Amnesty International has said the Imprisonment for Public Protection (IPP) sentence is “unfair and unjust”, and claimed people being held on it are subject to “arbitrary detention”. It said they should be released unless they were proved to be dangerous. The intervention by Amnesty, which has previously declined to express a view, will come as a boost to families campaigning against the IPP. The sentences were abolished in 2012 but remain in force for people already on them. Of more than 8,000 people handed them between 2005 and 2012 in England and Wales, around 3,400 are still in custody.
- The Ministry of Justice expects the number of IPP prisoners to stay at 3,400 for the next five years, because the number being recalled will match the number being released.
- 65 people serving the sentences have taken their own lives in custody.
- One man has served 15 years for making threats to kill, having been given an IPP sentence with a minimum term of four-and-a-half months.
IPP was introduced in 2005 for people convicted of serious violent or sexual offences which did not warrant life sentences. It carried a minimum term or “tariff”, but once this was served the prisoner remained in custody until the Parole Board deemed him or her safe to release. Judges were stopped from passing the sentences in 2012, after courts found them to be illegal because the courses which prisoners needed to complete to show their risk had reduced were often unavailable. However, their abolition was not made retrospective. Most IPP prisoners are years past their tariff and some are past the maximum determinate sentence allowed in law for their offence.
Asked to comment, Amnesty International – which has been awarded the Nobel Peace Prize, and is best known for campaigning for the release of political prisoners – released a statement from its International Secretariat saying: “These continued detentions are arbitrary and those detained under them should be released unless it can be proved they remain a danger. The fact that this sentence regime has been repealed is clearly an acknowledgement that the IPP sentencing regime was unfair and unjust. International human rights law demands/requires that those detained under an IPP sentence benefit from this repeal.”
The Ministry of Justice has forecast that in September this year there will be 1,700 IPP prisoners awaiting their first release and another 1,700 who have been released but since recalled to custody for breaching licence conditions – a total of 3,400. By September 2026, the number awaiting first release is expected to have fallen to 800 but the number held on recall is expected to have risen to 2,600 – leaving the total still at 3,400. By then it will be at least 14 years since they were sentenced.
Lyn Brown, Labour’s shadow prisons minister, commented: “Thousands of offenders remain on IPP sentences today. These depressing forecasts show that number has little prospect of reducing.”
Since 2006, there have been 200 deaths in custody of IPP prisoners, of which 65 were self-inflicted, according to the Ministry of Justice. The figures were released in response to Freedom of Information requests from Donna Mooney, whose brother Tommy Nicol took his own life while serving an IPP sentence. She is a co-founder of a new campaign, United Group for Reform of IPP (UNGRIPP), which is urging the Government to abolish the sentence retrospectively and resentence everyone who is still serving it.
Among those still awaiting initial release is Royston Cox, sentenced in 2005 for making threats to kill. He was given an IPP sentence with a tariff of 148 days but he is still in prison 15 years later. The maximum sentence for making threats to kill is 10 years. Among those who have urged the Government to resolve the status of IPP prisoners are former Justice Secretaries Michael Gove and Ken Clarke, former Supreme Court Justice Lord Brown of Eaton-under-Heywood, and former Lord Chief Justice Lord Woolf.
IPP: Creation, abolition and festering afterlife
Tony Blair’s slogan of ‘tough on crime, tough on the causes of crime’ helped New Labour to successive landslides in the elections of 1997 and 2001. And what could be tougher on crime than a new type of prison sentence – without an end date?
That’s what David Blunkett proposed when he became Home Secretary in 2001. A White Paper in 2002 envisaged ‘a new sentence to ensure that dangerous violent and sexual offenders stay in custody for as long as they present a risk to society’. It would apply to those whose crimes were serious, but not serious enough to warrant a life sentence. Once they had served their ‘tariff’ or minimum term, they would stay in jail until the Parole Board deemed them safe to release. Called Imprisonment for Public Protection (IPP), the sentence became law in England and Wales in the Criminal Justice Act 2003 and took effect in 2005.
It soon became clear that judges were giving out IPPs in large numbers – including for crimes such as street robbery and making threats to kill, which are not the most serious violent offences. The prison population had been rising fast since the 1990s, leaving jails struggling to provide the courses and programmes which IPP prisoners needed to complete to make the case that they could be released safely. By the end of 2007, with 3,700 IPP prisoners, including 500 who were past their tariff, the Court of Appeal found that the Government had acted unlawfully with ‘a systemic failure to put in place the resources necessary to implement the scheme of rehabilitation’.
“Those not sentenced to life imprisonment but who are nevertheless a danger to society will remain in custody until they are considered safe for release.”
Home Secretary David Blunkett announcing plans for the IPP in 2002
In 2008, the rules were altered with a ‘seriousness threshold’ to restrict eligibility, but numbers continued to grow. In the same year, the all-party Justice Committee called the sentence ‘flawed’.
When Labour lost the 2010 election, the new Coalition government moved swiftly to abolish the IPP. From 2012, judges could no longer pass the sentence. But the change was not made retrospective – so the 8,711 people who had been given the sentences would continue to serve them.
From a peak of 6,000 in 2012, the number of serving IPP prisoners has declined – but slowly, with around 3,400 still in jail. Their detention many years beyond their tariffs, and even past the maximum sentences for their crimes, has been condemned by ex-ministers and retired judges. There have even been statements of regret from Lord Blunkett. But the Government insists that the sentences must continue to be served.
“We do not think that it is right or appropriate retrospectively to alter sentences that were lawfully imposed by the court simply because a policy decision has now been taken to repeal that sentence.”
Lord McNally, then Justice Minister, explaining in 2012 why existing IPP prisoners would remain on the sentence
Now a new problem has arisen. Once released, an IPP prisoner is on licence and can be recalled for any breach of the rules. (Ten years after their first release, they can apply for the licence to be removed, but up to last autumn only three had successfully done so.)
The number being recalled has grown to almost match the number being released. Officials at the Ministry of Justice expect that this year the number on recall will overtake the number awaiting their first release – and for the next five years they expect the overall total to remain near the current 3,400.
By then, they will all be serving sentences handed down at least 14 years previously. Truly tough on crime, but hardly tough on the impact of the long discredited sentence.
IPP by numbers
4 April 2005: Date the IPP came into law
95: Number of ‘specified’ offences for which the sentence could be given, from robbery to arson to indecent assault
2Woman who killed love rival still in prison 34 years after getting 12-year term | Metro News8 days: The shortest tariff issued on an IPP sentence
8,711: The number of IPPs given out before they were abolished in 2012
97%: The proportion of those given the sentence who were male
3,400: The number of IPP prisoners in custody by September 2021, according to MoJ forecasts
3,400: The number still in custody by September 2026, according to the same set of forecasts
65: The number of IPP-sentenced prisoners who have taken their own lives in custody
3: The number of IPP prisoners who have had their licences revoked by the Parole Board, under a rule which allows them to apply 10 years after their initial release
Fears over
Government plan to hold “prisoners of concern” beyond release date28th
September 2020 In
"*Newsround"
n the aftermath of the publication of the Green Paper Emmersons Solicitors sought the views of those affected by IPP sentences so that we could compile a consolidated response. We are grateful to all the prisoners, their friends and their families who responded by post, email, on Facebook, Twitter and our online petition. We took into account every one of the eight hundred or so replies that we received. The following text is an abridged version of our response:
As it presently stands the IPP system does not work. There are thousands of post-tariff prisoners sentenced before July 2008 who find themselves unable to persuade the Parole Board to release them. The onus is on the prisoner to prove that they are no longer dangerous. Far too often they are not given the opportunity to do so because of a shortage of courses, or being held in – or sent to the wrong prison for their sentence plan and unable to obtain a swift transfer elsewhere, or because the waiting lists for courses is several years long. Parole hearings are deferred, post programme reports are delayed, and those who have received ‘knock-backs’ are then set further review dates far into the future.
The Parole Board is far too risk averse. The current test (whether it is necessary for the protection of the public for the offender to remain in prison) is too widely interpreted. As a result nearly all IPP prisoners remain in custody post-tariff, at a huge annual cost to the taxpayer, when rigorous supervision in the community could be less costly and more effective in terms of actual rehabilitation.
A large number of responses we received portrayed a system that is bursting at the seams, is unfit for purpose, inhumane and utterly unfair. As IPP prisoners have no idea when they will be released their marriages and other family relationships suffer, and mental health and self-esteem deteriorates. Many IPP prisoners suffer from mental health problems, feelings of utter hopelessness, mistrust of the system, and feelings of victimisation. Prisoners felt strongly that there was ‘no light at the end of the tunnel’, and asked ‘If I don’t have a release date, how can I ever plan for my life after prison?’??
Many IPP prisoners are well aware of the effect of poor behavior but many prisoners wrote about ‘not wanting to rock the boat’ with staff or ‘make waves’ by complaining about the lack of courses. Prisoners serving determinate sentences also had less to lose, which in some cases created difficulties for IPPs who did not want to be adjudicated for having to defend themselves. This has created a two-tier prison system; those who have it all to lose, and those who have nothing to lose. Conversely, there were also those who were sentenced to IPP, were convinced they would never be released, and therefore concluded that they had nothing to lose either.
The onus must be taken away from the offender to prove they are no longer dangerous. At present, the emphasis is on preventative detention and the interpretation of ‘dangerousness’ is speculative and too widely applied.??It appears to us that the Green Paper does not outline any specific plans for speeding up risk assessments by, for example, substantially reducing the requirement for an oral hearing in front of the Parole Board to move prisoners to open conditions. Although the Parole Board lists oral hearings according to priority there is still often a considerable amount of waiting time before the hearing takes place.
The Secretary of State has the power to direct a prisoner’s move to open conditions without an oral hearing, but at present this is only used in exceptional circumstances. We would ask that the Government makes wider use of this power. In the same way as the Parole Board is entitled to use pre-sift procedures and the ICM stage to consider cases on the papers, risk assessments with a view to a move to open conditions could similarly be considered (if, for example, all parties recommended it). ??
The questions we asked our respondents were as follows: ??
Do you think that the way the IPP sentence is announced in court, i.e. the length of the tariff, is confusing? ??
Nearly all respondents agreed. Some prisoners had no idea that they had been given indeterminate sentences until several months, and in a few cases over a year, into their sentences. ?There was widespread confusion over the way that the judge announced the IPP sentence in court, and often the notional determinate sentence was confused with the length of the tariff. A recurring misconception was the idea that IPP prisoners are serving a sentence of 99 years. This is simply because the computer system cannot recognise indeterminacy. Several respondents reported that prison staff told prisoners “we’ve got 99 years with you, wait a bit longer for that course.” ??
