Maintaining innocence in prison

What is meant by maintaining innocence?

‘Maintaining Innocence’ is a term used for people who do not admit to the offence for which they have been convicted.

It is often used by people who have been convicted of serious crimes such as sexual and violent offences, but it can also be used by people who are convicted of other offences.

Use of the term ‘in denial’ instead of ‘maintaining innocence’

Although Ministry of Justice and HMPPS policies have now started using the term ‘maintaining innocence’ more often, some policies still use the term ‘in denial’ instead.

We often receive requests for legislation or case law which says that prisons have to use the term ‘maintaining innocence’. We are not aware of anything that supports this.

Prisoners sometimes reference the Taplin case. The Taplin case is about doing offending behaviour programmes whilst maintaining innocence, and does not speak to the use of the term ‘in denial’.

Distinguishing between being an ‘appellant’ and maintaining innocence

Prison policies, such as the Incentives Policy Framework, often distinguish between people who are maintaining innocence and those who are ‘appellants’.

You are an appellant if your conviction is the subject of review by a higher court. This is most often the Court of Appeal, but if you were convicted in the Magistrate’s Court the appeal would be heard by the Crown Court. This might be an appeal against the finding of guilt immediately after sentencing, or it might be after having your case referred to the Court of Appeal by the Criminal Cases Review Commission (CCRC).

You are NOT an appellant if you have just asked the CCRC to examine your case, because the CCRC does not have the power to overturn a conviction itself.

To prove you are an appellant you will usually be asked for your criminal appeal number to show your case is pending.

Maintaining Innocence and Incentives Schemes

 Maintaining innocence should not automatically result in a reduction to your Incentive level or stop you progressing.

Paragraph 7.27 of the Incentives Policy Framework states the following:

Where prisoners refuse to accept their guilt and have either had an appeal refused or are not appealing, Governors can consider eligibility for Enhanced status considering their response to personal progression, progress on their sentence plan and constructive engagement in prison life.

Governors can also consider whether Enhanced status would be appropriate if the prisoner’s denial results in them not being able to engage in rehabilitative activities, even if they are demonstrating suitable behaviours.

Governors are entitled to take account of the indirect effect on those prisoners who are willing to engage in their sentence plan, in determining the best approach for their prison to those prisoners who refuse to accept their guilt but who are not officially recognised appellants.

Although maintaining innocence should not have an automatic effect on your Incentive level, it can be difficult to demonstrate some of the criteria to progress, such as commitment to rehabilitation, particularly for Enhanced.

If you are an appellant, refusal to engage in offender behaviour targets should not be detrimental to your Incentive status or automatically prevent you progressing to Enhanced status. Each case should be considered independently in line with the criteria for each level.

You should be given reasons for decisions made about you Incentive level.  If you think the decision has been made unfairly because you are maintaining innocence then you may wish to make a complaint through the internal complaints system. If the outcome remains unsatisfactory after the appeal stage you can then escalate the complaint to the Independent Prisoner Complaint Investigations (IPCI), Third Floor, 10 South Colonnade, London, E14 4PU.

There is more information about this in the Incentives Policy Framework

Sentence Planning and Offender Behaviour Programmes

PSI 19/2014 Sentence planning states that ‘Plans must be realistic and attainable in order to be effective in providing offenders with an opportunity to address offending related factors and reduce risk.’

If you are maintaining innocence and a course requires admission of the offence, an objective can still be added to your sentence plan to take part in an assessment of suitability for that course. You may then be assessed as eligible for the course but not ready because it requires talking about the lead up to offences.

If you are assessed as not ready for such a course, it can still remain on your sentence plan as a future target. Other objectives may be included in the meantime aimed at addressing your readiness or other identified issues.

Offending Behaviour Programmes

One of the main programmes which previously concerned people maintaining innocence was the Sex Offender Treatment Programme (SOTP) which required admission of guilt. In 2018 HMPPS stopped the use of SOTP and introduced new courses.

Horizon is an accredited group work programme for men aged 18 and over who have a conviction for a sexual or sexually motivated offence/offences. It is suitable for males who are medium risk and above of reconviction

Kaizen is an accredited offending behaviour programme for adult males who have been convicted of sexual or violent offences and who are high or very high risk.

These programmes are designed to be as inclusive as possible and do not require participants to talk about their offending – rather areas of their lives that have caused them problems. This means that those maintaining their innocence can take part, although participants do need to be willing to talk about those problem areas.

