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18 March 2014

Blog: Imprisonment for public protection is a stain on our justice system

In this article for Huffington Post, PRT director Juliet Lyon argues that it is shaming to have so many people locked up in our prisons, not for what they have done but for what they might do in the future.

The former home secretary David Blunkett’s welcome admission that the plight of some people affected by the introduction of the Kafkaesque Indeterminate Sentence for Public Protection (IPP) was on his conscience will be of little comfort to the 3,561 people in prison serving an IPP sentence held beyond their tariff expiry date. In his recent interview with BBC Newsnight, the former secretary of state who was responsible for introducing the IPP sentence said he regretted that legislation he passed in office had led to injustice: “The consequence of bringing that Act in has led, in some cases, to an injustice … and I regret that.”

David Blunkett said that the original intention behind the creation of the IPP sentence was correct, but admitted that the legislation had been poorly interpreted and implemented: “I regret very much that we were not clearer in terms of the criteria laid down, tougher in saying what the judges should or should not do and we were not effective enough in putting in the necessary resources to ensure the rehabilitation courses were available…. we certainly got the implementation wrong. But the intention was in my view correct.” On the same programme, the former Prisons Minister, Crispin Blunt, described the sentence as “unjust and stupid”.

Whatever the former Home Secretary’s original intention in introducing the IPP, there can be little doubt that the sentence has led to serious injustice for prisoners and their families. The IPP sentence is like a life sentence in all but name, with no release date. Once someone has served their minimum tariff, release is determined by the Parole Board, based on an assessment of risk. As of 31 December 2013 there were 5,335 people in prison serving an IPP sentence. Of these two-thirds (3561 people) were held beyond their tariff expiry date.

When the IPP sentence was originally introduced in 2005, it could be imposed on people who had committed an offence that would have previously attracted a relatively short determinate sentence. As a result far more were passed by the courts than the original few hundred predicted, placing huge pressure on an already overstretched prison service and Parole Board. In 2008 reforms were introduced to limit the scope of the IPP, but this runaway sentence continued to be passed by the courts at a considerable rate. Meanwhile, a failure properly to plan and resource the sentence had left thousands of people languishing in jail, some with an original tariff of just a few weeks or so.

Following near universal criticism of the sentence from judges, Parole Board members, HM Prisons Inspectorate, the Prison Governors’ Association, staff and prisoners and families alike, the IPP was eventually abolished in 2012 by the Legal Aid, Sentencing and Punishment of Offenders Act.

However, this still leaves the problem of existing IPP prisoners who, because of a lack of available places on scarce offending behaviour programmes, which are overly relied upon to demonstrate reduced risk, are unable to work towards their legitimate release. IPP prisoners are also faced with significant delays in obtaining an oral hearing from the Parole Board due to a growing backlog of cases. As of August 2013 the backlog stood at 1,352, with IPP prisoners accounting for 61% of indeterminate review cases. In April 2013 the former Justice Minister Lord McNally acknowledged that, at the current rate of release, the backlog of IPP prisoner cases would take around nine years to clear.

It is shaming to have so many people locked up in our prisons, not for what they have done but for what they might do in the future. This is not to mention the costs to the public purse of holding thousands of people in prison beyond their tariff expiry date. Many of these prisoners are condemned to years of uncertainty, during which time they must somehow prove, from the confines of a bleak overcrowded jail, that they no longer present a risk to the public. As the Prison Reform Trust outlined in its evidence to the Joint Committee on Human Rights, the main means to do this, attendance at scarce and not always reliable offending behaviour programmes, is barred to many people with a mental illness, learning disability and anyone with a low IQ score, trapping these most vulnerable people in a maze with no exit.

Two recent approaches to the Prison Reform Trust’s advice and information team help to illustrate this point. One concerned a person who received an IPP with a 71 day tariff and is now in his fifth year of imprisonment. The second involved someone with a brain injury, who was ineligible for offending behaviour courses and deemed, as a result, to be unable to make progress towards release.

Earlier, one young man serving an IPP, told the Prison Reform Trust: “To lower my risk, I have to do ETS [Enhanced Thinking Skills: a course offered in prison] but because I can’t read and write, I can’t lower my situation. I’m just stuck. They are saying that until I can read and write I can’t do ETS and I can’t lower my risk. It’s hard. Hard dealing with the sentence let alone dealing with the stress of not being able to do the course. It’s like when I’m trying to say I can’t learn no more. I’ve been to a special school and I have learnt as much as I can but they don’t believe that. But why should I be punished for two things? I am being punished for a crime and again for not being able to read or write.”

New legislation before Parliament could add to the difficulties faced by IPP prisoners in working towards their release. Proposals in the Criminal Justice and Courts Bill to extend the use of life sentences, end automatic release from extended determinate sentences and some determinate sentences and tighten restrictions on the release of recalled prisoners will add significantly to the work of the Parole Board. This comes at a time when the Board is already struggling to work through its growing backlog of cases and cope with the implications of the Osborn judgment in the Supreme Court, which it estimates will lead to the number of oral hearings increasing from about 4,500 a year to up to 14,000.

Now the government has abolished the IPP sentence, it’s time to return to a sensible system of fairness, proportionality and just deserts. Joshua Rozenberg suggests that addressing the unjust detention of post tariff IPP prisoners would also help the Justice Secretary Chris Grayling make savings demanded by the Treasury. In its recent report Managing the Prison Estate, the National Audit Office called on the government to introduce better sentence planning, including improved access to accredited programmes to reduce risk and expedite the release of IPP and other indeterminate sentenced prisoners. The government should also be persuaded to act by a recent judgement by the European Court of Human Rights, which established that it is a breach of human rights to keep people in prison indefinitely without access to rehabilitation courses to enable them to progress their sentence.

To put matters right, the government should review all post tariff IPP prisoner cases and reassess risk, allocate additional offender management resources and prioritise courses and offending behaviour work. The Secretary of State should introduce new guidance and directions for the Parole Board to assess risk. Under the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act, a new release test should be introduced that puts the obligation on the state to produce evidence to prove that someone still presents a significant risk. Otherwise, as the former Law Lord, Lord Lloyd of Berwick, proposed last week at the Bingham Centre for the Rule of Law, the original custodial tariff could be doubled to reflect the equivalent determinate sentence that would otherwise have been imposed.

More could be done to improve sentence planning for IPP prisoners. The prison service should extend the use of the open estate and the well-planned use of release on temporary licence for IPP prisoners to maximise their chances of preparation for release. The Ministry of Justice should issue new guidance so that the policy of needing a Parole Board decision to move IPP prisoners to open conditions is removed. This decision could be made by prison governors and staff, as it currently is for determinate sentenced prisoners. This policy could be changed without the need for additional legislation. It would lessen the Parole Board’s caseload and help to ensure the Board has the resources regularly to review IPP sentenced prisoners for release within a reasonable period of time.

These practical steps would go some way to addressing the anguish and uncertainty faced by thousands of IPP prisoners. When their families gathered in Parliament on 13 March 2014, one woman said her partner had been moved 200 miles away from a prison near to their home to undertake a course that never materialised. Another described how her son’s mental health was deteriorating day by day. This is a hard sentence to unwind but, to restore public confidence and legitimacy, the government should finish the job it started and eradicate a stain on our justice system.

This article was first published in the Huffington Post