Many prisoners knew virtually nothing about their sentence on arrival in prison, relying heavily on other prisoners to explain the practical elements of IPP to them. Relatives (and other members of the public) were very poorly informed as to the nature and structure of the sentence, and the determination of ‘dangerousness’ by the court. In several cases, relatives who were not present at court were unable to accept that their loved one had been given a sentence tantamount to ‘life’ and this caused mistrust within family relationships: families felt that they must have been lied to by the prisoner about the seriousness of the offence.??
Was the effect of the ‘dangerousness’ label and the requirement to ‘reduce your risk’ explained to you at the start of the IPP sentence? ??
A lot of respondents did not understand that the IPP sentence meant that they had been assessed as ‘dangerous’ and therefore had to reduce their risk if they were to be able to work towards release. Many relied on other IPP prisoners to explain this to them. While some understood immediately what they needed to do to reduce their risk, there were others who ‘gave up hope’ early on, compounded by the fact that they had no answer to the question ‘when are you coming home?’??Some prisoners had successfully completed dozens of courses but were still no closer to understanding when they would be deemed suitable for release.??
What is your experience of the availability of offending behaviour courses?
Nearly everyone described substantial delays; with some having lengthy offending behavior courses added to a sentence plan weeks before tariff expiry. In a few cases, some prisoners had not received a sentence plan by tariff expiry.??Others had only been able to complete one objective in several years. There was a general feeling that the provision of courses was under equipped, poorly organised and inconsistencies between establishments as to whether a particular course was suitable or not, which prisons offered which courses, how long the waiting lists were, and prisoners being transferred to establishments which had no suitable courses for them. There was also concern expressed over IPP prisoners who had learning difficulties. Many respondents were mistrustful of psychologists and expressed frustrations over inaccuracies in reports, which were often not rectified despite verbal assurances. In a few cases, some prisoners were told that they were not suitable for any offending behavior courses.
Do you feel that the structure of the IPP sentence is adequately explained to offenders, their families, victims and the public in general? ??
A small number of prisoners (mostly new IPPs) understood exactly what type of sentence they were facing and what they needed to do to reduce their risk. Some prisoners sentenced soon after IPPs came into force were not advised by their lawyers that IPP was even a possibility. Probation officers had often compounded the problem in these cases because they had recommended community penalties in pre-sentence reports. ??
Prisoners were often told they had ‘no chance’ of parole the first time around, and that it was inevitable that they would be detained post-tariff. A large number of respondents were confused as to why they had been given IPP sentences when they had no previous convictions.??The members of the public that we encountered in the course of our campaign generally had no idea that IPP sentences existed. Most were shocked that such sentences were handed down in the twenty first century. Others thought that only those convicted of murder and child sex offences were given IPP sentences, as sometimes reported by the media. Prisoners and their families had been heavily reliant on external organisations to understand the structure of the IPP sentence.??
For those who maintain their innocence, has the effect of this on your ‘risk’ been explained to you? If so, what have you been told and who by? ??
A lot of respondents pleaded guilty or admitted their offences post-conviction. Those who maintained their innocence felt that they had been labeled a ‘lost cause’, while others had ‘given up hope of ever being released.’ It appears, however, that this is by no means a sentiment reserved only for those who maintain their innocence. Some had been told by prison staff that they would die in prison. ??
The proposal put forwards by the government in the Green Paper is to reserve the IPP sentence for those who would otherwise only warrant a minimum determinate sentence of 10 years imprisonment, or five year tariff. The sentencing structure, the unavailability of information and the almost universal poor management has contributed to the substantial confusion and mistrust of these sentences in the prison system. The current system simply does not work and is hugely over-subscribed. In the absence of total abolishment we would ask the Government to introduce significant and tangible reforms as soon as possible, particularly for those who are post-tariff and remain in prison today.
Lorna Elliot is a Barrister at Emmersons Solicitors, Sunderland
Do tough sentences deter crime?1st July 2016
But as Tom Gash points out in his excellent new book, Criminal: The truth about why people do bad things, there is little evidence that tough sentences do deter crime.
There is a deep-seated popular belief (found in our reframing research) that committing crime is a rational act – that criminals logically weigh up the chances of being caught and the severity of their punishment, against the gains to be made from committing a crime. Because most people think that crime is an individual, rational choice, they also deduce that if punishment is made more severe, potential criminals will make a different choice. This belief has led to a raft of “tough on crime” policies in the UK. In 1993 Michael Howard, when “. Since that time our prison population has doubled, fuelled for the most part not by sentencing more people to imprisonment, but by tougher sentences. Average prison sentences have increased steadily (up four months vs twenty years ago) and continue to do so.
But as Tom Gash points out, there is plenty of evidence to show that tougher sentences have little impact on crime. Finland in 1960s decided to reduce their prison population. They removed nearly all fine defaulters from prison, then reduced the numbers of those imprisoned for theft, drink-driving and other non-violent crimes. Suspended sentences became the norm for first-time offenders who had been given prison sentences of less than two years. Crime did in fact go up significantly from 1960 to the late 1980s, but it went up no more in Finland than in other Scandinavian countries, with low prison populations. Crime also went up steeply in USA where the prison population soared.
If deterrent sentencing works, this draconian three strikes law should have prevented anyone affected committing that third crime. But it didn’t. An economic study concluded that people on two strikes were only 12.5% less likely to be arrested after the new law than before it. Another study suggested that the threat of punishment might have encouraged two strikers to commit more serious third crimes as “rather be hanged for a sheep than a lamb”.
If you understand that crime is most often a spontaneous, reckless act, rather than a rational, considered choice, it makes sense that severity of punishment does not deter. But the belief in the criminal as “rational actor” and the deterrent effect of prison is very strong. Let’s hope we can shift those beliefs.
Penelope Gibbs is the Director of Transform Justice.Criminal: The truth about why people do bad things by Tom Gash is published by Allen Lane. ISBN-10: 1846145937
Short tariff IPP sentences 17 December 2014 in archive headlines
On July 14th 2008 the Government changed the law concerning IPP sentencing policy. The Criminal Justice and Immigration Act 2008 introduced a ‘threshold of seriousness’; namely a minimum tariff of two years. This meant that if the offence committed did not warrant a sentence of at least four years (equivalent to a tariff of two years) the court could no longer impose an IPP sentence. This threshold also applies to EPP sentences.
There is an exception to the seriousness threshold; when an offender already has previous convictions for certain very serious offences, the court then has discretion to impose IPP even if the tariff for the current offence is less than two years. The list of very serious offences is called Schedule 15A and is based, with some updating, on the ‘two strikes’ or ‘automatic life’ offences.
There were other changes: ‘The removal of the rebuttable presumption of risk.’ This means that the court is no longer obliged to conclude that the offender is dangerous when there is a previous conviction for a violent or sexual crime. Also, IPP and EPP sentences are no longer mandatory when the relevant conditions are met. They are simply available to judges to use at their discretion. For more details, get PSI 27/2008 from your solicitor or library.
The purpose of these changes is to create fewer IPP sentences, especially with shorter tariffs. However, what about prisoners who are already serving IPP with a tariff of less than two years? Surely the IPP part would be quashed and we would be released on tariff? At the very least they would have to take us back to court to be re-sentenced? No, the new legislation did not make the changes retrospective. So our sentences are unaffected.
If we had been sentenced before IPP was introduced on 4th April 2005, we could not have been given a life sentence. If we had been sentenced after 14th July 2008, we could not have been given a life sentence. It is only because we had the misfortune to be sentenced between these two dates that we are serving an indeterminate life sentence. Is this just? Is this fair? Is this right?
By altering the legislation the Government has effectively admitted that it was flawed. They never intended judges to be handing out IPP sentences like confetti. David Blunkett, the architect of this savage law, doesn’t even know that there are short tariff IPP prisoners. The following is an extract from his column in the Sun on 18th July 2007; somewhat lengthy, but illustrates the cognitive distortions that he is labouring under. He wrote: ‘… the froth that’s being talked about indeterminate sentences – where prisoners are kept locked up until it is safe to release them, rather than for a fixed term. That’s now the responsibility of the new Justice Department. But it is being said that these sentences are adding to prison overcrowding. As every Sun reader can work out for themselves these sentences were for really severe crimes which would have earned pretty lengthy fixed terms – and I’m not talking about four to five years. It was precisely to avoid letting these dangerous people out too early that the indeterminate sentences were introduced.’
So let’s do the maths here, if someone was sentenced to ten years in 2005, would they still be in jail, even with full remission? The answer is patently ‘yes’. If they were given an indeterminate sentence, would they still be contributing to overcrowding? Of course, as hopefully they would still be serving time; so why all the talk about getting rid of these sentences? They make no difference to our problem jails and won’t do so for years to come. I suggest that all the highly intelligent people dealing with the criminal justice system need a simple mathematics lesson’.
May I politely suggest that it is Mr Blunkett who needs the mathematics lesson. The median tariff length for IPP sentences was 30 months before they changed the law in July. Or perhaps Mr Blunkett needs an English lesson? Maybe he got the wording wrong in the Criminal Justice Act 2003? Maybe he meant IPP to be applied to offences carrying a minimum ten year sentence (five year tariff) rather than for offences which carry a maximum sentence of ten years or more. No Mr Blunkett, you were not talking about sentences of about four to five years, you were talking about sentences measured in months. 28 days is the shortest one, I believe. Well done Mr Blunkett, no wonder you’re on gardening leave.
IPP sentences have contributed significantly to prison overcrowding. If they had not been introduced in April 2005, the vast majority of IPP prisoners would have received a determinate sentence and been released on parole halfway through – this is how judges determine the length of tariff.
But who really cares about prison overcrowding? The public want to see the jails full; it makes them feel safer. The politicians love it, as it looks like they are being ‘tough on crime’ – always a vote winner. And our illustrious prison officers and probation officers? They get all the overtime they want, their jobs are secure for life; a ‘nice little earner’. What about the programmes’ facilitators and the army of trainee psychologists? I understand the Government gives the prison £9,000 for every prisoner that goes on their programmes, and indeterminate sentenced prisoners can go on an indeterminate number of programmes! And solicitors and barristers? Now we’re really talking … all that legal aid. An indeterminate number of parole hearings where indeterminate (life) prisoners are entitled to a solicitor and a barrister to represent them. Every year or two we will be up for parole; for an indeterminate number of years. Nice work if you can get it. What about when we do eventually get parole? Apparently, thus far 31 of us have; the programmes Gestapo will be livid when they find out. We are going to need solicitors and barristers for the rest of our lives (well, minimum 10 years in any case).
The median age for an IPP prisoner is 28. For many years we will be subject to the whims and mercies of hysterical probation officers and trainee psychologists with something to prove; an indeterminate number of recalls to work on. Surely this is the goose that lays the golden egg for solicitors and barristers?
