Open prisons a legal briefing to complement the annual conference of the Association of Prison Lawyers 2012

Introduction .............................................................................................2 Open and semi-open prisons map ..........................................................3 Open conditions in context: purpose and history .....................................3 The Legal Framework .............................................................................5 Open Prisons: some statistics ............................................................... 10 Table of Open and Semi-open Prisons in England and Wales .............. 11 Special Categories and Particular Needs in Open Conditions............... 15 Open prisons: some problems and issues for legal practitioners .......... 25

Open prisons a legal briefing

Introduction
Founded in 1866, the Howard League is the oldest penal reform charity in the UK. The Howard League has over 5,000 members, including prisoners and their families, lawyers, criminal justice professionals and academics. The Howard League campaigns for less crime, safer communities and fewer people in prison. We aim to achieve these objectives through conducting and commissioning research and investigations aimed at revealing underlying problems and discovering new solutions to issues of public concern. The Howard Leagues objectives and principles underlie and inform the charitys parliamentary work, research, legal and participation work as well as its projects. The Howard Leagues legal work began with a judicial review in 1996 challenging the rules of the proposed secure training centres that ignored domestic and international child protection and childrens rights laws. In 2002 the charitys successful judicial review secured a landmark judgment that changed the law to ensure that children in prison are protected by the law in the same way as children in the community (R (Howard League for Penal Reform) v Secretary of State for the Home Department [2002] EWHC 2497 (Admin)). Our legal team is the only frontline national legal team dedicated to the legal rights and entitlements of children and young people in prison. The Howard Leagues legal team operates a legal advice line for children and young people in prison which is a free and confidential telephone number automatically available on the prison pin system: 0808 801 0308. Practitioners, family, carers and friends can also contact us for legal advice on 0207 249 7373. The legal team also convenes the Howard Leagues lawyers network, a forum for practitioners to share ideas. The legal team also produces publications and legal briefings on topical issues. This legal briefing is designed to assist practitioners representing prisoners by providing a summary of the current open prison estate. It has been published to coincide with and complement the annual conference of the Association of Prison Lawyers which is dedicated to the theme of open conditions. Open prisons can play a vital role in promoting the safe resettlement of children and adults coming out of custody. Yet the open prison estate appears to have developed on an ad hoc basis. With a large number of prisoners serving indeterminate sentences in the system, most of whom will need to pass through open conditions before they can be released, the efficacy of the open estate has come to present serious challenges for prisoners and their representatives. This briefing provides a summary of the purpose and nature of open prisons, including a snapshot of the current open estate in England and Wales. It reviews some of the recent reports by Her Majestys Inspectorate of Prisons (HMIP) and outlines gaps in provision for particular groups including children, young adults and female prisoners. It also highlights some of the general problems faced by prisoners in the open estate. Tabitha Kassem Legal Director, Howard League for Penal Reform November 2012 Open prisons a legal briefing

Open and semi-open prisons map

HMP open M HMP with an open unit M HMP semi-open M HMP/YOI open - M

Kirklevington Grange

HMYOI open M HMP/YOI open F

Kirkham

Askham Grange Hatfield

Thorn Cross

Lindholme North Sea Camp Norwich Spring Hill Hollesley Bay Standford Hill

Sudbury Hewell

Prescoed Brixton Leyhill

East Sutton Park Blantyre House

Ford Open conditions in context: purpose and history

Open prisons a legal briefing

Some history The first open prisons were three open borstals for boy offenders established in the 1930s. The model was first applied a few years later to adults at New Hall Camp in Wakefield. These open establishments, housing largely people convicted of a first offence serving short sentences, formed part of the reforming regime of Prisons Commissioner Sir Alexander Patterson, who commented: "You cannot train a man for freedom under conditions of captivity1". At the same time the Howard League for Penal Reform, under the leadership of Margaret Fry, was campaigning for changes in conditions across the secure estate, promoting paid work in prisons. These developments attracted no serious criticism from the public2. Following the Second World War, the 1948 Criminal Justice Act removed hard labour and other more antiquated punishments, but paved the way for longer sentences on the basis that this would aid rehabilitation. This led to increased pressure on the system and a large expansion of the secure estate: seventeen open and mediumsecurity prisons and borstals were opened between 1945 and 1952, many making use of vacated army camps. The 1959 White Paper, Penal Practice in a Changing Society', led to the 1961 Criminal Justice Act, which approved an extension of the use of open prisons to prisoners serving long-term sentences. The Mountbatten Inquiry in 1966 gave rise to the categorisation of prisoners according to their risk, D being "prisoners who can reasonably be trusted in open prisons"3. Open prisons today (2012) Today, open prisons generally contain a mixture of long-term prisoners at the end of their sentence and short-term low risk prisoners. In 2012, the cap on the number of people sentenced to custody for public protection an open prison can house was removed, partly to ease the backlog of indeterminate prisoners awaiting transfer following approval by the Secretary of State. There are currently nineteen prisons across England and Wales that are either wholly open prisons or had open units attached to the prison. In August 2012, it was announced that two prisons in England will be re-roled. HMP Featherstone, currently a Category C prison, will hold both Category C and Category D prisoners. HMP Kennet will become a resettlement prison. This announcement was made in light of the shortfall in the number of open prison spaces available for adult male prisoners suitable for open conditions with specific needs in the West Midlands and North West of England. A table setting out the open establishments in England and Wales is provided at page 11.

1 2

Cited in Flynn N. (1998) Introduction to Prisons And Imprisonment. Waterside Press See Edwards, A. and Hurley, E. (1982) Home Office 1782-1982. HMSO, London 3 Livingstone S., Owen T., Macdonald A. (2003) Prison Law. London

Open prisons a legal briefing

The Legal Framework

Rule 7 of the Prison Rules 1999 (as amended) allows prisoners to be categorised in accordance with any directions of the Secretary of State: Having regard to their age, temperament and record and with a view to maintaining good order and facilitating training and, in the case of convicted prisoners, of furthering the purpose of their training and treatment. The principles of categorisation and the categories available are set out in Prison Service Instruction (PSI) 40/2011, which explains that: all prisoners must have assigned to them the lowest security category consistent with managing their needs in terms of security and control. This reflects standard international practice. For instance, the European Prison Rules 2006 (paragraph 51.1) require that: the security measures applied to individual prisoners shall be the minimum necessary to achieve their secure custody. For adult males, the most secure prisons are classified as Category A and open prisons are classified as Category D. There are no open conditions for children and womens prisons are generally referred to as just open prisons or third stage prisons. Categorisation can be either to a higher or lower security category. In the case of determinate sentenced
5

