From Christine Morgenstern…
After our first international COST conference in Liverpool in April 2013 we discussed the question of criminal records in this blog, in particular the adverse effects on social reintegration when the record is accessible for future employers (or others) for a very long time or forever, even if the person concerned has long since stopped offending. A current report commissioned by the Standing Committee for Youth Justice (SCYJ) in England and Wales acknowledges this problem particularly for persons under 18. After reviewing the criminal record systems in over a dozen countries (compiled with support of some members of the COST Action), the Committee comes to the conclusion that in England and Wales ‘There are many parts to the criminal record disclosure system that are disproportionate and unnecessary. A specific attempt to ensure that criminal records do not blight the lives of children is long-overdue.’
The excellent report ‘Growing up, Moving on. The International Treatment of Childhood Criminal Records’ by Claire Sands can be found here: http://scyj.org.uk/wp-content/uploads/2016/04/ICRFINAL.pdf
Today we publish our final podcast (for the time-being at least). This one features Miranda Boone and Niamh Maguire discussing the work of our group on decision-making and supervision with Hannah Graham. You can listen here:
Many thanks to Hannah Graham for her help in putting our podcast series together. You can find all of our podcasts on the Documents and Resources page, which also now has press releases in Dutch, Hungarian and Lithuanian.
[This post from Christine Morgenstern of the University of Greifswald. You can also hear her (at least for the next few days) discussing our final report on German radio by following this link: Christine Morgenstern on Offender Supervision in Europe]
Yesterday, I learnt about a recent decision in an Anglo-German murder case. It is a striking example for existing differences between different European jurisdictions, the hardships of cross-border cases for the individual affected – and it is a good example of why we need mutual knowledge and understanding of criminal justice issues in Europe…
In 2002, a British citizen – I will call him X – who had worked in Germany for many years robbed a German woman he knew in her home. Fearing that she had recognised him and would report him to the Police, he killed her. When she was dead, he violated her corpse. In 2008, he was convicted in Germany of murder, which in Germany as in the UK, carries a mandatory life sentence. In Germany, the offender is eligible for early release after 15 years unless she or he poses a grave danger to society (and most murderers serve 18-19 years; this is why we speak of a “15 + x years sentence”). An exception is made when the murder is seen as particularly heinous (for example, if there were multiple murders or if the murder was extraordinarily cruel). In such cases the reviewing court includes consideration of the heinousness of the offence in its consideration of the case after 15 years and for this reason may add a few further years to the 15 year minimum in addition to any more time that might be required because of the danger that the offender poses to society The exception that has to be spelled out clearly by the trial court. This was not done in Mr. Xs case; his offence was seen as – terrible as this may seem – an “ordinary murder”.
The case has two European dimensions: First, the German authorities only got hold of the X because of police information shared Europe-wide: For many years, they had no clue about the perpetrator of the crime because X had relocated to the UK. Only when his fingerprints were taken in a case of domestic violence, could the German case be solved. The suspect was transferred to Germany on a European Arrest Warrant.
The second European aspect has to do with his transfer back to the UK. X started to serve his sentence in Germany but was later, presumably because he applied for it himself, transferred to the UK under the Repatriation of Prisoners Act 1984. This Act, according to its wording (which is in accordance with similar legislation of other European countries and the European Convention on the Transfer of Sentences Persons), is concerned with “close ties which that person has with the United Kingdom”, that is, it assumes that reintegration possibilities are better ‘at home’.
Now, where is the problem? In Germany X would have to serve 15 years, and then would be released if that were justifiable with regard to public safety – that is, if he is not (too) dangerous any more. Nevertheless, it remains a “life sentence”; this is why the English law in transfer cases foresees the referral of the case to the High Court. Here, a minimum term (“tariff”) has to be set, before the person transferred can apply for parole. The National Offender Management Service serves as liaising authority with regard to Prison Transfer Agreements. It interpreted the German provision for review after 15 years as a ‘tariff’ in the English sense. The judge, however, wrongly believed that the German court had regarded the murder as exceptionally heinous. Accordingly he reassessed the seriousness of the case (without having much information on the facts) and concluded that under English law the appropriate minimum term would be 30 years. One reason for this conclusion was a misinterpretation of the German legislation, which admittedly is only understandable with some guidance by experts in German law and leading jurisprudence (but I am afraid that this is true for many countries…).
Nothing in the decision points to the judge having received, let alone heard, counter-arguments from the prisoner. This is in spite of the judge admitting that “the defendant may not have appreciated that, when transferred to serve the remainder of his sentence to England and Wales, a minimum term substantially higher than the period set for first review by the German court might be imposed upon him.” The judge therefore deferred his decision for a certain time, but did not receive any representations. When he heard nothing he simply went ahead and imposed the 30-year minimum period before X can be even considered for release.
This may be an extreme example and we don’t know exactly what went wrong: why did X apply for the transfer in the first place? Was he informed of the consequences? Why did he then not do anything against the new tariff? Why did the English judge get the German law and even some of the facts wrong? Why was there no lawyer to represent X? How could this be the outcome of a procedure that is supposed to foster reintegration in the home country? What the case shows, is that there is sometimes a shocking lack of communication, understanding and procedural justice in European cases. This can really make a difference – in this case of 15 years of imprisonment.