Prisoners themselves, and their families, must be upset about prison overcrowding. Well, actually, many thousands of prisoners are facing the prospect of having their sentences cut short and being released a few weeks early because of prison overcrowding. The Government ‘solution’ is to build even more prisons so that they can imprison even more people.
What about the victims of our crimes? All IPP sentences are for violent or sexual offences. All victims are likely to have suffered physically and emotionally and are likely to do so for the rest of their lives. In effect, they are serving a life sentence because of what we have done. So why shouldn’t we? I have no answer to this question. We can not possibly pay the debt we owe to our victims and with an indeterminate life sentence we can never pay back the debt we owe to society until the day we die.
The feelings of helplessness, despair and isolation that accompany the IPP sentence are overwhelming, for us and for our families. I am one of those fortunate enough to have support from my family and good friends. Here I would like to mention a friend of mine, Simon, who I met here at Manchester. He was serving an IPP and genuinely wanted to change his offending behaviour. He got himself a place on a therapeutic community programme at HMP Dovegate. He was there for a number of months, then killed himself this summer. We were all deeply shocked here at Manchester – our thoughts and condolences go to Simon’s family and friends on the outside.
So, if you are a low tariff IPP prisoner, what can you do? Well, don’t despair! Don’t do anything stupid. I would encourage anybody who is feeling like Simon to contact a prison listener or the Samaritans. Go on the programmes they tell you to go on. You have no choice. But you can do something to give yourself hope. The Government thinks it has now fixed the IPP problem and that it has gone away, but it hasn’t; there are still some loose ends. Let them know that we are still here and we are not going anywhere. Write to your MP. Write to Justice Secretary, Jack Straw at the House of Commons, London SW1. Maybe David Blunkett would like to hear from us as well? Give yourself hope! Do something positive!
What about you solicitors and barristers out there? Are any of you willing to take on the government? Do we have any kind of legal leg to stand on? Is the change in law to abolish short tariff IPP sentences prejudicial to prisoners who have already received the ill-conceived creation?
I realise that violent and sex offenders are the lepers and pariahs of modern society, but we wouldn’t mind a little bit of compassion right now. Where is that wonderful man of compassion Lord Longford when we need him?
IPP Update
1st January
2012 in Feb 2011
The Green Paper has finally been published and we now have three months to submit our responses. Emmersons Solicitors, as most of you will already know, have been campaigning for the abolition of the IPP sentence for a while now. Although the proposals don’t go that far, the Government is seeking to reserve the IPP sentence for the most serious crimes (which warrant a 5 or more year tariff). The Tory’s pre-election idea of the ‘mini-max’ sentence has not made it into the Green Paper. That is not to say that the Government has totally scrapped the idea, but that it hasn’t formed part of the immediate ideas for reform.
The proposed changes to the IPP sentence, if they become law, will not be retrospective. This means that, in the same way that the pre-2008 IPPs were not affected by the changes to the law, those currently serving IPP will not be affected. Although this is obviously very disappointing to those with loved ones currently serving short-tariff IPP sentences, their predicament is not forgotten by the Green Paper. Significantly, there is a proposal to change the way that the Parole Board decides whether or not to release current IPP prisoners back into the community.
At the moment, the Parole Board is extremely risk-averse. This has been widely recognised by the Prison Governors’ Association, the Prison Reform Trust, and others and now – at last – the Government. Currently, if the Parole Board are worried that there is a risk that the offender might pose anything more than a minimal ‘risk’ in the community, they will not direct the prisoner’s release. The proposals in the Green Paper seek to address this, and if they become law, will mean that IPPs stand a much better chance of being released. The Green Paper says that the Government is ‘exploring’ whether a new test for post-tariff IPPs so that more of them are released by the Parole Board. All that has been said at the moment is very generally phrased that a new test could be applied that focuses on keeping those who ‘clearly pose a very serious risk of future harm’ in prison and releasing those who do not.
It appears, from the Green Paper, that the Government has no plans currently to speed up risk assessments by, for example, getting rid of the requirement for an oral hearing in front of the Parole Board. This still means that there are likely to be delays, which we will specifically seek to address in our written submissions to the Government. At the moment, the Parole Board lists oral hearings according to priority, but there is still often a substantial amount of waiting time before the prisoner actually gets their oral hearing. A case in the Administrative Court last year confirmed that the Secretary of State has the power to direct a prisoner’s move to open conditions without an oral hearing in only ‘exceptional circumstances’, but we think the Government should at least give consideration to using this more widely.
If you have had a chance to read through the Green Paper, you’ll see that there are questions that the Government asks at the end of each section. The one question that relates specifically to the IPP sentence does not really have very much to do with whether the IPP sentence works or not, whether it’s fair on offenders and their families and avoids the obvious issue – its overwhelming uncertainty and injustice.
The one specific IPP question asked of the public relates to the fact that the IPP sentence can be very confusing for prisoners, the public and for victims. This includes the way that IPP sentences are announced by the judge in court (e.g. a notional determinate term of six years imprisonment warrants a minimum term of three years minus time spent on remand); the uncertainty as to how long a prisoner will spend in prison, and the lack of availability of courses for offenders to demonstrate their reduction in risk.
The Government appears at last to acknowledge the effect that the IPP sentence has had on those sentenced to IPP as well as their families. They state, at paragraph 187, that “the widespread use of IPPs…can undermine public confidence since the court, the victim and the public have little or no means of knowing how long an individual spell in custody is likely to last or whether it will ever end.” At the very least the Government seems to have taken some notice of the utter injustice of this inhumane sentence.
The one question that the Government asks of us is this: “How best can we increase understanding of prison sentences?” While we would suggest that the most obvious answer to this is the abolishment of the IPP sentence in favour of ‘mini-max’ sentences, this is clearly not on the Government’s most immediate agenda. So, in order to help us to compile our contribution to the public consultation we ask prisoners, and their loved ones, for their views on the following questions:
Do you think that the way the IPP sentence is announced in court, i.e. the length of the tariff, is confusing?
Was the effect of the ‘dangerousness’ label and the requirement to ‘reduce your risk’ explained to you at the start of the IPP sentence?
What is your experience of the availability of offending behavior courses? We would particularly like to hear from people who had to wait a very long time for courses, or were told that they had to undertake more (and sometimes lengthy) courses at a late stage of their tariff, or post-tariff.
Do you feel that the structure of the IPP sentence is adequately explained to offenders, their families, victims and the public in general?
For those who maintain their innocence, has the effect of this on your ‘risk’ been explained to you? If so, what have you been told and who by?
We can’t promise that we will be able to use all of your responses, but we will publish our consultation response on our Facebook page and will also send it to Inside Time for publication. We look forward to hearing from you. Please ensure that we receive your views by Monday 21st February so as to ensure that we are able to include them in our response.
Of course you can also respond personally to the Green Paper, and sending us your views does not prevent you from doing so in your own right. This equally applies to prisoners, who can also write directly to the Ministry of Justice at: Breaking the Cycle, Ministry of Justice, 10.08, 10th Floor, 102 Petty France, London, SW1H 9AJ. The deadline for replies is 4th March 2011.
Lorna Elliott LLB (Hons) Barrister
Emmersons Solicitors
ACER House
52 John Street
Sunderland
SR1 1QN
T: 01915676667
F: 01915670808
www.emmersons-solicitors.co.uk
A new role for the judge?
29th March
2019 In
"*Comment"
His Honour John Samuels QC identifies the principal themes made by the Justice Secretary
The surprise which greeted the announcement by Justice Secretary David Gauke (centre) that we have far too many prisoners in our prisons, serving sentences which rise inexorably in length at a time when overall crime rates are falling, was not so much that the message which he conveyed was flawed – only the tabloid press so described it, so it must be sound – but that a Conservative Justice Secretary, caught up in the muddle of Brexit, had chosen a Monday morning in February to make such an important speech. They were:
• Does current sentencing policy, particularly that involving the short prison sentence, actually reduce crime?
• Are our prisons run in a way which maximises offenders’ chances of turning their lives around, leading to gainful employment and rejoining society as responsible citizens?
• Should we not be seeking opportunities to find better and alternative ways of punishing as well as rehabilitating offenders?
Few informed commentators would disagree with the proposition that these three themes are of central importance when we consider what is wrong with our prisons today; and the steps we should take to improve them. However while the questions asked are sound, adopting the traditional answers to those questions misses the opportunity presented by a more obviously open approach to ask the further question: why do we not use the sentencing judge in a supervisory capacity to ensure that the objective outlined by David Gauke in his speech can more readily be achieved?
Across the spectrum
Traditionally, the judge took no interest in those whom they had sentenced. Once sentence had been pronounced, responsibility for the delivery of that sentence passed to the Prison Service, if the offender was to be incarcerated; or to the Probation Service, if the punishment imposed by the court, together with the programmes designed to assist an improved way of life, were to be delivered in the community. But that traditional view can no longer sit easily with the Rehabilitation Revolution, proclaimed by successive Justice Secretaries from all corners of the political spectrum to be the key purpose of the sentencing of offenders.
Account of progress
The first green shoots of an altered approach by informed sentencers came about when, following the making of a Drug Treatment and Testing Order, a sentencer required the offender, during the subsistence of an order which could last for up to 2 years, periodically to attend court before the original sentencer, to give an account of their progress. While inevitably not every such order was successful, the positive advantage which it bestowed on both the sentencer and the offender was that a supportive relationship developed between sentencer and offender. The judge was keen to see the offender break away from their addiction; and the offender, responding to the active interest in their progress being displayed by the judge, did not want “to let my judge down”.
Positive relationships
The success of this approach, loosely described as the “problem-solving court model”, has led to the creation of specialist courts worldwide: drug courts, mental health treatment courts, alcohol courts, family drug and alcohol courts, domestic violence courts and veterans’ courts; and all of them are underpinned by the positive and supportive ongoing relationship which develops between the judge and those whom they have sentenced.
Purpose of punishment
In 2003 Parliament, in what was intended to be a ground-breaking approach to the sentencing of offenders, identified for the first time in a statute the purposes of punishment. In Section 142 of the Criminal Justice Act those purposes are specified as follows:
a. the punishment of offenders;
b. the reduction of crime (including its reduction by deterrence);
c. the reform and rehabilitation of offenders;
d. the protection of the public; and
e. the making of reparation by offenders to persons affected by their offences.
Although these five statutory purposes need no elaboration, the judge who is bound to apply the law when sentence is imposed needs to think carefully about how to comply with the requirement that the sentence to be imposed must so far as practicable achieve the reform and rehabilitation of the offender. Sentencing should not be a “snapshot moment”, when the offender is dealt with, once and for all, by the sentencing court. Reform and rehabilitation is a process, which inevitably occurs over a lengthy period. It is a dereliction of the responsibility imposed on the judge to transfer oversight of that process elsewhere.
