With many offences, the punishment may vary according to the context of the criminality. For example, violence in a domestic context is usually treated more harshly than the same level of harm against a stranger. The same is true for drugs case, especially when it comes to drugs in prisons.
A failure to understand this basic point can result in clients being given incorrect advice about the likely sentence. An attempt to ‘over mitigate’ and suggest an unrealistic penalty can often backfire. This is because the court loses sight of other better points made in mitigation.
Recently, a man pleaded guilty to taking three relatively small drugs packages into prison, at the request of his cousin. The packages contained cannabis resin, cannabis bush and 20 steroid tablets.
In passing sentence, the judge observed that anyone involved in smuggling items of this sort into a prison commits an offence that passes the custody threshold by a significant degree.
He also relied upon the previous authorities of the Court of Appeal. He said that it had been made abundantly clear that;
“the smuggling of drugs into prison undermines the order of our custodial institutions and causes problems for those who are responsible for supervising prisons and looking after the welfare of inmates.”
That is a view with which the appeal court re-endorsed on this occasion.
What happened in the appeal?
When considering a sentence of 18 months’ imprisonment, the advocate on appeal sought to invoke the drugs sentencing guideline. When that guideline is applied in isolation, it suggests that a sentence of 18 months is manifestly excessive.
Under that guideline, this offence would fall into the significant role Category 4 part of the guideline. Therefore, the starting point should have been a high-level community order.
The Court of Appeal rejected that submission, and made the following observations:
“The drugs guidelines are of course helpful in sentencing offences of this sort, but the reality here is that the mischief is bringing the drugs into prison. That is a very significant aggravating feature and whilst we rely upon the guidelines for some assistance, they cannot determine the final prison sentence to be imposed. In the view of this court, this falls way outside the range which [Counsel] has identified to us today.
The taking into prison of drugs is pernicious. It causes discipline problems within any custodial institution; it endangers the safety of the inmates and staff and adds greatly to the burden of trying to impose discipline.
In the view of this court, having been given full credit for the plea, which he had entered at the earliest opportunity, the total sentence of 18 months cannot be said either to be wrong in principle or manifestly excessive, reflecting as it does a total sentence for three separate offences of bringing different items into prison on this occasion.”
All of our advocates understand the guidelines and broader sentencing considerations. We can be relied upon to obtain the best result for all of our clients.
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You have been convicted of a crime you didn’t commit, your appeals are exhausted, and you serve time in prison. Part way through, you’re eligible for parole. So you hope finally to get out and put this behind you.
The parole board give you their decision, but parole is refused, seemingly because you refuse to accept your guilt. What can you do?
The Parole Board
The role of the Parole Board is to decide if it is safe to release a person. They mainly make decisions in relation to life prisoners, extended sentences, or offenders of particular concern such as terrorists or child sex offenders; they do not make a release decision about all prisoners. The decision to re-release someone who has previously breached their licence conditions is also down to the Parole Board.
They will consider one question: whether the prisoner is a serious risk to the public.
Those who are a serious risk will remain in prison. However, those who are not will be released on licence, serving the remainder of their sentence in the community under the watch of the Probation Service.
How does the Parole Board decide who to release?
To assess any risk to the public, the Board will consider many factors.
They may look at the circumstances that led to the offence being committed — such things as lifestyle, including any drug or alcohol use or abuse, relationships and acquaintances, living conditions and other factors. The Board will consider if those factors have changed.
They may also look at the circumstances the prisoner will be released into. For example, will they have a family network, a place to live, or a job? These things are likely to help the Board feel that any risks can be effectively managed outside of prison.
They will also look at a person’s record in prison. This includes their behaviour, their engagement with the opportunities in prison, and their relationship with their Offender Manager.
It is at this stage that problems can arise for people who deny they committed any offence.
Various programmes available to help offenders confront and manage their behaviour require them to accept guilt, because the programmes are built around gaining insight into the offence.
This can be an effective bar to those who deny their guilt from taking part in these schemes and disadvantage them in front of the Parole Board.
How do the Parole Board make their decisions?
The Parole system is complicated and it can take six months or more. The process begins with a ‘dossier’ of information being considered by a member. This stage is called the Member Case Assessment.
The case can then have one of four outcomes: the prisoner is released, transferred to an open prison, an oral hearing is directed, or the prisoner is refused parole.
An oral hearing is precisely that: a hearing that happens face to face. The Parole Board wants to hear evidence from the prisoner and other witnesses to find out more about the factors above.
An oral hearing can end in any of the other outcomes that the Member Case Assessment can.
