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For the past few years, the hope of spending the end of his 16-year sentence in an ‘open’ prison where he could spend more time with his family, travel to university during the week to conduct research for his PhD, and begin making plans for his future beyond prison, has kept Mark going through the hardship and extreme isolation of 23 hour-a-day lockdown during the pandemic. For the vast majority of long-term prisoners, time spent in an open prison is an essential pit stop along the road to release, enabling them to reacclimatise to life outside after lengths of imprisonment many of us would struggle to contemplate, let alone survive.

On 19 July 2022, Mark and his family received the awful and shocking news that – under new rules announced by the government on 6 June 2022 – he was no longer considered eligible for a move to open conditions. Instead, he is expected to remain in a ‘closed’ prison until his tariff expires in 3 ½ years’ time. The Public Protection Casework Section (PPCS), responsible for implementing the new rules, seem to be interpreting them in the narrowest and strictest form possible.

In their view, because Mark is maintaining his innocence, moving him to an open prison would “undermine public confidence in the criminal justice system”. The decision letter from PPCS rather unhelpfully assures Mark that “denial is not a barrier to your progression” while, in the very next breath, denying him that very progression. The cruel irony is that if Mark was actually guilty, he would have spent less time in prison and already be in open conditions, if not free altogether. Anyone who pleads guilty receives up to a 5-year reduction in their sentence (16%). Mark also turned down a manslaughter plea-bargain before trial which would have seen him serve just 5 years of a 10-year sentence. Whichever way you look at it, Mark has already been ‘punished’ for maintaining his innocence, making this latest decision all the more appalling. You can download our quick fact sheet here.

The decision comes in the same week that Mark’s successful letter writing campaign prompted the Law Commission to launch a review to consider reforming the criminal appeals process – and just a few months after Mark championed media rights to access prisoners maintaining innocence in a Judicial Review challenge against the Ministry of Justice, currently awaiting appeal, leading some to question whether this latest decision by the MOJ is malicious.

As @Parole_Board advised, by not using open prisons to help prisoners reacclimatise to life outside, "some of the most complex individuals will be released directly from closed conditions into the community, with less certainty on how they might behave". What a mess.

— Mark Alexander (@PatientCaptive) October 4, 2022

Collateral Damage

Stuart Andrew MP, in his letter to the Prison Reform Trust of 16 July 2022 bemoaned:

The recent abscond of several high-risk prisoners [which] gave cause for concern. The Deputy Prime Minister’s view was that we must make these changes to ensure public protection. These prisoners present an unacceptable risk to public protection and have a detrimental impact on public confidence in the criminal justice system. This is not something we are prepared to allow to continue, hence the change to the test”.

The response from PPCS however, overshoots its target by miles. Instead of focusing on high-risk prisoners, prolific offenders, and absconders – the policy seems to be being applied much more liberally and widely to include even model prisoners, like Mark, who fall far outside of these targeted categories. This could not have been the intention of Dominic Raab and his colleagues, and needs to be brought to their attention as quickly as possible so that they can modify the policy’s application before widespread havoc occurs.

PPCS_Letter

PPCS’ assessment of ‘public confidence’ in Mark’s specific case falls flat. No evidence is given to demonstrate that large numbers of people would even bat an eyelid, let alone have their confidence undermined, by his transfer. As Mark reflects,

How can ‘public confidence’ ever be reliably measured, and who is measuring it? It doesn’t make any sense. They have introduced an entirely political element into what should be a purely legal process. Our laws are supposed to be invulnerable to the caprices of current and future governments, but this policy actively enables governments to appeal to their hardest-line voter base whenever they need a boost in the polls.”

Unless and until this changes, the collateral damage will cause immeasurable harm to prisoners and their families who – having endured long periods of separation – yearn for the day when they can finally be reunited. As Mark’s mother explains:

After requesting a transfer on Mark’s behalf, myself and the family successfully managed to have him moved to HMP Coldingley in 2016. However, now, he needs to be moved on again to an open prison and have freedom to progress further and fulfil his ambitions to complete a PhD. He deserves this opportunity. We really hope Mark can be given the support to make it possible.”

Mark’s mother was only reunited with Mark after his arrest, having been a victim of parental alienation. Writing to the Probation Service in 2021, she described how:

I’ve become a more complete, happier person now that Mark is back in my life, and he’s given so much to us all as a family. Please help Mark move to an open prison where we would get to do more normal family activities. Mark’s sister would get to spend quality time with him, and I would be making up for lost years. We only wish Mark gets the best out of life.”