Sources of law
Statute - The Prison Rules 1999 - The YOI Rules 2000 - European Prison Rules 2006 - Criminal Justice Act 2003 PSIs and PSOs - Prison Service Order (PSO) 4700 Indeterminate Sentence Manual as amended by PSI 36/2010 - PSO 6300 Release on Temporary Licence (ROTL) - PSI 21/2012 ROTL amendments - PSI 73/2000 - Allocation guide - PSIs 45/2004 and 03/2009 - NSF (national security framework) Recategorisation to category D. - PSI 46/2007 - Maximising occupancy in the open estate - PSI 40/2011 - Categorisation and Recategorisation of Adult Male Prisoners - PSI 41/2011 - Categorisation and Recategorisation of Young Adult Male Prisoners -PSI 39/2011 Categorisation and Recategorisation of Women Prisoners Guidance - Secretary of States Directions to the Parole Board August 2004 (Transfer of life sentence prisoners to open conditions) - Parole board guidance, policy on open conditions

Open prisons a legal briefing

prisoners, to the decision to transfer to Category D is made by the Secretary of State. This decision is usually made by prison governors on behalf of the Secretary of State, without advice of the Parole Board. This can be difficult if faced with intransigent governors. However, there is no prohibition on the Secretary of State seeking advice from the Parole Board under section 239 of the Criminal Justice Act 2003. This provision states: it is the duty of the Board to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners. Traditionally the Secretary of State has regarded it as essential for all life and indeterminate sentence prisoners to pass through open conditions before being released into the community. A prisoner is placed in open conditions by the Secretary of State. This can be done through the categorisation process, under the Guittard4 arrangements or following a non-binding recommendation by the Parole Board. The primary purpose of open conditions for indeterminate sentence prisoners is described in the Parole Boards ICM manual 2012 as follows5: To allow areas of concern to be tested in conditions more closely resembling those to be found in the community To mitigate the effects of institutionalisation consequent on the lifer having spent a lengthy period in closed conditions To allow lifers the opportunity to take more responsibility for their actions To develop or advance the release plan

The Parole Board has a policy on open conditions which is available online6. Where a case is referred to the Parole Board, the Secretary of States Directions to the Parole Board issued under Section 32(6) of the Criminal Justice Act 1991 are mandatory and must be applied7. The introduction8 of indeterminate sentences for public protection (IPPs) saw a large number of prisoners enter the system with short minimum terms and little prospect of release. A large number of IPP prisoners deemed suitable for transfer to open prison experienced significant delays in transfer. In October 2011, NOMS issued a new policy which introduced new arrangements for the transfer of indeterminate sentence prisoners: this involved transfers being centrally managed by the Population Management Unit with post tariff prisoners being prioritised according to the length of time they have been waiting for transfer following approval for transfer by the Secretary of State.

4 5

R (Guittard) v SSJ 2009 EWHC 2951 (Admin) http://www.justice.gov.uk/downloads/offenders/parole-board/icm-manual.pdf 6 http://www.justice.gov.uk/offenders/parole-board/open-conditions 7 http://www.justice.gov.uk/offenders/parole-board/sos-directions/aug2004 and R (DCunha) v The Parole Board [2011] EWHC 128 (Admin) 8 The Legal Aid Sentencing and Punishment of Offenders Bill 2012 will abolish the IPP sentence.

Open prisons a legal briefing

More generally, the need to adapt the current system to prevent those serving indeterminate sentences from becoming stuck in custody was recognised in the most recent version of the Prison Service Order (PSO) 4700, now renamed the Indeterminate Sentence Manual rather than the Lifer Manual. The current version of the PSO 47009 confirms that indeterminate sentence prisoners do not have to move through set stages (e.g. closed prison, then open prison, then release) in order to progress through their sentence (paragraph 4.1.2): Decisions will need to be taken on a case by case basis. In general terms, the longer the time in custody served by an indeterminate sentence prisoner (ISP), the more likely they are to require a period in open conditions as part of a phased release (paragraph 4.8.1). The manual recognises that short term indeterminate prisoners may be compared with fixed term prisoners serving similar terms (paragraph 4.10.4): Short tariff ISPs with tariffs of 30 months can be compared with determinates serving 4 to 5 years, 80% of whom are released from closed prisons. It is, therefore, not essential for those short tariff ISPs who are likely to be released on tariff expiry, to spend a period in open conditions. Although the Secretary of State has not issued new guidance to the Parole Board reflecting this change of approach, the Parole Board is empowered to release indeterminate prisoners from closed conditions where it considers it safe to do so. The manual, as updated by PSI 36/2010, also recognises that indeterminate prisoners may have very different needs from short-term prisoners and advocates that they should be separately accommodated where possible in open conditions: Special Considerations. It can be difficult for some ISPs, particularly those who have been in prison for many years, to adapt to the less restrictive conditions of lower security prisons. They will also be surrounded by a large number of prisoners who are serving short sentences and who may be younger and less motivated to do well. Where regime and resources permit, consideration should be given to accommodating ISPs separately from shortterm prisoners. (Paragraph 4.6.6) Paragraph 4.6.7 of the manual as updated by PSI 36/2010 also states: Particular care should be taken to ensure the needs of those ISPs who have moved from Therapeutic Communities and similar units are taken into account. Paragraph4.6.8 highlights the need for establishments to cater for the different requirements of those ISPs who, through disability, age, ill health, learning difficulties, etc. cannot work or would find it difficult to access some interventions.

Updated by PSI 36/2010

Open prisons a legal briefing

Release on temporary licence (ROTL) and escorted absences Prisoners may leave prison establishments either under an escorted absence (in the company of an officer) or alone under a temporary licence (ROTL). The rules for release on temporary licence and escorted absences are governed by the prison rules and prison service instructions10. The rules differ according to the prisoners sentence. Prison Rule 9 and YOI Rule 5 provide authority for releases on temporary licence and escorted absences. All ROTLs are subject to risk assessment and the approval of the Governor following an application. Each establishment is required to have a local policy. Prison Rule 9(3) confirms that ROTL can be granted for the following reasons: Compassionate grounds or to receive medical treatment To engage in employment or voluntary work To receive instruction or training not generally available in prison To participate in proceedings before any court or tribunal To consult with a legal adviser where the consultation cannot take place in the prison To facilitate a transfer between prisons To assist in the maintenance of family ties or in the transition from prison life to freedom.

