An Indefinite Problem

Introduction
Amidst the flurry of media attention which followed Prime Minister Rishi Sunak’s general election announcement on 22 May 2024, little notice was taken of the legislation passed during the final days of the parliamentary session. At first sight the Victims and Prisoners Act 2024 may represent the most significant practical change to the draconian sentencing regime for the 3,000 offenders still serving sentences of Imprisonment for Public Protection (“IPP”) which were imposed between 2005 and 2012. However, questions still remain as to whether or not the new legislation goes far enough to address the significant problems facing those who are still subject to an IPP.

A Short History of IPPs
Sentences of IPP were first introduced under the Criminal Justice Act 2003. The operative parts of the legislation came into force for all sentences passed for offences committed after 04 April 2005. Where an offender had previously been convicted of one or more relevant offences and fell to be sentenced for a further specified offence, the court had to consider whether they met the test for dangerousness. This was set out in section 229(1)(b) as “whether there is a significant risk to members of the public of serious harm occasioned by the commission by him or further such offences”. Where dealing with an offender over the age of 18 with a previous relevant conviction, section 229(3) imposed a statutory presumption that “the court must assume that there is such a risk…unless after taking into account all such information as is available to it…the court considers that it would be unreasonable to conclude that there is such a risk”.

The Court of Appeal addressed the question of risk in the leading case of R v Lang [2006] 2 Cr App R (S) 3, in which Rose LJ set out a non-exhaustive list of factors for the courts to consider at paragraph 17:

“The risk identified must be significant. This is a higher threshold than mere possibility of occurrence and in our view can be taken to mean (as in the Oxford Dictionary) “noteworthy, of considerable amount or importance”. (ii) In assessing the risk of further offences being committed, the sentencer should take into account the nature and circumstances of the current offence; the offender's history of offending including not just the kind of offence but its circumstances and the sentence passed, details of which the prosecution must have available, and, whether the offending demonstrates any pattern; social and economic factors in relation to the offender including accommodation, employability, education, associates, relationships and drug or alcohol abuse; and the offender's thinking, attitude towards offending and supervision and emotional state. Information in relation to these matters will most readily, though not exclusively, come from antecedents and pre- sentence probation and medical reports…The sentencer will be guided, but not bound by, the assessment of risk in such reports”.

Once a court made a determination that an offender satisfied the test for dangerousness, section 225 made it mandatory for an IPP sentence to be imposed for all offenders who did not meet the requirements for a life sentence.

The effect of receiving an IPP was severe. Instead of being released automatically at the halfway point of their sentence, IPP prisoners became eligible for parole, and would only be released once they had satisfied the Parole Board of the test in section 28(6) of the Crime (Sentences) Act 1997 that their imprisonment was “no longer necessary for the protection of the public”. For any offender who continued to deny their guilt, this reduced the chances of their being released to almost zero. For those offenders who were eventually released by the Parole Board, they remained subject to licence conditions for the rest of their lives. This meant that they were subject to being recalled to prison for minor violations, such as missing a meeting with a probation officer. Such recalls would then require them once again to have to satisfy the Parole Board to order their release.

As the IPP regime took hold, the courts began to recognise the problems it was causing. The Lord Chief Justice observed at paragraph 14 of Attorney General’s Reference (No 55 of 2008) [2009] 1 WLR 2158, that aside from a discretionary life sentence, “imprisonment for public protection when the necessary conditions are fulfilled is the most draconian sentence available to the court”.

The list of relevant and specified offences which could result in an IPP being considered, contained 153 offences including some of the most serious, such as manslaughter, kidnapping, and rape. There could be little doubt that such offences would normally attract significant sentences and involve cases where the offender represented a clear risk of serious future harm. However, the list also included far less serious offences, such as assault occasioning actual bodily harm (“ABH”) contrary to section 47 of the Offences Against the Person Act 1861. This meant that huge numbers of offenders were falling within the scope of the IPP regime. Government figures for 2008 show just under 12,500 adult offenders were sentenced for ABH, which rose to a peak of nearly 14,000 in 2010.

IPPs had not just given the courts an additional sentencing power to apply in appropriate cases, the presumptions in the legislation and the scope of the offences it covered meant that IPPs were being imposed in increasing numbers. This wouldn’t necessarily have caused a problem if the Parole Board were releasing offenders at a similar rate. Faced with calls for reform, the government was forced to remove the presumption of dangerousness in 2008.

The situation was exacerbated by the impact of the government’s austerity measures. Prisoners were increasingly unable to access courses which would allow them to demonstrate their reduced risk to the Parole Board. In 2009, the Supreme Court held in R (on the application of Wells) v Parole Board for England and Wales [2009] 2 WLR 1149, that the government had “failed deplorably” (in the words of Lord Hope) to comply with its public law duty to provide the systems and resources for offenders to show their continued imprisonment was no longer necessary. Notwithstanding this breach of duty, the Supreme Court found that the continued detention of these offenders was neither unlawful at common law, nor in breach of Article 5(1) of the European Convention on Human Rights.

But by 2010 there were over 6,000 IPP prisoners, over 2,500 of which were past the point at which they were entitled to be considered for release by the Parole Board.

It was not until 2012 that the government finally abolished IPPs with the passing into law of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”). Although LASPO abolished the IPP regime, it had no retrospective effect on the thousands of IPP prisoners. Instead, section 128 of LASPO enabled the Secretary of State to modify the threshold for release. By the time they were abolished, a total of 8,711 IPP sentences had been imposed.

