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New Zealand

New Zealand legislation includes a provision for prisoners to apply for compassionate release from prison. Section 41 of the Parole Act 2002 provides that the Parole Board may, on referral by the chairperson, direct that an offender be released on compassionate release on either of the following grounds: (a) the offender has given birth to a child or (b) the offender is seriously ill and is unlikely to recover. The Department of Corrections is not responsible for decisions regarding compassionate release of prisoners. When a prisoner is seriously ill and unlikely to recover, an application will be made to the New Zealand Parole Board where an independent decision will be made. All prisoners in New Zealand are eligible for compassionate release. The length of a sentence or eligibility for parole are not factors that will affect the prisoner’s ability to apply for compassionate release. Prisoners serving sentences of preventive detention are not excluded from an application for compassionate release. Preventive detention is the most punitive sentence a judge can impose on an offender; the prisoner will be subject to recall to prison at any point until their death. The same rules apply to a prisoner sentenced to preventive detention who is granted compassionate release.

In November 2016, a high profile prisoner, Vicki Ravana Letele was granted compassionate release from prison. Letele was sentenced to three years and two months for ten charges of dishonestly using a document. The application for compassionate release was based on Letele’s diagnosis of metastatic cancer. Her illness was terminal with a life expectancy of 6 months. The chairman of the Parole Board, Hon J W Gendall initially declined Letele’s release on compassionate grounds, citing that “it is quite often the case that prisoners contract or are diagnosed with serious illness but they can be adequately treated and managed in prison and death is not imminent…that compassionate release is not appropriate. It is not the case that family and others may reasonably believe that the prisoner should be in care of his/her family at such difficult times.”

The serving Prime Minister of New Zealand in 2016, Sir John Key, voiced his opinion on the Letele case following widespread public outcry and protest. Key stated that “I would have thought we were a pretty compassionate country. We do need to take on board the criminal activity that the person’s undertaken but I don’t think we want to see people dying in prison if, on compassionate grounds, it’s reasonable they be returned home” Initial conflicting views between the Department of Justice and the Parole Board resolved on the 10th of November 2016, when the Parole Board under s41(3) of the Parole Act 2002 ordered the compassionate release of Letele. The decision factored in that there was no offending history, the prison security classification was low and Letele was plainly seriously ill and unlikely to recover.

In the last financial year of 2015/2016 seven prisoners were released on compassionate grounds, all cases determined on the basis that they were seriously ill and unlikely to recover. Figures from the years 2006 – 2013 revealed a total of twenty-five applications, with three of those declined. The application process for compassionate release can be difficult to achieve in a timely manner, which is one of the reasons that very few applications are received. Other reasons include the likelihood of a prisoner dying in prison before an application is approved, and an absence of reasonable and available support from family if a prisoner is released from prison. Furthermore, long-stay prisoners may not wish to be released, the prison may be regarded as home, and fellow inmates as family.

Human rights approach

In practice, the Parole Board only releases prisoners on compassionate release if they are seriously ill and unlikely to recover. However, the Act also provides for compassionate release of a prisoner when they have given birth to a child. Prison management first assess the prisoner’s suitability, taking account of security classification, the welfare of the prisoner and the child, and the views of the Ministry for Vulnerable Children Oranga Tamariki (formerly Child Youth and Family). A report is then submitted to the Parole Board. However, the establishment of mother and baby units in prisons has made this provision practically void. The reason it has not been removed from the Act is because it would violate New Zealand’s International Human Rights obligations and be in contravention of s19 of the Bill of Rights Act; Freedom from Discrimination, if it were not available.

The 2004 review of Human Rights in New Zealand stated that the vulnerability of people in detention was one of New Zealand’s most pressing human rights issues. The United Nations Convention on the Rights of the Child (UNCROC) and The Convention of Elimination of All Forms of Discrimination against Women (CEDAW) are the relevant conventions in relation to compassionate release. In practice, the Department of Corrections supports a child's contact with parents who are in prison when it is in the best interests of the child. Prisoners are encouraged to have positive relationships with their children so they can better reintegrate on release. These principles uphold New Zealand’s obligations under Article 9 of UNCROC: Separation from Parents, and includes several programs including ‘Mothers with Babies Units’, ‘Mothers and Bonding Facilities’ and importantly, ‘Prison Activities Centres’ that teach fathers parenting skills.

