Prisoner Rights

Reception

On reception into prison a prisoner will be searched and may be photographed. The prison authorities will keep any property that he or she is not allowed to have with him or her in prison. A list will be made on arrival of all property and the prisoner must be given the opportunity to check it is correct before signing it. All cash must be paid into an account, which is under the governor's control. All prisoners should be issued on arrival with a copy of the Prisoners' Information Handbook. A copy of the Prison Rules must be made available to any prisoner who requests it.

Access to lawyers

Prisoners have an absolute right to have visits from and to correspond with their solicitor. They do not have to tell the prison authorities why they wish to contact a solicitor, nor make any complaint about prison treatment to the authorities before contacting a solicitor for legal advice. This right was first recognised by the European Court of Human Rights and any attempts to interfere with such access are closely scrutinised by the courts. This right also includes preserving the confidentiality of any legally privileged material held by prisoners in their possession in prison.

Letters

Convicted prisoners may send one letter a week on which the postage will be paid - the 'statutory' letter - and at least one privilege letter, the postage for which must be paid for out of the private cash allowance. The statutory letter must not be withdrawn or withheld as part of punishment for a disciplinary offence. In addition, prisoners may be granted special letters, which do not count against the statutory or privilege letters allowance. A special letter should be granted, for example, after conviction to allow a prisoner to settle his or her business affairs, when transferred to a different prison or to make arrangements regarding employment and accommodation on release.

In practice, prisoners in many prisons may send and receive more letters than this minimum allowance. Prisoners in open prisons have no restriction on the volume of their correspondence.

Un-convicted prisoners may send as many letters as they wish at their own expense and will be allowed two second-class letters a week on which the postage will be paid by the prison authorities.

Letters between prisoners and legal advisors, the Courts, Criminal Cases Review Commission (CCRC), Prisons and Probation Ombudsman and the Parliamentary Commission for Administration (PCA) are afforded legal privilege (with the envelope appropriately marked 'Prison Rule 39', 'Young Offenders Institute Rule 14', or 'SO 5B 32 (3)') and are not to be opened and/or read unless there is well grounded suspicion that there is illicit content and/or enclosure. The opening of correspondence is authorised by an operational manager, and always opened in the presence of the prisoner.

Censorship

Mail is censored in dispersal prisons - those designed to accommodate high-risk prisoners - and for all Category A prisoners, but otherwise letters will not routinely be read. Additional powers exist to vet letters sent by prisoners convicted of sexual offences against children. There is power for the governor to return an 'excessive' number of letters from a correspondent, and if they are 'overlong' the governor may request letters be limited to four sides of A5 paper. Letters may be returned to the sender if these requests are ignored. Complaints about prison treatment are no longer prohibited and letters - whether to family, to MPs, the ECHR, and so on - may not be stopped on this ground.

Letters between a prisoner and his or her legal advisor are protected from interference and may not be read nor stopped, whether or not legal proceedings have been issued. There may be examination of such correspondence only to the minimum extent necessary to check that it is bona fide legal correspondence. If a letter is to be inspected it must be done in the presence of the prisoner.

Telephones

Card-operated telephones for the use of prisoners are being installed in all prisons so that closer links with family and friends can be maintained by those in prison. For security reasons all calls will be recorded and all calls may be monitored and recorded, except those to legal advisers, the Samaritans and other reputable organisations. Use of the telephone may be limited by the governor, but should not be restricted as part of a disciplinary punishment unless the offence was directly related to the misuse of the card-phone or phone card. The Prison Rules do not provide any absolute right to use telephones and pilot schemes have been introduced in some prisons to impose restrictions on the use of telephones by having pre-recorded messages informing the recipient of the call that the person calling is in prison. Although these types of restrictions are not prohibited by the Prison Rules, they may, in some circumstances, breach Article 8 of the Convention.

Visits

Convicted prisoners are entitled to a minimum of 2 visit's every four weeks (policy allowing each to last 30 mins) or a longer visit if directed by the Secretary of State. All visitors must be sent, by the prisoner, a V.O. (Visiting Order) prior to travelling or arranging the visit. It is also crucial to take acceptable ID.

Exercise

A prisoner must have the opportunity to spend time in the open air at least once every day, subject to weather conditions and good order and discipline. The minimum period being 1 (One) hour.

Other matters

There are two remaining areas that affect prisoners throughout their sentences. 'Requests and Complaints' being the first and 'Discipline' being the second. Should the prisoner wish to make a request a 'general application' form is usually submitted. If this does not prove successful or the prisoner wishes to make a complaint then PSO 2510 must be followed. Basically this provides a three stage appeal process starting with the prisoner submitting a Form Comp1. If this need should arise the prisoner should make contact with his / her legal advisor. Finally, should the prisoner breach any of the prison rules they will be subject to disciplinary proceedings. These can be heard and considered by either a Governor or an Independent Adjudicator. Should the prisoner face should proceedings again contact should be made with the legal advisor.