Light touch
Consistent with that duty of oversight of the sentence imposed by the court on the sentencing judge is the obligation to keep abreast of the progress made by the offender while undergoing the sentence of the court. It is not suggested that this obligation supersedes the day-to-day and hands-on supervisory role of the prison officer or probation officer; but it can and should supplement that role, in a light-touch but engaged manner. It is beyond the scope of a short article of this kind to identify precisely how this might work in practice; and it is in any event undesirable to identify a prescriptive one-size-fits-all approach: individual offenders vary immensely in their needs, and those who supervise them, whether judges or other members of HMPPS, recognise the reality of this.
Judges in prison
However a judge who regularly engages with those community programmes provided by those sentenced to non-custodial orders will become that much more familiar with what is on offer locally to achieve reform and rehabilitation. The judge who routinely attends the prisons where those sentenced by the court are held in custody may enhance the rehabilitation prospects of those so sentenced by overseeing their sentence plans, and by ensuring, so far as is practicable, that arrangements are in place for their effective supervision once they emerge from the prison gates. A further benefit from this continued engagement of the judicial sentencer with those who are sentenced is that it leads to far more “intelligent” sentencing: unless you, as sentencer, have an informed appreciation of what is likely to happen to those whom you have sentenced, you are unable to achieve the express statutory purpose of sentencing, namely “to achieve the reform and rehabilitation of the offender”.
Benefits of contact
The proposals advanced by the Justice Secretary, outlined in more detail in the March issue of Inside Time are to be actively welcomed. However a new and more involved generation of judges will increasingly come to recognise the benefits which are achievable for society as a whole when they maintain both responsibility for and contact with those whom they have sentenced.
Short tariff IPP sentences 1st April 2011 in archive headlines. locked up with no end in site.
The human cost; living without loved onesthe untold story of having a relative serving an indeterminate sentence for public protection.
In 2010, my world view was expanded when I started looking into the recurring nightmare for thousands of prisoners serving the controversial Indeterminate Sentence for Public Protectioncommonly known as IPPs. Through the generosity of various prisoners families and some committed campaigners, I was brought into the world experienced by those who are supporting people given this sentence. In this report, three prisoners’ families shared their tales of living with the consequences of IPPs.
Out of all the legislation created by New Labour, an authoritative report by the Prison Reform Trust called IPPs “one of the least carefully planned and thought of pieces of legislation in the history of British legislation”.
The government’s latest Green Paper says it believes that indeterminate sentences of Imprisonment for Public Protection (IPPs) should only be available for the most dangerous offenders.
But those who received this particular risk averse sentence say this is not currently the case.
Pat
Pat whose partner is serving an IPP for low level offence of violence said ” The public think IPP’s are the most seriously dangerous people, but most are not in the general understanding of ‘most serious’. “
The toil of uncertainty takes on IPPs prisoners can be seen in increased incidences of mental ill health and self harm; more common than the general prison population.
“It’s not just the lack of an end point for your prison sentence; life inside becomes extra tough too. They are nervous wrecks because they’re frightened a look will be misinterpreted, and are targets of bullying because they can’t complain or retaliate” says Pat.
In 2005, Pat’s partner was involved in a drunken fight and the court passed an indeterminate sentence for public protection (IPP). In 2011, he will have served four years in excess of his minimum tariff. After a second parole hearing failed, he became depressed. Pat explained how she’d go to bed with her phone on, expecting a call from the prison to say he’d died. "When you are an IPP prisoner, you can’t appear to be weak if you want to be released… you have to cope." The law on IPPs changed in 2008, so no one with a sentence of less than two years would receive one. Pat is bitter at the injustice: if sentenced now, her partner’s 18-month tariff would receive a fixed length sentence and he would be free now.
Over the years, Pat and her family have tried to find ways to cope but it always feels futile. "You never have expectations for the future. It’s living without hope” says Peter.
Peter
Peter’s son Tom was given an IPP at the age of 16 for the crime of wounding. It was his first offence. "The IPP was the worst [sentence] we were expecting," says Peter. While trying to deal with a relationship breakdown and feelings of being mixed up, Tom had sought help from an NHS mental health team. They found no evidence of psychiatric problems; a conclusion shared by an independent psychiatrist.
IPPs target specific serious offenders and those who are assessed by the court as dangerous. In Peter’s opinion the court reached the conclusion that mental health problems translate into evidence of dangerousness. "I think this (NHS contact) played a big role in judge’s mind…The safest thing to do was give an IPP". Tom has moved onto an adult jail and is struggling to see a future.
"The problem with IPPs is that they are tantamount to a life sentence…. We carry the scars." Peter’s family is planning for his partial release back into the community; with a job to help his reintegration to the community.
Kate
Kate’s son John was 19 when he was convicted of wounding after an argument that turned into a pub brawl. He was given an IPP with a minimum tariff of two years to serve. "My son has been in prison since 2005 … and the key has been thrown away", she says. Last month he was finally released having served three years over his tariff. He was lucky: only 4% – around 100 prisoners – of the total IPP
population have been releasedarguably the lowest for any prisoner group. In the community, John is subject to strict restrictions for a minimum of 10 years.
Kate accepts that he needed to be punished. She says "I have never claimed my son should not have gone to prison, but the IPP sentence is inhumane." She is bitter about the wasted years. "I’ve had the ghost of IPP on my shoulder … it has been my mission to bring my son back from the brink of despair. It’s a job she continued after his release earlier this year. Concerned that John could slip back into crime, Kate worked hard to shield him from this, offering him a place at home. Despite the recession, John secured a job and he has now been out of jail since last year.
John’s story of surviving prison and turning his life around is a rare success story. There has been no research on IPPs and re-offending or future dangerousness.
Looking ahead, it is worth considering the government’s comments on IPPs and its concern with sentencing on the basis of future behaviour. The government’s discussion on reforming IPPs in the latest Green Paper on crime says “The limitations in our ability to predict future serious offending also calls into question the whole basis on which many offenders are sentenced to IPPs”.
Perhaps some optimism can be attached to the promise contained within those words from the Ministry of Justice. The 800 plus prisoners’ families who have replied to the Green Paper through a campaign led by Emmersons solicitors certainly hope so. It is rare to find a sentence that has attracted just about universal criticismIPPs have.
In an age of austerity, and budgetled policy, the £100 million price tag of having up to 2500 prisoner in prison who are 2 years or more beyond their release date, will take precedence on the politicians thinking. For prisoners’ families left to pick up the piece of shattered lives, change cannot come soon enough.
Please address all letters to Charlotte Rowles, c/o Inside Time,
Botley Mills, Botley, Southampton, Hampshire SO30 2GB
Names have been changed
Post tariff IPPs a Disgrace
1st April
2011, In
"archive headlines"
In the aftermath of the publication of the Green Paper Emmersons Solicitors sought the views of those affected by IPP sentences so that we could compile a consolidated response. We are grateful to all the prisoners, their friends and their families who responded by post, email, on Facebook, Twitter and our online petition. We took into account every one of the eight hundred or so replies that we received. The following text is an abridged version of our response:
As it presently stands the IPP system does not work. There are thousands of post-tariff prisoners sentenced before July 2008 who find themselves unable to persuade the Parole Board to release them. The onus is on the prisoner to prove that they are no longer dangerous. Far too often they are not given the opportunity to do so because of a shortage of courses, or being held in – or sent to the wrong prison for their sentence plan and unable to obtain a swift transfer elsewhere, or because the waiting lists for courses is several years long. Parole hearings are deferred, post programme reports are delayed, and those who have received ‘knock-backs’ are then set further review dates far into the future.
The Parole Board is far too risk averse. The current test (whether it is necessary for the protection of the public for the offender to remain in prison) is too widely interpreted. As a result nearly all IPP prisoners remain in custody post-tariff, at a huge annual cost to the taxpayer, when rigorous supervision in the community could be less costly and more effective in terms of actual rehabilitation.
A large number of responses we received portrayed a system that is bursting at the seams, is unfit for purpose, inhumane and utterly unfair. As IPP prisoners have no idea when they will be released their marriages and other family relationships suffer, and mental health and self-esteem deteriorates. Many IPP prisoners suffer from mental health problems, feelings of utter hopelessness, mistrust of the system, and feelings of victimisation. Prisoners felt strongly that there was ‘no light at the end of the tunnel’, and asked ‘If I don’t have a release date, how can I ever plan for my life after prison?’??
Many IPP prisoners are well aware of the effect of poor behavior but many prisoners wrote about ‘not wanting to rock the boat’ with staff or ‘make waves’ by complaining about the lack of courses. Prisoners serving determinate sentences also had less to lose, which in some cases created difficulties for IPPs who did not want to be adjudicated for having to defend themselves. This has created a two-tier prison system; those who have it all to lose, and those who have nothing to lose. Conversely, there were also those who were sentenced to IPP, were convinced they would never be released, and therefore concluded that they had nothing to lose either.
The onus must be taken away from the offender to prove they are no longer dangerous. At present, the emphasis is on preventative detention and the interpretation of ‘dangerousness’ is speculative and too widely applied.??It appears to us that the Green Paper does not outline any specific plans for speeding up risk assessments by, for example, substantially reducing the requirement for an oral hearing in front of the Parole Board to move prisoners to open conditions. Although the Parole Board lists oral hearings according to priority there is still often a considerable amount of waiting time before the hearing takes place.
The Secretary of State has the power to direct a prisoner’s move to open conditions without an oral hearing, but at present this is only used in exceptional circumstances. We would ask that the Government makes wider use of this power. In the same way as the Parole Board is entitled to use pre-sift procedures and the ICM stage to consider cases on the papers, risk assessments with a view to a move to open conditions could similarly be considered (if, for example, all parties recommended it). ??
The questions we asked our respondents were as follows: ??
Do you think that the way the IPP sentence is announced in court, i.e. the length of the tariff, is confusing? ??
Nearly all respondents agreed. Some prisoners had no idea that they had been given indeterminate sentences until several months, and in a few cases over a year, into their sentences. ?There was widespread confusion over the way that the judge announced the IPP sentence in court, and often the notional determinate sentence was confused with the length of the tariff. A recurring misconception was the idea that IPP prisoners are serving a sentence of 99 years. This is simply because the computer system cannot recognise indeterminacy. Several respondents reported that prison staff told prisoners “we’ve got 99 years with you, wait a bit longer for that course.” ??
Many prisoners knew virtually nothing about their sentence on arrival in prison, relying heavily on other prisoners to explain the practical elements of IPP to them. Relatives (and other members of the public) were very poorly informed as to the nature and structure of the sentence, and the determination of ‘dangerousness’ by the court. In several cases, relatives who were not present at court were unable to accept that their loved one had been given a sentence tantamount to ‘life’ and this caused mistrust within family relationships: families felt that they must have been lied to by the prisoner about the seriousness of the offence.??
