Lord Berwick attached this to the email and asked if we would support it. Bingham Centre for the Rule of Law IPP Sentences 4th March 2014 Inner Temple The purpose of this meeting is to draw attention to the 5000 or more prisoners who are currently serving indefinite sentences for the protection of the public under section 225 of the Criminal Justice Act 2003. That section was repealed in 2012. So the power to impose an IPP sentence no longer exists. It goes without saying that the courts can still impose a discretionary life sentence in the most serious cases, or a mandatory life sentence in the case of murder. In discretionary life cases the tariff, or minimum period to be served in prison before being considered for parole, is typically about 8 or 10 years. The IPP sentence was intended to serve a different purpose. It was to cover the less serious offences where a life sentence would not be justified. For the new sentence to be available the offender must have committed a “serious” offence carrying maximum sentence of ten years or more. Although described as serious, the list of qualifying, or “trigger” offences included many run-of-the mill crimes such as burglary, robbery, or simple arson. In addition there had to be a significant risk of him committing further such offences. If these two conditions were satisfied, the court was obliged to pass an IPP sentence, with very limited exceptions. The word was “must” not “may” As to the second condition, the judge was bound to find it satisfied, in other words he was bound to assume that there was a significant risk, if the offender had been convicted of one or more such crimes in the past. So the judge had very little if any discretion. As with the life sentence the judge was required to impose a tariff. In practice judges arrived at the tariff by taking the sentence they would have passed if passing a determinate sentence, and then halving it. This was in order to take account of early release, whereby determinate prisoners are released on licence at the halfway stage. So if the notional determinate sentence was, for example, four years the judge would fix the tariff at two years, and make the sentence indeterminate. Lastly – and this was absolutely crucial –there was no minimum tariff. That was the framework. What was the expectation? There is little to go on. But it is clear the government expected a very limited uptake, perhaps a few hundred offenders a year, at most. Baroness Scotland in the House of Lords referred to “a small group of offenders for whom a determinate sentence would not provide a sufficient guarantee of public safety”. Thus it was predicted that the introduction of IPP sentences would be “resource neutral”. In other words the cost would be balanced by other savings. No extra money was provided. That was the governments expectation. I do not know whether there was an impact assessment. But if there was, it was disastrously wrong. Since the sentence was in effect mandatory, and there was no minimum tariff, the government should clearly have foreseen what actually happened: a massive increase in the lifer population, for which they had made no preparation. Many of those given IPP sentences had a tariff of two years or less, some less than 6 months. In the year following the Act coming into force the average tariff was 30 months. Not surprisinglyI the lifer population increased in one year by a third. In April 2005 there were 5800 prisoners serving life sentences. By April 2007 the lifer population, including those serving IPP sentences, was just under 9,000. The result was that the prison system was completely swamped; that was the word used by Lord Brown of Eaton-under-Heywood in the James case. Lord Hope said that the Secretary of State had failed deplorably- his word- in the public law duty which he had accepted when he persuaded Parliament to introduce IPP sentences. Lord Judge and Lord Carswell were equally severe in their comments. By 2007 the number of IPP prisoners was increasing at the rate of 1800 a year. Very few if any of those serving short tariffs had been released, because insufficient courses had been made available for them to satisfy the Parole Board that they were now safe. It was clear that something had to be done. So in 2007 the Government amended the 2003 Act. Risk was no longer to be assumed by the Court. The word “must” was changed to “may”. Thus the sentence was no longer mandatory. Above all the sentence ceased to be available if the appropriate tariff was less than 2 years. But it was too little and too late. In the House of Lords I put down an amendment in 2007 to make the minimum tariff 4 years rather than 2 years, as proposed by the Government. But the Government would not accept it. Thereafter various expedients were tried until 2012, when the sentence was finally abolished. I can think of no example of a sentence which has had so short a life on the Statute Book, or a sentence which was introduced with so little thought for the consequences, or a sentence which has left behind it such a strong sense of injustice. I know that because of the many letters which I and others have received from the prisoners themselves and their families. Before leaving the statistics, there is one other set of figures which I should mention. They were referred to by Baroness Stern in our debate on 20th March last year. They provide a background to what we are discussing. We have five times as many prisoners serving life and indeterminate