 McNally, Re  EWHC 3613 (Admin) (17 March 2016) – it was Dirk van Zyl Smit who informed me about that decision and it indeed takes two to understand it…
Last week, we were fortunate that the BBC (in Scotland) chose to feature our final report on their current affairs programme ‘Scotland 2016’. Though the clip focuses on the implications of our work for Scotland, it should be of interest to others too. You can find the clip here:
We’ve added two further podcasts today to our Documents and Resources page. The first features Ioan Durnsescu (interviewed by Christian Grafl) discussing the achievements of our working group on Experiencing Supervision. You can also listen here:
The second was prepared by BBC Radio Producer Richard Bull, and reports (in documentary style) on the Seen and Heard Song-writing Workshop. Listen here:
More coming soon!
Although our Action formally concluded at out final conference last week, we are still working hard to ensure that the outputs of our work reach as wide an audience as possible. For that reason, we’ll be maintaining this website for the next year or so at least. We’d very much appreciate your help in sharing these resources as far and as wide as you can.
If you click the link above for our page on ‘Documents and Resources’, you’ll see what we have produced so far. As well as the annual newsletter and briefing reports from our working groups and the reports of the short-term scientific missions, you’ll find various papers from our meetings (in audio, text or powerpoint form), and various papers that have contributed to our deliberations over the last four years.
The most recent content however, are podcasts that reflect on our work, our final report, and associated press releases for various countries (and in various languages). For the lazy among you, here are some of the most recent offerings:
Supervisible Podcast: This is a short podcast on our Supervisible project. In it, Deirdre Healy interviews Wendy Fitzgibbon about what we did, why we did it, and what we learned.
Practising Supervision Podcast: This is a short podcast from our Practising Supervision group. In it, Jake Phillips interviews Gwen Robinson about the group’s work and achievements to date.
The link below allows you to hear the closing address to the Action’s final conference, in which our chair (Fergus McNeill) attempts to summarise what the Action has achieved, and what the next steps might be for research on offender supervision:
We have many more podcasts coming soon, so watch this space.
The final report of the Action is published today. You can download it here: Offender Supervision in Europe: Final Report
You can also watch our chair discussing the report and some of the issues it raises here: BBC2 Scotland 2016 Clip [The clip is not yet available outside of the UK, but we’re working on it!].
Keep an eye on the website over the next few days. We’ll be releasing a series of short podcasts featuring different members of the Action discussing our work.
Today we are delighted to publish the fourth and final briefing papers from each of our three working groups exploring ‘experiencing supervision’ (WG1), ‘decision-making and supervision’ (WG2) and ‘practising supervision’ (WG3). Please read these short papers and circulate them widely. We’ll have much more to say about our work and our findings at the final conference in Brussels next week (gulp!). We’ll also publish our final report at the conference. Hope to see you there.
Readers of this blog will be well aware of our own developing discussion about ‘mass supervision’ in Europe. At the same time, our colleagues at the Robina Institute in the University of Minnesota have embarked on similar work in the USA (drawing partly on the important work of Michelle Phelps, also at Minnesota but in Sociology, who attended and addressed our first conference in Liverpool in 2013).
Recently, they have put together the US data and the European data to produce a very short data brief. Here’s what the authors (Mariel Alper, Alessandro Corda, and Kevin Reitz) say by way of introduction:
“It is well known that the U.S. leads the world in incarceration rates. This Data Brief shows that, compared with Europe, America is similarly “exceptional” for its high rates of probation supervision. The average probation supervision rate for all fifty states is more than five times the average rate for all European countries included in the most recent Council of Europe data. Several U.S. States with the highest rates of probation supervision (e.g., Ohio, Rhode Island, Idaho, and Indiana) have rates that are eight-to-nine times the average European rate. …
This Data Brief demonstrates for the first time that America suffers from “mass probation” in addition to “mass incarceration.” Although probation has often been thought of as an “alternative” to prison or jail sentences, the U.S. has achieved exceptional levels of punitiveness in both incarceration and community supervision.”
The data brief can be accessed here http://www.robinainstitute.org/news/new-data-brief-american-exceptionalism-probation-supervision/
The final programme for our forthcoming conference has now been published: see OSE Brussels Conference Programme. Please do take a look: We think you’ll agree that it looks like being and exceptionally interesting event for practitioners, policymaker, academics and students — and for anyone interested in penal reform. You can hear our chair, Prof Fergus McNeill discussing the programme in this podcast:
We have now extended the ‘early bird rate’ of €150 for this two day event until 15th February and are offering 5 places for the price of 4 for any person or organisation making a block booking. Please do come and join us!
This time, our COST caravan pitched the tents on the beautiful and hospitable island of Malta – Grazzi to Sandra, Mariella and Trevor! The spring sun was tempting,…
This post summarizes the progress made by the working group on decision making during the meeting we had in Belfast during the 23rd and 24th of October. 15…