Urgent Update on Compassionate Release Cases – New Guidance

Following the COVID-19 outbreak, Prisoners’ Advice Service has taken various steps to try to assist prisoners with serious health conditions. This has included drafting a template letter with which an application could be made for Early Release on Compassionate Grounds (ERCG) for determinate sentenced prisoners, and sending a letter to the Secretary of State asking for the existing ERCG Guidance to be urgently amended to encompass the current circumstances.

We received no response to our letter. Prisoners’ friends, relatives and legal advisers who used the template letter received a variety of replies, refusing their requests for ERCG for individual prisoners, although many others received no response at all.

On 21 April PAS received a letter from the Government Legal Department (GLD) in relation to a specific case against the Prison Service and Secretary of State For Justice (SSJ) that we are taking on behalf of a prisoner with a serious health condition. This letter provided a considerable amount of new information, both about the consideration of ERCG applications and about the new Restricted Temporary Release provisions introduced on 5 April, none of which had been provided to us previously in response to any of our inquiries, and none of which has been published anywhere for affected people to access.

It is well-established that it is unlawful for a public authority to operate on the basis of an unpublished de facto ‘secret’ policy. However, this is not only a matter of law – in the current crisis, prisoners and their supporters already face a very difficult and frightening time, and this repeated withholding of crucial documentation only serves to intensify the distress and confusion.

GLD have now sent us the attached Guidance dated 09/04/2020 “COVID-19: ROTL on Compassionate Grounds – Pregnant women, MBUs and the Extremely Medically Vulnerable”. GLD have explained that in terms of the mechanism for release, the Secretary of State has decided that the appropriate procedure for the release of prisoners on compassionate grounds, on the basis of health conditions or particular vulnerability during the COVID-19 outbreak, is the scheme for Release on Temporary Licence (ROTL) by way of Special Purpose Licence (SPL).’

This new Guidance is separate to the End of Custody Temporary Release (ECTR) scheme for those near the end of their sentence. This Guidance refers to COVID-related release under SPL as End of Custody Restricted Release (ECRR) arrangements.

The Guidance states that in response to the impact of the COVID-19 outbreak on prisons the following groups may be considered to have grounds for Release on Temporary Licence (ROTL) under the special purpose licence (SPL) provisions, subject to individual risk assessment:

a. Pregnant women
b. Prisoners with their baby in custody
c. Those falling within the PHE COVID-19 risk category of “extremely vulnerable” to COVID-19. [our emphasis]

The Guidance ‘requires prisons to take immediate steps to identify all prisoners who are in one of the three groups and not excluded from ROTL’. It also allows other prisoners, who are not within the most vulnerable category and would not therefore be automatically identified, but who nonetheless have good grounds for an application, to ‘be considered under the SPL Guidance at paragraphs 6.27 to 6.31’.

For COVID-related releases under SPL, prisons are required to seek additional clearance, via the OMU hub, from the Deputy Director of Prisons before a final decision is made. The COVID19 OMU Support Hub has been established to support prisons and community probation teams with offender management tasks relating to the release of prisoners under the ECRR arrangements.

As it is the existing ROTL mechanism that is used to give effect to COVID-related release on compassionate grounds, very few groups of eligible prisoners are excluded from consideration including those with indeterminate or extended sentences provided they are eligible for ROTL or Restricted ROTL.

Certain prisoners are either excluded from ROTL entirely (such as Category A prisoners, or those on remand) or only qualify for ‘Restricted ROTL,’ which is an enhanced risk assessment and only granted for those in closed male prisons in exceptional circumstances (as set out in the ROTL Policy Framework. This would suggest that lifers at risk of death from COVID-19 could apply for release under SPL arrangements without applying to the Parole Board and SSJ, but this is not clear.

The power to recall a prisoner for breach of licence conditions for the period of the COVID-related SPL remains/operates as normal. The Guidance also covers other matters like reporting procedures, licence conditions, the option of transport, and financial support available post release.