In September 2016 the Inspectorate of Prisons published its Thematic Review Unintended consequences: Finding a way forward for prisoners serving sentences of imprisonment for public protection.
The sentence of imprisonment for public protection (IPP) was introduced in 2005 by the Criminal Justice Act (CJA) 2003. These new sentences were to be imposed on those who had committed specified ‘serious violent or sexual offences’ and who were deemed to pose a ‘significant risk of serious harm’ in the future (termed presumed dangerousness).
Under an IPP sentence, high-risk individuals would serve a minimum term in prison (their tariff), during which time they would undertake work to reduce the risk they posed. When sufficient risk reduction had been achieved, the Parole Board would order their release.
In 2007 David Rose wrote:
Almost unnoticed, a fundamental change in penal policy is gathering pace. The main factor in the length of a sentence is, increasingly, not the severity of a crime, but the supposed risk that an offender will do something worse if released.
Risk assessment is at best an inexact science - often, as we shall see later, shockingly so. But its emerging role in the sentencing process is having dramatic consequences: hundreds, soon to be thousands, of petty arsonists, pub brawlers and street muggers are in effect being given life, usually on the basis of highly subjective pre-sentence reports.
Imprisoning people not because of what they had done but because of what it was feared they may do in the future was a deeply flawed principle. Predicting risk is not a precise science: on the contrary, the tools to do this do not exist.
In one case in 2006, Lord Justice Judge said:
Although punitive in its effect, with far-reaching consequences for the offender on whom it is imposed, it [the IPP] does not represent punishment for past offending. The decision is directed not to the past, but to the future.
Following legal challenges and widespread criticism of the IPP sentence the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) abolished the IPP sentence from 3 December 2012.
Between the introduction of the sentence in 2005 and its abolition in 2012, the courts imposed a total of 8,711 IPP sentences. The abolition was not applied retrospectively; no provision was made for sentence conversion or automatic release for people already on the sentence.
This means that those still in prison remain there subject to Parole Board-approved release. Large numbers of IPP sentence prisoners still remain in custody. As of 31 March 2016, nearly half of those sentenced to an IPP (4,133) were still in custody, and 81 per cent (3,330) of these prisoners were beyond their tariff expiry date.
The European Court of Human Rights
In 2012, the European Court of Human Rights ruled that IPP detention could become arbitrary, and therefore unlawful within the meaning of Article 5.1 (a right to liberty and security) of the European Convention on Human Rights.
The Thematic Review
The Review makes a number of recommendations.
A number of IPP prisoners are in open prisons where a primary aim is to test them by using Release on Temporary Licence (ROTL) while they still remain in a custodial setting.
However, current ROTL policy prevents most IPP sentence prisoners from being tested using ROTL while they are still in closed category C training prisons. If this policy was changed, it would mean IPP prisoners, many of whom are years past their tariff expiry, could be released on temporary licence from closed prisons, without the need for a stay in open conditions thus speeding up the process towards eventual release.
For many IPP prisoners, an enhanced offender management casework approach might facilitate progress to reduce risk. Work on these types of approaches for those prisoners not progressing, or eligible for, or not on ROTL has started but should be further developed.
The thousands of IPP prisoners now languishing in prison long after their tariff period has expired impose an additional burden on our troubled and under-resourced prison estate. We should not tolerate this injustice.
This unfortunate, ill-thought-out and fundamentally unjust sentence has left continuing problems in its wake. The legacy of this deeply mistaken legislation can be neither quickly nor easily undone.
As a first step the Ministry of Justice should carry out the Chief Inspector’s recommendations without delay.
Rona Epstein is a Research Assistant in Coventry Law School. R.Epstein@coventry.ac.uk