Was the effect of the ‘dangerousness’ label and the requirement to ‘reduce your risk’ explained to you at the start of the IPP sentence? ??
A lot of respondents did not understand that the IPP sentence meant that they had been assessed as ‘dangerous’ and therefore had to reduce their risk if they were to be able to work towards release. Many relied on other IPP prisoners to explain this to them. While some understood immediately what they needed to do to reduce their risk, there were others who ‘gave up hope’ early on, compounded by the fact that they had no answer to the question ‘when are you coming home?’??Some prisoners had successfully completed dozens of courses but were still no closer to understanding when they would be deemed suitable for release.??
What is your experience of the availability of offending behaviour courses?
Nearly everyone described substantial delays; with some having lengthy offending behavior courses added to a sentence plan weeks before tariff expiry. In a few cases, some prisoners had not received a sentence plan by tariff expiry.??Others had only been able to complete one objective in several years. There was a general feeling that the provision of courses was under equipped, poorly organised and inconsistencies between establishments as to whether a particular course was suitable or not, which prisons offered which courses, how long the waiting lists were, and prisoners being transferred to establishments which had no suitable courses for them. There was also concern expressed over IPP prisoners who had learning difficulties. Many respondents were mistrustful of psychologists and expressed frustrations over inaccuracies in reports, which were often not rectified despite verbal assurances. In a few cases, some prisoners were told that they were not suitable for any offending behavior courses.
Do you feel that the structure of the IPP sentence is adequately explained to offenders, their families, victims and the public in general? ??
A small number of prisoners (mostly new IPPs) understood exactly what type of sentence they were facing and what they needed to do to reduce their risk. Some prisoners sentenced soon after IPPs came into force were not advised by their lawyers that IPP was even a possibility. Probation officers had often compounded the problem in these cases because they had recommended community penalties in pre-sentence reports. ??
Prisoners were often told they had ‘no chance’ of parole the first time around, and that it was inevitable that they would be detained post-tariff. A large number of respondents were confused as to why they had been given IPP sentences when they had no previous convictions.??The members of the public that we encountered in the course of our campaign generally had no idea that IPP sentences existed. Most were shocked that such sentences were handed down in the twenty first century. Others thought that only those convicted of murder and child sex offences were given IPP sentences, as sometimes reported by the media. Prisoners and their families had been heavily reliant on external organisations to understand the structure of the IPP sentence.??
For those who maintain their innocence, has the effect of this on your ‘risk’ been explained to you? If so, what have you been told and who by? ??
A lot of respondents pleaded guilty or admitted their offences post-conviction. Those who maintained their innocence felt that they had been labeled a ‘lost cause’, while others had ‘given up hope of ever being released.’ It appears, however, that this is by no means a sentiment reserved only for those who maintain their innocence. Some had been told by prison staff that they would die in prison. ??
The proposal put forwards by the government in the Green Paper is to reserve the IPP sentence for those who would otherwise only warrant a minimum determinate sentence of 10 years imprisonment, or five year tariff. The sentencing structure, the unavailability of information and the almost universal poor management has contributed to the substantial confusion and mistrust of these sentences in the prison system. The current system simply does not work and is hugely over-subscribed. In the absence of total abolishment we would ask the Government to introduce significant and tangible reforms as soon as possible, particularly for those who are post-tariff and remain in prison today.
Lorna Elliot is a Barrister at Emmersons Solicitors, Sunderland
Breaking the
cycle1st May 2011
The 4th of March 2011 saw the end of the consultation process by the Ministry of Justice with respect to the reforms which sets out “fundamental changes to the criminal justice system”. The Justice Secretary, Kenneth Clarke, plans more help to deal with inmates’ drug and alcohol addiction problems and mental illness. However, in direct contradiction to this is the fact that Kenneth Clarke also wishes to cut prison funding by £4 billion; with prisons struggling to maintain psychology staff and run rehabilitative courses it is difficult to see how the “cycle” will be broken, it is more likely that offenders will leave determinate sentences without addressing the triggers to their offending behaviour.
Rather than being an effective means of reducing crime, evidence suggests that prison generates crime as it causes social and economic harm to individuals, families and communities. Communities which suffer high imprisonment rates experience social breakdown which diminishes the protective bonds that are key to preventing crime and disorder.
There is greater emphasis on rehabilitation within the community within the Green Paper but, with predicted funding cuts affecting the probation service (who would be responsible for the supervision of offenders on community sentences) it is unlikely that those serving sentences within the community would be monitored sufficiently or that the “tougher community punishment” could be properly enforced without the staff to impose the conditions of community punishment. It is to be expected that pressures upon the probation service, already understaffed, would mean that more offenders are likely to be recalled to custody upon a slight elevation of risk and this would mean an increase in the amount of prisoners recalled to custody and/or related parole reviews. Additionally, the premise that recalls should only be initiated for very serious breaches is a feature of the current guidelines for recall but, it is not strictly adhered to so it would be unlikely that there will be any radical change to the number of people in custody.
That is not to say that care and more intensive rehabilitative work does not work but mostly it works when implemented by a charity focused on care or a conscientious probation officer. There is a recommendation that the voluntary sector should also have a greater involvement with rehabilitation in the community however, this simply seems to be an exercise in saving expenditure on criminals. Further, in the current financial climate and when the cuts to charitable organisations are being publicly severed then it is likely that the number of bodies able to completed significant rehabilitative care in the community will be depleted.
There is a suggested pilot scheme of Integrated Diversion and Offender Management teams. This entails getting the police, probation and other agencies, such as drug treatment bodies, to work in the same office. The same people doing the same job they have always done but in a cohesive manner which is purported to make a difference. This type of liaison is already in place in the form of MAPPA review panels. The evidence from these MAPPA panels is that rehabilitation is more onerous when a person is dependent upon a body of people getting together to direct how a person progresses. The MAPPA Board consisting of the agencies deemed requisite to supervision will only meet on a monthly basis and have no contact with the person in question, and it is questionable as to how much consideration is given to one case when several people are considered in one sitting. There are obvious flaws with this arrangement.
The majority of proposals in the Green Paper already exist in some form and those that work have difficulty in maintaining success without sufficient funding. The suggestion that indeterminate sentences would be reduced would have to balance against the severity of the offence and the public perception on offences. It is naïve to believe that a softer approach to offenders would address the issue of sentences. The majority of offenders would still be handed a custodial sentence. The recommendations for credit for an early guilty plea do not take into account the existing procedure concerning the way in which a case is progressed. Frequently, an individual is presented with very little information at the police station and even the Magistrates’ Court so a legal representative may advise against entering a plea until the full facts of the case are presented. This type of suggestion is again financially focused; an early guilty plea is essentially a mechanical process and has nothing to do with rehabilitation or “breaking the cycle of offending”.
The report states, ‘half of all crime is committed by previous offenders’, which is fair however the green paper has very little regard to the rehabilitation of indeterminate sentenced prisoners or offenders with no history of offending. A lot of indeterminate offences are committed uniquely and there are a number of common-place determinate sentences such as not paying tax, committing an insurance fraud or using illegal substances; these are some of the offences that are unpredicted (with no prior/similar offending).
The predictions for changes in the justice system show a steady reduction however, it does not have any regard for the unsettled lifestyle of the average offender or the impact that outside sources have such as the ability to find gainful employment or accommodation. People will continue to threaten and assault, without ever having received any form of rehabilitation and children may still witness and suffer abuse and go on to offend. Social statistics currently suggest that there will be an increase in poverty and whilst there is significant class divide the crimes will continue – e.g. drugs taken as a means to escape reality, robberies/burglaries for financial gain.
Solutions to reducing crime and promoting public safety lie outside the prison estate and beyond the criminal justice agencies. The answers are to be found in improved mental health services, drug treatment and alcohol services. Social development initiatives that address exclusion and disadvantage by providing effective support for communities would, in the long run, be more effective than relying on punishment to stop crime. This again is dependent on the amount of capital invested in social development schemes; we should not forget that it was a Conservative Government that made cuts in the number of psychiatric and psychological services available to the public, and proposed cuts within the NHS will undoubtedly affect the number of psychiatrists available to assist those with mental illness. If these solutions prove to be effective then it will assist in applications before the Parole Board and the Ministry of Justice for release as there would be a more supportive release plan; improving the turnaround of cases and success at reviews.
The Justice Secretary has also recommended that the minimum terms currently applicable to murder sentences should be abolished which will assist with parole applications in the sense that risk reduction may be better addressed upon reflection of the minimum term set in the case. The discretionary aspect of the minimum term in murder cases may more appropriately reflect the circumstances of the offence – it is unjust that someone who committed a sadistic murder may receive the same minimum term as someone who has committed murder following years suffering violence and abuse. However, discretion also gives rise to discrepancy in setting the minimum term. Discretion may be compromised by emotion, political favour, racism and other prejudices. Discrepancies may be safeguarded through transparency in decisions being exercised in public and subject to appeal; Judges should be able to reflect variation in their decisions. Whatever, process is executed in applying the discretionary minimum term, there will undoubtedly be a need to denounce the offence of murder and for the punishment to be seen as a deterrent to taking another’s life.
The strongest proposition made within the green paper is the case against IPPs. The paper accepts that IPPs are bound to continue in some form, and the proposals for applying them to the most serious violent or sexual offences the range of crimes for which IPPs are awarded, and giving more realistic guidance to parole boards to “focus indefinite imprisonment on those who clearly pose a very serious risk of future harm” are extremely welcome. The use of IPPs confused the sentencing framework, and undermines public confidence as there is no way to determine how long an individual spell in custody is likely to end. It in positive that the Government propose to explore a new test for those who have served their punishment would focus indefinite imprisonment on those who clearly pose a very serious risk of future harm. There is no question of releasing any IPP offender into the community without some clear assessment of risk and this was confirmed by the Ministry of Justice during the consultation process. The Parole Board would still refuse to release offenders where it is clear that this was necessary to keep the public safe. The IPP sentence created a lot of problems with respect to parole reviews and access to courses which were detrimental to the rehabilitation of offenders serving other sentences. A review was very much required. As a practitioner, it will assist with processing cases more effectively and a more consistent approach to the factors affecting release applications.
Ultimately, without addressing the need for proportionality in sentencing and moving towards the notion that rehabilitation can be used as a crime reduction tool through proper funding and addressing the sources of offending it is difficult to see the Green Paper as anything other than a rebranding and cost-cutting exercise. Of course prisons should seek to assist and support offenders, but they are ultimately places of punishment, not a social service, and so will never be an effective crime reduction tool.