sentences per 100,000 of the population as Germany, seven times as many as Sweden, eight times as many as Holland and fourteen times as many as France. I have been told, but I have not been able to check, that we have more lifers than in the whole of the rest of Europe put togather, including Russia and Turkey. There seems to be no explanation for this imbalance between us and other countries, un less it be the desire of successive governments to be, or to seem to be, tough on crime. I said in starting that the purpose of this meeting was to draw attention to the 5500 prisoners who are serving IPP sentences, of whom 3500 have now passed their tariff, many by several years. But there is another more urgent purpose. Can anything be done to speed up their release? The current release test for IPP prisoners is the same as for all life sentence prisoners. The Parole Board can only direct release if it is satisfied that confinement is no longer necessary for the protection of the public. Currently IPP prisoners coming before the Parole Board are being released at the rate of about 400 a year. At that rate it will be nine years before the 3500 who have already passed their tariff will be released. This is bad news for all of them, but especially for the 773 prisoners who were given a tariff of 2 years or less before 2008. Of these 275 are already five years over tariff, including 26 whose tariff was only six months or less. How much longer, one may ask, do they have to wait? When Parliament passed the 2012 Act, it was well aware of the existing backlog. It made specific provision to deal with the problem. Section 128 of the Act envisages that the release test for IPP prisoners need no longer be the same as for other lifers. It gives the Lord Chancellor power to lay an Order before Parliament requiring the Parole Board to direct release if satisfied that certain conditions are met, or unless satisfied that certain conditions are met. The difference between these alternatives is not entirely clear. But one thing is clear beyond doubt. Parliament intended the Lord Chancellor to have the power in question so as to speed up the release of IPP prisoners. There is nothing in section 128 which says, either expressly or by implication, that any new release test must depend on the current assessment of risk. So the questions now are, first, whether the Lord Chancellor should exercise that power, and secondly if so what the new release test should be. To my mind the first question is straightforward. I am not suggesting for one moment that the sentences were unlawful when they were passed. But the sentences were of a type which has since been repudiated by Parliament. If these prisoners were being sentenced today they would be given a determinate sentence of so many years, at the end of which they would be released. This would be so whether or not there was a significant risk of them reoffending. Since it is no longer lawful to pass an indeterminate sentence in these cases, those serving these sentences should, so far as possible, be brought into line with what would be lawful now. Parliament has paved the way by enacting section 128. So I would suggest the time has now come, indeed has long since passed, for the Lord Chancellor to exercise the power he has been given. The only reason he has given me for holding back, either at a meeting I had with him or in subsequent correspondence, is that he would be interfering with sentences lawfully passed by the courts. The short answer to that argument is that it has happened before, most obviously when Parliament enacted the statutory provisions for early release. An even shorter answer is that until 2008 the sentences were mandatory. In any event I cannot imagine that the judges would have any great objection, since like everybody else they assumed that adequate provision had been made for enabling these offenders to come before the Parole Board, an assumption which proved ill-founded. As for the release test which might be substituted, many ideas have been canvassed. The one which I would favour has the advantage of simplicity. It would be particularly apt in the case of the 773 prisoners sentenced to 2 years or less, before 2008, when the sentence was mandatory. As already mentioned, in fixing a tariff of 2 years the judge will have had in mind a notional determinate sentence of 4 years. At the end of four years the offender would have been released irrespective of any future risk. So the simplest and fairest release test now would be to substitute a determinate sentence by doubling the tariff. This is consistent with section 128, and may well have been what Parliament had in mind when enacting that section. So the two questions which I hope that the Minister will answer are these. Does he agree that there is an urgent need to speed up the rate of release? If so, does he agree that the simplest and fairest way of dealing with the backlog is to substitute the sentences which we know the judges would have passed if section 225 of the 2003 Act, now repealed, had never been enacted? It will be noticed that I have said nothing about recent cases in the ECHR. Nor have I said anything about the pressure on the Parole Board, or the effect of the backlog on the rest of the prison population, or indeed the cost of keeping them in prison. But I leave that, with grateful thanks, to the experts who will follow.
Posted on: Wed, 12 Mar 2014 15:45:18 +0000
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