What happens if I deny that I am guilty?
This can be tricky for a Parole Board because one of the ways in which they assess risk is looking at the insight a prisoner can demonstrate into their offending. When a person says they have done nothing wrong, it’s difficult to show any insight.
However, a denial of guilt is not, and should not be treated as an automatic bar to parole. This was made clear in the leading case of R (Owen Oyston) v The Parole Board  EWCA Crim 3552.
A denial of guilt can be taken into account when assessing risk. The court made it clear in Oyston that it was only one factor to take into account. The Parole Board should consider it in the context of all the evidence.
Do people who deny guilt face a disadvantage at parole hearings?
The court in the Oyston case set out the ways in which a person who maintains their innocence may be at an evidential deficit compared to those who accept they committed an offence.
Those who maintain they are innocent are unlikely to express any, or any real, remorse or contrition. They are unlikely to express sympathy for any victims, except that they may express general sympathy for them having been the victim of a crime.
Places on prison programmes designed to address the cause of the offending often require acceptance of guilt. Not going on those courses can harm your chance of release.
They may, in every other way, be a model prisoner, and they may show a willingness to engage in those programmes but be unable to by virtue of their denial of guilt.
As a result, the Parole Board may, in these cases, have a fear that they will have no motivation to obey the law in future. Prisoners who deny guilt can only undertake not to do what they maintain they have not already done.
What happens if I have been denied parole?
You can challenge decisions of the Parole Board by way of judicial review. This means asking a judge to review the decision. This is not a re-hearing and can only be used where the law has been wrongly applied, something has gone wrong in the procedure, or discretion has been exercised unreasonably.
How we can assist
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Prison is supposed to be a punishment. But it’s also designed to help people address their behaviour and stop them re-offending. When imprisonment leads to more offending, it isn’t working.
The specific problems faced by women have been highlighted recently by the Farmer Review for Women. Lord Farmer hopes to improve women’s experience within the criminal justice system with the aim of reducing re-offending.
But it isn’t just about prisoners. A previous study by Lord Farmer on male prisoners found 63% of male prisoners’ sons went on to offend themselves and adult children of imprisoned mothers are even more likely to be convicted.
The problems revolve mainly around the breakdown of family relationships, particularly as women are often primary carers, that flow from a spell in custody, whether on remand or in prison.
The Report found that women who receive family visits are 39% less likely to reoffend, and so the importance of alleviating these problems is obvious.
What are the problems?
Any custodial stay, whether the first night in the cells or five-year prison sentence, can have a devastating effect on several areas of a person’s life.
Relationships with all family members, particularly with children and partners, suffer badly when one member of that unit is taken away for an extended period.
This is made worse by the fact that women are held on average 63 miles from home, increasing the difficulty of prison visits.
Anxiety of mothers and primary carers in custody is increased due to separation from the children, especially where the mother is the sole carer. Children are the first priority in this situation, and the Report found that little progress can be made with the prisoner until this anxiety is dealt with.
Domestic violence also is recognised for its huge impact on women’s lives, tying in to relationships and possible causes of offending.
What can be done to help?
The Report recognises that the early intervention in a wide range of circumstances including mental health, relationship breakdown, substance misuse, education and debt can all help to prevent offending.
It makes a number of recommendations to strengthen female offender’s family and other relationships to prevent re-offending and reduce intergenerational crime.
Earlier intervention to address the vulnerabilities of some women which can lead to them coming into contact with the criminal justice system and diverting them from it. If women had ready access to services and good peer support networks, it could prevent offending and the repetition of the cycle by children.
A specific recommendation is to create a personal circumstances file for a woman so that information can be shared through trusted organisations such as the police and local authority, NHS and Victim Support.
A renewed focus on alternative accommodation is required, bail hostels are currently geared towards men and prohibit children living there or visiting them. These restrictions need to be reviewed by the government and women in hostels need to be referred to services to assist with parenting or relationship issues where appropriate.
Pre-sentence reports should be mandatory for all women (and male primary carers) if a custodial sentence is a possibility. The report would clarify the repercussions of a custodial sentence on dependants and put forward detail of mitigating factors such as domestic abuse.
Women sentenced to custody or remanded must be given the opportunity to make telephone contact with dependents and organise childcare before being put onto transport. Consideration should be given to primary care or other relationships before a woman is remanded as even a short remand can have devastating effect on families, tenancies and the ability to provide for family.
The development of custodial centres should be a long-term strategy, used for women whose crime is serious enough to merit a custodial sentence but who are low enough risk to retain care of their children.
