The Legal stuff

This is not a web site written or maintained by legal qualified people; if you need legal advice ask a lawyer!

In prison almost everybody you meet will claim to be a legal eagle, or to know a legal eagle. Treat all of these well intentioned helpers with a certain amount of scepticism An old prison saying is “believe nothing you hear, and only 25% of what you see”.

Your treatment in prison is in accordance with the current legal framework. There are cases which are featured in the media, such as if prisoners are entitled to vote in elections, but for the vast majority of serving prisoners the rules which matter are those laid down the various PSIs set out by the Ministry of Justice.

PSI and PSO stand for Prison Service Instruction and Prison Service Order respectively. These are all issued by the Ministry of Justice and lay down the operating guidelines under which the Governor of a prison must operate. These PSIs do, in the most part, allow the Governor of the prison some limited discretion as the application of the instructions, but there are few significant different interpretations between prisons.

PSIs deal with all aspects of day to day prison life, and there are a great number of these documents which in part explains why there are lawyers who specialise in prison law. From 1 August 2009, all Prison Service operating instructions have been published as PSIs. Prior to 1 August 2009, PSIs were issued to convey short term instructions or amendments to PSOs and had a maximum validity of 12 months; all these documents can be found on the Ministry of Justice web site.

One particular piece of legislation deals with the need for people with criminal convictions, including those where a custodial sentence was NOT passed, to disclose this to potential employers and other interested parties. This legislation is called the “Rehabilitation of Offenders Act 1974”, and as its name suggests it has been on the books for almost 40 years.

The main requirements of this act are that you must disclose your criminal convictions is asked by a prospective employer or any other interested party. Not to do so would be to commit a criminal act. For example, if you took out a mortgage on a property and did not properly disclose that you had unspent convictions you could be guilty of mortgage fraud, if you took out car insurance and didn’t disclose the convictions if asked the insurance policy would be voided in the vent of a claim. If you have trouble getting car or house insurance when released because of your convictions speak to a specialist brokerage such as OnTheOut who will be able to help.

If you obtained a job and did not disclose the sentence if asked during the recruitment process you could be dismissed without notice by your employer without any rights of compensation. If, however, the employer did not ask during the recruitment process you have no obligation to tell them ( unless it is for some specific jobs like taxi driver, school caretaker etc), and the employer can’t then just dismiss you if and when they find out. The period of time you are required to disclose are set out below, and remember this is the sentence length, not the time you may have spent in prison, and starts from the end of your sentence (including time on license).

Sentence/disposal Rehabilitation period if aged 18 or over when convicted/cautioned Rehabilitation period if aged under 18 when convicted/cautioned
A custodial sentence of over 48 months Never spent
A custodial sentence of over 30 months but not exceeding 48 months 7 years from the date on which the sentence (including any licence period) is completed) 42 months from the date on which the sentence (including any licence period) is completed)
A custodial sentence of over 6 months but not exceeding 30 months 48 months from the date on which the sentence (including any licence period) is completed) 24 months from the date on which the sentence (including any licence period) is completed)
A custodial sentence of up to 6 months 24 months from the date on which the sentence (including any licence period) is completed) 18 months from the date on which the sentence (including any licence period) is completed)
Fine 12 months from the date of the conviction in respect of which the fine was imposed 6 months from the date of the conviction in respect of which the fine was imposed
Community order 12 months from the last day on which the order has effect 6 months from the last day on which the order has effect
Conditional caution 3 months from the date on which the caution was given, or (if earlier) when the caution ceases to have effect
Simple caution, reprimand or final warning Spent immediately
Compensation order On the discharge of the order (i.e. when it is paid in full)

 

It gets more complicated if you are sentenced for 2 or more offenses at the same time; if the sentences run concurrently (at the same time) then the length of the longest sentence is the relevant time, if the sentences run consecutively you must add them up to get to the relevant sentence length. There are many legal firms who specialise in this area of law; if in any doubt ask your lawyer or contact a legal professional.

In addition the police will keep records on you. Even when a conviction becomes spent, details of the offence will still persist on the Police National Computer.  The rules surrounding this are the general guidelines from the Association of Chief Police Officers which means that convictions for what are known as ‘recordable’ offences (meaning those which could potentially be tried in the Crown Court, even if they were actually not) should usually be removed from the record after 10 years, with a number of exceptions.

If 3 such offences have been committed, the records will be stored for 20 years instead, and some types of offence will lead to the record being accessible for the offender’s entire life. The following types of offence will mean that the records will be kept for life:

  • Offences where a custodial sentence was imposed;
  • Offences involving indecency, sex, violence, possession of class A drugs, or supply or trafficking of any drug;
  • Offences where the perpetrator was found unfit to plead due to insanity, or where their sentencing was performed under the Mental Health Acts;
  • Offences involving a child or vulnerable adult which suggest that the offender intentionally targets these sorts of people.

However, these are not legal rules but guidelines and individual police forces have different interpretations. If in doubt seek the help of an expert! Criminal records are considered confidential data and will not be released without cause. In general, criminal records will only become relevant when they relate to the protection of vulnerable individuals, maintaining justice, or issues involving national security. Jobs involve driving, such as operating taxis, heavy goods vehicles or passenger service vehicles, will also likely involve a vetting of any convictions one may have acquired.

How long you actually serve in prison depends on the terms of your sentence. This is quite a complex area and the best, and only reliable answer, will come from your lawyer. For most cases the courts set a  determinate prison sentence, which is where the court sets a fixed length for the prison sentence and this is the most common type of prison sentence. For example, an offender may be sentenced to four years in prison. This is the maximum period of time the offender could spend in prison. However, the offender will not necessarily spend the whole of this time in prison.

For sentences under a year, you will be automatically released after serving half their sentence. You are under no positive restrictions for the rest of the sentence although, if you commit a further offence during this time, the unexpired part of the sentence could be added to any new sentence imposed. Under new rules issued by the MoJ, you will then be subject to supervision and monitoring by the probation service, although the length of this supervision after release from custody is uncertain, it could last for up to 1 year, even if your prison sentence was set at 1 month.

For determinate sentences of a year or more, you will serve half the sentence in prison and serve the rest of the sentence in the community on licence.  While on licence you will be subject to supervision and monitoring by probation and it is likely that the licence will include conditions regarding your behaviour. If you breach these conditions, you may be sent back to prison to serve the remainder of the sentence there.

If you are given a sentence of between three months and four years, with certain exceptions for violent and sexual crimes, you may also be eligible for release on a home detention curfew (HDC). This allows you to be released up to 135 days before your automatic release date. You  will be electronically tagged and a curfew imposed and if you breach the curfew you can be recalled to prison.
It is important that you remember that HDC is not a “right” it is a “privilege”, and if your behaviour in prison has concerned the prison officers and probation it can be delayed. Similarly, if you do not have a suitable place to live when on HDC it may be denied.

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