There are four types of licence which may be granted to facilitate the above: Resettlement Day Release (RDR) Resettlement Overnight Release (ROR) Childcare Resettlement Special Purpose Release (SPR)

ROTL and escorted absences for lifers and indeterminate sentence prisoners All lifers and indeterminate sentence prisoners, except those in the childrens estate, are prevented from being released on temporary licence until they have been placed in open conditions or, in exceptional circumstances, approved for transfer to open conditions but awaiting actual transfer11. Even then, a prisoner in open conditions must spend a certain period of time in the new prison before being eligible to apply for release on temporary licence. The period will depend on the type and reason for the release on licence and how much time remains until the prisoners next parole review. There is no strict rule on how much time should pass before a prisoner can be considered for release on licence. However, guidance is contained in PS1 21/2012 at paragraph 4.3.5. This guidance suggests that eligibility for ROTL should be governed by the period of time remaining until the next parole review. However, this often means that a prisoner has not had sufficient ROTLs before reports must be
10 11

PSO 6300 Release on Temporary Licence (ROTL) and PSI 21/2012 ROTL Paragraph 4.3 of PSI21/2012

Open prisons a legal briefing

completed for the parole dossier resulting in professionals being unable to comment on how the prisoner has responded to ROTL. In most cases, the first release from open conditions will be a town visit. However, an officer is not obliged to accompany a prisoner on a town visit. This is because lifers and indeterminate sentence prisoners such a visit in the company of an office fits the description of an escorted absence. Lifers are excluded from having an escorted absence until they have served at least ten years (see paragraph 4.7.3 of PSO 4700 (as replaced by PSI 36/2010)). ROTL and escorted absences for determinate sentence prisoners ROTLs for determinate sentence prisoners are governed by PSO 6300. Certain prisoners are listed as excluded at paragraph vii of the introduction to PSO 6300 (although it is unlikely that these exclusions would be relevant to a prisoner in open conditions). Prisoners will be eligible for resettlement day or overnight release either 24 months before the release date, or once they have served the custodial period less half the relevant remand time, whichever gives the later date. There is no minimum time to serve before a prisoner can apply for special purpose release or childcare resettlement release12.

12

PSI 21/2012 amends PSO in respect of childcare resettlement licences following the case of R (on the application of MP) v the Secretary of State for Justice [2012] EWHC 214 (Admin)

Open prisons a legal briefing

Open Prisons: some statistics

According to the Public Protection Casework Section (PPCS), as of June 2011, there were 5,475 prisoners in the open estate. Of these prisoners, 22.5% were serving an indeterminate sentence. Since that time, the number of prisoners in the open estate has largely remained constant. However, the percentage of indeterminate sentence prisoners in the open estate has steadily risen, and in August 2012 it was at 28.7%. This increase reflects the change in policy to try to ensure that those who are serving indeterminate sentences are being able to facilitate a transfer to open conditions. Since September 2011, the transferring of prisoners to open conditions has been managed centrally and is the responsibility of the Population Management Unit (PMU). According to the PMU, between September 2011 and September 2012, 1610 referrals of prisoners suitable for open conditions have been made to the PMU and 1421 prisoners have been moved to open conditions. The PMU reports that indeterminate prisoners are prioritised for transfer based on how far beyond tariff they are. On average around 150 prisoners are designated as suitable for transfer and approximately 100 are transferred. As of June 2012, there were 6,078 people serving an IPP in custody (regardless of location). Of these, 3,531 (58%) had passed their tariff expiry date. According to a Freedom of Information request response, between 1 October 2010 and 30 September 2011 4,436 indeterminate sentenced prisoners were referred by officials within PPCS on behalf of the Secretary of State to the Parole Board for a parole review. The same response confirmed that 87 prisoners were approved for transfer under the Guittard arrangements between 1 October 2010 and 30 September 201113. The Legal Aid Sentencing and Punishment of Offenders Act (LASPO) 2012, which received Royal Assent in May 2012 abolishes the IPP sentence. However, this will not be retrospective. Life sentences will remain available. The pressure on the open estate will continue for several years to come unless the Parole Board begins to release IPP prisoners from closed conditions more readily.

13

http://www.justice.gov.uk/downloads/information-access-rights/foi-disclosure-log/prisonprobation/transfer-prisoners-open-conditions.doc

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Open prisons a legal briefing

Table of Open and Semi-open Prisons in England and Wales

Prison Name HMP Askham Grange, York Standalone or attached Standalone Intake/notes 14 One of two womens open establishments. Includes some under 21s. Described as excellent by HMIP (June 2011). According to NOMS, as of September 2012: total capacity 128, population 118, FNPs 4 and 18 -20 year olds 2. HMP Blantyre House, Kent Semi-open resettlement prison Men, serving six years or over, over 21s. Described as an exceptional, specialist establishment by HMIP (July 2010). According to NOMS, as of September 2012: total capacity 122, population 122, FNPs 2 and 18 -20 year olds 0. HMP Brixton, South London Open unit attached to closed prison Men, over 21s This is a newly established open unit which only opened in April 2012. It is a D-Cat wing within the walls of the closed prison. One of two womens open establishments. Includes under 21s although at point of last HMIP report only three under 21s out of 92 prisoners. Described as excellent by HMIP (November 2011). According to NOMS, as of September 2012: total capacity 100, population 95, FNPs 1 and 18 -20 year olds 4. HMP Ford, West Sussex Standalone Men, only over 21s, mainly long term prisoners (only about 10% serving short term determinate sentences). HMIP described the prison as failing to deliver its fundamental resettlement role effectively in December 2010. Riots in December 2010 and IMB report November 2010. According to NOMS, as of September 2012: total capacity 521, population 512, FNPs 18 and 18 -20 year olds 0.

HMP East Sutton Standalone Park, Kent

14

Information in this column mainly comes from either the latest HMIP reports, available at http://www.justice.gov.uk/publications/inspectorate-reports/hmi-prisons/prison-and-yoi or NOMS responses to inquiries made by the Howard League for the preparation of this report (November 2012).

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Open prisons a legal briefing

HMP Hatfield, South Yorkshire

Standalone

Men, including under 21s, mainly prisoners serving over four years. HMIP report of April 2011 described the prison as drifting without any clear strategic direction and stated that Hatfield was performing poorly with little pro-active work to support prisoners in preparing for leading productive and law-abiding lives on release. According to NOMS, as of September 2012: total capacity 266, population 257, FNPs 4 and 18 -20 year olds 5.

HMP Hewell, Worcestershire

Attached to closed prison

Men, only over 21s. Small open unit. HMP Hewell combines HMP Blakenhurst, Brockhill and Hewell Grange, a previously separate open unit. The small open unit has been negatively affected by the merge and appeared to have lost some senior management attention to its higher risk neighbours. Range of activities was particularly good, the open unit however appeared neglected (HMIP February 2010). According to NOMS, as of September 2012: total capacity 187, population 178, FNPs 6 and 18 -20 year olds 0.

HMP Hollesley Bay, Suffolk

Standalone

Men, including under 21s. Very few short-term prisoners, mainly long term determinates or ISPs. The HMIP report of March 2012 states that the prison is making sufficient progress against the recommendations and managers had a good strategic grasp of resettlement issues in a changing population. According to NOMS, as of September 2012: total capacity 380, population 377, FNPs 8 and 18 -20 year olds 20.

