Guidance on the End of Custody Temporary Release (“ECTR”) Scheme

What is the ECTR scheme?

The ECTR scheme is a temporary release program to enable risk-assessed prisoners who are within two months of their release date to be released from custody early. The scheme will provide eligible prisoners a temporary release up to the end date of their sentence, after which they will be released under the standard licence.

The ECTR scheme is separate to the release on temporary licence of prisoners on compassionate grounds (for example, those who are pregnant or medically vulnerable to COVID-19) under the Release on Temporary Licence (“ROTL”) Framework.

Who is eligible for release under the ECTR scheme?

To be eligible for release under the ECTR scheme, a prisoner must meet the criteria below. These include both statutory criteria, and criteria imposed under the Directions signed by the Secretary of State on 7 April 2020 and 24 April 2020 (the “Directions”). The Government has said that there are no exceptions from these criteria, even in exceptional circumstances.

Compulsory criteria under statute and the directions:

The Prisoner must:

• Be in custody either: (i) under a fixed sentence with an automatic release date; or; (ii) for fine default or contempt of court.
• Be within 61 days (i.e. two months) of their automatic release date.
• Have served at least half of the custodial term that they were sentenced to.
• Be assessed as having a low or medium ‘Risk of Serious Harm’ level.
• Be serving a custodial sentence (i.e. must not be a remand prisoner and/or committed for trial or sentencing).

The Prisoner must not:

• Be serving a sentence that is subject to initial Parole Board release (includes offenders who are serving sentences for serious offences of particular concern, including those convicted of terrorist or sexual offences against children and those who are serving extended sentences).
• Be serving a sentence for violent or sexual offences.
• Be serving a sentence of four years or more for specified possession of weapon offences.
• Be identified as posing a risk of domestic abuse or a concern to child safeguarding upon release.
• Be assessed as posing a risk to national security if released.
• Be a registered sex offender and / or eligible for Multi-Agency Public Protection Arrangements (“MAPPA”) upon release.
• Have committed an offence whilst on temporary release.
• Be subject to deportation (and have exhausted all in country appeal rights).

What additional policy criteria must the prisoner meet?

Even if a prisoner meets the criteria above, their participation in the ECTR scheme is not guaranteed. The Government has said that, unless there are “exceptional circumstances”, a prisoner will not be permitted to permit in the ECTR scheme unless they also meet the additional policy criteria listed below. It will be for the HMPPS to make the assessment as to whether there are exceptional circumstances in each individual case.

The Prisoner must:

• Have suitable accommodation to be released to.
• Be able to have their healthcare (including any COVID-19 considerations) safely managed post-release.

The Prisoner must not:

• Be serving a sentence for serving a COVID-related offence (coughing at emergency workers and/or stealing medical supplies intended to tackle COVID-19).
• Be subject to any outstanding charges, or have been referred to the police or Independent Adjudicator.
• Present a level of risk of harm, reoffending, failure to return or other significant challenge that cannot be reasonably managed in the community.

If a prisoner is eligible for the ECTR, will they be released?

No. Not everyone who meets the eligibility criteria will be released. The Government has emphasised in its guidance that: (i) there is no right to be released; and (ii) releases may target specific prisons to relieve particular pressures in relation to COVID-19 or staffing.

Do eligible prisoners have to participate in the ECTR scheme?

No. The ECTR scheme is voluntary and eligible prisoners do not need to be released if they do not want to be.

How do prisoners apply for the ECTR scheme?

Prisoners cannot apply for the ECTR scheme. According to Government guidance, the process will be as follows:

