The End of Two Tier

Wainwright & Cummins were delighted to hear the news yesterday of the scrapping of the two-tier criminal contracts, in a written statement to Parliament by Lord Chancellor Michael Gove. Mr Gove has clearly listened to the concerns of the legal profession, and made a no doubt difficult and courageous decision.

However, this is not the end of the debacle. All firms that tendered for a duty contract, whether successful or not, spent time and money putting together bids for a tender process that was ultimately abandoned. Some firms that were successful in their duty contract bid then spent more money on preparing for the commencement of the contracts, including taking more staff on board, investing in IT infrastructure, and in some cases even planning to open new offices. On the other side, many firms that were unsuccessful in duty contract bids spent large amounts of money on litigating the tender process, both in the form of individual public procurement challenges as well as a Judicial Review. This doomed process, then, has racked up enormous expenditure – to be borne both by criminal legal aid firms, which are hardly flush at the best of times, and by the public purse, despite austerity – in order to land us back where we were before: continuing with the 2010 standard crime contracts.

The only person who might be said to have come out of this well is in fact Mr Gove himself. Although it took rather too long for him to figure out that two tier was not viable – after all, he inherited it from his predecessor Mr Grayling last May – he got there in the end. And as many commentators have pointed out, and indeed as has been said in this blog, Mr Gove appears to be focusing much of his energies as Lord Chancellor into overturning the policies of Mr Grayling; and this has been enthusiastically welcomed by the legal profession. Long may he continue to do so.

Prison Law Update: Two Recent Cases

Mr L

Mr L is an indeterminate-sentenced prisoner, now significantly over his tariff (minimum period required to serve). He entered prison when he was still very young and behaved poorly during the early part of his sentence. In 2013 he realised that he would be staying in prison for a very long time if his behaviour did not improve, and he started to make significant progress, including engaging well with offending behaviour programmes.

In 2014 we assisted Mr L in a Parole review, during which he was transferred to open conditions. Mr L did not have an entirely smooth ride in open conditions. He was returned to closed conditions twice; on the first occasion representations from the Prison Law department at Wainwright & Cummins got him returned to open conditions speedily; and on the second occasion, as it was shortly before his scheduled hearing in late 2015, he remained in closed conditions until the hearing. This is significant as the Parole Board tend to have a very different view of prisoners in open conditions applying for release compared to prisoners in closed conditions applying for release.

However, we pressed ahead with Mr L’s application for release. We felt that he had served more than long enough and that the two returns to closed conditions were indicative of immaturity and nervousness at the prospect of release, rather than any increase in risk to the public. Mr L’s hearing was held in mid-November last year and we were delighted that his application for release was granted in a decision which took only two days – sometimes the Parole Board takes up to two weeks before they confirm their decision.

Many Parole hearings have a foregone conclusion before they even begin. If a prisoner has behaved very poorly, the likelihood is that their application will not be granted, whether that is for open conditions or for release. If a prisoner has behaved very well and completed all necessary programmes, the likelihood is that their application will be granted. But Mr L’s case was different – it was borderline. We were therefore particularly proud as it was our legal representation of the client – and his honest responses to difficult questions during the hearing – which pushed his case over the line and earned the release decision.

Mr D

Mr D is a life sentenced prisoner who committed a serious offence many years ago. He has not yet reached his tariff date, but due to the impressive progress made while in custody, he was put forward for a pre-tariff review. This is when the Parole Board assess lifers who are two to three years pre-tariff, and consider transferring them to open conditions. The ultimate aim is for those lifers who are behaving extremely well to be considered for release shortly after their tariff expiry, having already spent around two years in open conditions.

Mr D was recommended for progression to open conditions by all of the relevant professionals – his Probation Officer (Offender Manager); his Offender Supervisor; and also a Psychologist who assessed him last year.

Despite a couple of dicey moments in the hearing, ultimately the Parole Board did recommend Mr D’s progression to open conditions. We are awaiting the final decision from the Ministry of Justice, which we hope will confirm the Parole Board’s recommendation; once this occurs, Mr D will be transferred to open conditions. If he continues to maintain the same standard of behaviour, works well with professionals, and tackles outstanding risk factors, he should be on track for release not long after his tariff expiry date.

We are particularly proud of Mr D’s case as it is a great example of the system working exactly as it should. Mr D committed a serious offence and as such must serve a minimum period of time, regardless of his degree of rehabilitation. However, once that minimum period is complete, if Mr D no longer poses a threat to society, it serves no purpose to keep him in custody, and he should be released.

The views expressed do not necessarily reflect those of the firm or its partners.

Court of Appeal on 13/01/16

On Wednesday our Criminal team tackled a complex application for leave to appeal against conviction, in the Court of Appeal. We were in the grand surroundings of Court 6 in the Royal Courts of Justice, the beauty of which somewhat mitigated the several hours we spent waiting for our case to be called on! During that waiting time we reviewed the papers, refined our argument, and got the measure of the three Judges who would be considering our case. The appellant, Mr D, attended court to hear his case.

The case was finally called on just after lunch, and Solicitor Advocate Mr Myrie began his submissions on what appears to be an area of law without precedent: the interaction between the law on possession of firearms (which is strict liability, requiring no knowledge of the existence of the firearm) and the law of joint enterprise, which requires the accomplice or secondary party to have at least some knowledge of the offence to be committed. He dealt calmly with a barrage of questions from the bench while maintaining a strong focus on the central legal submissions.

The bench then retired for what seemed like a very long time, before returning to give judgment. Unfortunately, in part due to the lengthy time delay in bringing proceedings, permission to appeal was refused.

We continue to consider the case and may, if appropriate, refer the matter to the CCRC. We believe that as the point of law appears to be without precedent, it may deserve consideration by the full Court of Appeal, which could then make a definitive statement on the law as it relates to cases such as this.