HMP Kirkham, Lancashire

Standalone

Men, over 21s. Described by HMIP in February 2010 as a very impressive open prison purposeful and active with a strong and appropriate focus on its resettlement function. According to NOMS, as of September 2012: total capacity 630, population 620, FNPs 7 and 18 -20 year olds 0.

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Open prisons a legal briefing

HMP Kirklevington Grange, Cleveland

Standalone, semi-open

Men, over 21s. Small, specialist resettlement prison preparing men coming to the end of long sentences for their return to the community. It performed its specialist function very well (HMIP report, July 2011). According to NOMS, as of September 2012: total capacity 283, population 280, FNPs 0 and 18 -20 year olds 0.

HMP Leyhill, Gloucestershire

Standalone

Men, over 25s. Many prisoners are serving long sentences for serious offences. According to HMIP April 2012, an impressively large number of prisoners undertake paid or community work however no whole prison approach to resettlement. According to NOMS, as of September 2012: total capacity 527, population 519, FNPs 27 and 18 -20 year olds 0.

HMP Lindholme, Doncaster

Open unit, attached to a closed prison

Men, over 21. New open unit within the Category C prison. According to NOMS, as of September 2012: total capacity 124, population 77, FNPs 2 and 18 -20 year olds 0. Men, over 21s. High proportion of short-term prisoners whose needs were not matched to the regime and greater priority was now being given to resettlement (HMIP report, June 2012). According to NOMS, as of September 2012: total capacity 420, population 412, FNPs 8 and 18 -20 year olds 0.

HMP North Sea Camp Lincolnshire

Standalone

HMP Norwich, Norfolk

Open unit, attached to a closed prison

Men, including under 21s. Small open unit attached to a closed prison. The HMIP report relates to the entire prison establishment. However, it is noted that resettlement work remained solid and well managed (HMIP report, March 2012). According to NOMS, as of September 2012: total capacity 42, population 40, FNPs 1 and 18 -20 year olds 0.

HMP Prescoed, South Wales

Part of HMP Usk

Men, including under 21s. Plenty of purposeful activity at both prisons and a full open regime at Prescoed, including an impressive number of suitable prisoners working in the community. (HMIP report, July 2010). Use of
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Open prisons a legal briefing

ROTL extensive. According to NOMS, as of September 2012: total capacity 230, population 219, FNPs 2 and 18 -20 year olds 3. HMP Spring Hill, Standalone, Buckinghamshire same site as HMP Grendon Men, over 21s. Impressively purposeful regime and a proper focus on resettlement and very good educational and work opportunities, with particular improvements in providing short-term prisoners with useful employment (HMIP report, May 2012). According to NOMS, as of September 2012: total capacity 315, population 311, FNPs 8 and 18 -20 year olds 0. HMP Standford Hill, Kent Standalone Men, over 21s. 80% of men are coming to end of long sentences. The recent HMIP report of March 2012 described the resettlement work as fragmented although there were good and appropriate opportunities to work outside the prison. Described as coasting until recently but improving. According to NOMS, as of September 2012: total capacity 464, population 461, FNPs 32 and 18 -20 year olds 0. HMP Sudbury, Derbyshire Standalone Men, over 21s. Recent influx of indeterminate-sentenced prisoners. HMIP reports an effective personal officer scheme and good strategic focus on resettlement. Very limited support for foreign nationals (July 2010). According to NOMS, as of September 2012: total capacity 581, population 573, FNPs 21 and 18 -20 year olds 0. HMP Thorn Cross, Cheshire Standalone Men, including young adults aged 18 25 years old. Described as one of the better establishments in the prison estate. Provision of activity is good with a clear focus on resettlement. Some concerns about experiences BME prisoners and automatically segregating FNPs on entry (HMIP, April 2012). According to NOMS, as of September 2012: total capacity 321, population 291, FNPs 5 and 18 -20 year olds 88.

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Open prisons a legal briefing

Special Categories and Particular Needs in Open Conditions

As the prison service recognises15, certain groups of prisoners are likely to require particular help in adapting to open conditions. This section considers some of the particular considerations that apply to the following groups: Young adults Women Foreign National Prisoners Vulnerable Adults Children

Open conditions for young adults There are currently seven prisons in England and Wales where young adults (aged 18-20) can be placed in open conditions. For women prisoners, both of the two dedicated womens prisons in England and Wales take young people under 21 years old, although the vast majority of prisoners will be over the age of 21. For male prisoners, there are five prisons that take both young adults and adults over the age of 21. The particular needs of young adults

The following prisons take young adults aged between 18 and 21 years old:
Women -HMP Askham Grange -HMP East Sutton Park Men -HMP Hatfield -HMP Hollesley Bay -HMP Norwich -HMP Prescoed -HMP Thorn Cross

There is a growing consensus that young adults require a different approach from that applied to adults. A literature review by Birmingham University commissioned by the Barrow Cadbury Trust in 2011 highlighted concerns that young adults are often still developing from a cognitive perspective: There is strong evidence that, from a neurological perspective, the human brain is not fully developed in its capacity for cognitive functioning and emotional regulation until well into the period of young adulthood.16 In December 2011, the view that young adults are still maturing well into their 20s was endorsed by the Royal Society17:

15 16

Paragraph4.6.8 of PSI 36/2010 http://www.t2a.org.uk/wp-content/uploads/2011/09/Birmingham-University-Maturity-final-literaturereview-report.pdf 17 Brain Waves Module 4: Neuroscience and the law, published by the Royal Society, December 2011, Page 13. Available at:

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Neuroscience is providing new insights into brain development, revealing that changes in important neural circuits underpinning behaviour continue until at least 20 years of age...The prefrontal cortex (which is especially important in relation to judgement, decision-making and impulse control) is the slowest to mature. By contrast, the amygdala, an area of the brain responsible for reward and emotional processing, develops during early adolescence. It is thought that an imbalance between the late development of the prefrontal cortex responsible for guiding behaviour, compared to the early developments of the amygdala and associated structures may account for heightened emotional responses and the risky behaviour characteristic of adolescence. There is huge individual variability in the timing and patterning of brain development. This could be taken to imply that decisions about responsibility should be made on an individual basis at this stage of development. The need for a different approach when dealing with young adults is reflected in a number of specific legal provisions for this age group. For instance, young adults between the ages of 18 and 20 must be detained in prisons that are designated as Young Offenders Institutions and remain sentenced to detention rather than imprisonment (see section 89 of the Power of Criminal Courts (Sentencing) Act 2000 PCC(S)A 2000). Accordingly, the prison service recognises the different approaches that apply to young adults (see for instance, PSI 40/2011 concerning categorisation for young adult males). The Children (Leaving Care) Act 2000 amended the Children Act 1989 to introduce a new framework of support for young adults with a history of care spanning beyond their 16th birthday on the basis that any young person still in care at that point is likely to require the additional support that the average parent would be expected to provide to their grown up children (see section 23C of the Children Act 1989). Commenting on the availability of these leaving care provisions to young adult offenders in the case of R(M) v The Chief Magistrate, Mr Justice Collins noted that: It should have been clear that this young man needed some serious assistance when he was released and highlighted the importance of support from a local authority in the case of any young offender who has had family difficulties in the past and who may need some sort of assistance for the future (paragraphs 17 and 18). An umbrella group, the Transition to Adulthood Alliance, has formed to promote the recognition of this group and the development of special policies and resources to meet their needs18. Difficulties faced by young adults in open conditions The rules concerning eligibility for escorted absences set out at page 8 of this briefing. These rules restrict their use to those who have served at least ten years effectively excluding the majority of young people from applying for an escorted absence. This is because most young people will have relatively short tariffs.
http://royalsociety.org/uploadedFiles/Royal_Society_Content/policy/projects/brain-waves/BrainWaves-4.pdf 18 See http://www.t2a.org.uk/