Other courses include the Thinking Skills Programme (TSP), which is about decision making and is not offence specific so you can also do this without admitting guilt.

The prison may also include engagement in substance misuse programmes if they have been identified as relevant.

Please contact our advice service if you would like more information about Horizon, Kaizen or other Offending Behaviour Programmes

Recategorisation and Maintaining Innocence

Some people who are maintaining innocence find that it affects their recategorisation and can prevent them progressing. Though it may be more difficult to progress if you have been unable to complete things on your sentence plan, the prison should take wider risk evidence into consideration when reviewing your category.

The Security Categorisation Policy Framework does not contain a specific reference to maintaining innocence. However, it does contain the following which may be helpful:

‘8.16 Recategorisation to a lower security category is not an automatic progression or right but must be based on an assessment that the individual can safely and securely be managed in lower security conditions’

‘8.17 All available information and positive aspects of behaviour must be taken into account as part of the risk assessment, including the extent to which the individual engages successfully with the prison regime, work and training opportunities. Good behaviour on its own is not, however, sufficient reason to recategorise to a lower security category.’

‘8.19 In some cases, risk reduction and suitability for lower security conditions can be evidenced by successful completion of offending behaviour work, but where this hasn’t been available or appropriate, staff must look to other sources of information regarding suitability for the lower security category. In assessing recategorisation from B to C consideration should be given to whether outstanding offender behaviour work can be completed in a lower category prison where there is other evidence of appropriate risk reduction.’

You should be given reasons for any categorisation decision and can request a full explanation in writing. If you think your categorisation is wrong or has not fully considered all evidence you can appeal via the internal complaints system. If the outcome remains unsatisfactory after the appeal stage you can escalate the complaint to the Independent Prisoner Complaint Investigations (IPCI), Third Floor, 10 South Colonnade, London E14 4PU.

Parole and Maintaining Innocence

The Parole Board defines maintaining innocence as referring to ‘those who continue to deny an offence for which they have been convicted at Court – usually the index offence but sometimes a different or historic offence’.

The Parole Board is bound by the verdict of the Court and must operate on the basis that you were rightly convicted and guilty of the offence for which you have been convicted.

The Parole Board must instead focus on assessing the risk you might pose upon release to determine if the test for release has been met.

In July 2024 the Parole Board published Guidance on Prisoners Who Maintain Their Innocence.

The guidance includes some key legal principles from case law, including;

• It is unlawful for panels to refuse release solely because a prisoner maintains innocence, without considering how this will affect risk. In considering whether the test for release has been met, the focus must be an assessment of risk and not the denial.
• A denial of guilt may, in appropriate circumstances, be a very significant factor, but it should not be treated as conclusively against the case for release or a progressive move to open conditions.

The guidance identifies different ways someone may be maintaining their innocence. The different types of maintaining innocence described by the guidance are as follows:

• Of the behavior- stating that it never happened.
• Of responsibility – blaming substance use/ the victims or others.
• Of the impact of the behaviour – minimising the offence.
• Justifying or rationalising their behaviour.

The guidance acknowledges the misconception that those who maintain their innocence must pose higher risk of harm.

It states that in some cases, maintaining innocence could indicate a higher risk if someone has been unwilling to engage in rehabilitative work. In some cases, however, it may not impact on the assessment of risk and in some cases be considered a protective factor.

The weight given to the fact that someone is maintaining innocence will depend on all the circumstances and whether other factors indicate a reduction in risk.

The Parole Board may consider the following when assessing the risk of someone maintaining their innocence:

• Custodial adjudications and behaviour reports, including their engagement with various professionals and other prisoners and their engagement with the prison regime
• Offending behaviour work – for example, if offending behaviour work has not been completed because they are maintaining innocence that may be an influential factor
• Attitude and willingness to change risk-related behaviours
• Previous offending behaviour
• Positive engagement with staff conducting risk assessments and seeking to build effective risk management plans

If an individual completely maintains their innocence, members are encouraged to explore their life at the time of the index offence.

The guidance gives some examples of the types of questions they might ask:

• What were their attitudes towards sex and women like?
• How did their peer group behave?
• Would they carry a weapon in certain situations?
• What were their relationships with others like?
• How frequently would they be abusing substances?
• How did this alter their behaviour?

When the Parole Board produce their written decision, they should be clear about how the issue of maintaining innocence and other factors influence the final decision.

If you have an upcoming parole we advise you to get a solicitor with experience in this area.