Establishing a risk management plan
8.1 The new OLR should be seen as the beginning of the process of risk management, not the end. In particular, we envisage that the formal risk assessment should be used, not simply to inform the sentence, but also as the basis for the subsequent arrangements for the offender. We envisage, therefore, that the risk assessment prepared prior to sentencing would be developed, in the first months of the order, into a detailed risk management plan.
8.2 Jointly with the SPS, the social work department for the area in which the offender normally lives, and any other agencies it considers may have an active role at this stage, the Risk Management Authority would draw up such a risk management plan for the designated period of the offender's sentence. It would 'contract' with each agency that is to play a part in that plan for their delivery of what is intended.
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RECOMMENDATION 37 Upon beginning an OLR, a risk management plan should be prepared, drawing on the pre-sentence assessment, and approved by the Risk Management Authority. |
8.3 Currently in Scotland, all adult male offenders serving more than ten years begin their sentence at the National Induction Centre (NIC) at Shotts Prison. We were impressed by the arrangements at the NIC for the assessment of the needs of prisoners serving very long sentences, which compared favourably with several of the establishments we visited in other jurisdictions. Their current focus is on the management of the prisoner during his time in prison, but we feel that the arrangements could readily be modified to begin to address longer-term issues of risk management.
8.4 The great majority of the prisoners likely to receive the new order will be adult males, although it is of course possible for a young person or a woman to be so sentenced. In that event, the risk management plan would require to be drawn up at other establishments.
8.5 We explain in Chapter 7 the arrangements for people who receive the new Order and who have a mental disorder appropriate for treatment in hospital. Such offenders will normally have been subject to an interim hospital order for up to a year, and so it can be anticipated that a risk management plan will have already been developed to some extent by the time of sentence, although this may change depending on the offender's response to treatment.
8.6 Our recommendations are confined to those sentenced under our new sentencing proposals. It is the case that some offenders who receive a mandatory life sentence for murder will present similar issues of risk management to those who receive the new sentence. They would not require a formal pre-sentence risk assessment, because the sentence is fixed by the offence, but it may be desirable that a similar approach to developing a comprehensive risk management plan is introduced, once the sentence has commenced.
8.7 The Risk Management Authority will review progress against the plan at intervals as it sees appropriate, and may bring other agencies into play as the period progresses.
Management within prison
8.8 Our Committee heard evidence from SPS about progress that has been made over the last five years in developing needs and risk assessment, and programmes of demonstrated efficacy and independent accreditation.
8.9 Our proposals for high risk offenders build on this approach. In turn it may be that the work with the wider group of prisoners will be influenced by our proposals for a system where risk assessment and risk management drives decisions about, and opportunities afforded to, prisoners.
8.10 Currently, the progress of prisoners through their sentence and their access to programme interventions and opportunities in the community are heavily influenced by decisions taken on their security category. We believe that such decisions about high risk offenders should be based on the risk management plan.
8.11 Similar considerations arise in relation to decisions concerning the establishments wherein offenders are placed. Such decisions should be determined by the individual needs of the offender, and high risk offenders should have the opportunity to progress through the system when this is appropriate for their needs.
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RECOMMENDATION 38 The supply of interventions to high risk offenders in prison, and decisions concerning security categorisation and placement should be determined by the risk management plan. |
Consideration of release
8.12 In advance of the completion of the designated period set by the sentencing court, the Risk Management Authority will prepare a report to the Parole Board, describing the plan that had been agreed and performance against that plan. It will submit a current risk assessment to the Board, together with proposals for the onward management of the offender on completion of the designated period. It will give its assessment of its capability to deliver the forward plan, as described.
8.13 The formal arrangements for review of the sentence will be similar, in many respects, to those which currently operate in respect to discretionary life prisoners, although the risk management plan will be a mechanism for bringing together the information required in considering questions of movement from prison to the community (and indeed return to prison). As now, the prisoner would retain the right to a review every two years.
