Blog: Open conditions — the importance of ongoing scrutiny

PRT has now received a detailed reply from the minister, which we are publishing on the website in accordance with our previous work on this issue. The following points in particular are worth noting from the minister’s response:

1. The minister says that the decision arose primarily out of a desire to “simplify” the criteria. He mentions in particular the problems that arose from the application of the criteria that a transfer should be considered “essential” (although he does not mention the “public confidence” test which our scrutiny revealed had also led to large number of Parole Board recommendations for a transfer being rejected by the ministry).
2. Encouragingly, the minister acknowledges the research evidence that “a period in open conditions helps some ISPs to resettle successfully once released, although that is not true for all”.
3. The minister makes clear that the changes “do not mean that we have reinstated the pre-June 2022 policy and the criteria remains robust, placing public protection first”. He suggests there will be “no return to the presumption of an earlier policy that we will accept a recommendation made by the Parole Board other than in exceptional circumstance.”
4. The minister states that the new criteria retain two risk-based tests from the previous criteria: 1. The Parole Board must produce evidence that a prisoner’s risk had reduced to a level appropriate for any prisoner held in open conditions; and 2. The prisoner presents a low risk of abscond. Even then, the ministry may reject a Parole Board recommendation for a transfer if the Secretary of State does not consider “a wholly persuasive case” has been made.
5. The minister rejects our concern that the criterion that there must be a wholly persuasive case for transferring an ISP to open conditions is overly subjective.
6. The minister also rejects our concern that there might be some ambiguity in the new criteria between the test for a transfer to open conditions and the test for suitability for temporary release.
7. Disappointingly, the minister denies the possibility of any action to review negative transfer decisions made under the previous criteria. He makes clear that prisoners who had a transfer rejected under the old test will have to wait until their next review.
8. The minister clarifies that under the new criteria, “Most decisions will be made by senior managers in the Public Protection Casework Section in the HMPPS Public Protection Group. In the most serious cases, Ministers themselves will make the decision.”
9. The minister rejects the possibility of placing data about outcomes from the transfer process in the public domain as it is not in “the wider public interest”.

Despite the cautious tone of the minister’s letter, and his disappointing response to some of our concerns, his acknowledgment of the evidence on the benefits of open conditions is significant, and suggests an important shift in thinking in the ministry. While we will need to wait a few months for the data to become available, we are hopeful that the new criteria should result in a substantial increase in the proportion of Parole Board recommendations for a transfer being accepted by the ministry. Nonetheless, we remain concerned about some aspects of the new criteria, particularly the ambiguity of the criterion that there must be a “wholly persuasive case” for a transfer. We will be watching carefully to see whether the changes have the effect that is hoped.

Mark Day
Deputy Director