All stick and no carrot? Meaningfully rewarding good conduct in prisons
A lot of people tend to assume that well-behaved prisoners get time off for ‘good behaviour’. In the United States, for example, federal inmates can earn up to 54 days off each year under the First Step Act, if staff feel they have remained “in exemplary compliance with institutional disciplinary regulations”. They can also earn 10 days of ‘time credits’ for every 30 days of successful participation in ‘productive activities’ or courses designed to reduce the likelihood of them committing crimes in the future.
It might surprise you then to learn that no such scheme exists in England and Wales. Our heavy consumption of American blockbusters and boxsets has perhaps conditioned us to think that all prison systems are the same. When I first found myself inside, for example, friends would ask me ‘Shawshank Redemption’ inspired questions like, ‘when do they turn the lights out?’, or ‘what happens when you drop the soap in the shower?’. Even my own lawyer, in a bid to comfort me after losing my case, tried to reassure me that I’d never actually serve out my full sentence in prison – “Don’t worry, they’ll give someone like you time off”.
Well, as it turns out, they don’t – or at least, they don’t anymore. The last prisoners to benefit from this kind of sentence review mechanism in England & Wales were all sentenced before 2003. Those who demonstrated ‘exceptional progress’ during the course of their sentence were eligible for a modest sentence reduction in recognition of their achievements, awarded by the Home Secretary of the day, typically in the region of 12 – 24 months. Many men and women who had turned their lives around in prison were able to benefit from this between 1983 and 2003.
So, what changed? It was a judgement in the House of Lords – the predecessor to the Supreme Court in England and Wales – that really set the cat amongst the pigeons. Most sentences at the time were set by a Judge, but when it came to life sentences, the Home Secretary had the final say on how long someone should spend behind bars. This introduced the potential for unwarranted political interference. The basic legal principle that the judiciary and the executive branches of government should remain separate had to be protected in order for the legal process itself to maintain its independence and legitimacy.
In ruling that sentences had to be fixed by a Judge, and not the Home Secretary, however – the Court made an important distinction between – firstly: sentencing exercises – where the tariff is set by a Judge, and secondly: the “administrative implementation of a sentence already passed”. The first stage must be a judicial process, but the second stage – the one that interests us now in the context of reviewing sentences as a person reaches the end of their allocated time in prison – can be conducted by civil servants or government officials like the Secretary of State for Justice. This is because it is a process taking place long after the original sentence was imposed, impacting only how the penalty is ‘executed’ or ‘enforced’, rather than the penalty itself.
The case of R (o.t.a. Mohammed Zahir Khan v Secretary of State for Justice)  EWHC 2084 (Admin) sets out the nature of this distinction quite neatly (paragraph 83):
“…the European Court of Human Rights [has]… drawn a distinction between a measure that constitutes in substance a ‘penalty’, and a measure that concerns the ‘execution’ or ‘enforcement’ of the ‘penalty’. In consequence, where the nature and purpose of a measure relate to the remission of a sentence, or a change in the regime for early release, this does not form part of the ‘penalty’”.
The vast majority of life-sentenced prisoners are released on licence at their end of their tariff, but are technically still serving ‘life’. The licence itself is – in reality – an extension of the sentence. It is simply being executed differently: in the community, rather than in a prison. As Abedin v United Kingdom (Application 54026/16) makes clear: “release on licence… simply provides for improved or more lenient conditions of execution of the sentence”. The principle is reiterated in Uttley v United Kingdom (Application 36943/03) cited at paragraph 99 of R (Khan):
“the licence conditions imposed on the applicant… did not form part of the ‘penalty’… but were part of the regime by which prisoners could be released before serving the full term of the sentence imposed”.
Bringing forward the timing of a prisoner’s release on licence in recognition of their conduct, progress, or achievements in prison would be no different, legally speaking.
Unfortunately, the nuance of this distinction in the case of R (Anderson) v Home Secretary  UKHL 46;  1 AC 837 has been lost, and subsequent governments have interpreted the ruling as an outright ban on the use of early release altogether, unless a prisoner falls terminally ill. The current Secretary of State for Justice, when questioned on this, expressed the view that he simply no longer has the power to do so, because he would be acting in breach of Article 6 of the European Convention on Human Rights – namely the right to an ‘independent and impartial tribunal’.
