Treatment of prisoners serving unjust IPP sentences in need of urgent review

Last week the Chief Inspector of Prisons, Peter Clarke, called on Justice Secretary Liz Truss to “get a grip” on the backlog of prison inmates being held beyond their sentence, saying it was “completely unjust” that offenders serving Imprisonment for Public Protection (IPP) terms were languishing in jail.

IPP sentences were abolished in 2012 by the then Home Secretary Ken Clarke, who described them as a “stain” on the justice system. Since then the Ministry of Justice has made no provision for the thousands of prisoners who are already serving these discredited sentences. Over 3,800 IPP prisoners remain stuck in the prison system, many with little or no possibility of release. 81% have already served their minimum term, and almost 400 have served more than five times their minimum term.

The implications for many of these prisoners are profound and make for disturbing reading. Recent figures show that for every 1,000 people serving an IPP sentence there were 550 instances of self-harm. This is significantly higher than the 324 cases per 1,000 recorded among the general prison population.

Vice News reported that information from the Ministry of Justice showed 16 IPP prisoners committed suicide since the abolition of the sentence in 2012 and that IPP prisoners overall have a higher risk of suicide than the general prison population.

The high levels of self-harm are perhaps unsurprising. IPP prisoners are often simply unable to jump through the relevant hoops set by the Ministry of Justice to achieve a release date, leaving many feeling that they will be stuck behind bars for years to come, no matter what efforts they make to reform.

IPP sentences were introduced in 2005 to allow the detention of ‘dangerous offenders’ who had committed violent or sexual offences that were not quite serious enough for a life sentence.

However, the list of offences for which IPP sentences could be given was long. A further list of lesser offences was added for which a previous conviction led to a judicial presumption of an IPP sentence. Many of these offences were in fact not particularly serious, but until the 2008 amendments there was limited judicial discretion in handing out IPP sentences in these circumstances.

The outcome – which was arguably entirely foreseeable – was that far more IPP sentences were handed out by judges than the Ministry of Justice had predicted: around 800 a year. The huge resource implications in providing rehabilitative courses and increasing Parole Board hearings were simply not met.

The result was that thousands of prisoners completed their tariffs but could not meet the criteria for release, which required them to prove they were no longer dangerous. This high bar was virtually impossible to meet without being able to show completion of the relevant rehabilitative programmes. There have also been significant delays in accessing regular parole board hearings.

Some IPP prisoners were simply unable to fulfil this criterion within the term of their minimum tariff. Prior to 2008 there was no lower limit to the tariff, and often tariffs were very short – a third of those receiving sentences had tariffs of less than two years. The idea of managing indeterminate sentences through rehabilitative programmes leading to an assessment of being safe for release was a system that was designed for lifers. Squeezing this into just a few months was destined for failure. Of the IPP prisoners still serving sentences in September 2015, 392 had served more than five times their tariff.

Clearly many post-tariff IPP prisoners experience deep frustration and hopelessness when they are repeatedly denied places on courses they need to complete to show themselves eligible for release. This is often compounded by seeing other prisoners sentenced to determinate sentences for similar offences complete their time and be released into the community.

This very visible unfairness, and the inevitable feeling for many that they will never be released, can lead even previously compliant prisoners to feel they have lost their stake in the system. There is less incentive to comply with prison rules, which in turn can lead to adjudications and negative probation reports, further delaying release. There are even IPP prisoners who have been denied release due to their own self-harm – often an outcome of the indeterminate nature of the sentence – which is seen to indicate they are not safe for release.

Many of the worst affected prisoners are already the most vulnerable: those who are unable to work the system because of enduring mental health problems or learning difficulties, or who are too inarticulate, illiterate, or troubled by drug or alcohol additions. For many IPP prisoners, as with the prison population as a whole, the IPP sentence overlaps with existing mental health problems. IPP prisoners may use segregation as a means of securing a transfer to access courses, which in itself is a serious mental health risk factor.

