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Victims and Prisoners Act 2024

Contents

Legal background

The Victims’ Code

  1. The duty to issue a Code of Practice (the Victims’ Code) and the procedure for doing so are already set out in primary legislation. The current provisions are sections 32 to 34 of the Domestic Violence, Crime and Victims Act 2004. This Act repeals and restates these provisions in the 2004 Act with amendments, in addition to setting out the key principles that must be reflected in the services provided for in the Victims’ Code and giving the Secretary of State a power to make regulations setting out further matters which the Victims’ Code must reflect. It also includes a new procedure for making minor amendments to the Victims’ Code.

Restricting parental responsibility when one parent kills the other

  1. The Children Act 1989 (‘the Act’) defines parental responsibility as all the rights, duties, powers, responsibilities and authority that a parent of a child has in relation to the child and their property by law (section 3 of the Act). A child’s mother will always have parental responsibility for her child (section 2 of the Act). If the parents are not married or in a civil partnership with each other when the child is born, only the mother automatically has parental responsibility. The unmarried father can acquire parental responsibility in a number of ways set out in primary legislation.
  2. More than one person can have parental responsibility for a child at the same time, and a person with parental responsibility does not lose it solely because another person acquires parental responsibility (sections 19 and 52 of Adoption and Children Act 2002). If more than one person has parental responsibility, each can act independently unless there is a statutory requirement to consult the others (section 2(7) of the Act).
  3. In cases of disagreement between those with parental responsibility an individual can apply to the court for an order under section 8 of the Act. Section 8 makes provision for a prohibited steps order (PSO). A PSO is an order that means that no step which could be taken by a parent in meeting their parental responsibility, and which is of a kind specified in the order, shall be taken by any person without the consent of the court.
  4. Section 9 of the Act provides detail on the restrictions that apply when a PSO is made. Section 10 of the Act outlines the power of the court to make a PSO.

Confidentiality clauses and non-disclosure agreements

  1. Under common law, confidentiality clauses are unlikely to be enforced in respect of disclosures about crime to the police and other bodies which investigate and prosecute crime. The provisions in relation to confidentiality clauses and non-disclosure agreements clarify the common law position in primary legislation and set out which disclosures are permitted under the Victims and Prisoners Act.

Victim impact statements in the Mental Health Tribunal

  1. Chapter 2 of the Domestic Violence, Crime and Victims Act 2004 contains entitlements for victims of certain offenders to make representations about certain matters and receive information in specified circumstances. Section 36 sets out entitlements for victims of offenders who are subject to hospitals orders (pursuant to s.37 of the Mental Health Act 1983) with or without restriction orders (which, if imposed, are done so pursuant to s.41 of the Mental Health Act 1983). Section 37 contains further provision around the procedure for handling victim representations in cases where a restriction order is made. This Act inserts new entitlements relating to victim impact statements into the existing framework in Chapter 2. This is inserted after section 37 as it applies in the same circumstances, namely where the offender is subject to a hospital order with a restriction order.

The Commissioner for Victims and Witnesses

  1. The provisions in relation to the Commissioner for Victims and Witnesses are set out in primary legislation. The current provisions are sections 48 to 54 of the Domestic Violence, Crime and Victims Act 2004. This Act will continue to be the main Act dealing with the Victims’ Commissioner, and this Act inserts new provisions into the 2004 Act.

Inspectorates

  1. The relevant provisions relating to joint inspections in respect of the following inspectorates are set out in primary legislation as follows:
    1. The Police Act 1996 sections 54-56 and Schedule 4A
    2. The Crown Prosecution Service Inspectorate Act 2000 sections 1 and 2 and the Schedule
    3. The Criminal Justice and Court Services Act 2000 sections 6 and 7 and Schedule 1A
    4. The Prison Act 1952 section 5A and Schedule A1.
  2. These Acts will continue to be the main Acts dealing with inspectorate powers, and this Act inserts new provisions into the schedules of the above Acts.

The Parliamentary Commissioner

  1. The provisions in relation to the Parliamentary Commissioner are set out in primary legislation. The relevant provisions for the purposes of this Act are sections 5, 6 and 10 of the Parliamentary Commissioner Act 1967. This Act will continue to be the main Act dealing with complaints referred to the Parliamentary Commissioner in relation to Government departments, and this Act inserts new provisions into the 1967 Act.

Victim information requests for the purpose of criminal investigations (etc.)

  1. The provisions in relation to victim information requests (third party material requests) for the purposes of criminal investigations insert new sections 44A-44F (Chapter 3A) into Part 2 of the Police, Crime, Sentencing and Courts Act 2022. The provisions introduce a new statutory duty on policing when making such requests.
  2. The processing of the victim’s personal information by policing pursuant to such requests will be regulated by the Data Protection 2018, the UK GDPR and the Human Rights Act 1998.

