and comply with authority willingly . For prisons in this public health emergency, this would seem to be more important than ever.