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Therefore, a young adult in open conditions is likely to be unaccompanied and very far from home on their first or second venture out of the prison gates. If the open prison is likely to be a short term stepping stone, it may be hard for the young person to find a suitable placement to get a decent taste of community living. In addition to this, some prisons, for example, HMP Hollesley Bay in Suffolk, can be very remote with a long distance to travel to the nearest town. There is a 40-mile limit on the distance someone on ROTL can travel which restricts some prisoners from HMP Hollesley Bay having the opportunity to work. Due to the small number of open placements for young adults opportunities to reconnect with family and friends as part of the resettlement process are very limited. Other establishments that accept young adults have struggled to provide effective resettlement programmes. For instance, HMP Hatfield had an extremely critical report from their latest inspection by HMIP in December 2010. The prison is combined with HMP Moorland for management purposes. The inspection found that, Hatfield had the worst of the arrangement and appeared to be drifting without any clear strategic direction: Resettlement processes were disappointingly weak for a resettlement prison. Although there were some good areas of work such as accommodation services, these were not drawn together in a coherent, effective, needs-based strategy. Staff were struggling to implement effective offender management processes (HMP Hatfield, HMIP report, 2010). Young adults may often find themselves in a minority in mixed open prisons. The table at page 11 illustrates the small number of young adults in each establishment at the time of the last HMIP report. Further, young adults serving life or indeterminate sentences tend to be a minority within a minority. For instance, in October 2012, there were only four young adults at East Sutton Park (one of the two open womens prisons) and of these, just one young adult was serving an indeterminate sentence. HMP Prescoeds most recent report from their inspection in April 2010 reveals that it is almost wholly used for young adults on fixed rather than indeterminate sentences. A particular problem faced by young adults in the open estate is that only one establishment accepts those who have been convicted of sexual offences. Further, even that establishment does not accept anyone who has been convicted of a sexual offence against a child. The specific PSI that relates to recategorisation of young adult males is PSI 41/2011. It sets out a flexible policy which in theory allows for the categorisation of young adults to be reviewed whether there is a change in circumstances. However, in practice, prison governors may be cautious in exercising their discretion here, perhaps due to the comparatively low numbers of young adults that go through this process. Young adult prisoners are therefore likely to require additional assistance with the recategorisation process.

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Open Conditions for Women19 There are only two open womens prisons in England and Wales, HMP Askham Grange and HMP East Sutton Park. However, most womens prisons contain resettlement units. Both HMP Askham Grange and East Sutton Park accept adults and young adults (although the proportion of young adults is very small). The needs of women in open prisons mirror the needs of women across the estate. The presence of only two open establishments for the entire country inevitably means that women are placed far from home, with inevitable consequences for resettlement and family contact. Minority groups within the womens open estate appear to face particular barriers as indicated in the recent HMIP reports. The most recent reports by HMIP of both womens open prisons are extremely positive. The last full inspection report on HMP Askham Grange was in 2008. It assessed the prison as outstanding: [i]t is the only adult prison which we have assessed as performing well across each of our four tests of safety, respect, purposeful activity and resettlement. In her introduction to the report, Her Majesty's Chief Inspector of Prisons noted that open prisons provided a holistic and individualised approach to managing the transition from custody back to the community. This is a message to the prison system about the kind of establishment and the kind of approach that most benefit prisoners, particularly women prisoners. However, the short follow-up inspection undertaken (HMIP report, 2011) found that although it continues to be an impressive prison and for the most part it had improved or maintained the high standards we found at our last inspection, there is still room for improvement and in some areas we were disappointed that more progress had not been made. Particular areas of concern included: The mother and baby unit: The report highlighted that it could be a more childfriendly environment if discipline staff did not wear uniforms and received more childcare training. It also noted the lack of any opportunity for mothers to cook meals for There are two open their children. womens prisons in England and Wales. The loss of an onsite counselor to support those with legacies of bereavement and -HMP Askham Grange abuse for whom primary mental health services were not suitable. -HMP East Sutton Park The absence of a suitable outdoor physical education facility. The need for the reducing re-offending strategy to address the needs of shortsentenced women more clearly.
Much of the information here is taken from Rachel Chapmans presentation at the APL conference.

19

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The HMIP report on HMP East Sutton Park, which had a full inspection in November 2011, was very positive and states that it provides a safe and decent environment for the women it holds and many aspects of East Sutton Park epitomise what a good womens prison should be. The relationships between staff and prisoners were described as a real strength. The whole prison focus on resettlement was commended: There were sufficient activities for all women and education provision was good, with a high level of achievement and a clear focu s on resettlement (HMP East Sutton Park, HMIP report, 2011). Despite the positive nature of the report overall, there remained concerns including:

The need for managers to be vigilant that staff did not enforce petty and unnecessary rules. The recent withdrawal of a well-used counseling service had left a real gap (in contrast to the substantial investment in an integrated drug treatment service despite illicit drug use being virtually nonexistent at the prison). No wheel chair access (also noted as a concern at HMP Askham Grange). Late decisions by the UK Border Agency resulting in some of the few foreign national women being removed to closed conditions when a deportation decision was made in one case just two days before expected release. Inability for women to receive incoming calls from their children and the continuing ban on the use of mobile phones in the prison.

