Sentencing and Delay – Can it work in your favour?

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There have been widespread reports in the press about spare courtroom capacity, with judicial sitting days at an all-time low. These reports correspond to our own experience.

When court delay is combined with significant delays in investigating and charging defendants to court, this can mean a very long period between the commission of any crime and sentencing. 

As advocates, we are increasingly concerned with the effect of delay on the people we represent and can deploy several legal principles in an attempt to mitigate the sentence passed. 

On occasion, this can work in our client’s favour, either reducing the length of the overall sentence, allowing a custodial sentence to be suspended where it would not otherwise be, or by justifying a non-custodial sentence in circumstances where custody would be the norm.

 

What does the law say?

In Prenga [2017] EWCA Crim 2149 the court held:

“We start by considering the nature and extent of the discretion to adjust otherwise lawful sentences where required to achieve justice. It is, in this regard, well established that a sentencing judge may reduce the sentence that would otherwise be imposed to achieve justice and to reflect exceptional factors. The paradigm illustration flows out of the requirement in ECHR art.6 that proceedings must be concluded within a reasonable time. Where proceedings are unduly delayed that delay may count as a mitigating factor in appropriate circumstances. The threshold is necessarily a high one.”

In Dyer v Watson; K v HM Advocate[2004] 1 A.C. 379; [2002] 3 W.L.R. 1488 Lord Bingham of Cornhill observed that in any case in which it was contended that art.6 was violated by virtue of delay the first step was to consider the period of time which had, in fact, elapsed. 

Unless that period gave grounds for real concern it was almost certainly unnecessary to go further “… since the convention is directed not to departures from the ideal but to infringements of basic human rights”. 

The threshold for proving a breach of the reasonable time requirement was a high one “not easily crossed”

In Mills (Kenneth Anthony) v HM Advocate (No.2) [2004] 1 A.C. 441 Lord Hope (at [54]) recognised that delay could in an appropriate case justify an adjustment to sentence. One possible rationale for this is the anxiety experienced by a defendant, resulting from the abnormal prolongation of proceedings. Another possible explanation might be that a defendant’s life has changed during the period of delay such that the person who stands to be sentenced is, in terms of character, not the person who committed the offence.

In Attorney Generals Reference No.79 of 2009 [2010] EWCA Crim 338 it was held (per Hughes LJ VP at [19]) that delay:

“… is of relevance if not to a formal assessment of Article 6 then undoubtedly to the broader question of what a just sentence is when eventually and belatedly a conviction occurs”.”

The judge, nonetheless, emphasised that applications for reductions in sentence would be “unusual”. The authorities relating to delay and art.6 demonstrate that unnecessary delay can amount to mitigation resulting in reduction of sentence but, also, that questions of delay are instances of “… the broader question of what a just sentence is”. It follows delay, whilst perhaps being a paradigm example, is not exhaustive of the categories of case in which a sentence might be mitigated in order to ensure overall justice.

In R. v Kerrigan (David Joseph) [2014] EWCA Crim 2348, the Court of Appeal was required to consider broad questions of justice in the context of custodial sentences ordered to be run consecutively to existing sentences. 

In para [40] of the judgment the court set out seven principles which might apply where a court was imposing sentences for different offences and where they might apply concurrently or consecutively leading to potentially arbitrary results. 

For present purposes the seventh principle is relevant and was formulated in the following way:

“a judge retains the discretion to do justice on the particular facts of a case, for example in the case of excessive delay, and may therefore reduce an otherwise appropriate sentence accordingly”.

In all cases we will ensure that the impact of any delay on your case is fully explored in order that this can be reflected during sentencing.

 

How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, then please contact us on 0113 247 1477 or email us at [email protected] and let us help. We can advise on all aspects of your case.

Ten years for a double killing – look behind the headlines

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In a truly tragic case, Samantha Ford drowned her 23-month-old twins in the bath. 

Appearing at the Old Bailey for sentence, the Judge, Mr Justice Edis, handed down a 10-year sentence, causing widespread outrage. Longer sentences are routinely handed down for drug dealing and other crimes.

To understand more about this case, we need to look beyond the headlines and examine the facts more carefully.

The killing was carried out to avenge her husband calling time on their marriage. Ford was suffering from a significant psychiatric illness which the defence team explored in detail. The medical evidence ultimately led to a plea being accepted to manslaughter due to diminished responsibility.

A conviction for murder will attract a life-sentence but sentencing for manslaughter will typically attract lower sentences.