By 2016, there were still over 4,000 IPP prisoners in custody. This represented around 5% of the total prison population. In the four years since LASPO, no Secretary of State had grappled with the issue by exercising the power to adjust the release threshold under section 128. Increasing numbers of offenders were significantly past the point at which they were theoretically eligible for release, and others had been released only to be recalled for minor infractions of their licences. A conjoined appeal was heard before a specially convened Court of Appeal (cor. Thomas LCJ, Openshaw and William Davis JJ) in R v Roberts and others [2016] 1 WLR 3249. Following the failure of the Supreme Court to find a breach of Article 5(1) with respect to the Parole Board, we argued that there must come a point in time at which the continued detention of an offender would become arbitrary as the sentence which had been served was so disproportionate to that which had been intended by the sentencing court. We argued that this was itself a breach Article 5(1), which occurred in such a manner that it required intervention from the courts. Some of the appellants in Roberts had received IPP tariffs of under 12 months but were now nearly ten years past their potential release date. Whilst recognising the extent of the problem (paragraph 44 to 46), the Court of Appeal followed the general approach of the Supreme Court in Wells, and decided that the problem was made by Parliament and should be solved by Parliament. The court suggested three options. First, was that significant resources were put into the provision of courses for offenders to demonstrate their reduced risk to the Parole Board. Second, the Secretary of State court exercise his power under section 128 of LASPO to alter the test for release. Third, Parliament could pass legislation to allow for those in custody to be re-sentenced.

The Problems with IPP
Successive government administrations failed to address the challenge which had been set down for them by the Court of Appeal in Roberts. As the years went on, the problems compounded. Not only were IPP prisoners taking up a significant amount of space and resources in the prison estate, but they were subject to a unique psychological pressure due to the uncertainty about their release, and the potential for their recall at any point for the rest of their lives.

Impetus for reform was provided with the publication of the House of Commons Justice Committee in September 2022. The committee heard evidence from a consultant forensic psychiatrist that IPP prisoners show a “clinical presentation…increasingly akin to those who have been wrongfully convicted”, that IPPs had “led to a sense of helplessness and a lot of them have become institutionalised”. Rates of self-harm and suicide were found to be significantly higher among IPP prisoners. The Prison Reform Trust reported that for every 1,000 IPP prisoners, there were 550 incidents of self- harm, compared to a rate of 324 incidents per 1,000 determinate sentence prisoners. Crucially, the rate of self-harm for IPP prisoners was more than twice the rate of those who were serving a life sentence. As of May 2021, the Independent Advisory Panel on Deaths in Custody (“IAPDC”) found that of the 250 IPP prisoners who died in custody, 65 had taken their own lives.

Following the report, the government passed the Police, Crime, Sentencing and Courts Act 2022. This introduced changes to IPP licence conditions, requiring the Secretary of State to automatically refer those IPP offenders who were eligible for termination of their licence back to the Parole Board. But these changes only applied to those who had become eligible ten years after their initial release from prison. To those IPP prisoners still in prison, the situation remained bleak.

The Victims and Prisoners Act 2024
The move for further reform began to gather momentum. Former Supreme Court Justice Lord Brown described the IPP regime as “the greatest single stain on our criminal justice system”. Lord Blunkett, the former Labour Home Secretary responsible for the introduction of IPP sentences as “the biggest regret I have in terms of the outcome of all the many things that I was involved in in the eight years I was in government”. In 2023, the government introduced a new Victims and Prisoners Bill, which was passed and received Royal Assent on 24 May 2024.

The Victims and Prisoners Act 2024 has a lot to commend it. The period for referral to the Parole Board for licence conditions to be terminated has been reduced from ten years down to three years, giving a potential glimmer of hope for those who have been released, that they will be free of the possibility of indefinite recall. The changes will be retrospective, with approximately 1,800 offenders seeing their licence conditions automatically terminated, and an additional 800 offenders expected to become eligible for Parole Board consideration by March 2025. The Lord Chancellor and Justice Secretary, Alex Chalk KC described the reforms as “a major step towards wiping away the stain of IPP sentences from our justice system”.

However, the primary failing of the new legislation is that, once again, the government has failed to grapple with the central problem of IPP prisoners. What should be done for those prisoners who are now significantly over their original tariff? As of 30 September 2023, there were 1,269 IPP prisoners who had never been released. A further 1,652 were in prison having been recalled for a breach of licence conditions. There are 608 who were at least ten years over their original minimum tariff, out of whom 188 had originally been given a minimum sentence of less than two years.

Conclusion
It remains to be seen whether the next government will bring forward legislation to finally abolish the IPP regime once and for all. The future does not look bright. Both Conservative and Labour refused to back an amendment proposed in the House of Lords by Lady Fox which would have re-sentenced the remaining IPP prisoners, in line with the calls from the Justice Select Committee and the UN special rapporteur on torture, and foreshadowed by the Lord Chief Justice in 2016 in Roberts.

With a certain amount of irony, the Victims and Prisoners Act 2024 received Royal Assent on the same day as the Post Office (Horizon System) Offences Act 2024, which unilaterally quashes convictions for postmasters charged with theft, fraud and related offences as a result of the Post Office Horizon IT scandal. Perhaps before future governments are prompted to resolve the IPP problem, someone should cast Toby Jones in an ITV drama on the subject?