PSO 4800 governs women prisoners and aims to ensure that women prisoners are held in conditions and within regimes that meet their gender specific needs and which facilitate their successful resettlement. PSI 39/2011 further relates to the categorisation and re-categorisation of women prisoners. Within the Annexs of PSO 4800 there is guidance for accommodation of women prisoners. The PSO states that dormitories for women should be avoided particularly for women with vulnerabilities and/or drug issues. Both HMP East Sutton Park and HMP Askham Grange both have dormitory accommodation. This presents a barrier to women progressing to open conditions where they feel unable to share a room. There is a further barrier to women prisoners that are convicted of arson. Historically, neither HMP East Sutton Park or HMP Askham Grange would women convicted of arson. However HMP East Sutton Park currently reviews each case individually. This can pose particular problems and a high number of women serving IPP sentences are convicted of arson.

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Another key concern for women in open conditions is that the two establishments will often be far from their family and release area. The average distance from home from HMP Askham Grange is 78 miles, Drake Hall is 83 miles and East Sutton Park is 91 miles. This directly affects resettlement for women and causes difficulty in keeping contact with their Offender Manager at this crucial stage. The distances between the prisons and resettlement areas also cause problems for identifying release addresses. Many women dont have a home to be released to and Offender Managers tend to propose release to approved hostel accommodation or the equivalent. There is very limited provision of accommodation and are, in fact, currently only approximately 7 approved premises for women in the country (and none in Wales or London)20. Open Conditions for Foreign National Prisoners21 Foreign National Prisoners are another distinct group of prisoners that have specific needs. There are currently no open prisons in England and Wales that are specifically designated to take foreign national prisoners. There are no published statistics for the number of foreign national prisoners held in open conditions at any one time 22. However, most HMIP reports note the number of foreign nationals held in the establishment at the time of the inspection and numbers are routinely low, if there are any at all. Until 2002, there was a blanket ban on any foreign national prisoner being placed in open conditions. This was lifted by PSO 4630 which provided for the removal of a blanket ban but emphasised that a foreign national prisoners risk of absconding would need to be a paramount consideration in the decision to transfer to open conditions. The risk of absconding will generally considered in the context of the risk the prisoner faces of deportation. Therefore, while being a foreign national prisoner should not adversely impact on a prisoners prospects of transfer to open conditions, risk will generally be considered as very low before progress to open conditions is authorised. PSI 40/2011 states that: Foreign nationals, including those subject to enforcement proceedings under the Immigration Act, must be risk assessed in the same way as all other prisoners. UKBA must be asked to contribute any information which might indicate an increased risk of abscond. A response must be received from UKBA if Category D is being considered. Therefore, it is not permissible to restrict someone on the sole basis of his or her status as a foreign national prisoner. However, practitioners may need to be alive to the weight that should properly be attached to information provided by the UKBA. It
20

As of November 2012, these include, Ripon House Leeds, Crowley House Birmingham, Approved Premises in Preston Lancashire, Adelaide House Liverpool, Approved Premises in Bedford, Rotheram Project Bradford and Elizabeth Fry Reading. 21 Much of this information is based on the presentation by Kate Stone to the APL conference 22 See table at page 11 where the current number of FNPs in each establishment according to NOMS as of November 2012 is listed.

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is not for the UKBA to decide upon a persons suitability for open conditions but rather to provide accurate information for the Secretary of State to inform the decision. It is incumbent on the Secretary of State (or prison governors on his behalf) to ensure that the UKBA provide the relevant information so a timely recategorisation review decision can be made. Once foreign national prisoners have been transferred to open conditions, their needs are often not appropriately met. For example, the full inspection of HMP Sudbury that was conducted in April 2010 highlighted some concerns about provision for foreign national prisoners: Foreign national prisoners were a neglected group. There was no policy and their needs as a group were not considered. They were identified on admission and a checklist of their needs completed. Subsequent support was dependant on prisoners referring themselves for help. At least two foreign national prisoners were having problems coping, largely due to their difficulty understanding English, but there was little evidence of interpreting services being used to help them (HMP Sudbury, HMIP Report, April 2010). Concerns were also raised in the report of HMP Thorn Cross, where the inspectors were concerned about the needless and excessive practice of segregating FNPs when they first arrived in order to check their status again, which were issues that should have been dealt with prior to allocation (HMP Thorn Cross, HMIP report, February 2012). PSO 6300 governs the use of ROTL. Chapter 5 covers particular classes of prisoners needing special consideration, and recognises foreign national prisoners as special category. The chapter clearly states that foreign national prisoners can apply for ROTL. Although each case must be considered on its own merits, the presumption that deportation will take place will be a significant factor for Governors and Controllers in determining the risk of failure to comply with the licence (PSO 6300, paragraph 5.5.4). Open Conditions for Vulnerable Adults including disabled prisoners, prisoners with learning difficulties and elderly prisoners Vulnerable adults, including prisoners with disabilities, learning difficulties and elderly prisoners, often struggle to ensure that their specific needs are met. Legal practitioners who specialise in representing vulnerable prisoners report that a general lack of awareness from staff across the secure estate about the specific needs of vulnerable prisoners, both while in prison and in planning for release. Although the Equality Act 2010 applies to prisoners, the removal of the specific requirement under PSO 2855 for all prisons to have a Disability Liaison Officer may not have encouraged good practice on the ground23. In the HMIP report of a full inspection of HMP Hatfield in December 2010, the diversity strategy was largely criticised as in effect non-existent:

23

PSI 32/2011

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There were no arrangements to support prisoners with disabilities and staff were not aware of prisoners who might need evacuation assistance in an emergency (HMP Hatfield, HMIP report, 2011). A further inspection in 2011 found: There was, in effect, no diversity strategy for Hatfield. The strategy related solely to Moorland and had little relevance to the conditions at Hatfield. There were no arrangements to support prisoners with disabilities and staff were not aware of prisoners who might need evacuation assistance in an emergency. I witnessed one frail, elderly prisoner shivering as he made his way across the grounds in the bitter cold to the dining hall for his evening meal. We were told older prisoners were not issued with coats because they did not work outside and prisoners were not allowed hats. In the IMB annual report of HMP North Sea Camp for 2001-2012, outlined the Boards concerns for older and disabled prisoners: An ageing prisoner population generates its own particular needs e.g. healthcare requirements, activities, accommodation adjustments, facilities and assistance for wheelchair users. The prison causes problems for some of the less mobile prisoners, particularly those reliant on wheelchairs. Prisoners under Confiscation or Restraining Orders24 Prisoners that are subject to a confiscation or restraining order may experience particular difficulties in progressing to open conditions. Confiscation Orders Within PSI 40/2011, at Annex D, paragraph 9, it states that: The amount of any outstanding Confiscation Order must be taken into account. Existence of a Confiscation Order does not in itself preclude a prisoner from categorisation to Category D and subsequent allocation to open conditions. However, the impact on abscond risk of the amount of the Order; the prisoner s willingness/ability to pay it; the additional time to be served in lieu of nonpayment must be considered. Establishments should seek more information from the enforcement authorities as to the level of risk. Prisoners at high risk of absconding for any reason should not be categorised to Category D. The PSI requires the governor to conduct a balancing exercise taking into account all relevant information. It is always important to ensure that a decision to refuse recategorisation has not been made on the basis that the confiscation order is a bar; to progression as such an approach is likely to be unlawful. In R (Lowe) v Governor HMP Liverpool [2008] EWHC 2167 the Court held that when someone is subject to a confiscation order there is an expectation that they will be dealt with consistently and not dependent upon the differing views of different governors (paragraph 36).

