A High Court ruling that a policy of excluding prisoners with a history of absconding from being transferred to more lenient open conditions is unlawful has been overturned.
The Government’s policy was introduced following high-profile media reports last year of prisoners with a history of violence absconding while on release on temporary licence (ROTL) from open prison.
Among them was Michael Wheatley, an armed robber nicknamed the Skull Cracker.
In May last year, the then justice secretary Chris Grayling publicly announced that the Government was ”tearing up the system as it exists at the moment” and introduced his absconder policy.
But in April this year two senior judges at London’s High Court ruled that excluding transfers – save in exceptional circumstances – for prisoners with a history of absconding, escape or “serious ROTL failure” was inconsistent with his own directions to the Parole Board.
The long-standing directions state that ”a phased release” from closed to open prison is necessary for most inmates serving indeterminate sentences ”to test the prisoner’s readiness for release into the community”.
After their decision was announced at the High Court, Lord Justice Bean and Mr Justice Mitting gave the Justice Secretary permission to challenge the ruling.
Today, three judges at the Court of Appeal in London allowed the Government’s appeal.
Lord Justice Sales, announcing the court’s unanimous decision, said: “My conclusion … the various challenges to the lawfulness of the absconder policy must fail.”
A violent fugitive dubbed the “Skull Cracker” is one of more than 1,200 open prison inmates serving an indeterminate sentence.
Armed robber Michael Wheatley, who failed to return to HMP Standford Hill open prison on the Isle of Sheppey, Kent, was given 13 life sentences in 2002 for a series of brutal raids on banks.
His disappearance has prompted ministers to launch a major review of the case, including a broader assessment of the release on temporary licence (ROTL) process – which one prisons expert has described as “knee-jerk..
Most recent Ministry of Justice figures show there were 1,242 indeterminate sentenced prisoners – that is, those serving life and imprisonment for public protection sentences (IPP) – as at December 31 last year. This includes 643 lifers and 599 IPP inmates in open prisons.
Scotland Yard said they were called to an address in Twickenham, south west London, last night following a sighting of the 55-year-old, who raided 13 building societies and banks over 10 months in 2001 and 2002 while on parole from a 27-year sentence for other robberies, but he was not found.
A spokesman said: “Inquiries are continuing. The Met continues to work closely with Kent Police to trace Wheatley who is being sought for arrest by police.”
Wheatley earned his nickname after pistol-whipping victims, including a 73-year-old woman, during the raids.
Kent Police have urged members not to approach Wheatley if he is spotted, but to dial 999 instead.
Wheatley, originally from Limehouse in east London, has links across south east England.
Wheatley admitted 13 charges of robbery and 13 of possessing an imitation firearm – a blank firing semi-automatic pistol – in October 2002.
The robberies between June 2001 and April the following year were mainly on small branches in areas Wheatley knew, ranging from Southampton in Hampshire to Royston in Hertfordshire.
The first was just three weeks after he was paroled from his first prison term.
As the robberies continued, so did the violence he used towards staff and customers.
In March 2002 he pistol-whipped a 73-year-old woman and a building society manager.
The Old Bailey heard at the time that he would often grab a female customer, putting the pistol to their head, leaving many mentally anguished.
His raids netted him more than £45,000.
He was given a five-year sentence on each of the firearms offences to run concurrently with the life sentences on each of the robbery charges. He was ordered to serve a minimum of eight years before being eligible for consideration for parole.
Prisons Minister Jeremy Wright said temporary licence can be an important tool to help offenders reintegrate into communities but that “it should not be an automatic right”.
Ministers have said there will be a toughening-up of the licence scheme so that prisoners are subjected to stricter risk assessments and tagged.
Mr Wright said: “In future, when prisoners are let out on temporary licence, they will be tagged, more strictly risk-assessed and tested in the community under strict conditions before being released.
“Temporary release can be an important tool in helping offenders reintegrate but it should not be an automatic right.
“There will be a full review of this case which will look at the ROTL process.”
Juliet Lyon, director of the Prison Reform Trust, said: “Of course there should be a review into any breach of safety and security but, to put things in perspective, Government figures show the main lessons to learn from open prisons are that the Prison Service has achieved a year-on-year reduction in absconds and that release on ROTL has succeeded in significantly reducing the risk of re-offending.”
Conservative backbencher Philip Davies said that whoever had allowed Wheatley out of prison was “a berk” and questioned why he was in an open prison in the first place.
The MP for Shipley in West Yorkshire said: “It is completely ludicrous that a serving life sentence prisoner is even in an open prison where they can simply walk out.
“As far as I am concerned, whoever allowed him to be in an open prison should be sacked. It is a complete disgrace.
“The top priority for the Prison Service should be the protection of the public. (Justice Secretary) Chris Grayling needs to put in charge of the Prison Service someone who will see protection of the public as a top priority.”
Mark Leech editor of Converse, the national newspaper for prisons on England and Wales however said the ROTL review was simply a “knee-jerk” reaction.
Mr Leech said: “All the evidence suggests that the ROTL system works well, the vast majority of prisoners released on it abide by the trust placed in them – but it is not an exact science.
“If anyone is ‘a berk’ it’s Philip Davies, who clearly doesn’t understand that all life sentence prisoners must go to an open prison as a precursor to release – it’s part of what is a successful life sentence release policy and has rightly been so for decades.
“Prison staff can only use the information available to them to make an assessment as to a potential ROTL failure, and if no information is available they can hardly be blamed for getting it wrong.
“The ROTL review is a knee-jerk reaction that is unnecessary and will if anything cause some open prison inmates to flee because they fear a return to closed conditions – Minister’s should have the courage to defend the ROTL system not undermine it.”