Thursday, 3 July 2014

The IPP Disaster

The indeterminate sentence for public protection (IPP) has been one of the biggest legal messes in English history. It was created back in 2003 (but not implemented until 2005) purely as a result of knee-jerk reactions by headline grabbing politicians - some of whom have since had their own collars felt by Inspector Knacker. Even David Blunkett, the then Home Secretary who oversaw the IPP legislation, now "regrets the injustice" of the sentence (BBC interview, 13 March 2014).

When the IPP sentence was introduced in 2005 many people received one who did not even really qualify. Some judges seem not to have understood the nature of the sentence, while others misunderstood the 'dangerousness' test included in the CJA 2003. Sadly, I know some of the prisoners who received very short tariffs of months who years later are still struggling with the unjust nature of the IPP sentence.

Typical prison landing

As far as dangerousness is concerned, I've certainly met a number of IPP prisoners who I would regard as being extremely dangerous, particularly some of those individuals I encountered in B-cat prisons. However, the most obvious indication is the length of the minimum tariff awarded by the judge. In fact, the Court of Appeal in R v Khan [2012] has now set the dangerousness test at a very high level indeed when it quashed Mr Khan's 8 year tariff IPP and substituted a 16 year determinate sentence, so there should be scope for appeals against sentence for many IPPs who had shorter tariffs.

The second issue - prisoners maintaining innocence - is a much wider topic and one that greatly interests me as I'm still on appeal against conviction myself. Fortunately, I only received a fixed term sentence, but I do appreciate the terrible dilemma faced by lifers and IPPs who are maintaining their innocence and are effectively blocked from progressing towards release by the Parole Board.

However, R v Khan is relevant there as well, since Mr Khan is robustly maintaining his innocence and the Court of Appeal specifically factored this in when quashing his IPP as otherwise they acknowledged he would probably never achieve release. I think this important case offers hope for many other IPPs, so if any reader is supporting a prisoner serving an IPP sentence I would check the case out or raise it with the prisoner and his legal representative.

No-one doubts that the most dangerous offenders do need to be kept in custody until it is judged that they are safe to release on licence. That was the point of the old discretionary life sentence (available for very serious crimes, often when offences had been repeated, but less serious than murder). However, a great many of the 'first generation' IPPs were given to people whose actual minimum tariff was a matter of months, rather than years. I know someone who was sentenced to a 9-month IPP for a non-violent crime in 2005 who is still in prison nine years later, with no prospect of release. He has repeatedly attempted suicide and I fully anticipate that he will die in prison unless there is a radical revision of the current provisions for IPP prisoners.

It is worth remembering that none of these prisoners serving an IPP sentence has committed murder; some have committed offences that today would not attract sentences longer than a few years or less. You can now meet prisoners serving time for the same crimes, but one might serve two years and have automatic release, while the other (on an IPP sentence) might be in prison for ten years or longer. These cases simply undermine respect for the justice system. That is one of the reasons the IPP sentence was abolished by Parliament in 2012.

Once trapped in the system, these 'legacy case' IPP prisoners rarely achieve release because it is effectively impossible to 'prove' reduced risk. The best that can be done is to take costly "offending behaviour courses" (at the tax-payers' expense) which tick a few boxes in the hope that they can convince the Parole Board that their risk can be managed. However, there is such a shortage of courses available that prisoners often have to wait years to get on such a programme. In the meantime, they are kept incarcerated long after the 'punishment' element of their sentences have been served - at a cost of an average of £40,000 per year per prisoner. Who pays? The tax-payer, as usual.

The IPP was a failed experiment, as Parliament has acknowledged by taking it off the statute book. The time has come for new legislation to abolish all remaining IPP sentences and substitute them with more appropriate tariffs: either fixed term or - for the most dangerous offenders - some form of discretionary life sentence, with a life licence on release.

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