Life Sentence Prisoners

There are several types of life sentence:

Mandatory Life

This is the only sentence that can be imposed on a person over the age of 21 who is convicted of murder. There is no discretion available to the court.

Discretionary Life

Again this is reserved for those individuals over the age of 21. The sentence can be imposed following a conviction for a 'serious' offence where the maximum sentence allowed by the statute is life, for example manslaughter, attempted murder and rape. The court does have a discretion in such cases. A determinate sentence may be imposed as an alternative. However, if the court concludes, usually based on expert opinion such as a psychiatric report, that the person presents a risk for an indeterminate period then a life sentence can be imposed. Case law has suggested a life sentence, where the sentence was not obligatory, should only be passed in the most exceptional circumstances (R v Mason & Sellars - 2002).

Detention at Her Majesty's Pleasure

This is the only sentence that can be imposed on a person convicted of murder who was over 10 but under 18 years old at the time of the offence. The court has no discretion.

Custody for Life

Again this sentence is mandatory following a conviction for murder. It is imposed where a person was aged between 18 years and 21 years old at the time of the offence. It can also be imposed when an individual aged between 18 and 21 years is convicted for an offence that carries life as a maximum for an adult. It is an equivalent to a discretionary life sentence in those circumstances.

Detention for Life

This sentence can be imposed when a person aged between 10 and 18 years old is convicted for an offence other than murder that carries life as a maximum for an adult, for example manslaughter, attempted murder, rape etc. The court does have a discretion.

Automatic Life

This type of sentence has now been removed from statute. However, the Courts now have at their disposal an IPP sentence. Imprisonment for Public Protection is a relatively new sentence available to the courts, having been introduced under the Criminal Justice Act 2003.

Tariffs

Following recent changes in the law - R v Secretary of State ex parte Anderson & Taylor (2002) and the Criminal Justice Act 2003 - all life sentence prisoners now have a minimum term (tariff) set by the courts. The tariffs must now be set by the trial judge in open court. Representations may be made in mitigation by the individual's legal representative. Account must be made for the period of time that the prisoner spent on remand.

For life sentence prisoners serving a discretionary life or IPP sentence the trial judge must set, in open court, a 'tariff' or minimum term.

The tariff can be appealed in every case, providing there is merit in the application. Mandatory lifer's sentence prior to the Criminal Justice Act 2003 coming into force can now apply to the High Court for their tariffs to be re-set. Should the prisoner be concerned about the length of the tariff he / she should contact the legal advisor immediately.

Release (Lifers)

There are two important steps towards release for lifers (1) the paper-based review and (2) the oral hearing.

Following changes implemented by Michael Howard MP, the then Home Secretary, all lifers now have a 'paper-based' review prior to the tariff expiry date. This review will usually take place three years before the tariff expires. The Parole Board will consider whether the lifer is suitable for a move to open conditions. There will be no formal hearing. A dossier of reports is prepared for the review by the Prison and Probation Services. It is disclosed to the prisoner (and / or the legal representative) and submissions in support can be made. The prison should contact his / her legal advisor if subject to this process.

All lifers are now broadly entitled to a hearing that is aimed at determining whether they are suitable for release. The Parole Board will consider this application at an oral hearing. The case of R v Secretary of State ex parte Noorkoiv (2002) states that the hearing should be conducted prior to the tariff expiry and that all lifers must be released on the expiry of the tariff unless s/he constitutes a danger to the public. The hearings are conducted in the holding prison and the prisoner is fully entitled to legal assistance and representation.

Should the Parole Board order release the decision will be binding on the Secretary of State and the prisoner will be released. The prisoner will then be subject to a licence with conditions for a 'probationary' period but will be subject to the recall provisions for the rest of their life. An application can be made to the Secretary of State for the conditional licence to be brought to an end. Legal assistance is available for such hearings.

Should the Parole Board refuse to release the prisoner a further review will take place at a date set by the Secretary of State following the case of R (Spence) v Secretary of State (2003). This should, under normal circumstances, be no more than 2 years. Again the prisoner does have the possibility of challenging such a decision. The legal advisor should be consulted about that possibility immediately.

Release (Determinate Prisoners)

As it stands at present there will be a number of different sentences being served by convicted prisoners. There will be those who were sentenced under the Criminal Justice Act 1991 (the 'old' regime) and those sentenced under the Criminal Justice Act 2003.

Old regime

Under the Criminal Justice Act 1991 there were two types of prison sentence - those under 4 years (so called short term prison sentences) and those over 4 years (long term). Though there was also a separate regime for those prisoners' sentences to serve a period in excess of 15 years.