Right to erasure of personal data

  1. The EU GDPR was incorporated into UK law at the end of the EU Transition Period under section 3 of the European Union (Withdrawal) Act 2018 (EUWA 2018) and modified by the Data Protection, Privacy and Electronic Communication (Amendments etc) (EU Exit) Regulations 2019 under the power in section 8 EUWA 2018 to create the UK GDPR.
  2. Under Article 17 of the UK GDPR, individuals have the right to have personal data erased unless one of the grounds in Article 17(1) apply. This right does not apply if processing the data is necessary for particular purposes (as set out in Article 17(3)) which includes where processing is necessary for the performance of a task carried out in the public interest.

Advocates for major incidents

  1. The provisions that create advocates for major incidents are new. Section 41 amends section 47 of the Coroners and Justice Act 2009 so that an advocate appointed to assist victims of a major incident will be an interested party to an inquest arising out of that major incident.
  2. Section 46 "consequential amendments" inserts "An advocate for victims of major incidents appointed under Part 2 of the Victims and Prisoners Act 2024" into: paragraph 3 of Schedule 1 to the Public Records Act 1958; Schedule 2 to the Parliamentary Commissioner Act 1967; Schedule 1 to the House of Commons Disqualification Act 1975; Part 6 of Schedule 1 to the Freedom of Information Act 2000; and Schedule 19 to the Equality Act 2010.
  3. The effect of these changes is that: the Public Records Act 1958 applies to advocates and will require an advocate to take steps to preserve records; advocates will also be subject to the Parliamentary Commissioner Act 1967 which sets out the circumstances when the Commissioner can investigate a written complaint which is made to a member of the House of Commons; advocates will be disqualified from membership of the House of Commons; advocates will be a "public authority" as defined by the Freedom of Information Act 2000 and finally, the public sector equality duty also applies to advocates.

Parole eligibility

  1. Sentences of imprisonment are generally served part in prison and part in the community. Some types of sentence (for offenders who are more serious or dangerous) will be subject to discretionary release by the Parole Board (‘parole eligible sentences’). Apart from standard determinate sentenced offenders who have not committed a terrorism offence (who are entitled to automatic release by the Secretary of State), all other types of sentence are parole-eligible at prescribed points. Determinate sentenced parole-eligible prisoners in England and Wales must be referred to the Parole Board, and subsequently released in accordance with the provisions contained in Chapter 6 of Part 12 of the 2003 Act which includes the legacy release provisions of the Criminal Justice Act 1991 which are restated in Schedule 20B of the 2003 Act. All indeterminate sentences are parole-eligible, and indeterminate sentenced prisoners who have reached the end of their minimum term are dealt with in accordance with Part 2 of the 1997 Act.
  2. All offenders recalled to prison following an increase in their risk to public safety will go before the Parole Board for a decision on re-release or, where not released, confirming continued detention. Determinate sentence prisoners can also be re-released by the Secretary of State through a process called Risk Assessed Recall Review.. Recalled determinate prisoners are dealt with via sections 254 to 256AZB of the 2003 Act; recalled indeterminate prisoners are dealt with under section 32 of the 1997 Act.

Public protection test

  1. Where the Parole Board has the function to determine release, it does so by applying the release test, also known as the public protection test, determining whether it is no longer necessary for the protection of the public that the offender remain confined, in order to decide if the offender should be released on licence. The release test has been subject to significant judicial commentary. In R v Parole Board, ex p. Bradley [1991] 1 WLR 134, the High Court held that the release test for indeterminate offenders whose minimum term had ended was a balancing exercise between the legitimate, but conflicting interests of both the prisoner and the public, and that the threshold to be met involved the risk posed being not merely perceptible or minimal. This concept of a balancing exercise was referred to again by the Court of Appeal in R (Brooke) v Parole Board [2008] 1 WLR 1950, where the Court was considering both determinate and indeterminate parole-eligible offenders.
  2. A different position was established in the case of R (King) v Parole Board [2016] EWCA Civ 51, where the Court of Appeal made it clear there was no balancing test involved in the release test, and the threshold was simply if there is a more than minimal risk of harm if the prisoner was to be released, confinement of the prisoner will be required to avoid that risk. The changes to the public protection test in the Act codify the principles set out in King within the release test to create consistency in application and put beyond doubt the threshold the Board must apply.
  3. Part of the clarification of the public protection test is to codify some of the key matters which the Board must consider when taking their decision. The Board is already required to take all relevant matters into account when taking their decisions (and the drafting makes it clear that the list does not fetter the matters the Board can take into account when making the decision); however, taking the approach of listing the significant considerations will put beyond doubt those matters upon which the public protection test focuses. This approach is based on the approach taken in Ireland via section 27(2) of the Parole Act 2019 (IE) and section 1 of the Criminal Justice (Temporary Release of Prisoners) Act 2003 (IE).