Many people assume that well-behaved prisoners get time off for ‘good behaviour’. In the USA, for example, federal inmates can earn up to 54 days off each year under the First Step Act. It might surprise you then to learn that no such scheme exists in England & Wales anymore— Mark Alexander (@PatientCaptive) December 14, 2022
If the Secretary of State is right, then one wouldn’t expect to find any such schemes operating within Europe, since they would be in breach of the Convention. The fact is however, that many of our European neighbours do in fact offer these kinds of incentives within their own penal systems, without breaching any of their legal obligations. France has operated a system of ‘sentence cuts’ for good behaviour since 1973, while Article 54 of the Italian Penitentiary Act affords prisoners who demonstrate “good behaviour during the execution of their sentence in prison and who show effective participation in the re-education process” up to 45 days off of their sentence for every 6 months served.
Using 2015 as a snapshot, numerous other countries across Europe have issued vast swathes of individual or collective pardons, and continue to do so each year: Austria (55 pardons), Azerbaijan (249 under The Act of Presidential Pardon), Cyprus (91 pardons), Georgia (613 pardons), The Netherlands (272 pardons), and the Russian Federation (34,509 pardons by Ordinance of The State Duma).
Whilst the American scheme I mentioned in the opener to this article is not available in homicide cases (18 U.S.C § 3632), there have nevertheless been several examples of sentence remission in such cases by the judiciary. In State v. Richmond (Richmond III), 180 Arizona 573, 886 P.2d 1329 (1994):
“Numerous witnesses testified that Richmond had taught himself to read, write, and type, and that he had used these new skills as tools for both his own spiritual growth and to help others inside and outside the prison system. Some of the most compelling evidence came from prison counsellors and guards, who stated that Richmond’s efforts at rehabilitation were sincere, and gave specific examples of how he had bettered himself and helped others.”
The Howard League for Penal Reform sets out how Section 745.6 of the Canadian Criminal Code, known as the ‘faint hope clause’:
“…allows those sentenced to life with a minimum of 15 years to apply to have a jury examine the progress they have made in prison and review parole eligibility. The thinking behind the clause, which came into force in 1976, was that it is contrary to the public interest to continue to detain a person who has already served a significant period of time in custody, has made exceptional efforts to rehabilitate themselves, and poses a low risk of harm. Further, there was recognition that by international standards those serving life sentences in Canada spend a very long time in prison and there ought to be a mechanism to identify persons who no longer needed to be incarcerated”.
143 applicants have had their parole eligibility dates reduced in Canada between 1987 and 2010. Of those, only 4 have ever been returned to custody.
Reintroducing a meaningful good conduct scheme here in England and Wales would serve as an effective, genuine incentive for prisoners to behave. When a prisoner breaks the rules of the jail, a visiting Judge can ‘award’ additional days on to their sentence. Yet there is no corresponding system to award days off in recognition of noteworthy conduct. Addressing this paradox is, in my view, essential to the effective management of any penal system.
I recently put the question of the lawfulness of a good conduct scheme to the Civil Division of the Court of Appeal as a litigant-in-person – R (o.t.a. Mark Alexander) v Secretary of State for Justice, CA-2021-000255 – asking:
As a matter of law, not policy, can the Secretary of State for Justice exercise his or her discretion to review or modify a term of imprisonment in light of a prisoner’s exceptional progress, without breaching Article 6(1)?
If not, because such a review needs to be conducted by ‘an independent and impartial tribunal’ for the purposes of Article 6(1), can a prisoner nearing the end of their sentence apply for such a review from the Court?
Sentence Inflation – The Rise of ‘Popular Punitivism’
The urgency of these questions is made all the more apparent in the context of rampant sentence inflation. A study published in 1972 by Stanley Cohen and Laurie Taylor revealed that “In 1970, the prisons contained 225 men serving sentences of exactly 10 years, 218 serving over 10 years, and 159 serving ‘life’. ’Life’ used to mean an average of 9 years. Longer periods were very unusual… by the end of 1971, the number of life sentenced prisoners who had served more than 13 years had increased to 85”.