There is also a massive clue in the defence deployed in this case, ‘diminished responsibility’. 

It is clear that in large part, this crime was due to Ford’s unbalanced mind at the time of the killing.

While the Judge did pass a 10-year custodial sentence, that is not the full picture when it comes to sentencing in this case. The complete sentence passed is referred to as a Hybrid-Order. 

Hybrid-Orders comprise mental health treatment, followed by a custodial term to reflect some degree of liability.

Ford was sentenced to a hospital order with a limitation direction, which means that she will be detained in a secure medical facility until such time it is safe to release her from that part of the sentence. 

It could be a great many years before this happens.

When Ford is released from medical care, she will then have to serve the unexpired part, if any, of the 10-year sentence (with release half-way through as for any other prisoner) and remain on licence in the usual way.

Cases such as this one illustrate the fragility of the human mind. What drives an otherwise loving mother to kill her two young children is beyond the comprehension of most people. 

Samantha Ford is not a danger to the broader public; she was and is a very poorly lady who will be haunted for the rest of her life with the tragic events that unfolded. First and foremost, she requires and will receive urgent medical help.

As specialists in criminal law, we are trained to recognise medical defences and ensure that the full picture is presented to the court.

 

How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, then please contact us on 0113 247 1477 or email us at [email protected] and let us help. We can advise on all aspects of your case.

Brexit, firearms and other laws

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As the government prepares to bring us out of the EU on 31st October 2019, details have begun to emerge as to the legal and regulatory position if we leave without a deal.

Some of the first information released relates to firearms, although it regrettably raises more questions than it answers.

Given the importance of complying to the letter with firearms laws both here and abroad, those affected must take steps to keep up to date, and this may involve quite close monitoring over the next few weeks. The same is true in relation to other areas of regulatory and criminal law compliance.

What is the current situation?

A UK resident who wants to travel to the EU with their shotgun or a firearm can apply for a European Firearms Pass. This is a licence, or passport, that allows travel between member states, you must also have a licence from the UK to hold the firearm. Depending on the country you are travelling to, there may be other documents required. All weapons have to be declared to customs and also to the travel company you are using for transport.

What will change?

If the UK leaves the EU without a deal, you will no longer be able to apply for a European Firearms Pass.

What will happen instead?

You will need to check the firearms licensing requirements of the country, before travelling. 

This will also apply if you are in an EU country with the firearm with a European Firearms Pass at the time the UK leaves the EU.

What about visitors to the UK?

If you are sponsoring a visitor from the EU, who wants to bring a firearm to the UK, you need to apply to the local UK police force for a visitor’s permit. A permit that is issued before the UK leaves the EU remains valid until it has expired.

Once the UK leaves the EU, the European Firearms Pass will no longer be recognised for EU visitors to the UK. Sponsors of visitors will not need to show a valid Pass.

What should I do?

It is not yet known whether the UK will leave the EU without a deal in October. If you intend to travel with your firearm, it is advisable to check the licensing requirements of the country that you are visiting as countries have varying lead times for applying for licences. Without a proper licence, you may not be allowed to travel with your firearm.

If you are concerned with any aspect of regulatory criminal law and Brexit then get in touch for advice on the latest position.

How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, then please contact us on 0113 247 1477 or email us at [email protected] and let us help. We can advise on all aspects of your case.

Can a statement in family proceedings be used to prosecute you?

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Can the police use a statement you make in family proceedings to investigate, and possibly prosecute you for an offence?

That was the key question in M (Children) [2019] EWCA Civ 1364, where the police asked the court to disclose statements made by two people under investigation for terrorism offences.

The appeal concerned issues about the disclosure of that information, and the parent’s rights to silence and against self-incrimination. This is not a new area of law, but this case reviewed the previously established principles and considered whether they were still compatible with aspects of human rights law.

 

What had M’s parents done?

This was a case of alleged terrorism offences. The police had asked for disclosure of two position statements from the court to aid their investigations. The police information was that the parents had travelled to Syria and lived there for four years when Foreign and Commonwealth Office advice was not to do so, and also while ISIS active in the area.

The Home Office had made the father the subject of a Temporary Exclusion Order; an order made to disrupt the return of British citizens to the UK where they are suspected of taking part in terrorist activity abroad. 

 

The right to silence?

English law has long recognised the right of a person not to answer questions put to them by an investigating body, often the police. Although this right was eroded at the end of last century, so that it is now possible for a jury to draw an adverse inference from that silence, it is still the generally applicable rule.

In this case, as was their right, the parents refused to answer questions put to them by the police. 

