Small changes, big difference: how fixing recall practices can improve our criminal justice system

That UK prisons are overcrowded is well-known. That current recall practice is the second biggest drive behind the dramatic growth of the prison population is not. Nor is the concept of recall itself familiar to many.  

Despite its apparent innocuity, however, there are compelling arguments for a rethink of the practice’s use.

What is recall?

Recall refers to the practice of bringing offenders who are out on licence or parole back into prison. A person may be recalled if they commit, or behave as though they might commit, another crime.

The length of time in which the prisoner must return to prison depends on the type of recall. Fixed-term recalls (FTRs) incarcerate the offender for 14 days (if serving a sentence of less than 12 months) or 28 days (if serving a longer sentence). Standard recalls bring the offender back to serve the remainder of their sentence unless the parole board releases them earlier. This more stringent category applies to those who are serving a sentence for a violent or sexual offence, are on extended sentences, or are deemed to pose risks to society.

The use of recall has grown substantially. Over the past 20 years the number of people in prison due to recall has increased by 4,300%. This means that while in June 1995 there were 150 people in prison on any given day due to recall, by June 2016 there were 6,600. In the year 2015-16, more than 22,000 prisoners were recalled.

The increase in recall usage can be explained by a legislative agenda which has lengthened recall sentences and expanded the remit for recall eligibility. The Crime & Disorder Act (1998) made offenders serving between 12 months and four years eligible for executive recall, rather than via a courts process as was previously the case. The Criminal Justice Act (2003) instigated numerous changes: increasing the length of the ‘on licence’ status which imposes restrictions and obligations on the offender who is deemed to be serving his sentence but outside of prison; making the standard recalled offender liable to serve 100% of their original sentence, rather than the previous 75%; and stipulating that the parole board review all recall cases, thus reducing re-release rates.

While the introduction of FTR in 2008 initially stabilised the recall population, the Offender Rehabilitation Act (2014), which made those serving less than 12 months eligible for the practice for the first time, has caused numbers to increase again.

It is important to note at this point the types of offenders who are recalled and the stated for recalling. The Centre for Social Justice (CSJ) points out that nearly 8,000 recalled offenders were serving sentences of less than 12 months, and therefore were unlikely to be serious offenders. It is only a minority of recall cases (45%) that involve people being charged with a criminal offence. The remaining majority of recalls are solely due to ‘non-compliance’ with the offenders’ licence. Indeed, the Howard League for Penal Reform calculates that in the year 2015-16, nearly 8,000 recalls were issued for “failing to keep in touch”, and over 5,000 for “failing to reside” at a particular address.

Problems with recall

From a human rights standpoint, some legal experts argue that recall procedures essentially constitute new sentences and are not simply law enforcement mechanisms. This would mean that recalls undermine fundamental principles of justice as exercises of arbitrary power which deny due process.

Beyond thorny legal issues, recalls also have a significant impact on the prison population, exacerbating the perennial prison issues of overcrowding, understaffing and public costs. As the HM Chief Inspectorate of Prisons (HMCIP) report of Portland Prison said last month: “At a time when prisons are already filled to bursting, it made no sense to ratchet up rules on recall and send thousands of prisoners back behind bars after release.”

The context of this statement presents another problem with recall practice. The HMCIP assessment noted that prisoners were deliberately breaching their licence so as to be recalled and smuggle drugs or other illicit items into prison. Such a ‘courier’ practice is recognised to have a direct negative impact of prison safety levels, another area of great concern for government and policy makers.

In addition to the impact on wider prison problems, recall usage can be highly detrimental to the offenders who are punished by this practice. First, it is worth noting that the various circumstantial problems which offenders face upon release such as mental health issues, finding suitable and permanent accommodation, or getting back into work or onto the payroll, can be significant impediments to fulfilling certain licence demands. Recalling prisoners for breaches which may have been hard if not impossible to avoid is thus a questionable practice.

Further, there is a growing presumption against short sentences due to high reoffending rates for such categories of offenders: nearly 60% of prisoners serving less than 12 months reoffend, not least because of the lack of support for offenders released after short sentences. It is on this basis that the House of Commons Public Accounts Committee in its rehabilitation report stated that “a rapid cycle of short sentence, release and recall is a poor outcome for offenders, the prison service and society.” Thus, short recall sentences such as FTRs prove highly damaging to offender rehabilitation, which contributes to higher reoffending rates and less safe communities.

Reforming current practices

One way in which recall could be reformed would be ending FTR. While, of course, the introduction of FTR was meant as a positive step to reduce the severity of recall for non-dangerous offenders, recall could be ceased altogether for such low-risk criminals. The practice of sending low-risk offenders back into prison for a mere fortnight or month does virtually nothing to improve public protection or serve any retributive or deterrent purpose. It is costly and can inhibit rehabilitation, not least because, as the HMCIP report on Portland Prison details, prisoners are in fact incentivised to breach their licence and return to prison.

Another option constitutes reversing the practice instigated three years ago of recalling offenders on short sentences. According to the most recent Offender Management statistics, over 1,000 such prisoners are in custody, or nearly a fifth of the total recall population. As the Howard League point out, reversing this trend would reduce prisoner numbers by 7,500 per year.

A third area of reform would be to cease using recall as punishment for licence breaches and issue community penalties instead. These alternatives would be cheaper, produce higher rehabilitation rates, and better reflect the relative mildness of the offence. It would also immediately free up over 3,000 prison spaces. On the other hand, the reasoning behind recalling offenders for such breaches is not entirely without merit, as breaking the terms and conditions of release might indeed signal that the criminal is likely to reoffend. At the very least, however, greater attention should be paid to offenders’ motives or personal situations to reduce instances of unreasonable recalls.

A lot of the above could be accomplished without any legislative changes or significant risk to public safety and the benefits to the criminal justice system would be immediate and manifold. As with any criminal justice reform, however, it is obviously important to tread carefully: while prisons may be overcrowding and rehabilitation success limited, the solutions must not be rash and serve to threaten public order or undermine principles of retributive justice. 

Conclusion

Reforming recall could help criminals rehabilitate, reduce reoffending rates, quell prison violence, and help control an out-of-control prison population. It could also take the edge off some of the more punitive and less justifiable aspects of our penal system. It is thus both pragmatic and ethical. It is also relatively easy to do.

HMCIP is expected to release a report on recall practice soon. Upon its publication, Ministers should pay careful attention and consider taking action.

Joel Collick is a research assistant at Bright Blue