Guest Blog 81

Today's guest blog by former HMI Andrew Bridges is unusual, not just because we know the identity of the author, but because it's not his first outing on here. There is Guest Blog 55, together with the Follow Up. The Blog covered his retirement as HMI here.     

The Problem of Prisoners Who Are Too Dangerous To Be Released

Alison Moss’s book, The Leroy Campbell case: Why was he free to murder Lisa Skidmore?, is a very sobering and illuminating account and analysis of the realities, in the 2010s decade, of supervising in the community an individual who was evidently too dangerous to have been released from prison in the first place. Even though Alison’s personal stake in the story is that the whole episode ended her own career of 30-plus years in Probation, her tone is measured and proportionate throughout.

Alison addresses a series of separate-but-connected topics: prisoners who are too dangerous to be released, expectations about what can be achieved with them if and when they are released, the complicating practical effects of taking into account their ‘Human Rights’ considerations, how individual staff and managers can be blamed in the event of a catastrophic event, including the wider contemporary ‘politics’ of blame, and the role of the Transforming Rehabilitation reform of 2014 in aggravating these problems for the practitioners and managers who are endeavouring to do their best. All of these topics call for engagement and a full response, but for the sake of focus I shall discuss here just one of those in this piece - the question of prisoners who are too dangerous to be released. And of course I’m talking about the instances of the few individuals who have not already been sentenced to Life imprisonment with a “whole-life tariff” (a relatively recent sentencing innovation).

Indeed I actually agree with Alison’s main point that there are some prisoners in the system who are simply too dangerous to be released, and moreover I have some sympathy with the man she quotes (David Fraser, who I believe I remember as a Bristol SPO) who advocates a ‘two strikes and you’re out’ type policy to deal with it. Unfortunately, however, it is also clear to me that there are some further considerations that render such formulaic solutions to the problem even more problematic. In short, the difficulty is in identifying where and how you ‘draw the line’. But before discussing that specific point, I’ll share with you the journey my personal perspective has had to make on this question.

From one of the earliest points in my Probation career, I’ve been aware of two considerations that are very hard to reconcile. The first was the sharp reality that even in 1974, when I had a student placement in HMP Gartree, which was then a Category ‘A’ “dispersal” prison, there were prisoners who (it was said) would “certainly never be released”. In the prisoners’ canteen I had been introduced to a late middle-aged ‘Red Band’ (“trusty” if you prefer), who was pleasant and compliant, but I’d been told afterwards that he was serving Life for a second conviction for some hideous offences against children. On the other hand, my studies at Leicester University were telling me that for a host of reasons fixed-term sentences, with clearly defined release dates, were the best sentencing option – in most cases.

During my subsequent career I have remained conscious of these two considerations. Over the years, the work of me and/or my staff with Lifers has understandably had an underlying ‘tension’ about it, because the prisoner is quite reasonably concerned about behaviour and actions that might either help or hinder gaining release on licence. This is why dialogue about past offending, and planning for a different future, has often proved more useful when working with individuals who are not having to worry about their release date. But then every now and again – and for me this has not been often – I’ve found myself dealing with a case where I have thought “I don’t think this person should be ‘out’ at all!” The sharpest example of this was when I was drafting the Conclusion to the Inspectorate’s independent SFO review on the case of Anthony Rice in 2006 – para 11.1:

“Our conclusion about the case of Anthony Rice is that there were deficiencies in the way he was supervised by Probation and its partners in MAPPA, but he was too dangerous to be released into the community anyway.”

Ironically, this was a point I didn’t want to make, because this was happening during the same period when the indeterminate IPP (Imprisonment for Public Protection) sentences were just taking off and were clearly going to create substantial pressures on the prison system. On the other hand, once one had all the facts of the case to hand, it seemed to me and my colleagues that it would be a gross disservice to the Probation, hostel and MAPPA staff to imply that if they’d got everything right it would have prevented the murder that Rice committed. (Incidentally, I had also mentioned the ‘Human Rights’ factor – a risky decision on my part – put in because we considered it relevant and important, but mentioning it possibly diluted the main point of the report too much.)