 

The privilege against self-incrimination?

An even longer-established right than that of silence is the privilege against self-incrimination. This is the right in civil proceedings not to make an admission that would expose you to criminal liability. It is, in fact, more comprehensive than that and allows silence in the face of questions that would expose you to any penalty.

The Children Act 1989 makes an exception and disapplies the rule in care proceedings such as those in this case. There is a proviso that any information given in those proceedings is not admissible as evidence in a subsequent criminal trial. Effectively sidestepping the rule but with the same effect that no prosecution will occur based on the admissions alone.

 

When can a statement in family proceedings be given to the police?

The general position is that material created for family court proceedings is private, but it made be disclosed where the court gives its permission.

Just because there is a bar on those statements and admissions being used as evidence does not mean they cannot be disclosed to the police. The police would use them to further a chain of inquiry leading to different evidence, possibly of the same facts.

Defendants and others can, of course, refuse to answer questions in an interview based on those statements. Instead of risking an adverse inference as usual, those questions are inadmissible as evidence entirely. They are, therefore, purely investigatory.

Questions which are put based on evidence gathered from the disclosed statements are in a greyer area. They are subject to the usual provisions that evidence should not be admissible if it is unfair; it will be for any trial judge to weigh the circumstances as a whole.

 

When will that material be disclosed?

The test is set out in Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76. The court set out ten of the factors to take into account, but ultimately, all the circumstances are likely to be relevant.

The relevant circumstances are – the interests of the child; the interests of other children generally; the maintenance of confidentiality in child proceedings; the importance of frankness in child proceedings; public interest in the administration of justice; public interest in prosecution of crime; the gravity of the alleged offence; inter-agency cooperation; fairness to the person accused and incriminated by the statement; and any other material disclosure that has occurred.

The court in M confirmed that this was good law. In the event, the parents’ challenge failed because the statements disclosed did not actually contain any admission of criminality, simply a description of normal life in Syria away from any conflict.

 

How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, then please contact us on 0113 247 1477 or email us at [email protected] and let us help. We can advise on all aspects of your case. 

Local Authorities Get Tough on Sub-letting

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As Airbnb listings in London soar to 80,000, up 400% from 2015 figures, Westminster Council is cracking down on those who use the site to unlawfully sublet social housing, with over 1,500 investigations underway.

The council recovered £100,974 from a Toby Harman, a social housing tenant who had been unlawfully letting his flat on Airbnb since 2013. He has also been evicted so the flat can be let to someone in genuine need.

Last year, the council recovered 24 homes from unlawful sub-letters.

Subletting social housing was made an offence in the Prevention of Social Housing Fraud Act 2013. It is a crime to sublet secure or assured tenancies with local authorities or other registered social housing providers.

A tenant (with a secure or assured tenancy) commits an offence if –

  • he or she sub-lets the whole, or sometimes part, of the dwelling,
  • the tenant ceases to occupy the dwelling as his or her only or principal home, and
  • the tenant knows he or she is acting in breach of the tenancy.

A different, more serious offence is committed if you act dishonestly.

The law says that it is a defence if the sub-letting takes place as a result of violence or threats toward certain people. A further defence may arise if the person then occupying the house is entitled to apply to the court for a right to occupy or to have the tenancy transferred. 

A person convicted of one of these offences is liable to a fine and, if they act dishonestly, could face six months in prison. 

They are also liable to a new type of order introduced in the Act, an Unlawful Profit Order. 

The making of one of these orders is how Westminster Council were able to recover the money from Toby Harman. 

Under this power, the court must consider making an order that the defendant repays any profit to the landlord.

The maximum amount payable under an Unlawful Profit Order is the illicit amount received by the offender minus any rent paid to the landlord. The court may make an order for payment of any amount up to that ceiling, depending on the offender’s current means.

Unlawful profit orders can also be made in civil proceedings, where no criminal charges are brought.

 

How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, then please contact us on 0113 247 1477 or email us at [email protected] and let us help. We can advise on all aspects of your case.

Length of Sentence – Not Always a Surprise

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Is it possible to know the sentence you might get before you plead?

In some cases, yes, and that might be enough for a defendant to plead guilty. For some, if they know they won’t go to prison, then they won’t fight a trial.

In the Crown Court a sentence indication can be sought by asking for a ‘Goodyear direction’.

The point of the Goodyear procedure is to allow a defendant to make the choice to plead guilty, which remains entirely their own, with as much information as possible.

 

How can I find out?