Retrospective Effects

The timing of these changes has been extremely unfortunate for Mark, whose application had already been in the system for 6 months before the rules changed. He had been given every indication up until that point that he would be successful. In October 2021 the Probation Service conducted a Sentence Planning and Review Meeting which concluded that Mark’s objectives needed to be continued “within the Open Estate, as part of a structured resettlement programme to begin the process of rehabilitation back into the community, and attending university during the week”. Specifically:

“Mr Alexander has not been able to complete interventions as he has not been assessed as suitable for them. He has however, undertaken intensive counselling to address his unconventional upbringing. I do not consider closed conditions to offer any further development opportunities and, as such, I recommend that Mr Alexander undergoes a pre-tariff Parole review so that he can be considered for open conditions”.

PPCS initially supported Mark’s application, granting him an advancement on 18 January 2022 that brought his case forward by 6 months. However, once the new regulations came into effect, they seem to have changed tack, completely ignoring the recommendations of the Probation Service and arguing that “the level of risk you pose has not been thoroughly assessed”.

Assessing ‘risk’ for prisoners maintaining innocence

One of the many absurdities of this situation arises from the fact that Mark has never been to prison before, placing him at a disadvantage compared to prolific and repeat offenders. Anyone who has previous convictions is able to participate in Offender Behaviour Programmes (OBPs) even if they maintain their innocence in relation to their current sentence. Working on previous offending history enables these prisoners to reduce their ‘risk’ scores, but this simply isn’t possible for someone like Mark who has no previous convictions. This means he is now being penalised by PPCS because his ‘risk’ levels have not been “explored in any great detail”.

None of this reflects the reality that Mark has repeatedly been frustrated in his efforts to apply for these types of courses over the years. Mark has always sought to demonstrate that he has nothing to hide and is happy to discuss any concerns the authorities might have. Signing up for a ‘Thinking Skills Programme’, however, Mark was told that his risk levels were simply ‘too low’ for him to participate:

You do not meet the need criteria at this stage, and therefore we will not be offering you a place on the programme”.

Similarly, a Therapeutic Community informed him that “we do not accept applicants that are in the appeal process, as responsibility for the offence is a core part of the work”. No other courses are available for people in Mark’s position. After much negotiation, the Probation Service eventually agreed to commission a mental-health counselling report to explore potential ‘triggers’ from Mark’s “unconventional childhood”. Twelve months later, and after 45 hours of in-depth therapy, the conclusion was reached that Mark – whilst “open to the disclosure of his difficult upbringing and exploration of the psychological and emotional effects” – has “no historic or current issues” of concern.

The Probation Service’s own risk scoring system, which takes a broad array of historic and current lifestyle factors and behaviour into account, unsurprisingly categorises Mark as very low risk of reoffending. With “no evidence of negative or pro-criminal attitudes” their assessors concluded that “the set of circumstances that led to this offence are highly unlikely to be replicated”. Yet none of this careful analysis seems to have been taken into account in the decision PPCS have now reached.

The Lord Chief Justice, in Owen John Oyston [2000] EWCA Crim 3552, was of the view that prisoners maintaining innocence are less likely to reoffend than other prisoners because they want to clear their names. This “ambition would be fatally undermined if he were to be convicted again” (para. 44)

The Supreme Court ruled that (paras. 26 and 43):

it is quite wrong to treat a prisoner’s denial as necessarily conclusive [of risk] … It is unlawful for the Parole Board to deny a recommendation for parole on the ground that the prisoner continues to deny his guilt”.

“It is quite wrong to treat a prisoner’s denial as necessarily conclusive [of risk] … It is unlawful for the Parole Board to deny a recommendation for parole on the ground that the prisoner continues to deny his guilt” – Lord Justice Pill Owen John Oyston [2000] EWCA Crim 3552

— Mark Alexander (@PatientCaptive) August 19, 2022

According to the Ministry of Justice’s Security Categorisation Policy Framework (para 7.15), ‘risk’ should be calculated based on “all available information, and positive aspects of behaviour must be taken into account as part of the assessment, including the extent to which the individual engages successfully with the prison regime, work and training opportunities”. Moreover, “staff must look to other sources of information regarding suitability for the lower category [prison]” when a prisoner has been unable to participate in Offender Behaviour Programmes (para. 7.16). This basic principle is reiterated in Casework Policy and Practice Guidelines to Probation staff regarding prisoners maintaining innocence (Chapter 9 – issued November 2012). PPCS seem to have completely ignored these criteria when applying the new policy for applications to move to an open prison.

Defining ‘Essential’

The second aspect of the reforms that Mark has fallen early casualty to is the requirement that:

A period in open conditions is considered essential to inform future decisions about release, and to prepare for possible release on licence into the community”.

Dominic Raab’s ‘Root and Branch Review of the Parole System’, published in March 2022, and which sparked the current reforms to the transfer process, appears to have been much more focused in its approach (para. 43):

A new threshold will be applied, such that the prisoner must not only be assessed as low risk of abscond, but that a specified and clear purpose for a time in open conditions must be articulated, including an explanation of why that purpose cannot be met in a closed prison”.

