The law of unintended consequences

Parliament must put right the wrong it has enacted

It seemed such a good idea at the time. Twenty years ago, the Labour government proposed “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 was called imprisonment for public protection

¹

— IPP for short — and it was introduced in England and Wales by the Criminal Justice Act 2003 for offences committed from April 2005.

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. The offender would be released if and when the Parole Board was satisfied that he or she was no longer dangerous. What could go wrong?

Stain on our justice system

Many more IPPs were passed than the politicians had expected. Legislation was drafted far too broadly. It permitted no judicial discretion.

Although IPPs were revised in 2008 and finally abolished in 2012, their continuing aftermath has been described by Lord Brown of Eaton-under-Heywood, a former justice of the Supreme Court, as “the greatest single stain on our criminal justice system”.

That’s because scrapping IPPs was not made retrospective. The Conservative/LibDem coalition government understandably balked at setting free thousands of dangerous criminals. These offenders still had to satisfy the Parole Board they were safe to be released. And, like any other lifer, they could be recalled to prison at any time for failing to comply with their licence conditions — even if they had not committed a new criminal offence.

The most recent figures show that on 30 June 2022 there were 1,492 offenders serving an IPP sentence who had never been released from prison. Almost all of them — 97% — had completed their minimum terms. Of these, 608 offenders had been in prison for more than 10 years over their tariffs, including 10 people whose tariff had been less than one year.

There were also a further 1,434 IPP prisoners had been recalled to custody. Given that the number of serving prisoners who have never been released is slowly going down and the number being recalled is slowly going up, the latter will soon overtake the former (if it has not done so already). So the problem is not going away. Without government intervention, it will fester for many years to come.

The effect on prisoners

A report by the House of Commons justice committee published during the past fortnight 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 are others, it added, for which the sentence was still regarded as entirely appropriate.

Among problems identified by the committee were:

• psychological harm to prisoners caused by the indefinite nature of the sentence, leading to high levels of self-harm and some suicides within the IPP population and barriers to progressing to release

• limited availability of appropriate courses for IPP prisoners

• lack of transparency around the evaluation of programmes that the authorities use to help decide risk

• resource problems within the probation service and Parole Board, resulting in an ineffective parole process that poses a significant barrier to progression for IPP offenders

• a growing concern about the population of recalled IPP prisoners, such as questions about what the threshold for recall should be and whether IPP prisoners receive enough support on release to help them reintegrate into the community.

The effect on victims

The justice committee received several submissions from victims of crime who expressed concern for their safety if their offender was released. But the risk of reoffending is not confined to IPP prisoners. We currently release offenders who have received fixed sentences for offences that are just as serious as those that attracted IPP sentences in the past — if not more so. Unsurprisingly, IPP prisoners have a lower rate of reoffending than those who received fixed sentences.

What has the government done so far?

Former prisoners subject to an IPP sentence have always been able to ask the Parole Board to end their licence 10 years after their first release. That’s to their advantage: it means they won’t be recalled to prison unless they commit a new offence.

But ex-prisoners may be unwilling or unable to apply. Under last-minute changes to the Police, Crime, Sentencing and Courts Act 2022, the justice secretary must now refer eligible IPP offenders to the Parole Board without having to ask the offender first. If the board decides not to terminate an offender’s licence, the secretary of state will automatically re-refer the case every 12 months.

What should the government do now?

As the justice committee recommended — and the Parole Board itself agreed — the government should now halve the qualifying period and refer cases to the Parole Board five years after first release.

The government promised to consider this once it had seen the committee’s recommendations — which will not have come as a surprise. Peers will be expecting a minister to give an indication of the government’s thinking during a short debate on IPPs in the House of Lords on Thursday. The Lords library has set the scene in an excellent briefing.

New sentences for old

The justice committee’s main recommendation is that all IPP prisoners who remain on licence should be re-sentenced. This would involve a substantial amount of work but it will be reduced if the government agrees to refer cases to the Parole Board five years after first release.

Resentencing would require new legislation from the Ministry of Justice. There are various ways in which this could be designed but the appropriate course must be to have each eligible case considered by a judge.

It does not follow that all IPP prisoners would be released immediately. Some would no doubt be given fixed sentences and others could expect extended sentences. But those who had previously received IPPs would no longer face life imprisonment.

The justice committee said that the resentencing exercise should be guided by three principles:

• balancing the protection of the public with justice for the individual offender

• recognising and protecting the independence of the judiciary

• ensuring that no harsher sentence is imposed retrospectively.

Less that a year ago, the government came out strongly against a resentencing exercise:

The government’s long-held view is that legislating to resentence IPP offenders would cause an unacceptable risk to public safety. Any resentencing of IPP offenders would risk the immediate release of many prisoners who have committed serious sexual or violent offences without a risk assessment and, in many cases, with no licence period. It is therefore vital to public protection that they are released only when the independent Parole Board determines that they may be safely managed in the community.

But the justice committee wants it to think again:

We do not underestimate the complexity of undertaking a large-scale resentencing exercise for IPP prisoners. It would require careful thought, significant planning, and sufficient resources. However, the potential difficulties do not justify failing to grasp the nettle. All three branches of the state — the government, parliament, and the judiciary — must now rise to the challenge.

That view is shared by the home secretary who introduced IPPs in the first place. This was Lord Blunkett, speaking in the Lords last December:

I have never resiled from wanting people who have committed heinous crimes to be put away for a very long time, or from having tough sentences where they are needed. But this situation cannot go on. We have to do something for the sake of the individuals and their families, and for the safety of the community, because the longer they are in prison on a suspended animation sentence or on licence, the more likely they are to find themselves unable to rehabilitate and live a normal life. When that happens, they are more likely to commit a crime. I got it wrong. The government now have the chance to get it right.

Update: the government’s response

The advocate general for Scotland, Lord Stewart of Dirleton KC, was given the job of responding to the House of Lords debate on 13 October. He made no concessions:

A full government response will be provided to the justice committee by 28 November this year, with an updated IPP action plan to follow. I emphasise that 28 November is the final date…

I am aware that many of your lordships… have pushed for a reduction on the period before individuals are eligible for consideration to have their IPP licences terminated. That featured, as I say, in the recommendations of the justice select committee, although its primary recommendation has sought to go much further: to set up a time-limited expert committee, as your lordships have heard, to advise on the practical implementation of a resentencing exercise, which the lord chancellor and secretary of state for justice could then consider.

As stated previously, all recommendations within the report will be considered thoroughly. However, I am unable to comment on the government’s views on the report’s recommendations until that formal response is available.

Don’t hold your breath.

Update 9 February 2023: the government has rejected the committee’s main recommendation.

Responding to the proposal all remaining IPP offenders who have not yet had their licence terminated should be resentenced, Dominic Raab, the justice secretary, told the committee:

The government’s long-held view is that this would give rise to an unacceptable risk to public protection and that the IPP action olan, suitably updated, remains the best option by which these offenders can progress towards safe release. As such, the government has no plans to conduct a resentencing exercise.

1. Or indeterminate sentences for public protection.