Prisoners: Transfer Provisions (Hansard, 28 October 1997)

§ Lord Williams of Mostyn

The Government attach considerable importance to enabling prisoners to maintain family ties while serving their sentences. As part of a number of measures to facilitate family contact, there is provision for prisoners to transfer to another United Kingdom jurisdiction, or to one of the Islands, where they have close family members.

The 1961 Criminal Justice Act provided for inter-jurisdictional transfers to be made on either a permanent or a temporary basis. Permanent transfers were normally refused where, as a consequence of differing early release provisions applying in the various jurisdictions, a reduction in time to serve would have been likely to result.

In 1992, an inter-departmental working group recognised the particular difficulties posed in relation to the permanent transfer of long term prisoners to Northern Ireland because of differing early release provisions, and recommended that consideration be given to amending the legislation to overcome this problem. This recommendation was accepted and has been given effect in the Crime (Sentences) Act 1997 (Section 41 and Schedule 1) brought into force on 1 October 1997.

The new provisions provide for prisoners to be transferred to another jurisdiction on either an unrestricted or a restricted basis. In the case of an unrestricted transfer, the administration of the prisoner's sentence will become a matter entirely for the receiving jurisdiction. A restricted transfer will be subject to conditions whereby the sending jurisdiction will continue to administer certain specified aspects of the sentence.

Transfers will continue to require the consent of the Secretary of State of both the sending and receiving jurisdictions. Normally, transfer requests will be approved only where the prisoner has at least six months left to serve in the receiving jurisdiction before his or her release date at the time of making the request, and where the prisoner has no outstanding appeal against conviction or sentence, is not charged with further criminal proceedings, and is not liable to any further period of imprisonment in lieu of payment of any outstanding monetary orders made by a court.

Each application will be assessed on its individual merits, taking into consideration:

(i) the purpose for which the transfer is requested;
(ii) whether the prisoner was ordinarily resident in the jurisdiction to which transfer is sought WA 236 prior to the imposition of the current sentence; or whether members of the prisoner's close family are resident in that jurisdiction and there are reasonable grounds for believing that the prisoner will receive regular visits from them; or whether the prisoner has demonstrated through preparations that he has made for his life following release from prison that he intends to reside in the receiving jurisdiction upon release and he is in the later stages of his sentence;
(iii) whether there are grounds for believing that the prisoner may disrupt or attempt to disrupt any prison establishment, or pose an unacceptable risk to security; and
(iv) any compelling or compassionate circumstances.

When considering whether to make an unrestricted or a restricted transfer, the Secretary of State of the sending jurisdiction will take into account the period and terms of transfer requested by the prisoner, and whether, as a consequence of an unrestricted transfer, there would be likely to be any effect on the length of time which the prisoner would be required to serve, or on any post-release supervision requirement.

Where an unrestricted transfer is granted, the prisoner will serve the remainder of his or her sentence in the receiving jurisdiction as if that sentence had been passed there, and will be subject for all purposes to the statutory and other provisions applying to prisoners within the receiving jurisdiction.

A prisoner granted a restricted transfer will automatically remain, for the duration of his or her transfer, subject to the law governing release on licence, automatic release, post-release supervision and recall applicable in the sending jurisdiction. In addition, any other condition relating to the terms of a prisoner's detention as the Secretary of State of the sending jurisdiction may deem appropriate in any particular case or class of case may be attached to the transfer.

A prisoner transferred on a restricted basis will normally become subject for all purposes, other than those specified in any conditions attached to the transfer, to the statutory and other provisions applying to prisoners in the receiving jurisdiction (including, for example, such matters as categorisation).

In the light of the new arrangements, the Government have taken the opportunity to consider how applications for temporary release from prisoners transferred to another jurisdiction on a restricted basis should be handled. In future, decisions on applications for temporary release for compassionate or other purposes submitted by prisoners granted a restricted transfer for the purposes of facilitating family ties, will normally become the responsibility of the jurisdiction to which the prisoner is transferred. Prisoners will be able to apply for periods of temporary release under the provisions existing in the receiving jurisdiction. Each such application will be considered by the appropriate authority in the receiving jurisdiction on its own merits and in accordance with the relevant criteria applying in 237WA that jurisdiction. Prisoners will normally, therefore, no longer be eligible to apply for temporary release under the provisions applying in the sending jurisdiction.

However, where a restricted transfer is time limited (for example, to enable the prisoner to receive accumulated visits), or for a purpose other than to facilitate family ties (for example, to attend judicial proceedings or to receive medical treatment), and the prisoner is expected to return to the sending jurisdiction, decisions on temporary release will continue to be made by the sending jurisdiction.

The effect of any conditions attached to a transfer will be explained to the prisoner concerned prior to transfer. Any conditions imposed may be reviewed at the request of the prisoner or either of the Secretaries of State party to the transfer at any time during the duration of the transfer, and may be varied or revoked by the making of a further order. A restricted transfer may not be made unrestricted without the consent of the prisoner concerned. Any request for variation or revocation of conditions will be considered under the normal transfer criteria.

A prisoner granted a restricted transfer may be returned to the sending jurisdiction at any time if this proves necessary—for example, if the purpose for which the transfer was granted is no longer being fulfilled—at the request of the receiving jurisdiction (in the case of disruptive behaviour), or in the interests of the administration of the sentence (such as consideration by the Parole Board or to undergo post-release supervision).

Transfer requests submitted by remand prisoners will be considered in accordance with the normal transfer criteria. However, in view of the need to ensure that the prisoner is available to the courts as required, normally such requests will be granted only where there are compelling or compassionate reasons for doing so.

Where a transfer is agreed, the timing of the prisoner's move will be subject to operational and security considerations in the sending and receiving jurisdictions.