1. A national list of potentially eligible prisoners will be drawn up, based on the compulsory criteria set out in the compulsory criteria above.
2. A central Offender Management Hub (“OMU”) will consider the list and work with local establishments, probation services and the police to assess individuals’ eligibility, including an assessment of the criteria set out in policy criteria above. For children and young people, the equivalent role will be done by the Youth Custody Service Release and Resettlement teams (YCS RRTs), working with Casework and Social Work teams in local secure settings and Youth Offending Teams to assess individual cases.
3. The Government guidance does not detail how this assessment will be undertaken or the timeframe in which it will be performed. However, unpublished operational guidance pre-dating the Government’s suspension of the scheme (published on 7th April 2020 and which can be read here) stated that prisons were required to undertake the following within 24 hours: (i) assess the eligibility of those on the list against the policy criteria listed above; (ii) issue application forms to eligible prisoners, which required prisoners to state two preferred addresses; and (iii) return the spreadsheet confirming applications and screening results to the OMU Hub. The Unpublished Operational Guidance also made clear that prisons do not have a veto right and must put forward all eligible prisoners to the OMU Hub (noting any concerns on screening in the spreadsheet).
4. The OMU Hub will check (amongst other things) that: (i) The prisoner is willing to take part in the ECTR scheme. (ii) The prisoner has a verifiable, safe and suitable address to be released. (iii) The prisoner has undergone a prison-based Healthcare check. (iv) The prisoner’s release will not put the prisoner or others at any health or COVID-19 risks. (v) The prisoner can be trusted to complete the licence. (vi) There are no underlying safeguarding concerns or known risks to individuals or children.
5. The central team will notify the police and other relevant partner agencies of an offender’s proposed release and invite them to provide any additional information regarding risk surrounding an individual’s release. The Unpublished Operational Guidance stated that partner teams were to record their checks and articulate any concerns to the OMU Hub within 48 hours.
6. The final decision will be made by the OMU on behalf of the Secretary of State. The Unpublished Operational Guidance said that the OMU Hub would make its decision within 24 hours of receiving all relevant information.
7. The decision will be communicated to the prisoner by the prison.
8. The OMU will also share information on releases with police, the Department for Work and Pensions (for the purposes of establishing benefits payments) and the voluntary sector (for the purposes of supporting offenders on their release).

While the guidance doesnt mention any mechanism for prisoners or their representatives to make any representations about eligibility on their own behalf, we can see no downside to contacting the relevant OMU and laying out why you believe a prisoner to be eligible. Some helpful contact information can be found from page 6 of this document.

What are the conditions of the ECTR?

The standard release conditions of the ECTR are listed below. Further conditions may be imposed based on the individual circumstances of the case.

The Prisoner must:

• Be of good behaviour and not behave in a way which undermines the purpose of the licence period.
• Reside at their address between the hours of 7pm and 7am unless otherwise authorised (by a variation to the licence).
• Comply with all current Government Covid-19 announcements, directions and guidelines.
• Keep their temporary licence with them at all times throughout the release on temporary licence and provide it if requested to do so by a police officer or probation officer.

The Prisoner must not:

• Commit an offence.
• Partake in gambling or making payments for other games of chance.
• Consume alcohol or enter any premises whose primary function is the sale and consumption of alcohol (i.e. pubs, clubs and bars). Offenders may enter licenced premises such as supermarkets provided they do not purchase or consume alcohol.
• Contact the media (including any person or place associated with broadcasting or publication) either directly or via a third party.
• Upload, add or modify any material on any social networking site or internet chat-room either directly or via a third party.
• Take unauthorised controlled drugs or psychoactive substances
• Return to prison with any unauthorised articles.
• Leave the United Kingdom.

Will prisoners released on ECTR be subject to electronic monitoring?

Yes. All prisoners released on ECTR will have their whereabouts electronically monitored during their release. Prisoners will be curfewed to their agreed address for twelve hours per day and their whereabouts captured by the electronic monitoring system.

Prisoners released on the ECTR must:

• allow an electronic device to be fitted to them, or if electronically monitored by another device, carry that device on them at all times
• not damage or tamper with equipment associated with electronic monitoring;
• ensure at all times that the electronic device is sufficiently charged; and
• immediately report to the prison or any person nominated by the prison if the electronic device or equipment associated with electronic monitoring is not working correctly.

Will prisoners be subject to statutory probation supervision on release?

No. Individuals released remain prisoners in legal terms. Each prisoner will be allocated a nominated offender manager to remain in contact with for the duration of the temporary licence. For children and young people, the YOT will provide the normal level of statutory supervision, taking into account adjustments being made for all children and young people being supervised in the community while the COVID-19 public isolation requirements are in place. If the prisoner does not own a mobile phone to remain in contact with their manager, they will be provided with one prior to release.

Can the ECTR licence be revoked?

Yes. Governors have the power to revoke the licence if it does not remain safe or appropriate for the prisoner to remain in the community, and instruct the police to arrest the individual and return them to custody.

What happens when the ECTR licence expires?

Once the ECTR licence expires, the prisoner will transition onto the standard probation licence. This will occur at the point they would otherwise have been released automatically on licence. This is an automatic process, unless the prisoner has returned to custody.