24

Much of the information here is based on the paper by Vijay Jagadesham presented at the APL conference.

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Restraining Orders Similar issues may arise where a prisoner is subject to a restraining order. It would seem that very few prisons will accept someone who is subject to a restraining order, even where the recategorisation decision has been made. There is no lawful or rational reason why a restraining order in itself should affect someones transfer to open conditions. Open conditions for children There are currently no open prisons for children. The open prison model is based on the borstal movement (see page 4). The last open prison for children, HM YOI Thorn Cross, received positive reports from HMIP in 2008: The Thorn Cross juvenile unit was a beacon of good practice in working with a small number of young people and preparing them for the transition to life outside prison. This is a model that should be built on, not abandoned. It may be that this would be better through smaller units in a number of locations and this is something the Youth Justice Board is now reviewing. However, to close Thorn Cross before there are any concrete plans for alternative open units, and largely for immediate financial reasons, is both disappointing and retrograde. HM YOI Thorn Cross was decommissioned in 2008 and now houses 18 25 yearolds. There have been no further open prisons created for children and there are no plans to open any. However, there is legislative provision for those sentenced as children to be placed anywhere the Secretary of State considers suitable although this provision has not been used for many years. These powers are provided for under:

Section 92 of Powers of Criminal Courts (Sentencing) Act 2000 in respect of determinate sentenced young people which provides that A person sentenced to be detained under section 90 or 91 above shall be liable to be detained in such place and under such conditions(a) as the Secretary of State may direct; or (b) as the Secretary of State may arrange with any person; Section 235 of the Criminal Justice Act 2003 in respect of those sentenced for public protection (both EPPs and DPPs) which provides that A person sentenced to be detained under section 226 or 228 is liable to be detained in such place, and under such conditions, as may be determined by the Secretary of State or by such other person as may be authorised by him for the purpose; and Section 102 of Powers of Criminal Courts (Sentencing) Act 2000 in respect of those sentenced to a period of detention and training (DTO) which provides that the Order shall be served in such secure accommodation as may be determined by the Secretary of State or by such other person as may be authorised by him for that purpose.

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Although these powers (or their equivalent) have been used effectively in the past, they have not been used for many years. In a consultation paper on the strategy for the secure estate for children and young people published in July 2011, the YJB suggested it might use these powers to develop a limited number of smaller, satellite sites that aid resettlement back into the community, some of which may be open or semi-independent living25. However, in its final response to the consultation exercise in March 2012, the government announced that it no longer intended to take this proposal forward26. However, sections 17, 20 and 31 of the Children Act 1989 mean that no child should want for safe, supported and suitable accommodation. Combined with the principle, set out in Article 37 of the United Nations Convention on the Rights of the Child (UNCRC) that detention shall be used only as a measure of last resort and for the shortest appropriate period of time, it is at least arguable that any child who is considered suitable for open conditions should not be detained at all.

25

Youth Justice Board / Ministry of Justice (2011) Strategy for the secure estate for children and young people in England and Wales consultation document, Youth Justice Board / Ministry of Justice, London. Available at https://consult.justice.gov.uk/digitalcommunications/secure_estate_youth 26 Youth Justice Board / Ministry of Justice (2012) Strategy for the secure estate for children and young people in England and Wales consultation response, Youth Justice Board / Ministry of Justice, London. Available at https://consult.justice.gov.uk/digitalcommunications/secure_estate_youth

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Open prisons: some problems and issues for legal practitioners

Of the 62 prisons inspected in 201011, of all categories, outcomes for prisoners at only two Blantyre House and Prescoed were assessed as being good across all four tests of a healthy prison. Blantyre House is a male, semi-open resettlement prison, while Prescoed is a male open prison. HM Chief Inspector of Prisons for England and Wales, Annual Report 2010-11 While some of the examples of best practice in the secure estate are found in open prisons, there are several recurring concerns that appear throughout the HMIP reports. The riots at Ford open prison focused attention on some of the problems that can arise in the open estate. A number of buildings were burned to the ground during the violence, which broke out early on New Years Day 2011. The Prison Officers Association claimed that as few as two prison officers and four support staff were present at the time to manage a population of almost 500 prisoners27. Concerns about how open prisons function were highlighted in the Joint Thematic Review of lifers by Her Majesty's Inspectorates of Prisons and Probation 1999. The report suggested that the transfer from closed conditions to open conditions can be quite a difficult and unsettling process and not necessarily part of a gradual transition towards release: Adapting to open conditions 10.3 The transition to open conditions marked a significant change for all lifers. In the words of one prison officer most men have a real culture shock when they find themselves on their own, with nobody around to tell them what to do. Another commented that people don't realise it's going to be the hardest part of their sentence. They are faced with choices and decisions. Lifers described an initial disorientation when exposed to open countryside without being handcuffed to an officer and of being allowed freedom of movement. Many lifers complained about the loss of privacy resulting from having to share a room 10.15 Staff in open prisons also considered that the current opportunities for allowing ROTL were too narrow and did not support them in bringing about the de-prisonisation of lifers or in assisting stopping being a prisoner and becoming a citizen again. The primary focus was on finding employment and accommodation and re-establishing family links, which discriminated against those lifers who were beyond retirement age and unlikely ever to work, were
27

Bowcott O., (2011) Ford jail riot: police and prison service to investigate violence, the Guardian, available at http://www.guardian.co.uk/society/2011/jan/02/ford-prison-riot-police-investigation

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going to live in a hostel or who had lost all links with family. Inspectors agreed with one member of staff who said ROTL should be more than just a mechanism to assist lifers to get a job and a roof over their head. 28 These issues, raised as long ago as 1999, do not appear to have been resolved. A review of HMIP reports on open prisons suggests that there is still much work to do in the open estate. Key concerns drawn from a review of recent HMIP reports include: Poor Resettlement Lack of Support and Insufficient resources Difficulties in managing diverse populations