Secretary of State’s power to refer a case

  1. In the past, the Secretary of State for Justice had an oversight role as to release of prisoners under section 35(2) of the Criminal Justice Act 1991. Long term and life prisoners could be made subject to release on licence if the Board recommended release, subject to the Secretary of State agreeing that release following consultation with the Lord Chief Justice and trial judge. This mechanism was amended following several cases, including that of Stafford v United Kingdom (46295/99), where the European Court of Human Rights held that ongoing post-minimum term detention requires determination of lawfulness by a court, in accordance with Article 5(4).
  2. The new measures in the Act restores oversight of the Secretary of State in the release of the most serious and dangerous offenders (the top tier), by creating the power, if the release of the prisoner would likely undermine public confidence in the parole system and there is the chance the court may not be satisfied the release test is met, to refer that case to the High Court. The High Court will then determine the release test afresh.

Interpretive provision relating to Convention rights and the release legislation

  1. The Act contains interpretive provision in relation to judicial reviews of, and other legal challenges to, the release legislation, and decisions made under the release legislation.

Imprisonment or detention for public protection: termination of licences

  1. The IPP Sentence was introduced by the Criminal Justice Act 2003 (the 2003 Act) and could be imposed from 2005. The intention behind the sentence was to provide a means of managing high risk prisoners, who were convicted of an offence where the offender would be liable to imprisonment for life, but the court did not consider that the seriousness of the offence was such to justify the imposition of a sentence of imprisonment for life. In those cases, the courts had to impose an IPP sentence.
  2. Amendments were made in 2008 to give the court a discretion to impose the IPP sentence and to restrict it to cases where at least a two-year tariff would be imposed, or where the offender had committed, or previously committed, an offence in Schedule 15A of the 2003 Act (the more serious violent or sexual offences).
  3. The sentence is an indeterminate sentence where, similar to a life sentence, the courts will set a minimum term (tariff) commensurate with the offending which had to be served in full in prison This is the punitive part of the sentence. Post tariff the offender is serving the preventative part of the sentence and if safe to be managed in the community they can be released.
  4. The current position is that at the end of the tariff, and at least every two years after, the Secretary of State must refer the case to the Parole Board, who either release or confirm the further detention of the prisoner. The Parole Board are required to apply the statutory release test as set out in s28(6) of the Crime (Sentences) Act 1997 (the 1997 Act). The statutory release test is that the Parole Board must be satisfied that it is no longer necessary for the protection of the public for the offender to be confined.
  5. If released, IPP offenders are then subject to a life licence. However, in contrast to life sentence prisoners (and the only difference between the sentences), an IPP prisoner can have their licence terminated at the discretion of the Parole Board, once ten years has elapsed from the offender’s first release by the Board. If not terminated at that, or subsequent points, the IPP licence could last indefinitely. Following an amendment in the Police, Crime, Sentencing and Courts Act 2022 (PCSC Act), offenders are automatically referred to the Parole Board for possible termination of the IPP licence, once the qualifying period (currently ten years) has elapsed from their first release by the Parole Board, and annually thereafter.
  6. The Secretary of State refers the case to the Parole Board at the end of the qualifying period (regardless of recalls or whether the offender is recalled and in custody at the point of referral) and annually thereafter, for the licence to be revoked. An IPP sentence is not ended until the Parole Board has decided to revoke the licence. Where offenders are recalled on the IPP sentence at this point, then the ending of their sentence will not take effect until they are next released.
  7. From 4 December 2012, the IPP sentence was abolished by s123 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) because the perception was that it was used too widely and inconsistently with relatively short tariffs in many cases. This abolition was not applied retrospectively so as to not alter lawful sentences that had been imposed prior to the abolition.
  8. Those who had already been sentenced to, and are serving an IPP sentence in prison, continue to be detained either because they had not yet served the tariff or they had served the tariff, and the Parole Board have determined that their risk remains too high for them to be safely managed in the community.
  9. The Act reduces the qualifying period from ten years, to three years and provides a power for this qualifying period to be amended by Statutory Instrument, and include a clear statutory presumption that the Parole Board must terminate the licence at the end of the qualifying period, unless they are satisfied that it is necessary for the protection of the public that the licence remains in force. It also provides that if the Parole Board has not directed the Secretary of State to order that the licence be terminated, the Secretary of State must do so if the offender has been of good behaviour for a further two years, i.e. has not been recalled to prison in that time.

