Nicola Maynard, Head of Prison Law at Reeds Solicitors, explores the “catch all” provision of an offender’s licence and the struggles offenders face when being recalled for allegedly committing a new offence.
You can be recalled to prison for breaching a specific licence condition. There will be a standard catch all condition at paragraph 5i) of the licence which says you must “be of good behaviour and not behave in a way which undermines the purpose of the licence period”. We call this the “good behaviour” condition. It is sometimes a surprise to people that they can be recalled just for being arrested on suspicion of committing a new offence or being charged with a new offence but not found guilty.
It is also worth noting that you can be recalled even if you have not been arrested, this could be because of concerns with compliance such as breaches of Hostel rules or not attending appointments but also due to a large amount of police intelligence.
Arrested for a New Offence and on Licence …What Should You Do?
If you are arrested, whether you think you have done something wrong or not, you are entitled to, and you should request to speak to a solicitor at the police station for advice on your arrest and any recall. Many people are surprised to learn that even after receiving police bail for a new offence they can still be recalled.
Probation often appears to disregard the presumption of innocence and being innocent until proven guilty. Probation officers/ Community Offender Managers will often argue that risk has escalated to a point that you can no longer be managed in the community. Although unfair and seemingly against the presumption of innocence, many offenders are recalled to custody at the earliest stage of a new police investigation.
This is also an issue once the matter comes before the Parole Board too and this is because the Parole Board operate on the basis of the civil burden of proof and not the criminal burden of proof. So, whilst Courts must be ‘sure’ that an offence was committed, the Parole Board look at whether something happened on the balance of probabilities or ask themselves “is it more likely than not that an offence was committed?”
Once recalled, regardless of the outcome of any police investigation or court appearance, it is still solely down to the Parole Board to decide on re-release. Often people think that if a case has been dropped or has resulted in no further action, that they will automatically be released. This is sadly not the case. They still must go through the review process which can sometimes be very lengthy.
In cases where there were additional allegations, even if you were not charged with an offence, the Parole Board will direct the Police information relating to the investigation so that they can draw their own conclusions on whether they feel that an offence occurred. This may be because sometimes prosecutions do not proceed; for example, if a witness will not provide a statement or does not attend Court. The Parole Board looks at the reasons it did not proceed because they could say that just because a witness did not attend or did not give a statement, it does not mean that an offence did not take place.
The process is complex when there are additional allegations, and this is why assistance should be sought from a specialist Prison Law Advisor.
I’ve Been Recalled… So What Happens Next?
When you arrive at the prison you should receive your “recall pack” within seven days. After 14 days of recall a Part B report should be completed by Probation. In order to write this report, Probation are supposed to have contact with you in order to gain your views on the recall and report on whether they feel your risks could be managed in the Community.
Once the Part B is served, we as your representatives would have an appointment to take instructions and then prepare written representations in support of your re-release.
Once this is done, and after 28 days, your recall pack will be sent to the Parole Board for assessment by a single member of the Parole Board who will consider your case and can either,
- Direct your re-release on the papers
- Direct for you to remain in custody
- Direct your case to an Oral Hearing.
- Defer or adjourn your matter for further reports.
It is imperative that representations are submitted ahead of this assessment. If you have been arrested for a new offence, the Parole Board are within their right to conclude that your risk cannot be accurately assessed whilst these new allegations are outstanding and conclude your review. This result would mean that you would not receive a further review for a year (unless there is a material change in circumstance).
A Prison Law Solicitor can make representations to the Parole Board requesting one of the following:
- To defer the Member Case Assessment (MCA) to allow for the police investigation to conclude.
- To request an Oral Hearing (likely to take around 4-6 months to list) on the basis the police investigations will be concluded in the interim.
Many people find that their recall reviews are unnecessarily delayed due to ongoing police investigations. Oral Hearings are being deferred more than once to enable the police to conclude their investigations, as many Parole Panels do not feel they can accurately assess risk whilst potential charges are looming. If you were unrepresented at the police station or are seeking advice for your recall, do not delay and contact a Prison Law Solicitor.
Unlawfully at Large
In April 2015, new legislation came into force and as a result it means that if you have knowledge of your recall and you fail to surrender yourself to custody, then you are committing a criminal offence (this can carry a maximum sentence of two years in custody).
It is a matter for the police as to whether they wish to pursue a charge against you and if they do, they may want to attend the prison to interview you if this is not done at the time of recall. It is therefore important that you instruct a solicitor to attend for the interview and deal with your recall.
However, it should be noted that even if the police do not take any action and charge you with a further offence relating to this, the days that you were at large will be added to the end of your sentence automatically. Your sentence end date will be adjusted to reflect this which means that if you are successful in your recall appeal, you will spend those additional days on licence but if for any reason you are not successful on the recall appeal, you will serve those days in custody prior to release.
So, whilst returning to custody on recall may be a daunting thought, it is in your best interests to surrender at the earliest opportunity in order to prevent a new charge in this regard.
