Ill-drafted IPP sentence leaves thousands locked up in bureaucratic limbo

Describing the IPP as “one of the least carefully planned and implemented pieces of legislation in the history of British sentencing”, the report gives a salutary account of the damage caused by a pre-occupation with risk to the exclusion of other considerations and the resulting ill-thought through legislation.

Unjust Deserts: the indeterminate sentence for public protection draws on substantial research evidence from Crown Court judges, Parole Board members, prison governors and forensic psychologists, amongst others. Its conclusions were drawn up after consultation with the Lord Chief Justice, the Chairman of the Parole Board and the President of the Prison Governors’ Association. Material drawn from the Prison Reform Trust’s advice and information service underline the human consequences of the sentence and its impact on individual prisoners and their families.

Authors Jessica Jacobson and Mike Hough describe how a complete failure to debate, plan or resource the sentence has left thousands of people sentenced to a bureaucratic limbo where they have no means to work towards their release. Over 6,000 people had received the sentence of IPP by the end of December 2009. With the courts continuing to pass about 75 IPP sentences per month, and the rate of release remaining stubbornly low, the numbers of prisoners on IPP sentences look set to rise placing an impossible burden on an already overstretched prison service.

Writing in the foreword to the report, Douglas Hurd, the former Home Secretary, says:

The report gives proper recognition to the fact that, in this too widely drawn net, there are some people convicted of very serious crimes some of whom, undoubtedly, pose a continuing risk to public safety. They illustrate too how many others, often those most vulnerable due to mental illness or a learning disability, have been drawn into a situation characterised by uncertainty and injustice.

The problems of unfairness associated with the IPP sentence are at their most intense for those with tariffs of under two years who were sentenced prior to the amendments to the sentence introduced by the Criminal Justice and Immigration Act 2008, which set a minimum tariff for an IPP sentence of two years and over. Almost all of this group remain in prison, serving terms well in excess of their tariff in the knowledge that people sentenced for similar offences after the amendments will have already have completed their sentences.

The mother of an IPP prisoner sentenced to an original tariff of 18 months described the impact of the sentence on her son and her family in a letter, reproduced in the report, to the Prison Reform Trust: “We feel that the situation created by the imposition of an IPP on our son, for what is not now classified as a serious offence, is cruel and inhumane. We should be able to plan for his release, having a date to work towards. All we have is this Kafkaesque nightmare, to which there seems no end.”

According to the Prisons Minister, Crispin Blunt, “we inherit a very serious problem with IPP prisoners”. In a debate in the House of Commons on 15 June he said: “We have 6,000 IPP prisoners, well over 2,500 of whom have exceeded their tariff point. Many cannot get on courses because our prisons are wholly overcrowded and unable to address offending behaviour. That is not a defensible position.”

The Lord Chief Justice, the Chairman of the Parole Board, the Prison Governors’ Association, the Joint Committee on Human Rights and the Chief Inspector of Prisons have all offered substantive criticism of the IPP sentence since its introduction. The Criminal Justice Joint Inspectorate, in a thematic review published in March, described the situation as “unsustainable” and called for a major policy review of the sentence at ministerial level.

As part of the forthcoming sentencing review the report calls on the government to conduct an urgent review of the social and financial costs and benefits of the IPP sentence and examine the available policy options contained in the report:

• To abolish the IPP sentence, and revert to the use of the discretionary life sentence to deal with those who genuinely pose a grave risk to society;
• To retain the IPP sentence but further narrow its criteria, to ensure that it is used less often, and targeted more carefully on those representing a real risk of serious reoffending;
• To leave the current arrangements in place, but locate sufficient resources to enable the Prison Service and Parole Board to operate release from the sentence in an effective, humane and fair way.

Among the other recommendations made by the report are:

• To make the 2008 amendments retroactive, and to translate the tariffs of the short-sentence IPP prisoners into determinate sentences with appropriate resettlement support. In the short term the Prison Service should give priority in sentence planning to this group, and for the Parole Board to ensure that their parole hearings are also given priority.
• Better provision of offending behaviour programmes in prisons, and the provision of programmes for prisoners currently judged unsuitable for them.
• Relying less on participation in these programmes as indicators of reduced risk, and taking a broader view of rehabilitation of IPP prisoners.
• Additional resources for parole hearings, to permit initial hearings around the time of tariff expiry, and more regular review thereafter.
• Finding solutions to shortages of judicial members of parole panels.
• The provision of training and guidance to Parole Board members to offset the tendency to risk-averse decision-making.
• The promotion of better and more realistic public understanding about the risks presented by people convicted of violent and sexual offences, and the importance of fair and proportionate sentencing.

Commenting on the report Juliet Lyon, director of the Prison Reform Trust, said:

Undermining principles of justice and proportionality, this disastrous sentence has so far catapulted over 6,000 people into custody for who knows how long with little or no means of gaining legitimate release.  It is rare to find a sentence that has attracted just about universal criticism from judges, Parole Board members, prison governors and staff and prisoners and families alike. This substantive report, following research over three years, sets out the disastrous legacy of the IPP, recommends sensible ways in which matters can be put right and makes an important contribution to the review of sentencing announced by the Secretary of State for Justice.

Co-author of the report, Professor Mike Hough, said:

Any government has to do its best to protect the public from grave crimes, but the history of the IPP sentence is one of bad trade-offs between protection of the public and basic fairness. Striking a better balance between protection and fairness poses considerable challenges; but there can be no doubt that a better balance has to be struck. The present IPP sentence is unsustainable and will ultimately prove counterproductive.