The Victims and Prisoners Bill currently before parliament offers the government an important opportunity to right a historic wrong and end the injustice of imprisonment for public protection (IPP). Proposals for reform are finally on the table. But it is far from clear that justice secretary Alex Chalk will grasp the nettle.
So what is IPP—and why should we care? IPP sentences were introduced by Labour in 2005 following its promises to be “tough on crime and tough on the causes of crime”. It was a new form of custodial sentence. The idea was that serious offenders would be set a minimum term (tariff) which they must spend in prison. However, rather than simply being released after serving this term, they were instead required to apply to the parole board for release. The parole board would only release an offender if it was satisfied that it was no longer necessary for the protection of the public for the offender to be imprisoned. The onus for showing that they had reduced their risk of harm in order to be safely released into the community lay squarely with the prisoner.
Myriad problems ensued; the courses designed to help prisoners to prove that they were no longer dangerous were vastly over-subscribed, and prisoners often had to wait years for a place, which might also require a transfer to another prison, again causing significant delays.
In essence, this meant that those subject to an IPP sentence could be detained indefinitely. Even if granted parole, an individual would then be released on supervised licence for at least 10 years (and therefore subject to recall to prison throughout that time).
Inevitably, things went wrong, The Ministry of Justice has admitted that IPP sentences were used “far more widely than intended” and that some were issued to offenders who “committed low level crimes”. One defendant received an IPP sentence with a minimum term of just 28 days but which could be extended indefinitely. Following a review, IPP sentences were abolished in 2012. But the change was not retrospective. In June 2023, there were still 2,909 offenders serving IPP sentences. Many of these prisoners had served in excess of double their original tariff and have no idea when, or if, they will ever be released from prison.
The late former Supreme Court judge Simon Brown described IPP sentences as “the greatest single stain on our criminal justice system.” David Blunkett, the home secretary who introduced the legislation containing IPP sentences, called them a “disaster”.
Of those 2,909 IPP prisoners in custody, 1,312 have never been released. The hopelessness caused by never knowing when, or if, they are going to be released has caused many of these prisoners to suffer significant mental health issues. IPP prisoners are two-and-a-half times more likely to self-harm than the rest of the prison population, and government figures showed that by 2021, 65 IPP prisoners had committed suicide.
Of those currently in custody 1,597 have been recalled on their licence. Those recalled to prison have not necessarily committed further offences: they can be recalled for minor breaches of licence conditions, caused by their own mental fragility and inability to cope by themselves in the community after the trauma of a sentence.
In September 2022, the House of Commons justice committee produced a critical report calling for extensive reform. It highlighted the psychological harm caused to prisoners subject to IPP sentences; the challenges in resettling IPP prisoners; and resource issues with the parole board and the probation service. Its primary recommendation was that the government should commit to a “resentencing exercise in relation to all IPP sentenced individuals”. Evidence submitted to the committee was that this was the only way to ensure that “no one spends the rest of their life in prison despite having not been convicted of an offence of the gravity that would merit a sentence of life imprisonment”.
In an important intervention at the end of August, Dr Alice Jill Edwards, the UN special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, highlighted the impact of IPP sentences on the mental health of prisoners. She said: “I’m particularly concerned about the higher rates of self-harm, suicidal ideation, suicide attempts and actual suicide among the IPP prisoner population.”
Alex Chalk has acknowledged that IPP sentences are a problem—and that they should never have been introduced. But thus far, the government has refused to implement the main recommendation of the Justice Committee. Legal commentator Joshua Rozenberg has suggested the government is only contemplating small scale changes to the regime. However, unlike his predecessor Dominic Raab, Chalk is reportedly at least “reviewing” a list of recommendations for reform.
So, what can be done? Over the summer, two amendments were proposed to the Victims and Prisoners Bill. The first, by Bob Neill—the chair of the justice select committee—would require the justice secretary to make arrangements to conduct the resentencing exercise. The amendment would allow courts to re-sentence prisoners in relation to their original offence and would preclude that court from imposing a heavier sentence than was originally imposed. The clause has received cross-party support in the House of Commons.
A second amendment, tabled by former shadow chancellor John McDonnell, and supported by NGOs the Howard League for Penal Reform, UNGRIPP and IPP in Action, proposes a scheme of IPP advocates and mentors. These state-funded individuals would not provide legal advice to prisoners. Rather, they would help them in practical ways, such as providing assistance with formulating release plans, as well as supporting prisoners at parole board hearings and on release. This proposal has received significant support in the House of Lords, including from David Blunkett. (We should declare an Interest here, as we both proposed the scheme and drafted this amendment).
Both suggestions should complement each other. The first would ensure a clear end to the tragedy of IPP sentences, while the second is a pragmatic reform which would allow for the provision of real-world support to ensure that IPP prisoners could get out and stay out of prison.
In his recent article for Prospect, Bill Keller noted the issues of overcrowding and dysfunction in the prison system. Given that the lack of capacity in prisons has now reached a crisis point, and given the unfairness on this particular class of prisoners (who only remain incarcerated by accident of circumstance), this is no time to be cautious about alarming the electorate for fear of accusations of being “soft on crime”. In fact, there is increasing public awareness that this is an almost-inconceivable injustice happening today in our country. Now is the time to put it right.