Similarly, under New Zealand’s obligations in Article 12 of CEDAW improvements were made in women's correctional facilities to include ‘Mother’s with Babies Units’ allowing mothers to keep their children with them in prison up until the age of two, where it was previously 9 months. The aim of this is to achieve a reduction in re-offending for the women and increases their children’s life chances. The availability of compassionate release must be available to prisoners following the birth of a child in order to meet the obligations that are specified in these conventions. In practice, the incorporation of units that enable a relationship between a mother and child in prison are consistent with the obligations that New Zealand has in the context of International Human Rights. This explains the apparent non-existence of compassionate release on the ground that a prisoner has given birth.

United Kingdom

England and Wales

England and Wales allow applications for early release on compassionate grounds for prisoners serving determinate or indeterminate sentences. Three general principles are applied during the decision-making process: the safety of the public, new information not available to the court, and whether there was a specific purpose for the early release. The Crime (Sentences) Act 1997 s10 provides that the Secretary of State may at any time release a prisoner if he is satisfied that exceptional circumstances exist which justify the prisoner’s release on compassionate grounds. Compassionate release will be considered where the prisoner is terminally ill, bedridden or severely incapacitated. Where terminal illness is the case, no specific timescale is strictly followed, however a life expectancy of three months or less is suggested.

Prisoner’s serving determinate sentences are also eligible for compassionate release based on tragic family circumstances. Prisoner’s serving indeterminate sentences are excluded from this provision and are subject to further restricting criteria in an application for compassionate release on the basis of terminal illness. They will be assessed on the risk of re-offending, particularly of a sexual or violent nature, whether further imprisonment would reduce their life expectancy, whether adequate arrangements are available outside prison, and whether early release will provide some significant benefit to their family. Where conditions are self-induced, such as a hunger strike or refusal of treatment, an application may be declined.

The aging prison population

The rates of death from natural causes have doubled in eight years, with 199 deaths occurring in prison in 2016. The age of the prison population is rising because of a shift in major sentencing trends; prison terms are increasingly longer for the older population. The Prison Reform Trust called for a review of the current compassionate release process, commenting on the difficulty that a medical professional will have diagnosing a three-month life expectancy. The trust recommended that a one-year life expectancy be sufficient for an application of compassionate release from prison. Former Deputy Director of the trust observed that older prisoners who are terminally ill are unlikely to pose a risk to the public. His belief was that a range of options should be considered, including compassionate release to ensure that people spend their last days with dignity.

High profile cases such as the release of Reggie Kray in 2000 and Ronnie Briggs in 2009 raised issues regarding the term ‘compassionate release’. The idea that compassion should be exercised in relation to prisoners was a concept that did not reconcile with popular societal views. Costs associated with medical care for the elderly and terminally ill was noted, with acceptance of the costs that are incurred sending prison guards to hospital and providing palliative care within the prison environment. However, early release is largely deemed to be socially incompatible.

Human rights of older persons

Compassionate release was founded on a humanitarian concern for the dying, and for practical reasons such as high costs or the inability to care adequately for such persons in prison. It has been highlighted that prison is generally deemed unsuitable for compassionate end-of-life care due to its punitive purpose. End-of-life care exists in prisons in England and Wales, however, the adequacy of the care has been challenged, as the opposing goals of security and compassionate care are not mutually exclusive. In May 2016, the Council of Europe European Committee on Crime Problems issued a white paper on prison overcrowding. The paper addressed the root causes of prison overcrowding and supports the wide application for early release for the seriously ill and aged prisoners on compassionate grounds.

A 2011 report to the UN Secretary-General highlighted the difficulties with the aging population, particularly in regard to long-term care of the elderly. This is made worse by the lack of legal framework to monitor human rights violations in long-term care facilities. It was taken into account that dying and suffering are not part of a prisoner’s punishment. Human rights recommendations for aging prisoners advocate that necessary changes should be made to adapt to the older prisoner’s physical and mental health. If changes cannot be adequately implemented, then compassionate release of the prisoner should be considered in order not to violate Article 3 on inhumane and degrading treatment of the European Convention of Human Rights.