As the Review recognised (paras. 109 and 107):

Open conditions have benefited some life and indeterminate sentence prisoners, particularly after a longer period of incarceration in closed conditions, by helping to refamiliarize them with life in the community. This move is a key part of the progression in a prisoner’s journey through their sentence… However, public confidence in open prisons is undermined whenever a lifer or IPP prisoner absconds”.

The approach being adopted by PPCS however, is much stricter. Rather than simply requiring a ‘specified and clear purpose’ as indicated by Dominic Raab, PPCS are asking for something more – namely that the move is absolutely necessary. Decompression and re-acclimatisation to society after decades in prison simply isn’t being seen as ‘essential’ anymore. In this upside-down, topsy-turvy world, the fact that Mark has been able – through sheer force of will – to obtain both a Bachelors and a Masters degree in closed conditions is now being used against him as evidence that he doesn’t ‘need’ to move to an open prison:

Your educational achievements to date, as just one example, evidence your ability to progress in this area in a closed establishment… You are encouraged to expand on the progress you have made, to include your excellent educational achievements within a closed establishment”.

This, in spite of the Probation Service’s view that Mark has quite obviously exhausted all that can realistically be achieved in a closed prison environment, and can only build on this progress now from an open prison. His aspiration to pursue further postgraduate education in an open prison can only be met by attending university in person during the week, where he can participate in the wider research culture of the Institute.

Putting his time in prison to good use has been a really important part of Mark’s journey over the past twelve years or so. After completing his Grade 8 Piano at HMP Gartree, and a Diploma in Music Performance with the Associated Board of the Royal Schools of Music (DipABRSM), he went on to complete a Bachelor’s degree in Law (LL.B.), achieving a 2:1 with Honours. Since then he has graduated with Merit from UCL through the University of London, following a 2-year Master of Laws (LL.M.) degree, and was subsequently elected as an Associate of King’s College London (AKC) in October 2020.

Mark was chosen for the Patrick Pakenham Award for Law by the Longford Trust in 2016, an annual scholarship prize usually awarded to ex-prisoners, and has had a number of papers published since then, including in the Prison Service Journal, Criminal Law and Justice Weekly, and the international Journal of Prisoners on Prisons. He recently contributed a short chapter to ‘Writing Within Walls’, a collection of short stories and essays on the theme of ‘hope’ in prisons; and has also been published in ‘Crime and Consequence’, a book produced by Clinks and the National Criminal Justice Arts Alliance, which was turned into a podcast series.

From closed conditions Mark has submitted written responses to two Government Consultation Papers on behalf of the 400 men at HMP Coldingley (Prisons Strategy White Paper, 2022; Reconsideration of Parole Board Systems: creating a new and open system, 2018), as well as submitting written evidence to the Westminster Commission on Miscarriages of Justice drawing on his own lived experience (2019). Over the past 12 years Mark has been invited to represent the views of prisoners in numerous meetings, including with the then Under Secretary of State for Justice, Andrew Selous MP in 2015; Michael Gove MP in 2022; the Chief Inspector of Prisons in 2014; the Prisons and Probation Ombudsman in 2015; the Director of the Butler Trust in 2019; and the Director of the National Careers Service in 2014. He has even directly participated in consultation meetings with various departments and Policy Leads at the Ministry of Justice (2022, 2018, 2013).

Calling the government out

Mark and his family have of course been devastated and shocked by this unexpected decision, and are currently seeking legal advice on how best to challenge it. The misguided, short-sighted way in which this policy has been interpreted and implemented is disastrous.

We call on all organisations, practitioners, and affected parties, including prisoners’ families, to work together – forming a coalition that can raise awareness of these problems amongst the general public, and petition the government to modify and amend its approach. Whilst our primary concern is the impact on prisoners maintaining innocence, we recognise the appalling effects this policy will have on the lifer population as a whole.

The irony is that in seeking to boost public confidence about the parole system, this government has introduced policies that will catastrophically undermine any confidence that remains if nothing is done now to change the way they are being applied. We would encourage anyone affected or concerned by this decision against Mark to write to their local MP and / or Dominic Raab directly to ask them to intervene.

Update

In February 2023, The Ministry of Justice voluntarily withdrew its decision not to refer Mark’s pre-tariff sift to the Parole Board, without accepting liability. This means that the judicial review proceedings are now over. The Ministry of Justice has pledged to retake its decision.

We very much welcome this step forward. Whilst the policy will not now be scrutinised in the Courts, our hope is that the Ministry of Justice will take this opportunity to review its own policy internally.

In the meantime, Mark is essentially back to where he was in September 2021, when he originally applied for his pre-tariff sift. We hope that it will be possible to make up for lost time, and look forward to a more positive outcome for Mark.

In July 2023, the Government announced that they have now amended the contentious policy, effectively reversing the changes brought in by Dominic Raab. We are grateful to everyone who lobbied on Mark’s behalf, and on behalf of so many others, to make this possible.