A defendant is entitled to ask the judge for an indication of the maximum sentence if they were to plead guilty at that stage in the proceedings. This is called a Goodyear indication.

 

Does the judge have to tell me what I might get?

It is a matter for the judge whether they wish to give an indication, following guidance from the Court of Appeal in Goodyear [2005] EWCA Crim 888.

This guidance is designed to make sure that there is no improper pressure on the defendant, purposefully or not, and no ‘bargaining’ with the judge takes place.

 

What will the judge say?

The Court of Appeal said:

“In our judgment, any advance indication of sentence to be given by the judge should normally be confined to the maximum sentence if a plea of guilty were tendered at the stage at which the indication is sought.”

 

Can the judge say no?

The judge is able to refuse in any circumstances, and is advised in Goodyear to refuse to indicate a sentence where there is likely to be any other pressure on the defendant, or where the judge is unable to properly judge the culpability of the defendant, perhaps because the Crown does not accept the proposed basis of plea.

A judge may also defer giving an indication until a pre-sentence report is obtained, or the judge can familiarise themselves with the case sufficiently.

Should a judge refuse, a defendant can seek another indication at a later stage.

 

Does a judge have to stick to what they say?

If an indication is given, for example that the case will not warrant a custodial sentence on a guilty plea, that indication is binding. It is binding on the judge who made it, but also any other judge who might sentence the defendant.

There are exceptional circumstances where an indication might not be binding, but only if it is fair to the defendant. In Shane Newman [2010] EWCA Crim 1566, the defendant had pleaded guilty following a Goodyear indication that the judge said he was wrong to give.

The judge offered the defendant the chance to vacate his plea in an attempt to rectify the mistake, but the defendant chose not to. The Court of Appeal agreed this was the correct course and the defendant had not suffered.

 

How long does an indication last?

An indication does not subsist indefinitely, however. Where no guilty plea is tendered in response to the indication, it ceases to have effect.

Recently, in Jacob Utton [2019] EWCA Crim 1341, the defendant sought an indication. He got one but pleaded not guilty. The following day, he had a change of heart and asked his solicitors to have the case re-listed so he could plead guilty.

The trial judge in Utton did not consider she was bound by her earlier Goodyear indication, given that Utton had pleaded not guilty with it in mind. The Court of Appeal agreed that she was not bound by it.

So, as you can see sentencing law and procedure remains a minefield for the unwary, fortunately all our solicitors and advocates are well versed in all aspects of this process.

 

How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, then please contact us on 0113 247 1477 or email us at [email protected] and let us help. We can advise on all aspects of your case.

Road Safety Review – More New Laws?

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The Government has published new plans to make the roads safer for everyone. The plans include several changes for people at every stage of life, and also for more specialised drivers like HGV drivers and motorcycle riders.

 

Children

The Department for Transport has granted funding of £225,000 to Good Egg Safety to develop a training course for fitting child seats. This is in response to information that most parents don’t know how to install a child seat in their car correctly.

Additional funding will go towards developing educational resources for schools and researching road safety for children with special education needs.

 

Young Adults

The largest at-risk age group on the road is young adults, so the Department for Transport is considering ways to make young drivers safer. This includes consulting on several new learning and licence schemes; the potential use of Graduated Learner Schemes pre-test, and Graduated Driving Licences post-test.

These schemes and licences are used already in the USA, Canada and Australia. The pre-test scheme imposes requirements for a learner before they can take their test, usually a certain number of hours of instruction. The post-test scheme involves restrictions on a new licence for several years or until a certain age.

In California, for example, new drivers under eighteen cannot drive unsupervised at night, carry passengers under 20 unless supervised, or use mobile phones including hands-free devices.

One change along these lines recently in the UK was for the revocation of a new driver’s licence, meaning they have to re-sit their test. This revocation applies if six penalty points are acquired within two years of their test

Driving tests will also continue to be updated to take into account technological changes, similar to the recent move to include satnav driving in the test.

 

Adults

The Government will consult on the use of penalty points for people who don’t use their seatbelt, as well as the current fine. This consultation comes as a result of 27% of fatalities on the road in 2017 involving people not wearing a seatbelt.

Portable breathalysers are being developed, meaning police officers will be able to take a sample that is good enough for court proceedings at the side of the road. At the moment a preliminary test is taken by the roadside and an official test has to be taken at the police station. The proposal would free up officers for other duties quicker.

The Government is also researching the feasibility of ‘alcolocks’. This is a device which immobilises a car until someone under the limit blows into a tube. These would be introduced for those convicted of drink-driving to try and prevent re-offending.