The irony was that we as an Inspectorate, alongside the Prisons Inspectorate, were already planning other joint thematic work in which we fully expected to be concluding that IPP had proved to be much more far-reaching than expected, leading to a growing ‘tide’ of cases inside the prison system who did not have a route towards a release date, even though very few of them were in the ‘too dangerous’ category. We reported jointly on IPPs in 2008 and again in 2010, and may have contributed towards the Coalition Government’s decision (rightly) to abolish the IPP legislation. Meanwhile, here I was, in 2006, knowing that I expected shortly to be criticising a system of indeterminate sentences, but yet in effect arguing that this particular individual should be imprisoned indefinitely.

The resolution to that quandary looks straightforward at first sight. You keep the ones who are “too dangerous” inside forever, but you retain the option to release for all the others. But of course the problem then is where and how to you operate the dividing line between the two groups.

I have to be candid here. When IPP was first mooted in 2001, when David Blunkett became Home Secretary, I was in favour. I’d come across the occasional case, whose ‘index offence’ was fixed term, who could not be supervised in the community with any great confidence in my opinion. I envisaged legislation that might capture the handful of such cases that would crop up each year, and keep them contained indefinitely, for the sake of protecting the public from them. I was proven wrong on two counts: first, the legislation captured a far wider swathe of cases than I’d expected, and second, when I saw the final version I thought “Surely people will operate this with a bit of common sense” I’d failed to note that the legislation had been drafted to prevent any individual discretion. From April 2005, when the 2003 Act started to operate, the disastrous effects of IPP started to unfold.

One lesson from this is that if we want legislation to help us identify the dividing line between the “too dangerous” and the rest, we need to be very cautious about our expectations. Alison approvingly cites David Fraser’s advocating of a “two-strike” system, “whereby a dangerous violent or sexual offender should be sentenced to a whole-life term of imprisonment upon a second conviction for a similar offence.” I have quite a lot of sympathy for this aspiration, but unfortunately I see substantial potential problems. Legislation has to be very specific about what is included within it, so it would have to specify what level of violence and what seriousness of sexual offence. But once you’ve included one category of offence what reason can you give for not having another offence in the same category? And if the second “offence” is ‘less serious’ than the original does that still count as a ‘second strike’? (Possibly applicable in the Leroy Williams case) Once you open up the discussion at the drafting stage, the case for saying “We’ve included x, so why are we not having y as well?” becomes compelling, so leading to adding more and more options – as happened with the IPP legislation – and before you know it we have a much wider legislative net than had originally been envisaged. Some might think that would be a good thing of course – but personally, I’d be very cautious about expecting any legislation to be able to draw the line successfully.

An alternative would be to operate a more clearly structured assessment of risk of harm in each case. This would be do‑able in principle, but I confess to being doubtful if we’d be able to operate it in practice. The theory is not that complicated: each case of a violent or sexual offender can be assessed when approaching release as to the likelihood of them committing a high-impact offence at some point following release if and when they are not subject to supervision. If the likelihood of such a high-impact offence is ‘High’ then the next stage of the assessment process operates: once the mitigating effect of any suitably restrictive measures introduced as part of supervision on Licence have been taken into account, what is the residual level of risk of harm? If it is still High, then the individual is “too dangerous to be released”, and there would need to be legislative mechanism to allow the CJS to continue to hold the person in custody. (So in this eventuality, legislation would be needed to enable action after a decision has been made, but the decision itself would not have been determined by legislation.) Unfortunately, this approach is, also, riddled with potential problems, including the need to – rightly – protect the individual from a misjudged assessment.

More significantly, both approaches have the problem of drawing a line somewhere along a spectrum of human behaviours. Most of us can all recognise the extreme cases – e.g. Rice or Campbell. But as both Alison and David Fraser seem to recognise, all of these behaviours appear on a long spectrum between ‘Very Very High’ to ‘Very Low’ risk of harm, and deciding where and how to draw the line between those who could one day become eligible for release and those who would simply not be eligible for consideration is not readily solvable.

I remain sympathetic to the suggestion by David Fraser that Alison has advocated, because I feel I can recognise many of the clearcut cases that they would wish to include – but sadly I fear that drafting a workable formulaic solution for operating such a system would be formidably difficult. The fact that the number that should ‘qualify’ would be relatively small – I would see it in terms of ‘handfuls’ – would not make the task any easier.

In summary, I am sure that there are some prisoners, over and above the ones who have already been given ‘whole Life tariffs’, who are just too dangerous ever to be released. But I am not clever enough to be able to prescribe a workable system for putting them formally into that category.

Andrew Bridges

andrewbridgesprobation.com