22 March 2025
Until November 2024 when a person serving an indeterminate sentence for public protection was recalled to prison, the only route out was via the Parole Board.
This was true even if everybody agreed that the person could be safely re-released. The consequence was that people in that situation often had to wait for an unnecessarily long time for their release to be directed.
Over half of all people in prison on these sentences are back in prison having been released and subsequently recalled. The average time spent on recall in prison is over two years (28 months).[1]
RARR for people recalled serving IPP and DPP sentences
I was therefore really pleased that the Victims and Prisoners Act 2024 changed the law to allow the Secretary of State to direct the re-release of a person on an indeterminate sentence of imprisonment or detention for public protection (an IPP or DPP).[2] The process used to be called executive release and is now called Risk Assessed Recall Review’ or RARR.
I recently asked how many people had benefitted from this, under the Freedom of Information Act. The answer is here):
“Since the introduction of the Victims and Prisoners Act 2024, the Secretary of State for Justice has agreed the re-release of 21 offenders serving either a IPP or DPP sentence through the RARR process, as of 20 March 2025.”
When the power was brought in, I was unsure whether it would be used effectively. This response is encouraging.
Parallel processes – RARR should not delay a Parole Board review
But the system has not been without problems. RARR decisions so far have been taking a long time for people in IPP and DPP sentences. It recently became clear that the Secretary of State was holding cases back from being referred to the Parole Board while a RARR took place. I could not see any legal basis for this. When I asked what that might be, I was pleased to be told that, from Friday 21 March 2025, all cases would be referred to the Parole Board while the RARR review continued. Again, this is good news, as the new provision was introduced as part of a suite of measures to open up more possible avenues of safe release, and should not have been used as a reason to delay access to release by the Parole Board.
Practice points
Lawyers have had to adapt quickly to make sure we are making the best use of all the new provisions for our clients.
I therefore thought it might be helpful to set out a few practice points here.
Funding
Legal aid for prison law is in a dire state. It was left out of the modest 15% rise recommended by Lord Bellamy and agreed for other areas of criminal law. It is hoped that the announcement in December 2024 of additional funding for criminal law may at least rectify this. In the meantime, the number of lawyers prepared to do this work (for which funding has decreased in real terms by over a third in the last 15 years) is decreasing.
Representations for release under the new RARR provisions fall within the scope of the legal aid contract. The Criminal Bills Assessment Manual states this at §13.10.2 which states:
“The scope of Parole Board cases also covers recall. This will include recall cases where representations are made to the Public Protection Casework Section (PPCS) who will assess the representations and decide whether to release the prisoner using the Secretary of State’s executive powers of release or to refer the prisoner to the Parole Board.”
However, the additional work falls under the meagre fixed fee for written Parole Board work.
The legal test
Section 32ZZA of Crime (Sentences) Act 1997 (life sentences) “Imprisonment or detention for public protection: powers in relation to release of recalled prisoners” states:
(1) This section applies where a prisoner to whom section 31A (termination of licences of preventive sentence prisoners) applies—
(a) has been released on licence under this Chapter, and
(b) is recalled to prison under section 32.
(2) The Secretary of State may, at any time after the prisoner is returned to prison, release the prisoner again on licence under this Chapter.
(3) The Secretary of State must not release the prisoner under subsection (2) unless satisfied that it is no longer necessary for the protection of the public that the prisoner should remain in prison.
(4) Where the prisoner is released under subsection (2), the Secretary of State may determine that, for the purposes of paragraph (c) of section 31A(4H) (automatic licence termination), the prisoner’s licence is to be treated as having remained in force as if it had not been revoked under section 32.
(5) The Secretary of State may only make a determination under subsection (4) if the Secretary of State considers that it is in the interests of justice to do so.
(6) Where the Secretary of State makes a determination under subsection (4), the Secretary of State must notify the prisoner.
The context of the new legal framework is important to acknowledge when implementing the new rules. The relevant Government Minister overseeing the reform in the Lords, stated on 21 May 2024:
“I fully share the desire to use this opportunity to do all that we reasonably can to help offenders serving the IPP sentence to progress towards release, where that is safe to do so. To that end, we have brought forward four substantive government amendments and are taking other important measures as well. Indeed, progressing IPP licence termination and swiftly considering cases for release remain one of the top priorities for HMPPS and this Government, and I emphasise that.”
The new administration endorsed the changes brought in by the Victims and Prisoners Act 2024, with the new Lord Chancellor stating in July 2024 in the House of Commons that “[w]here possible, I want to make progress where IPP prisoners are concerned.”
The test that the Secretary of State applies in considering executive release as part of a RARR mirrors existing case law, that release should not be directed unless the Board is satisfied it is no longer necessary for public protection for the person to be confined.
At the point when the Secretary of State considers executive release, she can also consider whether the period on recall should count towards the two clear years required for those who were first released more than three (for IPPs) or two (for DPPs) years ago. I have also asked an FOI on how many times that discretion has been exercised.
Making representations
The RARR process is outlined in the Recall, review and re-release of recalled prisoners policy framework (see §4.14 and §6.12). There is, of course, a right to make representations, although this is not built in a specific step in the policy.
There is a functional email to send RARR reps to (RARR@justice.gov.uk) or the PPCS caseworker can forward them on.
Given the wide range of decisions that can be made at the point of recall, practitioners might want to prepare a single document addressing the following:
- Why the person should be released following RARR
- If the person has already reached their qualifying period, why it is in the interests of justice for the period since the recall not to count towards the two-year period after which the licence will automatically expire.
- Why, if referred, the Parole Board, release should be directed on the papers and/or alternative arguments for an oral hearing
Addressing all relevant points in the initial representations may help to avoid further delays along the line.
It is good to see the changes from the Victims and Prisoners Act 2024 kicking in but the “stain” of the sentence remains and there is still much to do.
[1] Latest data on this was published in July 2024 – see Table 5.11, Licence Recalls Jan to Mar 2024: https://www.gov.uk/government/statistics/offender-management-statistics-quarterly-january-to-march-2024
[2] IPP sentences apply to anyone convicted aged 18 or over and DPP sentences apply to people who were convicted when under the age of 18.