If the sentence was under 4 years the prisoner will be released automatically after serving 1/2 (though this can be reduced further if they are eligible for Home Detention Curfew). Once released they will be subject to a licence with conditions for a given period. Recently the case of R (Uttley) v Secretary of State for the Home Department 30 July 2003 caused some interest. In that case the Court of Appeal ruled that a convicted triple rapist's human rights would be violated by the imposition of conditions on his release from jail. The Home Office has been able to impose conditions on the release of highly violent criminals since the introduction of the Criminal Justice Act, 1991.

However, in that case the appellant had been convicted of crimes committed in the early 1980's, prior to the introduction of the 1991 act. The Court of Appeal held that to impose licence periods on prisoners convicted of crimes committed before 1991 violated their rights under Article 7 of the European Convention on Human Rights. Article 7 provides that no heavier penalty shall be imposed on an offender than the one that was in effect at the time the criminal offence was committed. However the House of Lords on the 30th July 2004 considered the case and effectively reversed that decision. The House of Lords stated that the words "penalty applicable" in Article 7(1) referred to the penalty or penalties prescribed by law for the offences in question at the time when they were committed. It did not refer to the actual penalty that would probably have been imposed on the offender had he been convicted at that time. The court did not have to make a comparison between the sentence he would have received then and now.

In Uttley's case there was no change in the relevant penalties which the law permitted the court to impose and no violation of Article 7(1). The maximum sentence for rape, the most serious of the offences committed by U, was life imprisonment both before and after 1991. This ruling will now apply to both short and long term prisoners, licences with conditions it would seem are here to stay.

If the sentence was over 4 years the prisoner would become eligible for early release on parole licence after serving 1/2 of the sentence. The application is considered, on paper, by the Parole Board. There is no formal hearing.

The Prison and Probation Services again prepare a dossier of relevant reports for the Parole Board to consider. That dossier is disclosed to the prisoner (and / or the legal representative) and submissions in support can be made. Again the legal advisor should be consulted if the prisoner is eligible for this application.

New regime

The Criminal Justice Act 2003 has removed the distinction between long and short term prison sentenced. Anyone sentenced for offences committed on or after the 4th April 2005 will receive one of the following sentences:

• A sentence of less than 12 months. This will result in release automatically at the half way stage.
• A sentence of 12 months of more (referred to as a Standard Determinate Sentence). This will also result in release automatically at the half way stage. The individual would then remain on licence until the sentence expiry date.
• An extended sentence can be imposed if the offence committed was sexual or violent in nature where the statutory maximum is less than 10 years. The court must find that the offender is a significant risk of causing further such offences before such a sentence can be imposed. This sentence would comprise a custodial period followed by a period on licence. The individual would not be released automatically until the end of the custodial period. In these cases individuals must apply for release on parole at the half way stage of their custodial periods. The matter would then be considered by the Parole Board using the procedure detailed above. Once released the individual would then remain on licence until the end of the entire extended sentence.

Recall

All individuals on licence can be recalled to prison. The recall is initiated by the Probation Service and is effected by the Secretary of State. The complexity of this area extends beyond what would be acceptable in this summary of Prison Law. If the individual is recalled to prison they should contact a legal representative immediately.

Categorisation and Allocation.

There are broadly five categories of prisons:

1. Local prisons for un-convicted and short-term prisoners.
2. Dispersal prisons for high security prisoners.
3. Training prisons for long-term prisoners who do not need the highest security.
4. Category C prisons, which are closed but have less internal security.
5. Open prisons for prisoners not believed to be a risk to the public or in danger of escaping.

Immediately after conviction, a male prisoner will be held at a local prison while his security categorisation and allocation are decided. The process of initial categorisation is crucial. The prison completes an ICA form and the category is decided. This effect's the regime and the day-to-day life of the prisoner. It will also have major repercussions on the release date for those serving over 4 years. If the prisoner feels this process has been decided incorrectly they should contact their legal advisor immediately.

Following that initial assessment the category status is then reviewed regularly - usually at the annual Sentence Planning Board reviews. Any adverse change in category status should be reported to the legal advisor immediately. In addition if a progressive move, to lower category status, is not recommended it may be possible to challenge the decision. Yet again it is important that the legal advisor is informed as soon as possible.

Category A prisoners are subject to a different regime and should ensure that they have legal assistance.

As there are fewer young offenders and women prisoners and prisons, the arrangements are not exactly the same for them. Women's prisons and young offenders' institutions are simply divided into open and closed establishments.

Allocation is the term given to the placement of a prisoner in a particular establishment. Ordinarily a prisoner is allocated to a prison that caters for his / her category status. For example HMP Garth will hold category B male prisoners and HMP Wealstun (Open) will hold category D male prisoners. Allocation can create its own problems for the prisoner, access to family visits, placement on courses etc. Again this can be a complex area and the prisoner's legal advisor should be consulted immediately should any problems arise.

Legal Assistance

Should the prisoner be concerned about any of the above issues he / she may be entitled to receive free legal assistance. This will be subject to a 'means' and a 'merits' test. The legal advisor can check these matters and then provide advice, if necessary / possible.