Poor Resettlement While many open prisons have effective resettlement strategies in place, the absence of effective strategies in a significant number of open establishments is particularly worrying, especially as one of the main objectives of an open prison is aid resettlement. In the latest HMIP report for HMP Ford from their full inspection in November 2010, it was stated that the prison is failing to deliver its fundamental resettlement role effectively. There were numerous concerns highlighted in the report which concerned poor resettlement: Overlaying all these concerns was prisoners frustration about the poor resettlement provision. Prisoners perceptions about resettlement at Ford were significantly worse than other open prisons. For prisoners who had served long sentences, processes like release on temporary licence were critical steps in preparing them for the eagerly anticipated, but sometimes bewildering, world outside prison and they needed a range of practical support with getting a roof over their heads, some sort of job, rebuilding family relationships and so on to prepare for law-abiding and useful lives after release. Prisoners were frustrated by poor communication about what was available and a lack of staff resources in the offender management unit (OMU) which administered these processes. HMP Hatfields resettlement processes have been described as disappointingly weak for a resettlement prison and it was reported that there was little proactive work to support prisoners in preparing for leading productive and law-abiding lives on release. (HMIP report, 2010). Although HMIPs report on Leyhill 2012 noted an increase in the numbers of prisoners that were undertaking paid or community work outside of the prison and

28

HM Inspectorates of Prisons and Probation (1999) Lifers: A joint review by Her Majesty's Inspectorates of Prisons and Probation, HM Inspectorates of Prisons and Probation, London. Available at http://www.justice.gov.uk/inspectorates/hmi-prisons/docs/lifers-rps.pdf

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there were sufficient activity places for all the men held at the prison, the report highlighted general concerns about the lack of a strategic approach to resettlement: Resettlement support was not managed strategically and did not ensure that the support and interventions that the men received were matched to their needs and risks (HMP Leyhill, HMIP report, 2012). In order to maximise opportunities for effective resettlement, it is essential that ROTL schemes are well managed. While HMIP reports reveal some good practice (see, for example, HMP Sudbury, HMIP report, 2010; HMP Prescoed, HMIP report, 2010and HMP Kirkham, HMIP report, 2010), several establishments are criticised for poor practice in relation to ROTLs. For example, at HMP Leyhill, the inspectorate noted that the process of granting release on temporary licence took too long and was too restrictive (HMP Leyhill, HMIP report, 2012). In the annual IMB report of HMP Ford, published in October 2011, the Board was concerned that a policy had recently been adopted of discontinuing two escorted town visits that were recommended for Life Sentence and IPP prisoners before commencing ROTL unless they have served more than 10 years. The reason for this cut back is cited as the lack of funding, increase in ISP prisoners and insufficient staff to carry out these duties. However, it is noted that this practice reflects the policy set out in PSI 36/2010(see page 7). The ability to levy prisoners wages under Prisoners Earning Act 1996 was implemented by the coalition government in 201129. However, the implementation of the levy through PSI 48/2011 does not accurately reflect the original Act. It instead solely implements one part of the original intention; to impose a levy of 40% to every prisoner in paid work whose net earnings are in excess of 20 per week. The levy is paid to Victim Support. Widespread concern over this scheme led to the very quick amendment in PSI 76/2011 which maintained the essential features of the scheme but allows for governors discretion in applying the levy. A governor may exercise discretion not to impose the levy in exceptional circumstances, as laid out in Annex B of the PSI. The imposition of this levy may have an impact on resettlement, especially where a prisoner would otherwise use his or her earnings to save for a rent deposit or other practical necessities upon release. At present, the levy is not discounted as disposable income for the purposes of determining eligibility for legal aid. Lack of Support and Insufficient Resources One problem noted during inspections is that open prisons are not sufficiently supportive. In her introduction to the HMIP report on Askham Grange in 2008, Her Majesty's Chief Inspector of Prisons noted that: [O]pen prisons, despite their relatively compliant population, are not always positive and supportive environments: too often they are merely waiting rooms on the way to release. The inspection of Hatfield in 2011 found that:
29

Much of the information here is based on the presentation by Andrew Sperling at the APL conference.

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Open prisons a legal briefing

Arrivals had to rely on informal support from other prisoners to answer their questions and help them settle in. The assumption seemed to be that prisoners arriving at Hatfield had plenty of experience of the prison system and were low risk so needed little support. In fact, prisoners who had come to Hatfield from long periods in closed prisons told us they found their introduction to the open condition of Hatfield bewildering and stressful . A month prior to the riots, the inspection of Ford (HMIP, 2011) noted that: Open prisons have relatively small numbers of staff and depend much more than closed prisons on positive relationships or dynamic security to run smoothly and safely. At Ford, we were concerned that this dynamic security was undermined by poor staff-prisoner relationships. Lack of funding for resources was a cause of concern in at HMP Sudbury (HMIP, 2010) where it was noted that lack of funds had led to a backlog in some offender management assessments. The IMB report of North Sea Camp for 2012 identifies that: Demands on the budget, when management is being asked to reduce overall spending and staff time will make it difficult to support and sustain the desired resettlement programmes that facilitate the re-integration of prisoners into their local community. High unemployment in the area adds to an already difficult resettlement problem. Difficulties in Managing Diverse Populations Another problem highlighted by HMIP reports is the difficulties faced by open establishments in managing indeterminate sentence prisoners alongside determinate sentenced prisoners given their different needs. The riots that took place at HMP Ford in December 2010 led to criticism of open prisons in the media and called into question whether or not establishments should house prisoners serving both short and long term sentences: For me, open jails should just be for people who need to be resettled and need help to get used to the idea of getting out. The people who started the riot at Ford probably just had a few weeks or months to do and just didn't care30 In the full-inspection report of HMP Ford in November 2010, it was stated that the majority of prisoners were serving long sentences and the pressure on the Offender Management Unit was exacerbated by the 10% of prisoners serving short sentences. Little was available for these prisoners and they too were frustrated, but unlike longer-term prisoners, they have little investment in the regime (HMP Ford, HMIP report, 2010).

30

http://www.guardian.co.uk/society/2011/jan/13/open-prison-no-holiday-camp

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Similar concerns were expressed in the report on Hollesley Bay in 2009 where it was noted that open prisons have had to manage a more diverse population in recent years, including some prisoners with very little time left to serve, who, as a result may have little incentive to exercise the self-discipline required in low security conditions. The removal of the limit on the number of indeterminate sentence prisoners that open prisons house will inevitably further impact on this tension. Some issues that may concern legal practitioners The absence of any open facility for women using wheelchairs The lack of appropriate resources to sustain meaningful contact with between women and their children The inevitable distance between most open establishments for women and young adults from home due to the small number of facilities available The absence of sufficient open facilities for young adult sex offenders The absence of open conditions for children The segregation of FNPs on arrival at an open establishment to check their status and absence of consistency for FNPs across the estate The absence of dedicated or suitably adapted provision for older and/or disabled prisoners The lack of real life work, budgeting experiences and opportunities to save for resettlement Effective bars to transfer for those subject to confiscation/restraining orders, FNPs, those with learning difficulties and those identified of being in need of behaviour work that is not delivered.

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Open prisons a legal briefing