Naomi De Silva, Solicitor for Cartwright King Solicitors
Government
proposes abolition of the IPP Sentence
1st July
2011
On 21st June 2011, the Government published the outcome of the ‘Breaking the Cycle’ consultation, which attracted over 1,200 responses. While much has been made of the Government’s propensity for ‘U-turns’ recently, they appear to have gone further than the initial proposals on the reform of the imprisonment for public protection sentence.
The idea for IPP reform contained within last year’s green paper was merely further to restrict the number of people who could get an IPP sentence to those who would otherwise have received a determinate sentence of 10 years or more (a minimum 5 year tariff).
The government has now recognised publicly that the IPP sentence has created a ‘flawed system’ that has never worked as Parliament intended.
The Justice Secretary said: “We will conduct an urgent review with a view to replacing the current IPP regime with a much tougher determinate sentencing framework which would be better understood by the public, and command greater confidence”.
While many will be disappointed that the Government has ordered yet another review of the IPP, when they seem to have spent the last 13 months doing precisely that, this latest review will be conducted on an ‘urgent’ basis with a view to adding the proposals to the newly-published Legal Aid, Sentencing and Punishment of Offenders Bill in the autumn of this year.
These latest proposals appear to signal the Government’s intention to revert to a greater use of life sentences, and new determinate sentences in which prisoners would serve 2/3rds of their sentence inside, or the whole sentence if the Parole Board does not direct their release at that stage.
Prisoners currently serving IPP sentences will want to know whether and how these latest proposals will affect them, if they are passed into law. Current IPP sentences are unlikely to be converted into ‘tougher determinate sentences’ as this could constitute greater punishment, which would be unlawful.
The best chance for current IPPs is the Government’s promised review of ‘Parole Board arrangements for the rehabilitation of those with IPPs, to ensure that real work is done to reform offenders while in prison.’ This appears to be a guarded reference to the test that the Parole Board applies when deciding whether or not to release an IPP prisoner.
The government has said very little so far about any proposed change to the release test for IPPs, but there is a clear need for the way the Parole Board determines release to be reviewed. The change is likely to place the onus on the State to prove that the offender is still dangerous in order to keep an offender in prison post-tariff, rather than expecting the offender to prove that they are no longer dangerous, and not providing them with the means to do so. If such a release test comes into force, this would bring the ‘dangerousness’ test in line with the way the courts determine it at the point of sentencing.
Total abolition of the IPP sentence is now, it appears, on the cards. The government has recognised that the IPP sentence often causes further cost to the taxpayer by way of challenges brought in the courts, and implicit in that is a recognition that there are now 3,500 post-tariff IPPs (provisional MOJ figures released June 2011), at a cost of around £43,000 each per year. That’s an annual cost to the taxpayer of £150m.
In amongst the backtracking over the proposed 50% discounts for guilty pleas (now shelved), and the promises to cut the prison population (unlikely, if there are to be ‘tougher determinate sentences’), there is at least a glimmer of hope for those currently serving IPP sentences. We are also closer than ever to witnessing the total abolition of this draconian, inhumane, and unfair sentence but there’s a way to go yet.
Lorna Elliott LLB (Hons) is a Barrister at Emmersons Solicitors
Opportunity lost or just delayed?
1st September 2011
The Government has now published its response to the consultation exercise that followed last December’s green paper entitled “Breaking the Cycle : Effective Punishment, Rehabilitation and Sentencing of Offenders”. As the name itself suggests, the Government has set out its objectives are to deliver more effective punishment of offenders, greater reparation to victims and, by breaking the cycle of crime, a safer public. This is unlikely to be the first or last time these type of phrases are heard in this context, but the proof of the pudding may be in the eating. The response accompanies the publication also of the Legal Aid, Sentencing and Punishment of Offenders Bill which will now be considered by Parliament. The changes proposed will include such things as:
- Introducing full-time work to prisons (with details due to be published in the Autumn as to how this may be achieved)
- Removing the ready availability of drugs in prison
- Toughening the requirements of community sentences
- Judging prisons’ and other intervention groups’ success or otherwise against re-offending rates
- Providing the means for prisoners to tackle drugs, alcohol, homelessness, or mental health problems
The claim is made that the Bill will help simplify the law by some changes to:
ensure that all future sentences are subject to a single set of release arrangements, regardless of the date on which the offence was committed;
consolidate the various existing release provisions;
make the process for calculating remand time more straightforward and efficient by making it a simple administrative process;
create a single set of rules for the operation of Home Detention Curfew;
remove some of the current statutory restrictions to allow greater professional discretion to decide when lower risk prisoners who have been recalled to prison may be re-released on licence; and
repeal unimplemented legislation that does nothing but complicate the sentencing framework.
This may lead indeed to some useful and fair changes to the sometimes arbitrary differential treatment of prisoners.
The Bill will also bring important changes to the provision of legal aid advice and representation, beyond the scope of this article, but which will have potentially profound impact on the access to justice through legal aid.
IPP reform
The Green Paper indicated the Government was to consider the test for release from the IPP sentence (at para. 193); and also (at para. 190) stated:
This Government intends to restrict the sentence to those who would otherwise have merited a determinate sentence of at least ten years (i.e. at least five years in prison and the remainder on licence). This change ensures that the sentence applies to serious rather than broad categories of crime and will capture very serious sexual and violent offenders. Offenders who no longer receive an IPP would instead receive a determinate custodial sentence for the crime for which they have been convicted which in serious cases would of course be very substantial. Courts would still be able to use the Extended Sentence for Public Protection which would lengthen the period for which offenders would be supervised upon release, and ensure that they can be recalled to custody if necessary. We think that this combination of IPPs in restricted circumstances and often long determinate sentences will enable us to plan rehabilitation more effectively in order to protect the public better.
The media has focused very much on the supposed or actual U-turn of the Government on the cost-saving measure of 50 per cent reductions for guilty pleas, presumably because this issue also scores political points. But what has not been properly recognised is the importance of the missed opportunity to grasp the nettle and reform the IPP sentencing regime. The IPP regime has effectively failed by any test of fairness and of achieving its goals to prevent serious violent and sexual offending due to underfunding of and unavailability of rehabilitation work, and by continuing to detain those whose risk is insufficient for the need for such indeterminate preventative detention, and also failed on a test of cost-efficiency due to strains placed on prison places and parole system resources.
In relation to custodial sentences the response paper says the Government will be “conducting an urgent review of sentencing for serious sexual and violent offenders. Consultation highlighted numerous weaknesses with the indeterminate sentence of Imprisonment for Public Protection. It has never worked as Parliament intended, creating instead a flawed system, which is not well understood by the public. We will conduct an urgent review with a view to replacing the current IPP regime with a much tougher determinate sentencing framework – which would be better understood by the public, and command greater confidence. The review will also cover Detention for Public Protection, the equivalent sentence to an IPP for juveniles”.
The response goes on to say:
We are conducting the IPP review with a view to replacing the current IPP regime with a much tougher determinate sentencing framework which includes:
an increased number of serious offenders would receive life sentences – with mandatory life sentences for the most serious repeat offenders; it would be less open to challenge in the courts than the IPP system;
serious sexual and violent offenders would spend at least two-thirds of their sentence in prison, where they can’t pose a risk to the public, rather than being automatically released halfway through their sentence – and they would only ever be released before the end of their sentence if the Parole Board are satisfied that it is safe to do so;
there would be compulsory programmes for dangerous offenders while they are in prison, to make them change their ways and not just commit more crimes when they are released.
We will also review the Parole Board arrangements for the rehabilitation of those with IPPs, to ensure that real work is done to reform offenders while in prison.
Following the conclusion of our review, we will bring forward government amendments to the Bill in the autumn. In the meantime, IPPs will continue to be available to the courts as they are now.
It is not entirely clear why the proposals for IPP reform are not yet ready, but it is to be hoped this reflects the need for very considered and effective reform, and not political sound-biting or tinkering for media-friendly explanations or provisions. It is also to be hoped, as cuts of immense proportions are being imposed in the budget of the Ministry of Justice, that proper consideration is given to resourcing needs for example in the Parole Board if we see a return to its functions for what is reminiscent of the management of old-style sentences with durations of longer than four years.
In relation to IPP/DPP prisoners it is unfortunate the opportunity has not yet been taken to indicate the necessary changes will be those that are most fundamental to giving fairness and confidence to stakeholders in the existing system: prisoners, professionals, parole board members, and the public. One matter that will plainly benefit from attention is the application of or understanding of the statutory test for release, which could be reformulated to ensure greater understanding. There is, in my view, a failure in the clear application of the law at present when prisoners are being considered for release and this is contributing to the Parole Board’s low release rate for IPP prisoners. Your author has argued for some years now that the test for imposition of an IPP or DPP ought to be applied to the question of release. Therefore the proper test for release is whether “it is no longer necessary for the protection of the public against a significant risk of serious harm from the commission of further specified offences that the prisoner should be confined". The Court of Appeal will soon be asked to rule on this question determinatively. There should be, it is submitted, a causal link between the original conviction and the subsequent detention, so that the perceived future risk is related to the original rationale for the imposition of the indeterminate term: Stafford v UK (2002) 35 EHRR 32. There is no burden on the prisoner and the Board must not adopt a predisposition to continued detention if it is to lawfully approach its task.
The second proposal that could have immediate benefits in removing arbitrary distinctions would be amendments to ensure the present minimum terms required to justify such sentences (effectively deserving a four-year determinate term at least, unless convicted of particularly serious previous matters) be extended to those already serving the IPP but whose sentence would no longer qualify. Those prisoners who have been given such short tariffs that would no longer qualify can be given some allowance. This would recognise also that the IPP is not a workable sentence for such short-term prisoners. One option is immediate release on licence but with the option of recall for say five or ten years if there is re-offending or breach of licence. Another is to set a maximum total period during which the prisoner may be detained, perhaps a set universal figure of five or ten years prior to automatic release on licence, or perhaps a figure linked to the original tariff: the maximum time in custody to be say twice or three times the length of the tariff for any prisoner. Release on licence is likely to be preferable to unconditional release given the offences or offenders involved although of course under the amended legislation these offences and offenders would not qualify for such indeterminate sentence in any event. It may also be that the test for release should be different for those who have been deserving of such short tariffs as set prior to the 2008 reforms, and/or prior to any new proposed reforms. It may be for example that release should be the presumption for such prisoners subject to an exception if the Parole Board is positively satisfied on a balance of probabilities that the prisoner will commit an offence listed in Schedule 15A CJA 2003 and cause serious harm to others if released even if subject to available licence conditions.
These two potential changes would strengthen the value of the IPP sentence, help ensure rehabilitation resources are focused only on the most dangerous or high-risk offenders, and remove the potential for arbitrary and unfair treatment of some prisoners. I believe these changes should make the system more efficient and cost-effective for the taxpayer also, while safeguarding the public interest in keeping those who pose a serious danger to the public in custody, and relieving present pressures on the Parole Board.