Where a custodial term is inevitable there are many recommendations to enhance rather than break down family ties. Such recommendations as improvements to the Assisted Prison Visits scheme and space for private family visits.
Some of the most frequent issues raised by women prisoners were access to release on temporary licence (ROTL) and child resettlement licence (CRL).To address this ROTL could be used far more frequently and creatively to help women fulfil caring responsibilities and aid resettlement, CRL could be widened to include other family circumstances and not just rest on sole carer status.
To aid communication during sentences the operation of prisoner email schemes needs to be consistent and all female prisons to develop an email reply system so that children do not think they are being ignored if no reply is received. Virtual visits and in cell telephony should be utilised to supplement face to face visits.
The cost of the recommendations is balanced throughout, for example, by the savings from keeping women out of the prison system and the cost saved by children not being cared for by social services. There are certainly a number of interesting recommendations, but it remains to be seen whether they are put into place.
In the meantime, our advocates will ensure that a comprehensive picture is presented to any sentencing court.
How we can assist
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The government has conducted a review of the process for prisoners to be released on temporary licence (ROTL); the drive behind the changes being the rehabilitation of offenders.
Research has shown that working in the community prior to release significantly reduces the likelihood of re-offending. Ex-offenders in employment are up to nine percentage points less likely to commit further crime.
Re-offending currently costs the country £15 billion per year.
Previous changes focussed on support for ex-offenders when they leave prison with changes to the probation service. There was also a move away from short, ineffective, prison sentences and to allow more effective treatment of issues such as addiction and mental health problems.
What is new?
Now a number of changes have been made to the previous policy on ROTL, for adults. The idea is that this will assist in preparation for resettlement in the community once released.
The changes include:
- The threshold for Restricted ROTL is changed so that it is focussed on the most serious offenders.
- The current restriction on ROTL in the first three months after transfer to open conditions is removed, subject to a risk assessment.
- Those serving indeterminate sentences are eligible to be considered for unaccompanied day release (RDR) from the point of entry to an open prison or reaching open status in a women’s prison.
- In order to streamline the process agencies are consulted and boards only sit where necessary, with a focus on the right information and reducing paperwork.
- Greater use of workplace ROTL is encouraged; paid work will be allowed as soon as a prisoner is eligible for day release. The requirement for a prisoner on ROTL to spend at least one 24-hour period per week in prison is removed.
- Primary and sole carers will be allowed to apply for Childcare Resettlement Licence.
- Prisoners with a prior history of absconding will be allowed to be risk assessed for open conditions and ROTL if the history is more than two years ago and happened only once in the current sentence.
- Directors of contracted prisons will be allowed to take ROTL decisions whilst the Controller will continue to monitor the Director’s compliance in this area.
Public safety and public confidence
Any temporary release will always be balanced with the need for maintaining public safety and the public’s confidence in the judicial system. For example, the risk assessment will consider the impact of any release on identified victims and their whereabouts. More serious offenders will be subject to Restricted ROTL. This includes a number of elements over and above Standard ROTL such as enhanced monitoring.
The use of ROTL was restricted in 2013 following a murder committed by a prisoner on day release. However, the new licence changes mark a shift in attitude. Allowing prisoners to spend time in the community is a vital part of reintegration and 99% of all temporary releases are completed successfully.
How we can assist
If you need specialist advice, then get in touch with John Howey on 020 7388 1658 and let us help. We deal with all manner of criminal offences on a daily basis, from the initial investigation through to Court. We have the expertise to get you the best result possible.Read More
This perennial question was back in the news following a ministry of justice announcement that further steps would be taken to root out dishonest prison officers and others working in custodial institutions.
A new counter-corruption unit will be tasked with ‘proactively pursuing those suspected of corrupt activity in prison and probation services across England and Wales.’
The unit comprises 29 specialist staff split into a national team and 5 regional teams. Within these teams are expert intelligence analysts who will examine threats to the organisation.
Corruption can range from a member of staff having a relationship with a prisoner, to bringing in drugs and contraband for individual prisoners or organised crime groups. The unit complements prison security teams that can already search staff, including with metal detectors and baggage scanners.
The new Counter Corruption Unit has 4 aims to combat the threat:
- protect against corruption by building an open and resilient organisation;
- prevent people from engaging in corruption, strengthening professional integrity;
- pursue and punish those involved in corruption;
- prepare prisons to minimise the impact of corruption where it does occur.
How widespread is the problem?