Multi-agency public protection arrangements ("MAPPA") and controlling or coercive behaviour

  1. MAPPA was established in 2001 and is now provided for under sections 325 to 327 of the Criminal Justice Act 2003, to manage the risks of specified serious offenders released in the responsible authorities’ areas. It provides for a duty on relevant agencies with roles relating to the management of these offenders to co-operate and share information, having regard to statutory guidance. In 2015, a number of serious offences against children were added to section 327 automatic MAPPA management, via the Deregulation Act 2015. In 2022, terrorist offenders were added as a discrete category of automatic MAPPA management by the Police, Crime, Sentencing and Courts Act 2022.
  2. The offence of controlling or coercive behaviour in an intimate or family relationship was introduced by section 76 of the Serious Crime Act 2015, punishable by up to 5 years’ imprisonment.

Home detention curfew

  1. Current release provisions, set out in Part 2 of the CJA 2003, require that most offenders serving standard determinate sentences of imprisonment ("SDS"), and all who are serving an SDS of less than four years in length, must be released at the halfway point of their sentence (the ‘conditional release date’).
  2. The Home Detention Curfew ("HDC") scheme, which became available in 1999 following the passing of the Crime and Disorder Act 1998, enables certain offenders to be released ahead of this halfway point. Section 246 of the CJA 2003 gives the Secretary of State a discretionary power to release offenders on licence where certain eligibility requirements are met and subject to an electronically monitored curfew. Those released on HDC must serve at least a quarter of their sentence and a minimum of 28 days before release and certain offenders are excluded from or presumed unsuitable for the scheme. The maximum period of HDC is currently 180 days

Prohibiting whole life order prisoners from marrying in prison

  1. Whole Life Orders are provided for by section 321 of the Sentencing Act 2020. This section provides that when a court passes a life sentence, it must make a minimum term order unless it is required to make a Whole Life Order. Subsection 3 sets out when a court is required to do so. Subsection 5 sets out that a Whole Life Order is an order that the early release provisions are not to apply to the offender. Therefore, such prisoners will serve the entirety of their life sentence in prison, with no possibility of release, except in exceptional circumstances on compassionate grounds.
  2. Schedule 22 of the Criminal Justice Act 2003 sets out the transitional provisions applicable to prisoners given life sentences before the 2003 Act reformed the sentence and introduced the Whole Life Order. Such prisoners can apply to the High Court to have their sentences converted into ones under the 2003 Act framework, and the High Court cannot impose a sentence longer than the Secretary of State had previously notified them that they should serve. Therefore, the High Court can only impose a Whole Life Order on such prisoners if the Secretary of State had informed the prisoner that they did not intend that the prisoner should ever be released on licence.
  3. The Marriage Act 1949 gives adults in England and Wales the right to marry. Restrictions on who can get married are set out on the face of the 1949 Act. There is an exhaustive list of marriages which are to be treated as void given in the Act. The fact that one prospective spouse is a prisoner is not currently an exception to the right to marry.
  4. The 1949 Act was amended by the Marriage Act 1983 to enable marriage in prison following the decision of the European Commission on Human Rights in the case of Hamer v UK [1979] 12 WLUK 129. The 1983 Act enables marriages of house-bound and detained people to be solemnized at the place where they reside. Amongst other things the 1983 Act also inserted section 27A (on solemnising marriages at a person’s residence, including a prison) into the 1949 Act.
  5. Where a "detained person" is seeking to get married, section 27A(3) of the 1949 Act requires that the marriage notice issued by the superintendent registrar is accompanied by a statement from the "responsible authority", which is a Governor in the case of a Prison. The statement given under section 27A must identify the establishment where the person is detained and state that the responsible authority has no objection to that establishment being specified in the notice of marriage as the place where that marriage is to be solemnized.
  6. The extent of the power of a superintendent registrar or a prison governor to object to a prisoner’s wedding under section 27A of the 1949 Act was considered in the Court of Appeal judgment in J v B [2002] EWCA Civ 1661. The Court found that neither the registrar general nor a prison governor had powers to prevent the marriage. In respect of the governor, public policy considerations did not entitle them to adopt an interventionalist role in proceedings because section 27A(3) of the 1949 Act only allowed objections to prison marriages on practical and logistical grounds.
  7. Where a detained person proposes to enter a civil partnership, section 19(4) of the Civil Partnership Act 2004 (the "2004 Act") provides for an equivalent statement to be given by the responsible authority as is required by section 27A(3) of the 1949 Act.

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