And it could always be worse….
For those readers who are not given naturally to optimistic outlook, the thought remains (though not perhaps particularly cheery): it could always be worse. The television news on the day of the Government’s proposals is accompanied strikingly by reports of the Supreme Court ruling concerning Californian prison conditions being inhumane, leading to the urgent need to reduce that prison population by 33,000 prisoners, a vast number. Prisoners are living in cramped conditions with 53 sharing one toilet, and tens or hundreds of three-level bunk beds crammed into what should be exercise areas with prisoners all sleeping together en masse. Perhaps indeed it could still be worse.
Philip Rule Barrister
90 High St
Harrow on the Hill
Middlesex
HA1 3LP
The myth of rehabilitation
1st October
2011
The Secretary of State for Justice, Kenneth Clarke wrote recently about the failures of the criminal justice system in response to the August riots. Despite lambasting our ‘broken penal system’ (who broke it?) and using the unfortunate description of those caught so far as largely belonging to a ‘feral underclass’ (why didn’t he just call them untermensch?), he makes a valid point that harsh punishment of those convicted is not, on its own, sufficient to prevent reoffending…
“Locking people up without reducing the risk of them committing new crimes against new victims the minute they get out does not make for intelligent sentencing.”
(The Guardian, 6th September 2011)
I quite agree, but unfortunately the concept of rehabilitation in the UK is often little more than a myth. In 2009, a parliamentary question by the former Liberal Democrat MP Mark Oaten revealed that there were 8 million people in the UK on the Home Office ‘Offenders Index’. This means 8 million who when applying for work, insurance or financial services will, at least at some stage, have had something to declare when asked if they have a criminal record.
In 1974 the government passed something called the Rehabilitation of Offenders Act (ROA), a law which enables some people after the passage time to be relieved of the requirement to declare their previous convictions. It was designed to protect people from discrimination, particularly when applying for employment. However, a number of factors have made this legislation practically obsolete:
1. A number of exemptions to the ROA were created the following year professionals such as teachers, doctors and nurses were always required to disclose any sort of criminal record, effectively eliminating any possibility of people with a ‘past’ from doing these roles. Whilst this may often be sensible, preventing predatory or extremely dangerous people from working with children or vulnerable adults, the list of professions exempted from the ROA has grown considerably, barring former offenders from all but a narrow range of employment.
2. The growth of CRB checks since their introduction in the 1997 Police Act has given employers unprecedented access to the criminal history of prospective staff. Millions of checks are conducted every year. However, there is suspicion that many employers have made use of checks illegally, by making ‘standard’ or ‘enhanced’ checks which reveal convictions that are legally ‘spent’ under the ROA. It is a criminal offence to apply for criminal record data to which you are not entitled (under Part V Section 123 of the Police Act 1997) but finding evidence of anyone ever actually being prosecuted for this is very difficult.
3. The original ROA only benefits a limited number of people, and even then only after an excessive period of time. Anyone sentenced to over 30 months can never be legally considered rehabilitated, and a person sentenced to just one day in prison would be required to be disclose their conviction for seven years. This means former prisoners in particular, far from having served their debt to society, face a long (or endless) period of likely discrimination after the end of their sentence.
4. The wide availability of newspaper reports of convictions on the Internet effectively bypasses the normal CRB process. For an employer, finding out about someone’s criminal past is now simply a matter of ‘googling’ their particulars (please behave) to see what comes up. With the advent of televised sentencing people’s past may soon be all over Youtube as well – a permanent record of wrongdoing that lasts long after the sentence has been served. (On the subject of televised sentencing, is anyone else anticipating pay-per-view on ‘Sky Justice’ and barristers gowns adorned with advertising logos in the manner of a Formula One driver’s overalls?)
The last Labour government set up a review of the ROA which resulted in the report ‘Breaking the Circle’, published in 2002. The report recommended, amongst other things, much shorter ‘buffer periods’ after a sentence was served beyond which a conviction could be considered legally ‘spent’ for most purposes. These periods were two years in most cases, covering the period in which the vast majority of reoffending occurs. The government agreed with practically all the recommendations of the report, but did nothing to implement them and were ultimately booted out of office in May 2010. The current coalition government promised to explore reform of the ROA in their 2010 ‘Breaking the Cycle’ Ministry of Justice green paper. Indeed, in March I even took part in a meeting between Ministry of Justice officials and representatives of UNLOCK, the National Association of Reformed Offenders, as part of the consultation process on how the ROA might change. However, no solid proposals have been put forward by Kenneth Clarke or other government ministers to actually enact reform:
After a tabloid backlash against ‘soft justice’ we have moved from ‘Breaking the Cycle’ to a ‘Punishment of Offenders Bill’ – not exactly encouraging language, and this was before the rioting and associated sentencing bonanza occurred. So now, the only active attempt at real reform of the ROA is a private member’s bill by Liberal Democrat peer and Nacro President, Lord Dholakia, which aims to reduce disclosure periods for convictions to those recommended in the Breaking the Circle report. Such reforms, as proposed in this bill would only benefit reformed offenders, not persistent criminals, and might just give a light at the end of the tunnel for those ‘going straight’ after a period in prison. And, best of all in this period of austerity, it would cost next to nothing.
The government’s own Social Exclusion Unit reported in 2002 that stable employment reduces re-offending by between 30-50%. Secure accommodation and strong family life are also highly beneficial. So rather than coming up with yet more initiatives that will only benefit the private sector and people employed by mega-charities, why doesn’t the government reduce the period people have to disclose their record (for non ‘regulated activity’ employment) to 2 years as their predecessors had previously accepted they needed to? Oh, and stop describing other human beings as ‘feral’.
Short tariff IPP sentences in the 1st of December 2008
the Government changed the law concerning IPP sentencing policy. The Criminal Justice and Immigration Act 2008 introduced a ‘threshold of seriousness’; namely a minimum tariff of two years. This meant that if the offence committed did not warrant a sentence of at least four years (equivalent to a tariff of two years) the court could no longer impose an IPP sentence. This threshold also applies to EPP sentences.
There is an exception to the seriousness threshold; when an offender already has previous convictions for certain very serious offences, the court then has discretion to impose IPP even if the tariff for the current offence is less than two years. The list of very serious offences is called Schedule 15A and is based, with some updating, on the ‘two strikes’ or ‘automatic life’ offences.
There were other changes: ‘The removal of the rebuttable presumption of risk.’ This means that the court is no longer obliged to conclude that the offender is dangerous when there is a previous conviction for a violent or sexual crime. Also, IPP and EPP sentences are no longer mandatory when the relevant conditions are met. They are simply available to judges to use at their discretion. For more details, get PSI 27/2008 from your solicitor or library.
The purpose of these changes is to create fewer IPP sentences, especially with shorter tariffs. However, what about prisoners who are already serving IPP with a tariff of less than two years? Surely the IPP part would be quashed and we would be released on tariff? At the very least they would have to take us back to court to be re-sentenced? No, the new legislation did not make the changes retrospective. So our sentences are unaffected.
If we had been sentenced before IPP was introduced on 4th April 2005, we could not have been given a life sentence. If we had been sentenced after 14th July 2008, we could not have been given a life sentence. It is only because we had the misfortune to be sentenced between these two dates that we are serving an indeterminate life sentence. Is this just? Is this fair? Is this right?
By altering the legislation the Government has effectively admitted that it was flawed. They never intended judges to be handing out IPP sentences like confetti. David Blunkett, the architect of this savage law, doesn’t even know that there are short tariff IPP prisoners. The following is an extract from his column in the Sun on 18th July 2007; somewhat lengthy, but illustrates the cognitive distortions that he is labouring under. He wrote: ‘… the froth that’s being talked about indeterminate sentences – where prisoners are kept locked up until it is safe to release them, rather than for a fixed term. That’s now the responsibility of the new Justice Department. But it is being said that these sentences are adding to prison overcrowding. As every Sun reader can work out for themselves these sentences were for really severe crimes which would have earned pretty lengthy fixed terms – and I’m not talking about four to five years. It was precisely to avoid letting these dangerous people out too early that the indeterminate sentences were introduced.’
So let’s do the maths here, if someone was sentenced to ten years in 2005, would they still be in jail, even with full remission? The answer is patently ‘yes’. If they were given an indeterminate sentence, would they still be contributing to overcrowding? Of course, as hopefully they would still be serving time; so why all the talk about getting rid of these sentences? They make no difference to our problem jails and won’t do so for years to come. I suggest that all the highly intelligent people dealing with the criminal justice system need a simple mathematics lesson’.
May I politely suggest that it is Mr Blunkett who needs the mathematics lesson. The median tariff length for IPP sentences was 30 months before they changed the law in July. Or perhaps Mr Blunkett needs an English lesson? Maybe he got the wording wrong in the Criminal Justice Act 2003? Maybe he meant IPP to be applied to offences carrying a minimum ten year sentence (five year tariff) rather than for offences which carry a maximum sentence of ten years or more. No Mr Blunkett, you were not talking about sentences of about four to five years, you were talking about sentences measured in months. 28 days is the shortest one, I believe. Well done Mr Blunkett, no wonder you’re on gardening leave.
IPP sentences have contributed significantly to prison overcrowding. If they had not been introduced in April 2005, the vast majority of IPP prisoners would have received a determinate sentence and been released on parole halfway through – this is how judges determine the length of tariff.
But who really cares about prison overcrowding? The public want to see the jails full; it makes them feel safer. The politicians love it, as it looks like they are being ‘tough on crime’ – always a vote winner. And our illustrious prison officers and probation officers? They get all the overtime they want, their jobs are secure for life; a ‘nice little earner’. What about the programmes’ facilitators and the army of trainee psychologists? I understand the Government gives the prison £9,000 for every prisoner that goes on their programmes, and indeterminate sentenced prisoners can go on an indeterminate number of programmes! And solicitors and barristers? Now we’re really talking … all that legal aid. An indeterminate number of parole hearings where indeterminate (life) prisoners are entitled to a solicitor and a barrister to represent them. Every year or two we will be up for parole; for an indeterminate number of years. Nice work if you can get it. What about when we do eventually get parole? Apparently, thus far 31 of us have; the programmes Gestapo will be livid when they find out. We are going to need solicitors and barristers for the rest of our lives (well, minimum 10 years in any case).
The median age for an IPP prisoner is 28. For many years we will be subject to the whims and mercies of hysterical probation officers and trainee psychologists with something to prove; an indeterminate number of recalls to work on. Surely this is the goose that lays the golden egg for solicitors and barristers?
Prisoners themselves, and their families, must be upset about prison overcrowding. Well, actually, many thousands of prisoners are facing the prospect of having their sentences cut short and being released a few weeks early because of prison overcrowding. The Government ‘solution’ is to build even more prisons so that they can imprison even more people.
