IPP sentences: the fight continues
Barristers describe a back-bench amendment as elegant and legally sound
Fresh attempts will be made during the committee stage of the Victims and Prisoners Bill, which begins today in the House of Lords, to reform what a former Supreme Court justice has rightly described as “the greatest single stain on our criminal justice system”.
The bill was introduced as long ago as March last year, when Dominic Raab was still justice secretary. He rejected reforms to the sentence of imprisonment for public protection — IPP for short — that had been recommended by the Commons justice committee. But his successor Alex Chalk accepted one of them and is using the bill to reduce the period — from 10 years to three years — during which a released prisoner remains at risk of being recalled to custody.
The IPP sentence has been widely condemned, for reasons I explained in an earlier piece. But, as the government’s explanatory notes say, “successive governments have resisted significant legislative reform on the grounds of public protection, the main concern being that releasing offenders who have been too dangerous for release by the Parole Board presents a real risk of further serious offending”.
A series of amendments have been put down for the Lords committee stage. One in particular is supported by the Bar Council, representing 17,000 barristers in England and Wales. It would require the state to demonstrate that a prisoner is still a risk to the public rather than, as at present, requiring the prisoner to prove the opposite.
Amendment 161 would introduce a new clause to the bill. Its proposer is Lord Moylan, a Conservative back-bencher. Trailing his amendment at the bill’s second reading debate last month, he described IPP sentences as a “form of mental torture”:
If you eventually get to a parole board, you find that, unlike any other prisoner, you have to demonstrate that you are safe before you can be taken out—and, at the same time, to do this in a context where your mental health is very likely deteriorating.
Moylan’s amendment is supported by Lord Blunkett, who now regrets having introduced IPPs while he was Tony Blair’s home secretary from 2001 to 2004, the Labour peer Baroness Chakrabarti and the former deputy president of the Supreme Court Lord Hope of Craighead.
IPP prisoners were given a minimum term, known as the tariff, which was often quite short. Hundreds have served an additional 10 years or more. Under the proposed amendment, they would be released unless the Parole Board “is satisfied that it remains necessary and proportionate for the protection of the public from serious harm that they should continue to be confined”.
Also covered would be prisoners who have served longer than the maximum sentence set by parliament for their offence.
The justice committee had recommended re-sentencing each IPP prisoner individually. But the Bar Council says Moylan’s proposal would be a better idea because:
A modification of the release test would not require the re-hearing by the already over-burdened Crown court of well over 1,000 sentences;
The proposal targets now the sentences that are most likely to be disproportionate to the underlying offending — those where the offender is well over-tariff, or where they have served longer than the maximum determinate sentence that could have been imposed for the offence committed;
The Parole Board would retain its role, as the specialist tribunal, in determining risk on release;
Where the need for continued detention can be demonstrated by the state on grounds of the risk of serious harm, release can be denied.
In a briefing to peers, barristers leaders describe Moylan’s amendment as an “elegant, legally sound and appropriately risk-based solution for the most egregious injustices produced by the imposition of [IPP] sentences, while preserving the ability to deny release in cases in which public protection requires it”.
Let’s see what the government makes of it.
What IS the matter with so many of our Parliamentarians? To his undying credit Lord Blunkett has shown himself to be that rarest of rare human species: a politician issuing a heartfelt “mea culpa” time after time. I need to add that I often viewed him as wrongheaded in many of his interventions when Home Secretary but all the same enough of all the nodding heads, the tutting and the shrugging of the shoulders from those in positions actually TO DO SOMETHING ABOUT IT.
When a criminal defence solicitor advocate, one of the most miserable, perplexing and sometimes dispiriting details was when striving to inject some sort of broad justice into the sentencing of a relatively minor offender facing these “blunt instrument” and “Catch22” provisions . I recall especially vividly a case where a very experienced barrister Recorder got his initial sentencing exercise desperately wrong and then put things off until the afternoon as I have no doubt (and rightly) to seek guidance from his more senior judicial colleagues. In all honesty I KNEW that he had got his initial stab at it wrong but it took a better lawyer than me - a trainee solicitor at the practice- to explain to me (fairly patiently) quite how to put it right- which the Recorder did after that lunch break. The outcome then had been unassailable but the very reverse of my idea of “just”.
Apart from the Bar my own professional body the Law Society has often and vigorously spoken out on this issue and called for the stain- at least- to be prevented from spreading yet further.
Let us all hope that these shrewd interventions now presented to Parliament can be seized upon as meaningful inroads into an outrage which ought to have been righted many, many years ago. To miss this further opportunity would amount to nothing less than a dereliction of duty.
And all of this on the day we learn of the sad death of Erwin James at only sixty six where he did so much more than almost any other writer and campaigner to describe and speak out against the debilitating and rehabilitation- lite nature of prison. He, after all, had been in the best position to know.