In May the Prison Reform Trust published a study on recalls to prison. We found that over the past five years the number of prisoners who are released on licence and then recalled to prison has more than trebled. The majority of those recalled to prison had not committed new crimes, instead they had breached the detailed requirements of their licence. Licence conditions must be abided by, and enforced if the probation system is to work and to hold public confidence. However, the direction of travel is towards ever more recalls for technical breaches that recycle prisoners through crowded prisons and jeopardise resettlement. The current system for breach of licence and recalls sets people up to fail. Arrangements designed to be tough and fair are too often turning out to be punitive and unjust. So what is causing the growth in recalls, and what can be done?

Over the past few years the process of recalling prisoners on licence has been streamlined and simplified. Under the Crime and Disorder Act 1998 the decision to recall an offender was shifted from the courts to the secretary of state. Now this executive power is handled by a specialised team within the Home Office, and the process of getting someone recalled to prison is straightforward. Once the offender is returned to prison, they should have access to a dossier detailing the reasons for their recall. Following that their case is reviewed by the Parole Board. This is, to an extent, an ‘ask questions later’ approach. Clearly, it is designed to minimise risk to the public. On the other hand, the very process of putting someone into prison, even for a few days can be hugely disruptive. Re-entry to prison endangers living arrangements, any employment and the pattern of contact with friends and family. As one prisoner told the Prison Reform Trust:

‘As I had already served 25 years they thought I wouldn’t feel four months; but I felt the four months more than the 25 years because I didn’t know what I had done and why I was being dragged back into custody. When you believe you have done nothing wrong and are innocent you feel more stress and strain than if you are inside serving a long sentence for a crime you know you committed.’

This is borne out by prison staff too. One governor told us: ‘It’s very difficult to incentivise recalled prisoners who are angry about being hauled back to prison.’

The Prison Reform Trust’s advice and information service responds to over 4,500 prisoners and their families each year. Increasingly concerns are being raised about recalls to custody. The most pressing issues we have identified are: delays in receiving written reasons for a recall; difficulty accessing information about the appeal process/paperwork to submit an appeal; delays prior to oral hearing being scheduled and obtaining paperwork for the hearing and inaccurate sentence calculation information.

Recent cases have shown up the informality of the decision to recall to custody in comparison to court’s original decision to imprison. The House of Lord’s January judgment on the case of Smith and West instituted a right for a recalled prisoner to have an oral hearing if they wish to make representations. This was taken to be in the spirit of common law fairness. The surprise is that it was not guaranteed before. The European Court of Human Rights delivered judgement on the case of Hirst vs Secretary of State for the Home Department and the Parole Board in June. Hirst was recalled to prison under the terms of his life licence. The judgment catalogues a series of delays in Hirst receiving the dossier detailing the reason for his recall and in being able to argue his case. Throughout the judge rejects the argument that recall is simply a continuation of the original sentence. The judgement applies article 5 parts 2 and 4 of the convention to the matter of recall, insisting that reasons be given for arrest and that there is chance of a fair hearing following detention.

These judgments are welcome. However, they simply frame the executive’s power of recall to custody with judicial scrutiny and safeguards. They will not check the growth in recalls. Furthermore, there are changes in train that will hugely increase the number of prisoners on licence in the community and therefore subject to recall.

The Criminal Justice Act 2003 brings major changes in sentencing. The ‘standard determinate sentence’ was introduced in April for non-dangerous offenders sentenced to more than a year. Now prisoners will be automatically released into the community on licence at the half-way point of their sentence and the licence will continue right to end of their sentence. Previously, under the Criminal Justice Act of 1991, prisoners were eligible for parole at the halfway point of their sentence, and their licence expired three-quarters of the way through. Under the new system, then, the amount of time an offender spends on licence and subject to recall could potentially double. If the established tendency for sentences to increase over time is also factored in, then there is a powerful set of drivers towards greater numbers of recalls.

Supervised community sentences can be very positive. If they are properly resourced and build offenders up to succeed in finding employment and education they will reduce re-offending and promote public safety. Certainly they are a better approach than prison. But they have to be carefully managed. Supervision in the community has got to navigate a middle line between meaningless leniency and a zero tolerance approach that shuffles people in and out of prison.

In the early 90s there was some justified political and media anger about the breakdown of probation supervision. But effective supervision is not simply about enforcing instructions to keep appointments and sleep each night in the same place. If it were then it would only be a matter of time before licence is breached. The 2002 Social Exclusion Unit report into ex-prisoners and re-offending casts a light on the problem. 80 per cent of ex-prisoners have the writing skills of an 11 year old, or less. 70 per cent have two or more mental disorders. 60 to 70 per cent were using drugs before imprisonment. Many ex-prisoners have some of the most chaotic lives imaginable. Asking them to follow detailed and complex instructions will not always work. If the consequence is short spells in prison, then their chances of successful resettlement are vanishingly small. There has to be a clear ladder of ways to warn and discipline those who break the rules, with prison as the absolute last resort. In addition there is the worrying spectre of a ‘round up the usual suspects’ mentality. The Parole Board annual report says there has ‘been some evidence that the police are targeting offenders on licence when investigating crimes.’

The 2003 Act also sets out new court powers to determine behaviour in the community, supervision after short sentences, strictures such as intermittent imprisonment (weekend prison, as it is sometimes called),further licence conditions and lengthy period of supervision for serious and violent offenders. The old boilerplate conditions of licence included the duty to be well-behaved, keep in touch with the Probation Service, receive home visits, sleep in at an agreed address each night, agree work and not travel without permission - these are kept. More specific requirements are added. For example: to attend treatments aimed at gambling or drug problems; not to contact named individuals; to report any developing personal relationships and many others. There is also the power – supposed to be reserved for rare occasions – to add bespoke conditions. Again, all this could be positive as an alternative to custody but it risks saddling ex-prisoners, at a difficult time, with a kind of ‘super Asbo’ that sets them up to fail. Finally, the systems can make offenders carry the can for lack of resources in the system. If the licence conditions set out a treatment that is not currently available, it is likely that their release will be judged as a risk and delayed.

Between April and June this year 2,100 people were recalled on a breach of their licence. This will have made a material difference to the prison population twice bursting through the uppermost limit of the Home Office’s long-term projections. Of these people, around a quarter (563) were recalled to face a further charge. 30 per cent were ‘out of touch’, 18 per cent had problems with their behaviour, 8 per cent did not manage to stay each night in the same, agreed place and 18 per cent were back for other reasons. Already recalls are taking up about a tenth of the space in some of our most crowded local jails. In the US the system has gone far further yet. In 2001, 58 percent of admissions to state prison in California were technical violators of parole.

There is a solution. Supervision in the community must be properly resourced. As well as protecting the public it must also work to enable ex-prisoners to build up their life. If the system is entirely about boundaries, about enforcing behaviour rather than support and incentives then the outcome will be more and more offenders being recycled in and out of prison. The Home Office could better meet its aim of preventing re-offending by ensuring that people leaving the closed world of prison get sustained support and supervision to help them resettle in the community instead of expecting them to walk on eggshells.

Juliet Lyon , Director
Prison Reform Trust
15 Northburgh Street, London EC1V 0JR
Tel: 020 7251 5070
Mobile: 07762 093 105
Fax: 020 7251 5076
Email: prt@prisonreformtrust.org.uk
www.prisonreformtrust.org.uk
www.innocentuntilprovenguilty.com
www.smartjustice.org