The numbers of staff found taking contraband into prisons in England and Wales has risen by 57% in the past six years, according to ministry of justice figures obtained through a freedom of information request. 341 staff members were either dismissed, excluded, convicted or cautioned by police. In 2017, there were 71 cases of staff smuggling compared with 45 in 2012.
Ben Crewe, deputy director of Cambridge University’s Prisons Research Centre, said staff cuts and a more significant proportion of inexperienced officers meant that “those in post are more vulnerable to corruption”.
This is terrible news for prisoners looking to leave prison with a clean slate – if the temptation is offered from within the prison estate the chances of breaking free from a cycle of criminality is severely diminished.
The new heightened security measures will also act as a deterrent to prisoners who break the rules while serving a sentence as the chances of capture may significantly increase.
The alarming scale of prison officer corruption also leads many to question the value that can be placed on prison officer testimony during court cases and prison adjudications. The actions of a few can impact on the entire staff.
How we can assist
If you need specialist advice, then get in touch with John Howey on 020 73881658 and let us help, we deal with all manner criminal offences on a daily basis and have the expertise to get you the best result possible.Read More
The government has announced that drug detection scanners are being introduced at ten of the “most challenging” prisons. The technology will be used to detect drugs on clothes, paper and mail. It will be able to detect otherwise invisible traces of substances that have been soaked into clothes or letters in an attempt to bypass normal security.
The prisons in question are part of the “10 prisons project” and have struggled with acute problems including high drug use, violence and building issues.
The prisons in question are Hull, Humber, Leeds, Lindholme, Moorland, Wealstun, Nottingham, Ranby, Isis and Wormwood Scrubs.
The introduction of these scanners is the latest stage of the project, and various measures have already been implemented. This includes sniffer dogs, extra searching staff and specialist staff. X-ray scanners are also planned, and one has already been installed at HMP Leeds.
What will happen if drugs are found?
The staff have been trained in the handling and preservation of evidence, a positive result will lead to further investigation and could lead to sanctions for a prisoner or visitor and also possible criminal prosecution. Any intelligence obtained may be used to assist decisions on which prisoners or cells require further investigation. Sanctions could include closed visits.
What criminal offences could result?
It is a serious offence to bring, throw or otherwise convey (by post for example) any “List A” article into or out of prison. All controlled drugs are List A articles, and while it is an offence to take other items into prison, this article is concerned with drugs.
Drugs are a huge issue in prisons that are said to create a cycle of violence. In particular psychoactive substances can cause aggression, self-harm and trap prisoners in drug-debt.
The scanners and other measures aim to improve detection rates and enhance security procedures. Reducing the quantity of drugs in prisons should reduce the eve of violence and ultimately lead to more rehabilitation so, therefore, less re-offending.
What sentence can be imposed?
This offence is one that is so serious it can only be dealt with at the Crown Court, and custodial sentences are usually imposed, even for offenders of previous good character.
Examples of sentences imposed are; sixteen months for a small amount of cannabis, 28 months for small amounts of diamorphine, cocaine and cannabis, 4 months for Subutex.
It is also an offence for a prisoner to encourage someone to bring in drugs for him, in the case of R v Cousins 14 months imprisonment was imposed for incitement to supply in these circumstances.
How can we help?
We have vast experience of dealing with drug-related offences from the police station to representation at the Crown Court. To discuss any aspect of your case, please contact 020 7388 1658 or email@example.com
The big news story of the weekend was the surprising news that the Prisons Minister, Rory Stewart, is considering whether to abolish the power to impose short prison sentences, those of 6 months or less.
Arguing for the need for reform, Mr Stewart said: “You bring somebody in for three or four weeks, they lose their house, their job, their family, their reputation.
“They come (into prison), they meet a lot of interesting characters (to put it politely) and then you whap them on to the streets again.
“The public are safer if we have a good community sentences… and it will relieve a lot of pressure on prisons.”
Campaigners such as the Prison Reform Trust, have long argued that short sentences are seen as ineffective, allowing little if any time for rehabilitation and causing massive disruption to offender’s lives, resulting in even higher rates of repeat offending.
Supporters of the shorter sentence point to the salutary effects of a ‘short, sharp shock’ and community respite from offending.
This is one of those debates where there is at least some evidence to support all viewpoints.
But it does beg the broader question of what prison is for. Is it to deter, punish, rehabilitate, something else, or a combination of things.
Once we work out what we seek to achieve by imprisonment, the question then to be asked is, does it work?
Take a case in point also reported this weekend – two brothers imprisoned for three months following a conviction for perverting the course of justice (trying to evade penalty points for a road traffic offence).