Over the past 30 years, the prison population has of course risen: by 70%. There are now almost 7,000 people currently serving a life sentence in England and Wales, 29% of whom have tariffs over 20 years long. The Prison Reform Trust reports that almost three times as many people were sentenced to 10 years or more in the 12 months to June 2020 than during the same period in 2008. The average minimum term imposed for murder has risen from 12.5 years in 2003, to 21.3 years in 2016.
In a recent survey commissioned by the Sentencing Academy in 2022, 75% of the public “believed that sentences had become shorter, the opposite of what has happened”. Only 2% of respondents correctly identified “that the average minimum term is much longer than it was 20 years ago”. As the Prison Reform Trust warned before the Police, Crime, Sentencing and Courts Act was passed in May 2022:
“This Bill continues the long legacy of inflationary sentencing proposals in England and Wales begun in the 1990s. The Government’s own Impact Assessment of the sentencing proposals in this Bill recognise that “there is a risk of having offenders spend longer in prison and a larger population may compound overcrowding… there is limited evidence that the combined set of measures will deter offenders in the long term or reduce crime overall”.
Predictably perhaps, such warnings have fallen on deaf ears. Section 132 of the Act now empowers the Secretary of State for Justice to refer ‘high-risk’ offenders serving determinate sentences to the Parole Board, instead of them being automatically released as would have been expected when they were originally sentenced. This new power impacts how long they may then spend in prison in a very obvious way, and adds to the Secretary of State’s existing powers not only to reject recommendations from the Parole Board to transfer life-sentenced prisoners to an ‘open’ prison, but to bypass the Parole Board altogether at the ‘pre-tariff sift’ stage when a prisoner is in the last few years of their sentence and deemed eligible for a move to an open prison to help them reacclimatise to life outside. Both of these are examples of the very powers of executive interference that the Secretary of State claims not to have under Article 6. The government cannot have its cake and eat it. This – in part – why I brought a test application before the Court last year. As Dominic Raab emphasised in his Root and Branch Review of the Parole System:
“…it is right that Ministers should provide a measure of oversight and be able to intervene more directly in decisions on release”
The End of the Line?
On 9 November 2022, The Rt. Hon. Lady Justice Macur DBE gave her judgement on the issue, in response to my application:
“The Claimant’s self-penned skeleton argument contains an interesting critique of ‘sentence inflation’ and also of the distinction that should be drawn between the sentencing exercise and execution and enforcement of the sentence, but does not address in any convincing manner the central issue of ‘tariff’.
Section 269 of the Criminal Justice Act 2003, now Section 322 of the Sentencing Act 2020, requires the Court which imposes a mandatory life sentence to announce in open court the minimum term… In setting the minimum term the Court, who retain ultimate discretion in this sentencing exercise, must have regard to the starting points specified by the executive in Schedule 21… Any review of [the] minimum term is conducted by the Court of Appeal Criminal Division and not the executive. There is no authority which suggests to the contrary.”
Sadly, this spells the end of our test case on the subject. As Professor Jonathan Bild at the Sentencing Academy reflects:
“Whilst I would personally welcome the re-introduction of the reviewability of minimum terms on the grounds of exceptional progress, my understanding has always been that the Criminal Justice Act 2003 removed this for people sentenced for offences after the implementation of the new sentencing regime for murder. This was a policy decision at the time and, as such, I think it would require legislation to re-introduce a review mechanism for minimum terms. This seemed to be the view set out by the Court of Appeal in Gill  EWCA Crim 2795 – especially at paragraphs 23 and 27”
Without Parliamentary support, the prospects of success through future judicial reviews does now seem remote. Recognising change in a meaningful way, by giving prisoners the opportunity to earn time off of a sentence, would of course serve to mitigate some of the harms caused by such unimaginably long terms of incarceration – but will require extensive lobbying through parliament – not that this should dissuade future campaigners.
Scrutinising Lady Justice Macur’s view in more detail, whilst Gill certainly identified that “no residual discretion in the court to reduce the minimum term on the basis of ‘exceptional progress’ survives”, the retired Crown Court Judge John Samuels KC points out that that this only refers to the jurisdiction of the High Court, and not that of the executive. In his opinion, the Judges in Gill were only concerned with whether the temporary and ‘unusual’ jurisdiction conferred upon the High Court in Schedule 22 of the Criminal Justice Act 2003 during the transitional period of the Act, could also be applied to prisoners sentenced under Schedule 21 after the transitional period. It is only in this context that the residual discretion in the court “to order that the early release provisions are to apply” no longer survives (s3(1) of Schedule 22). As the Court itself remarked in Gill, “this jurisdiction therefore is unusual” (paragraph 1), “It was a temporary measure which applied to a formidable but ‘transitional’ problem” (paragraph 27).
