Chalk considering limited IPP reform

But will it be enough to wipe a stain from the criminal justice system?

The justice secretary Alex Chalk has floated a small but significant reform to a prison sentence that Lord Brown of Eaton-under-Heywood, the former Supreme Court justice who died this month, rightly described as “the greatest single stain on our criminal justice system”. But campaigners want the government to go much further.

Imprisonment for public protection — IPP for short — was introduced in England and Wales by the Criminal Justice Act 2003 for offences committed from April 2005. It seemed like a good idea at the time. As with a life sentence, the prisoner would serve a minimum term set by the court — known as the tariff. Once that punishment period had been served, the prisoner’s case would be reviewed and the prisoner would be released if it was safe to do so.

But many more IPP sentences were passed than the politicians had expected. The legislation had been drafted far too broadly. It permitted no judicial discretion.

Although IPPs were revised in 2008 and finally abolished in 2012, the reform was not retrospective. Earlier this year, there were still 1,355 offenders serving an IPP sentence who had never been released from prison. Of these, 641 people had been in prison for more than 10 years longer than their tariff, including 189 people whose original tariff was less than two years. There were a further 1,561 offenders, previously given IPP sentences, who had been released and subsequently recalled to custody. This was 12% higher than the previous year.

A report by the House of Commons justice committee last September explained that “a large number of the IPP prisoner population are serving what amounts to a life sentence for what are widely regarded as lower-level offences such as robbery, theft offences, criminal damage, arson and public order offences”. Of course there were others, it added, for which the sentence was still regarded as entirely appropriate.

Release on licence

After an IPP prisoner is released from custody, the prisoner remains on licence for a period of 10 years. If there is a breach of the licence conditions during that period, the prisoner may be recalled to custody.

Martin Jones, chief executive of the Parole Board, told the justice committee that a 10-year licence period was too long:

What would be the problem in potentially allowing somebody to make application earlier than that? There are many, many IPPs who have turned their lives around and are living successful family lives, and have held down a job in the community. If they have made good progress, why not allow them to bring their licence period to an end after five years? I can see considerable merit in doing that.

And the committee agreed:

We support a reduction of the qualifying licence period from 10 years to five years. This change would go some way to restoring proportionality to the IPP sentence. The Ministry of Justice should initiate legislation to this effect as soon as possible.

But that proposal — referred to as recommendation 8 — was rejected in February by Dominic Raab, the then justice secretary. He said:

The licence period following custody is an important tool in both ensuring the public remain protected from the risk posed by offenders and to ensure that offenders are properly supported to manage their risks while reintegrating into the community. Some licences contain conditions to prohibit offenders from making contact with their victims or entering a geographical area where their victims live and work.

Giving evidence to the same committee on Tuesday, Raab’s successor Alex Chalk told MPs:

One of the things you recommended, in your recommendation 8, was: is that period too long? Should it be five years? And I want you to know that I’m looking very carefully at this.

It’s something that was initially rejected. It does seem to me that there is merit in what you have written as a committee, if I may respectfully say so. And that is getting very careful and developed consideration. And that’s probably as far as I can I can take it.

Chalk was not pressed further on the point.

Resentencing

The committee’s main recommendation last year was that all prisoners serving IPP sentences should be individually re-sentenced to fixed terms. That would be expensive and it is not an option the government has accepted. Raab argued in February that this would result in an unacceptable risk of serious harm to the public as many prisoners would be released without the Parole Board having assessed whether they could be managed safely in the community.

Sir Bob Neill, who chairs the justice committee, has put down an amendment for debate at the report stage of the Victims and Prisoners Bill, expected in the autumn. This says, in part:

(1) The Lord Chancellor must make arrangements for, and relating to, the re-sentencing of all prisoners serving IPP sentences within 18 months beginning on the day on which this Act is passed…

(4) A court that imposed an IPP sentence has the power to re-sentence the prisoner in relation to the original offence.

(5) But the court may not impose a sentence that is a heavier penalty than the sentence that was imposed for the original offence.

Neill’s amendment has attracted cross-party support.

IPP advocates

Meanwhile, two campaign groups — UNGRIPP and IPP Committee in Action — are gathering support for an amendment that would give IPP prisoners practical support in making applications for parole. Independent state-funded advocates would help prisoners formulate release plans. These advocates would support IPP prisoners at Parole Board hearings and on release.

The scheme was proposed by Lorna Hackett, a barrister who has represented IPP prisoners, and the amendment was drafted by Alexander Horne, a former parliamentary lawyer.

It says, in part:

(1) The Secretary of State may by regulations establish a list of… IPP Advocates… to act on behalf of an IPP prisoner…

(4) A person may not act as an IPP Advocate unless the following conditions are satisfied —

(a) the person has appropriate experience or training or an appropriate combination of experience and training;

(b) the person is of integrity and good character; and

(c) the person is able to act independently of any other person who is professionally concerned with the offender’s continuing imprisonment…

(6) A person appointed as an IPP Advocate may:

(a) visit and advise an IPP prisoner at the facility where they are imprisoned;

(b) appear before the parole board on behalf of an IPP prisoner; and

(c) visit and advise an IPP prisoner who has been released on licence.

Hackett said:

Every week in practice, I am confronted by a new injustice relating to an individual still serving, or having been recalled, on this long-defunct sentence. The psychological impact of having no release date, and being many years over tariff, means that particular assistance is required for these individuals, both inside and outside custody.

We support the proposed re-sentencing exercise and believe that the IPP advocate and mentor scheme will provide practical support to these people, both before and after they are released into the community.

Comment

Chalk’s willingness to confront the problem of IPPs is encouraging. In his evidence to the justice committee, he willingly accepted that IPPs were a stain on the justice system. He is committed to reducing the number of people serving these sentences.

But his concern is that IPP prisoners are dangerous. That, he says, is why they were given these sentences in the first place. Confronted with the argument that this assessment would have been made by a judge more than a decade ago — or that some judges felt constrained by the legislation — Chalk says these prisoners could have become more dangerous because of the sense of hopelessness generated by an IPP sentence. Their mental health has been damaged by the very sentences they have served.

So his answer is to support these prisoners and ensure that they can be released safely. They would be recalled only if they were found to pose a genuine risk to public safety in the five years after release.

Hackett’s proposed IPP advocates might ensure this this risk was correctly assessed, both before and after release. A well-resourced probation service would need clear guidance that former IPP prisoners should not be recalled merely because it was easier than prosecuting them for an offence that they might have committed on licence.

And only the harshest cynic would question Chalk’s wish to protect public safety.

But we have to be realistic. If you committed a qualifying offence between 2005 and 2012, you might have received an IPP sentence. If you committed the same offence after 2012, you will have known how long you could expect to serve before being released on a fixed period of licence. Prison may have made you less dangerous — or more dangerous. But prisoners are released every day. It’s a risk we all have to accept.

No justice secretary would want to put the public in danger. But sometimes a justice secretary must do justice.

Update 25 August: Amendments that would create IPP advocates have been moved by John McDonnell MP and published by the House of Commons.