New cycling offences are also being considered so that those who cause serious harm can be dealt with in a similar way to those who cause serious harm by driving.

 

Elderly

The second-largest at-risk age group on our roads are the elderly; the Government will continue to fund Mobility Centres for those who are unable to drive, most of whom are sixty-five or over.

Safety tests will also be updated to use old-age crash test dummies, as well as female dummies. This is in a bid to reduce injuries in those groups by allowing cars to be designed differently.

A consultation will also be launched into whether to require drivers to undertake mandatory eye tests at seventy, and upon licence renewal every three years thereafter.

 

HGV Drivers

Drivers who drive for a living are already tightly regulated by the use of tachographs and more stringent testing. The Government will consult on banning tyres older than ten years, as well as on changes to side guards, which protect pedestrians and cyclists if the HGV changes direction while alongside someone.

 

Motorcyclists

The Government will develop a new training regime for bikers, including a compulsory theory test before they can ride on the road, and changes to the current CBT (Compulsory Basic Training). They also plan to develop post-test training further and increase the uptake of this Enhanced Rider Scheme.

Better protective equipment is also under development, and the SHARP system of rating helmets is being continued and improved. The Government are also working with the UK protective clothing industry to understand how to encourage riders to wear the best equipment.

 

How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, then please contact us on 0113 247 1477 or email us at [email protected] and let us help. We can advise on all aspects of your case.

Dirty Money

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The Government has published the new Economic Crime Plan for the next three years. 

In it, they unveil their strategy for dealing with all types of economic crime, such as money laundering, fraud, market abuse, and bribery.

 

What is economic crime, and why is it important?

Economic crime is wider than financial crime. It includes fraud, corruption and bribery, terrorist and drug funding, market abuse and sanctions violations, and money laundering from all crimes. 

Also included is recovery of proceeds of crime, but not the crime itself where it isn’t an economic crime. Drugs and trafficking offences and tax evasions offences are not covered except where they also involve money laundering.

This is aimed at dealing with the rising tide of financial crimes in England and Wales, where fraud is now the second most common crime, accounting for one-third of crimes per year with one in fifteen members of the public falling victim. 

Fraud regularly finances other serious organised crime, like gang violence and drug trafficking.

This Plan, a joint effort between the Treasury, the Home Office, and law and financial enforcement agencies countrywide, is to provide the framework for a cooperative approach to economic crime enforcement between agencies.

 

What is the new Plan?

There are seven ‘Strategic Priorities’ in the Plan: 

  • Understanding the Threat and Performance Metrics, 
  • Better Information-Sharing, 
  • Powers Procedures and Tools,
  • Enhanced Capabilities, 
  • Risk-Based Supervision and Risk Management, 
  • Transparency of Ownership, and 
  • The International Strategy.

 

Amongst the announcements in the Plan are £48 million continuing to be allocated to the National Economic Crime Centre, £10 million towards the reformation of the Suspicious Activity Reporting regime, and a comprehensive regime within the Financial Conduct Authority to deal with the use of cryptocurrencies like Bitcoin in money laundering.

 

Who is involved?

It’s not just government departments and law enforcement that have committed to this new plan. Banks, as well as a number of other private businesses like law, accountancy, and property firms, are participating in cracking down on financial crime.

 

Can any of the money be recovered?

Alongside the Economic Crime Plan, the Government has published a new Asset Recovery Action Plan to build upon the recovery of over £1.6 billion since 2010 under the Proceeds of Crime Act 2002.

This Plan will also help clarify the ownership of assets and building on proposals to reform Companies House to make control of companies clearer.

 

How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, then please contact us on 0113 247 1477 or email us at [email protected] and let us help. We can advise on all aspects of your case. 

Prison rehabilitation and employment

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Recently the government announced incentives for prisoners in custody focussing on positive reinforcements. In doing so, the longer-term aim is to assist rehabilitation and prevent re-offending.

A further announcement has been made on the same theme, and this is to assist ex-offenders in obtaining employment by removing the barriers once they have left prison.

 

What is the government doing?

Legislation will be passed that changes the circumstances in which certain convictions need to be declared to potential employers. 

 

The current position

Currently, if a conviction is ‘unspent’ it will usually have to be declared, and whether a conviction is spent depends on the amount of time that has passed. The longer the sentence, the longer it takes for it to be spent. 

All sentences from a fine to imprisonment have specified periods of time attached before they can be considered as spent, and that length also depends on the age of the offender. 