This countervailing view, offered by HH Judge John Samuels KC – who was also a judicial member of the Parole Board for many years – may offer future applicants a route to challenge the current legal framework before a more sympathetic Judge:
“In my opinion, the factual matrix of Gill was that it related to the discrete group of indeterminate sentenced prisoners (ISPs) whose cases fell within Schedule 22 of the 2003 Act, and not with those sentenced after 18 December 2003…
For prisoners sentenced to life imprisonment after 18 December 2003… it would necessarily not be open to the trial judge, determining the appropriate tariff, to take [exceptional progress in custody] into account, because such a prisoner would not at the outset of the sentence be able to demonstrate such progress. What a review of the law identifies is that, notwithstanding the legislative changes, the authority of the Secretary of State for Justice to consider such applications has survived intact.
…Those limited statutory provisions [in sections 28 – 30 Crime (Sentences) Act 1997], primarily identifying the entitlement of a prisoner to participate in the parole process once the tariff period of the sentence had elapsed… do not delimit the general discretionary powers previously enjoyed by the Lifer Unit [on behalf of the Secretary of State] …
The curtailment or revocation of the long-standing executive discretion of Ministers… would need to be identified in plain language. It has never been so revoked or curtailed… It is my opinion that executive authority to modify the tariff imposed by the court in the case of an ISP continues to be available within the powers of the Secretary of State for Justice, who has inherited the executive authority of the Home Secretary as a result of the Constitutional Reform Act 2005.”
If we believe that prisons can – and should – facilitate change, then a system that rewards such change is vitally important to the credibility and legitimacy of our penal system. The Howard League for Penal Reform have long argued that this can be achieved by offering some ‘faint hope’ to those willing to turn things around. A glimmer of light in the distance is always worth holding on to, and it might be just what someone needs to get them through the darkness that lies ahead.
Mark is a former Rugby School and King’s College London student who was imprisoned in 2010 at the age of 22. He has since completed both his undergraduate and postgraduate law degrees in prison with the University of London, as well as achieving Grade 8 Piano and a DipABRSM in singing. Mark received the Longford Trust’s Patrick Pakenham scholarship award for law in 2016, and is a member of Convict Criminology and the Prisoner Policy Network at the Prison Reform Trust.
 Pierre Tournier (2004), ‘Systems of Conditional Release (Parole) in the Member States of the Council of Europe’, Champ Pénal, Vol. 1
 European Prison Observatory, ‘Reducing the prison population in Europe: Do community-based sentences work?’, (Rome, May 2016), p. 10
 Council of Europe Annual Penal Statistics – SPACE 1, ‘Prison Populations: Global indicators on 1 September 2015’, (Strasbourg, PC-CP (2016) 6)
 Ellie Butt (2016), ‘Faint Hope: what to do about long sentences’, Howard League for Penal Reform
 Stanley Cohen and Laurie Taylor, ‘Psychological Survival: The experience of long-term imprisonment’, (Middlesex, Pelican Books, 1972) p. 15
 Matthew Halliday (2022), ‘Bromley Briefings Prison Factfile’, Prison Reform Trust, pp. 12 – 13
 Julian Roberts, Jonathan Bild, Jose Pina-Sanchez, and Mike Hough (2022), ‘Public Knowledge of Sentencing Practice and Trends’, Sentencing Academy, pp. 8 – 9
 Mark Day and Alex Hewson (2021), PCSC Bill Briefing for Second Reading in the House of Lords, Prison Reform Trust, p. 1
 Dr Jonathan Bild, Personal Correspondence, 23 November 2022
 HHJ John Samuels KC, ‘The continuing responsibility of the Secretary of State for Justice to consider applications for special remission of tariff, tariff reduction on the grounds of exceptional progress in custody, and similar applications, all of which truncate the period for which a life sentenced prisoner must remain in closed conditions’, Opinion filed in Judicial Review proceedings (CO/2030/2021 – R (ota Mark Alexander) v Secretary of State for Justice), 7 June 2020