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RECOMMENDATION 39 Review of the sentence, and any decision to release the offender from, or to recall the offender to prison, should be the responsibility of the Parole Board, operating through a Designated Life Tribunal (DLT). |
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RECOMMENDATION 40 The risk assessment and risk management plan should be reviewed formally on a regular basis under the supervision of the Risk Management Authority. Procedures for consideration of release by the DLT should operate in the same way as current arrangements for discretionary life prisoners, but any decision as to release should be informed by the risk assessment and risk management plan. |
8.14 Following the decision of the DLT, the Risk Management Authority will 'contract' again with the service agencies for delivery of those parts of the plan that have been agreed with them.
Release powers
8.15 While the new sentence replaces the current discretionary life sentence, insofar as that sentence applies to serious violent and sexual offenders, we are anxious to ensure that the current procedure used in determining level of risk in relation to a reduction in level of control (as practised by the Parole Board through the mechanism of the Tribunal) is retained. There is much of value in the Tribunal approach with respect to the requirements of the European Convention on Human Rights, and to the opportunity it presents for individuals to present their case for release from the controls of imprisonment, directly to the Tribunal.
8.16 However, the requirements of the concept of life-time control explained earlier lead us to believe that the Parole Board (operating as a Tribunal) should, in these cases, have increased powers comparable to those of the Parole Board in dealing with cases of mandatory life prisoners. In assessing level of risk in this context, the Tribunal should be able to determine a future release date - linked to levels of progress relevant to the case under review, together with determining any requirements for levels of control, supervision and support in the community. This new power would allow the Tribunal greater flexibility in its decision making and increase the transparency of its decisions both for the prisoner and for the wider public.
8.17 Should the Parole Board set a future date for reconsideration of the case, or should it set conditions on the offender's licence that the Risk Management Authority subsequently considers could be varied, the Authority will prepare further reports to the Parole Board, again setting out its assessment of the effectiveness of the existing plan and its proposals for future management of the offender.
8.18 Decisions of the DLT to refuse release from prison would not be subject to appeal, but would remain subject to judicial review.
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RECOMMENDATION 41 The Parole Board operating through a DLT would have similar powers to those it has in relation to discretionary life prisoners, including the power to set and vary licence conditions. In addition, it would have the power to order release from prison, at a specified future date, and with a requirement that provision be made for supervision and risk management in the community. |
The role of Ministers
8.19 Ministers and the Executive currently perform an important role in relation to the management of discretionary and mandatory life prisoners, and other prisoners released on licence. For discretionary life prisoners, the power of release rests with the Parole Board, but Ministers may and do make recommendations to the Board as to whether or not the risk of releasing a designated life prisoner is acceptable. The power to recall prisoners is exercised by Scottish Ministers. Ministers exercise no discretion in relation to designated life prisoners who are the subject of a recommendation to recall from the Parole Board, but have power to recall prisoners prior to consultation with the Board when this is judged expedient in the public interest.
8.20 Although the co-ordination of information in relation to offenders serving the new sentence would largely pass to the Risk Management Authority, we envisage that Ministers would continue to be entitled to make representations to Tribunals on issues concerning the release of prisoners subject to the OLR, and to recall prisoners in urgent cases prior to consultation with the Board. It is fundamental to the operation of the system for the management of high risk offenders, and to maintaining public confidence, that decisions about recall are implemented swiftly and effectively.
8.21 If it were to be decided that the Risk Management Authority should take on a wider role in relation to other offenders, there may be a case for some of the responsibilities of Ministers in overseeing review and recall being transferred to the Authority.
Legal Aid
8.22 Increased powers for the Tribunal bring with them increased responsibility to ensure that its procedures are fair. One of the elements of fairness is the opportunity for prisoners to present their case. But opportunity is meaningless in the absence of a right to exercise it fully through legal representation provided (as in most cases it must be) at the expense of the State. At present only Assistance by Way of Representation (ABWOR) is available under the Legal Aid (Scotland) Act 1986 to a prisoner appearing before a Tribunal. This is insufficient in our view; we think that legal aid (rather than ABWOR) should be available.
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RECOMMENDATION 42 Legal Aid should be available to a prisoner appearing before a DLT. |