Blog: Open conditions — a welcome reversal, but more clarification needed

The letter makes clear that from 18 July 2023 the secretary of state, or officials under approved delegated authority, will approve an indeterminate sentenced prisoner (ISP) for open conditions only where:

• the prisoner has made sufficient progress during the sentence in addressing and reducing risk to a level consistent with protecting the public from harm (in circumstances where the prisoner in open conditions may be in the community, unsupervised under licenced temporary release); and
• the prisoner is assessed as low risk of abscond; and
• there is a wholly persuasive case for transferring the ISP from closed to open conditions.

This means that cases awaiting a decision from the secretary of state on whether to accept or reject a Parole Board recommendation for a move to open conditions will be considered under the new test, regardless of when the Parole Board Panel made their recommendation.

From 1 August the previous directions to the Parole Board will be revoked and replaced with directions that reflect the above.

There are a number of crucial differences between the new criteria and those introduced by Dominic Raab in June 2022. We particularly welcome the removal of the considerations of whether “a move would undermine public confidence in the criminal justice system” and whether “a period in open conditions is considered essential to inform future decisions about release and to prepare for possible release on licence into the community”.

In practice, both of these criteria proved difficult to interpret or define, and lacked detailed supporting guidance. PRT’s scrutiny of the changes identified that it was these two criteria which had led to the dramatic reversal in the proportion of Parole Board recommendations for a transfer being rejected by the ministry.

In his letter, Phil Copple explains the changes as follows:

While the new criteria would seem to be a significant improvement, the proof will be in whether they lead to a fairer and more transparent process and an increase in the proportion of Parole Board recommendations for a transfer being accepted by the ministry. There are some outstanding questions regarding how the new criteria will operate in practice. We have written to the prison minister Damian Hinds seeking clarification on the following points:

1. We have some concerns regarding how the first criteria will be applied, and particularly the potential for confusion between the test for transfer to open conditions and the test for suitability for temporary release.
2. We remain concerned that the third test that there must be a “wholly persuasive case” for a transfer — a test which will only be applied by the Ministry of Justice in its consideration of Parole Board recommendations — remains overly subjective.
3. We ask the minister to commit to transparency and accountability in how the new criteria are applied, including clarifying the process for considering Parole Board recommendations by the ministry and publishing detailed and regular data on outcomes.

Less positively, Phil Copple’s letter makes clear that any case which had a recommendation from the Parole Board accepted or rejected under the previous criteria will not be reopened or reviewed. These prisoners will need to wait until their next review until their suitability can be considered against the new test.

Prisoners who had their cases considered under the previous criteria will understandably feel a sense of unfairness given that the government itself has now admitted that these criteria were overly subjective and required revision after just over a year of their operation. It will be particularly galling for those prisoners who were recommended for a transfer by the Parole Board but subsequently had that recommendation rejected by the ministry.

We appreciate that there are practical difficulties to retrospective application; but believe that the situation of these prisoners requires careful consideration. With this in mind, we have asked the minister for his consideration and response to the following policy options:

1. Could governors have discretion to request a review sooner than usual for people whose case warrants it?
2. Could the Secretary of State reconsider all positive Parole Board recommendations which were rejected by the ministry based on the previous criteria, but through the lens of the amended test?

As with our previous work on this issue, we will publish the minister’s response on the PRT website when we receive it.

Mark Day
Deputy Director