The overcrowded prison population in England and Wales is now common knowledge. A contributing factor has been the rising number of prisoners on recall, which rose 17% in March 2023 compared to 2022, according to the Office of National Statistics. The ever-growing trend of harsher sentencing, with longer terms on average being handed down and more life and extended sentence disposals than ever before, means more recalls to prison – and more time spent back in prison on a recall.
So what has the Government done, if anything, to alleviate the pressures on the prison population? Operation Safeguard has yet again been triggered, meaning police cells can again be used to hold inmates- reported by the Guardian here- https://www.theguardian.com/society/article/2024/may/09/government-crisis-measure-prison-overcrowding. But the number of police cells available for this use is unlikely to make a significant difference to the levels of overcrowding and is neither sustainable nor cheap.
In an effort to implement a longer term (and presumably less expensive) measure, The Criminal Justice Act 2003 (Suitability for Fixed Term Recall) Order 2024 was brought into force on 2 April 2024, expanding the eligibility test for fixed term recalls. Probation now have a wider test to consider when deciding whether an individual is suitable for a short, fixed term recall. In theory, fewer standard recalls should mean fewer individuals waiting in prison for their sentence end date (or for the Parole Board to direct their release).
This article will explore the new changes and consider the possible consequences. The practical effects of this Order, of course, remain to be seen.
What is a recall to prison?
Individuals who are released from prison to serve the rest of their sentence in the community will be subject to licence conditions, comprising standard conditions (e.g. to be of good behaviour, not to commit a further offence, and to keep in touch with their probation officer) and any additional licence conditions (such as a residence at an approved location, a curfew, drug and alcohol testing, etc), imposed if they are both necessary and proportionate to manage an individual’s risk. For those eligible for automatic release (i.e. those with a Conditional Release Date who do not require their release to be considered by the Parole Board), these conditions are recommended by Probation and approved by the Prison Governor.
If an individual breaches these licence conditions, is charged with new allegations, or behaves in a way which causes their Probation Officer to believe they are at risk of committing further offences, their licence may be revoked, and they will be recalled back to prison.
When can one be recalled?
A breach of these conditions can result in a recall back to prison. If an individual is alleged to have committed a further offence, there is no requirement for Probation to await a charging decision or any criminal proceedings before initiating a recall. The allegation itself is often viewed as a breach of the condition to be of good behaviour.
However, individuals can also be recalled back to the prison where Probation consider their behaviour to present an unmanageable risk of harm to the public, or communication between them has broken down (e.g. failure to attend probation appointments), or they believe there is an imminent risk of further offences being committed.
The Probation Officer will assess an individual’s suitability for a fixed term/standard recall, and the final decision will be made by the Public Protection Casework Section (PPCS), who act on behalf of the Secretary of State.
How long does a recall last?
There are two types of recall; a fixed term recall and a standard recall.
A fixed term recall is just that – a recall to prison for a fixed period, at the end of which the individual will be re-released automatically. For those serving a sentence of less than 12 months, the recall is 14 days. For those serving 12 months or more, the recall is 28 days. If the individual reaches their Sentence End Date (SED) first, they will be released automatically on that day.
Anyone serving a standard determinate sentence can be considered for a fixed term recall. If they are given a standard recall, they can only be released before their SED if the Parole Board or Secretary of State (SSJ) directs it.
Those serving indeterminate or extended sentences are automatically ineligible for a fixed term recall, and once recalled, their detention must be reviewed annually by the Parole Board.
Anyone subject to a standard recall can only be released prior to the end of their sentence if the Parole Board or SSJ direct it. They will only do so if they believe the individual’s risk of harm can be managed in the community. Their detention must be reviewed annually by the Parole Board.
What are the new changes?
Previously, an individual could only be considered suitable for a fixed term recall if they were not considered to pose a risk of serious harm to the public if released.
The Criminal Justice Act 2003 (Suitability for Fixed Term Recall) Order 2024 has amended the criteria for those eligible for automatic release. An individual will be eligible for a fixed term recall if;
- They are age 18 or over; and
- Serving a sentence of less than 12 months; and
- They have not been recalled on account of being charged with a serious offence; and
- Are not being managed at Level 2 or 3 MAPPA.
OR
- The Secretary of State is satisfied that they will not present a risk of serious harm to the public on release.
What is a serious offence?
A “serious offence” is murder, or any offences listed at Schedule 18 of the Sentencing Code. These are numerous and include, for example;
- Threats to kill
- False imprisonment
- Assault occasioning ABH
- Wounding with intent to cause GBH
- Robbery
- Affray
- Possession of a firearm with intent to endanger life
- Stalking involving fear of violence/ serious alarm or distress
- Rape
- Sexual assault
- Sexual activity with a child
- Sexual communication with a child
- Exposure
So, for those serving a sentence of under 12 months, as long as they have not been charged with a further serious offence, and they are not being managed under the more serious Levels 2 and 3 MAPPA, they will be eligible for a fixed term recall without needing to be considered to not pose a risk of serious harm to the public.
Practitioners should note that those serving standard determinate sentences longer than 12 months remain eligible for fixed term recalls, as long as they are assessed to not pose a serious risk of harm to the public.
Anticipated consequences
The aim of this change is plainly to widen the category of individuals who can be given fixed term recalls (14 days in this case), and swiftly released. This should mean prison spaces are freed up, particularly in the local prisons that tend to bear the brunt of housing recalled prisoners as well as those on remand.
However, for those recalled to prison having been charged with new offences, the list of “serious offences” is extensive and will render many individuals ineligible for the fixed term recall under the first limb of the test. Practitioners should be cognisant of the full list of serious offences when advising recalled prisoners charged with new offences.
While the changes may well mean more individuals are handed fixed term recalls, the burden is likely to now shift onto Probation Services. Short term recalls often mean individuals losing housing and places on alcohol/drug and education services, which Probation Services must then re-apply for once they are re-released. Necessary steps like risk assessments and police/social services checks also need to be re-done.
It is hoped that the recent reform will mean fewer standard recalls for those serving determinate sentences, lessening the burden on the prison population and causing fewer interferences with stable accommodation, jobs, and support services – all of which are often desperately needed following release. However, given the increased burden which is likely to fall on Probation Services as a result, the reform is unlikely to ease any of the continuing financial pressure on the Criminal Justice System.
Friendly reminder that this article is not to be viewed as legal advice and is simply for educational purposes and to help keep practitioners up to date on the key legal framework.