Did imprisonment deter them? Clearly not. Will it punish them? The answer to that is clearly yes, but if they then lose their jobs and homes, is it disproportionate? Could we have imposed an altogether different and more worthwhile punishment, such as unpaid work in the community?
The answer to these and other questions concerning penal policy have been debated for a very long time, and traditionally, political parties have avoided any debate that has a flavour of being ‘soft on crime’.
So, it is refreshing to see a government minister willing to grapple with these complex issues, for the greater good.
Any change will require legislation so should not be expected for another 12 months or so, but in the meantime, it does allow advocates an opportunity to debate these issues with sentencing judges.
Maybe, just maybe, even the introduction of this debate might save some defendants from unnecessary and damaging short prison sentences. We shall certainly try.
If you have a criminal case coming up, please contact John Howey on 0207 388 1658 or firstname.lastname@example.orgRead More
A suspended sentence is a term of imprisonment that is suspended, so that you do not go into custody immediately. You will not go into custody if you comply with the conditions attached.
Who can get a suspended sentence?
In the Magistrates’ Court, any sentence of 6 months’ imprisonment (12 months for two or more either-way offences) or less can be suspended. In the Crown Court, any sentence of 24 months or less can be suspended.
The minimum length of imprisonment for a suspended sentence is 14 days.
It follows, therefore, that if your offending warrants a sentence above the maximum level, or you are sentenced as a dangerous offender, you will not receive a suspended sentence.
This sentence is also not available for youths.
When can a sentence be suspended?
The sentencing court will first consider whether or not a custodial sentence should be imposed. In legal terms, this is whether the “custody threshold” has been passed.
If custody of one of the lengths discussed above is imposed, the Court can then move on to decide whether it can be suspended or not.
In considering whether the sentence can be suspended the Court will look at the particular circumstances of the offence and offender. The Judge will also consider the sentencing guideline that applies to this scenario.
Factors to consider would be whether there is a realistic prospect of rehabilitation, strong personal mitigation and the impact of immediate custody on others.
Mitigating against a suspension would be that the offender is a risk or danger to the public, the most appropriate punishment is immediate custody and a poor history of compliance with court orders.
How long can it be suspended for?
From six months up to two years (the ‘operational period’).
What conditions may be imposed?
A sentence is suspended on condition that you do not commit any further offences during the operational period. A straightforward order will only have this condition.
Additionally, you can have a suspended sentence order that is subject to further requirements. These will be similar to those in a community order. This can include unpaid work, a curfew and supervision with the Probation Service. If you are subject to such an order, it is also suspended on condition that you comply with the requirements imposed.
What happens if I breach a suspended sentence order?
You can breach an order by either committing an offence within the operational period or failing to comply with any requirements imposed.
The starting point for breach of an order is to activate the period of imprisonment. The length of imprisonment may be reduced to reflect the level of compliance with the order and any requirements. If it is unjust in the circumstances to activate the sentence the court has various options. You may be fined for the breach, given further or more onerous requirements, or the operational period may be extended.
If you do not comply with the requirements, you will be summonsed to attend court. If you commit a further offence, you will be arrested and charged, or interviewed under caution and summonsed. We can provide advice throughout the proceedings, from the police station, at court and for any breach proceedings.
How can we help?
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Since 13th November, it is now an offence to fail to tell a Magistrates Court or Crown Court your nationality. Anyone committing this offence can be sentenced to up to 6 months imprisonment; the same as for offences such as common assault, assaulting a police officer and driving whilst disqualified. The maximum sentence is twice as long as the maximum sentence for criminal damage with a value of up to £5,000.
It has been suggested that as defendants already give their name, address and date of birth, there is no real difference in providing their nationality. But a defendant is asked to give their name and date of birth to confirm their identity, and their address so the court knows where to find them if they need to contact them or they don’t turn up. No matter how you try to dress it up, being asked to provide your nationality is simply a way of making it easier to identify foreign criminals so the authorities can try to deport them.
The Government themselves have said:
“Where an individual is identified as a foreign national offender this will allow the Home Office to begin consideration of deportation action as quickly as possible. We are absolutely committed to removing foreign national offenders from the UK and continue to work closely with international governments to increase the number of prisoners deported.”
It is difficult to see how a non-UK national can have confidence in a justice system that has, as one of it’s stated aims, a desire to deport foreign criminals. Whether or not there is bias, there is certainly going to be an appearance of bias. Why should it matter at a first appearance what someone’s nationality is? There is no justification for seeking that information at that stage. If the deportation of foreign criminals is the aim of this legislation, then why can the court not wait until after conviction, and after sentence has been passed, to enquire?