What about the victims of our crimes? All IPP sentences are for violent or sexual offences. All victims are likely to have suffered physically and emotionally and are likely to do so for the rest of their lives. In effect, they are serving a life sentence because of what we have done. So why shouldn’t we? I have no answer to this question. We can not possibly pay the debt we owe to our victims and with an indeterminate life sentence we can never pay back the debt we owe to society until the day we die.
The feelings of helplessness, despair and isolation that accompany the IPP sentence are overwhelming, for us and for our families. I am one of those fortunate enough to have support from my family and good friends. Here I would like to mention a friend of mine, Simon, who I met here at Manchester. He was serving an IPP and genuinely wanted to change his offending behaviour. He got himself a place on a therapeutic community programme at HMP Dovegate. He was there for a number of months, then killed himself this summer. We were all deeply shocked here at Manchester – our thoughts and condolences go to Simon’s family and friends on the outside.
So, if you are a low tariff IPP prisoner, what can you do? Well, don’t despair! Don’t do anything stupid. I would encourage anybody who is feeling like Simon to contact a prison listener or the Samaritans. Go on the programmes they tell you to go on. You have no choice. But you can do something to give yourself hope. The Government thinks it has now fixed the IPP problem and that it has gone away, but it hasn’t; there are still some loose ends. Let them know that we are still here and we are not going anywhere. Write to your MP. Write to Justice Secretary, Jack Straw at the House of Commons, London SW1. Maybe David Blunkett would like to hear from us as well? Give yourself hope! Do something positive!
What about you solicitors and barristers out there? Are any of you willing to take on the government? Do we have any kind of legal leg to stand on? Is the change in law to abolish short tariff IPP sentences prejudicial to prisoners who have already received the ill-conceived creation?
I realise that violent and sex offenders are the lepers and pariahs of modern society, but we wouldn’t mind a little bit of compassion right now. Where is that wonderful man of compassion Lord Longford when we need him?
As always if you have money you can afford to have the best solicitors and barristers in place to ensure you get the rights that you are entitled too. If you don’t have money you really have to do your homework and work out and fight for your rights. No wonder we have so many IPPs not aware of their rights languishing away in dungeons.
They have clarified that they have informed all board members and provided a link which I have put below which clarifies the relevant paragraph of the Prison Instruction.
Extract from Parole Board Duty Member Guidance - 2020
Termination of IPP or DPP Licence
Background
5.7.1 An offender sentenced to Imprisonment for Public Protection (IPP) or
Detention for Public Protection (DPP) has the right, under section 31A of
the Crime (Sentences) Act 19971
to apply for consideration to be given to
terminating their IPP2
licence 10 years after their initial release,
regardless of whether they have subsequently been recalled and rereleased. For the purposes of this guidance reference to the IPP sentence
will also include the DPP sentence.
5.7.2 Any applications for termination of an IPP licence should be made by the
licensee themselves, either to the Parole Board directly or via the National
Probation Service (NPS)/ PPCS. However, where an application is
received directly from the licensee to the Parole Board, the NPS will still
need to be notified, via PPCS, so that the correct information pack can be
prepared.
5.7.3 It is only the Parole Board that can terminate an IPP licence.
5.7.4 Once an IPP licence has been terminated, the licensee will not be subject
to recall, and unlike the suspension of supervision, all of the licence
conditions are terminated and may not be re-imposed.
5.7.5 Rule 31 of the Parole Board Rules 2019 deals explicitly with termination of
licences:
“Applications to terminate IPP licences.
31.— (1) Where an offender qualifies to make an application to terminate their
licence under section 31A of the 1997 Act, the offender may make a direct
application to the Parole Board or apply through the Secretary of State.
(2) Where an offender makes a direct application, the Board must serve
the application on the Secretary of State and the Secretary of State must
serve any reports or evidence as directed by the Parole Board.
(3) Where an application is made through the Secretary of State, the
Secretary of State must serve any reports or evidence at the same time
as sending the application to the Parole Board.
(4) Where the Parole Board receives an application, either from the
offender directly or through the Secretary of State, a panel appointed
under rule 5(5) must consider the application in accordance with section
31A(4) of the 1997 Act.
1 Section 31A of the 1997 Act was inserted by the 2003 Act and has been amended by section
117(10)(a) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 c. 10, and
paragraph 141 of Schedule 16 to the Armed Forces Act 2006 c. 52.
2
IPP should be read to include DPP throughout this guidance
(5) In considering the application under paragraphs (2) or (3), the panel
may—
(a) make a decision on the papers, or
(b) direct that the application should be decided by a panel at a hearing.
(6) Where a panel considers the application on the papers or at a hearing,
it must decide to—
(a) terminate the offender’s licence;
(b) amend the offender’s licence in accordance with section 31(3) of the
1997 Act, or
(c) refuse the application.
(7) Where a decision is made by a panel under paragraph (6), the Parole
Board must record that decision in writing with reasons for that decision,
and that record must be provided to the offender and Secretary of State
within 14 days of the decision.”
PPCS and NPS role
5.7.6 Instructions on terminating licences are set out in PI 08/2015 – Managing
Indeterminate Sentenced Offenders on Licence.
5.7.7 The NPS responsible officer is not required to make applications on behalf
of the licensee and so requests can be initiated by the licensee as the
starting point. However, responsible officers can, where they feel it
appropriate, make contact with the licensee and suggest making an
application.
5.7.8 A licensee does not require the support of the responsible officer in order
to make an application directly to the Parole Board. However, the
responsible officer is required to produce a report where an application is
made.
5.7.9 PPCS will make contact with the appointed responsible officer and ensure
all the necessary paperwork, as set out in the Parole Board proforma
(which has been agreed by HMPPS officials), is provided.
5.7.10 Once all the information has been collated a “Request for Termination of
IPP licence” form is completed and attached to the information pack and
sent to the Parole Board. A copy of this Termination Report can be found
at Annex 1.
5.7.11 This form must be signed by the Line Manager of the Responsible Officer
and endorsed by an ACO or equivalent.
Managing cases: stage one – receiving the application
5.7.12 Upon receipt of an application directly from the licensee, the Secretariat
will prepare a proforma which confirms receipt and requests PPCS to
provide an information pack containing the following:
1. Notification of release
2. Last release decision
3. Release licence
4. Any post-release licence variation requests and outcomes
5. Licence cancellation application form
6. Reports from probation/police on up to date position
7. Previous parole dossier
5.7.13 Where the application has come via PPCS, the same proforma is used but
with a variation of wording, acknowledging receipt of the information
pack, which should contain all the documents set out in the above list.
5.7.14 The proforma will be submitted to the duty member who will sign and
date the form, after which the Secretariat will submit to PPCS. A copy of
the proforma can be found at Annex 2.
Managing cases: stage two – considering the application
5.7.15 Once the information pack has been received and checked to ensure it
contains all the required information, it will be submitted to the duty
member for consideration.
5.7.16 It is important to check if this is the first application or if there have been
previous requests that were refused. There must be a minimum of 12
months between each application. If the request is within 12 months of
any previous request, the case should be referred back to PPCS to
investigate and advise.
5.7.17 Things to consider:
• The scale of progress across the ten-year period including work that
has been carried out in the community to address the licensee’s risk
factors and to meet sentence planning objectives. The Termination
Report should summarise the key events during the licence period
since initial release, highlighting any areas of concern or progress
• Content of previous progress reports submitted to PPCS
• The licensee’s current circumstances in terms of the stability of their
lifestyle, current accommodation and history, current employment and
history, and current relationships and history
• Whether the licensee has been recalled at any time over the ten-year
period and if details of any recall are provided
• Whether applications to vary the licence conditions have been made at
any point since release, and if so, the conditions under which any such
variations were requested and granted (or refused)
• Whether the licensee is still under supervision, and when was the last
contact
• What is or has been the frequency and nature of contact and how has
this changed over the licence period
• If no longer under active supervision, when was it suspended
• Is there evidence that checks with other relevant agencies listed in the
Termination Report have been carried out? If the licensee has come to
the attention of one or more of these agencies, their application must
still be referred to the Parole Board, but full details must be provided
• What is current or last known risk of serious harm category? All four
categories of risk of serious harm (public, children, known adult, staff)
should be considered and noted on the application if there is more than
one category relevant to the licensee’s risk
• What is the current or last known MAPPA level?
• Any bespoke licence conditions still in place
• Any previous applications to terminate the licence (with outcome)
• What is the recommendation of the responsible officer and is there
sufficient information to support their view?
5.7.18 If victims are signed up to the Victim Contact Scheme, they have a right
to be notified of the application and they are entitled to submit a Victim
Personal Statement (‘VPS’). The VPS should confine itself to the impact
that termination of the licence may have on the victim and not express a
view about the termination.
5.7.19 If the licence is terminated all licence conditions will cease, including those
relating to victims (non-contact and/or exclusion zones).
Managing cases: stage three – the decision
5.7.20 The decision to be made is whether you are satisfied that it is no longer
necessary for the protection of the public that the licence should remain in
force; in which case the licence may be terminated.
5.7.21 The application will be dealt with as swiftly as possible, providing all
required information is submitted with the information pack.
5.7.22 Once the decision has been made by the duty member, it must be issued
within 14 days, in line with timeframes for parole decisions.
5.7.23 In making a decision you have the following options, as set out in the
Rules:
(a) make a decision on the papers, or
(b) to direct that the application should be decided by a panel at a
hearing.
5.7.24 If you believe that an oral hearing is necessary to properly consider the
application, then directions will need to be issued on an MCA Directions
form. The Secretary of State should be directed to secure a suitable
location for the oral hearing to take place.
5.7.25 If you have enough information in the papers, or after an oral hearing, to
make a decision you can:
(a) terminate the offender’s licence
(b) amend the offender’s licence
(c) refuse the application
IPP: Creation, abolition and festering afterlife – insidetime & insideinformationAmnesty International calls on UK to free thousands of prisoners held on abolished IPP sentences – insidetime & insideinformation
Locked Up with no end in sight – insidetime & insideinformation
Short tariff IPP sentences – insidetime & insideinformation
Short tariff IPP sentences – insidetime & Opportunity lost or just delayed? – insidetime & insideinformation
The myth of rehabilitation – insidetime & insideinformation
Government proposes abolition of the IPP Sentence – insidetime & insideinformation
Post tariff IPPs a Disgrace – insidetime & insideinformation
A new role for the judge? – insidetime & insideinformation
IPP Update – insidetime & insideinformation
Married women in prison denied contact with each other win legal fight | Express & Star (expressandstar.com)
Breaking the cycle – insidetime & insideinformation
Do tough sentences deter crime? – insidetime & insideinformation