Certain spent convictions also need to be disclosed for certain jobs.

 

What will change?

Currently, an ex-offender who committed an offence as a child and received a sentence over four years will still be required to disclose that conviction as an adult, even if he has not committed any other offences since then. The legislation is aimed at removing this sort of situation, which is clearly disproportionate.

Certain sentences that are over four years long will not have to be disclosed after a specified time has passed. In addition, the time periods, that will be known as ‘rehabilitation periods’, will be shortened for other sentences such as periods of imprisonment of fewer than four years and community sentences. 

 

Will this include all offences and sentences?

Certain violent, sexual or terrorism offences and life sentences are likely to be excluded from the new legislation. Sensitive roles, such as those that involve working with vulnerable adults or children, will continue to be subject to separate and more strict rules.

 

Will it include all offenders?

Only those who have stopped offending will likely be entitled to regard the convictions as spent. If an ex-offender does go on to re-offend during the ‘rehabilitation period’ they will have to tell their employer about the older conviction and any new ones.

 

What are the new time periods?

These are yet to be decided on, and the government will be consulting with other agencies in the criminal justice system and relevant bodies before making a final decision.

 

Why is this being done?

Statistics show that ex-offenders can find it very difficult to find employment once they are released and that many employers will not employ ex-offenders. Only 17% of ex-offenders find work within a year of their release. 

It is known that the longer a person can go without re-offending the more likely it is that they will not re-offend at all, and having employment can play a large part in a person not re-offending.

 

What happens next?

Following the government consultation referred to above, there will be a detailed outline of the proposals produced. The Supreme Court recently gave a judgment on the rules for the more sensitive roles and government are to consider and respond to this.

 

How we can assist

If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help. We can advise on all aspects of your case. 

Prisoner Benefits and Incentives

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Over the next six months, benefits and incentives for prisoners are undergoing a change. 

New rules place emphasis on positive reinforcements – praising prisoners for behaving well – rather than punishment. 

The new Policy sets out the rules and guidelines for Governors and Directors of prisons but leaves a lot of freedom for them to take sensible policy decisions at a local level.

 

Incentive Levels

The new scheme has three levels, with the option for Governors and Directors to add more levels if they want. 

The previous ‘Entry’ level has been removed so that new prisoners are not alienated by their status upon arrival. 

Basic level is for those prisoners who have not abided by the behaviour principles. To be considered suitable for progression from Basic, prisoners are expected to adequately abide by them. This level includes only the basic legal entitlements.

Standard level is for those prisoners who adequately abide by the behaviour principles, demonstrating the types of behaviour required. This is the level all prisoners start on and includes more incentives such as possible in-cell TVs and more visiting hours.

Enhanced level is for those prisoners who exceed Standard level by abiding by the behaviour principles and demonstrating the required types of behaviour to a consistently high standard, including good attendance and attitude at activities and education/work and interventions. This might include access to games consoles and other high-level rewards.

Guidance on the behaviour principles is given, but Governors and Directors are able to modify the principles to deal with local challenges. 

The example categories are: be respectful of staff and other prisoners, comply with rules and compacts, make progress on personal goals and on your sentence plan, and refrain from using drugs and alcohol.

All prisoners will start on the Standard level and will be reviewed at least once a year. Reviews can be held at any time and are held more often for Basic level prisoners at once per twenty-eight days. 

Serious incidents will trigger and immediate review with a presumption that they will be demoted, and prisoners must also be reviewed within a week of being demoted to Basic level.

The focus here is very much on helping prisoners understand why they have been demoted and giving them the tools to improve their behaviour. Basic level prisoners must be told the steps required to return to Standard level.

Incentive levels also have an impact on the items and clothing a prisoner can possess. Basic prisoners are restricted to ‘List 1’ items, the minimum requirements. Higher prisoners might be able to possess more of something like cash, bring in their own clothes, or even have a pet bird.

 

Incentive Forums

Acting upon a recommendation from the 2017 Lammy Report, incentive forums are to be introduced. These comprise staff and a representative proportion of prisoners, to include white, BAME, Gypsy, Traveller and Romany, and all other prisoner groups with protected characteristics that are present in the prison.

The Forum is intended to allow discussion of the incentives scheme amongst prison officers and prisoners, giving feedback on the schemes operative in the particular prison. This allows Governors and Directors to update their incentive schemes based on what is and isn’t working in the prison population, encouraging prisoners to positively engage in the system by having a voice in the process.

 

How we can assist

If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected] and let us help. We can advise on all aspects of your case.