A recent Prevention of Future Death (PFD) report by HM Senior Coroner Peter Dean dealt with the case of Steven Trudghill, whose inquest concluded on 24th May 2016. The report expressed concern: “it is likely to be the case that there are other potentially vulnerable prisoners like Steven who are still on IPPs within the prison system and at significant risk of continuing self-harm after serving their tariff, finding themselves in a system where the Parole Board hearings that provide the only possible means by which they can be released are infrequent, only occurring two or three years. It is also the case that there are complex mental health needs which might actually be the reason for the continuing risk that keeps them in custody, as with Steven, yet the specific treatments are not available within the prison system.” No response by the Ministry of Justice has yet been published.

This firm also acts for IPP prisoners who have become entangled in the prison system and, in desperation, self-harmed and lost their lives.

Aside from the devastating impact on individual IPP prisoners and their families, the sentence has broader repercussions within the prison system. Since resources have not been increased (in fact the prison service budget has been cut), education and rehabilitative courses are directed away from prisoners serving determinate sentences, and lifers.

Even after release IPP prisoners are subject to a licence for a minimum period of 10 years, after which they can apply for the licence to be revoked. During their licence period IPP prisoners can be recalled to prison for a relatively minor offence or for merely breaching the terms of their licence. Licence recall has increased significantly in recent years, despite severe prison overcrowding.

The Supreme Court dealt with the issues in R (on the applications of Haney, Kaiyam, and Massey) v The Secretary of State for Justice. The High Court found that the MOJ “failed to provide the systems and resources that prisoners serving those sentences needed to demonstrate to the Parole Board by the time of the expiry of their tariff periods, or reasonably soon thereafter, that it was no longer necessary for the protection of the public that they should remain in detention”. Nevertheless, no breach of Article 5 of the Human Rights Act was found and it took a challenge at the European Court of Human Rights in Strasbourg to identify that the failure to provide the rehabilitative courses needed to prove risk reduction meant that the post-tariff detention of IPP prisoners was “arbitrary and unlawful”.

The issues around the right to life and the State’s responsibility to protect the lives of vulnerable detainees have not yet been considered by the Court. For some IPPs, the futility of seeking release and the serious risk this poses to their mental health raises will raise issues under Article 2 of the European Convention (the right to life).

Rather than responding to the ruling in James with a full-scale review of existing IPP sentences, the Ministry of Justice has so far simply kept to the status quo. This is despite referring in their own published factsheet to IPP sentences not working, stating that they “have been used far more widely than intended”; have “proved difficult to understand”; and “lead to inconsistent sentencing”.

Part of the Ministry of Justice’s difficulty is no doubt the absence of a resource-free solution. A possible step is to convert IPP sentences to equivalent determinative sentence, which is what a prisoner convicted of the same offence would now receive. For many of those who received short tariffs pre-2008 and have served longer than the maximum determinate sentence for their offence, this would seem to be the only just solution. This step would require executive action.

Another available option is to amend the risk test so that the onus is on the Parole Board to identify evidence that IPP prisoners remain dangerous. This would mean that the inability to access rehabilitative courses would not necessarily be an obstacle to release. Again, this could be applied to all IPP prisoners or limited, for example, to those serving long post-tariff terms.

This latter change can be achieved via secondary legislation; section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 allows the Justice Secretary to amend the public protection test in the 1997 Act. Such a step, if well-resourced and established with adequate support to the Parole Board, would allow for the continued detention of those who may not yet be suitable for release into the community.

The overall solution is not straightforward and may involve a combination of the above. Former Justice Minister Michael Gove commissioned the relatively newly appointed head of the Parole Board Nick Hardwick to review existing IPP sentences. He appears to advocate a wholesale change to the current system.

It remains to be seen whether Liz Truss will now have the moral courage to take the next steps proposed by Hardwick, given the risk of the right-wing press response to a change to the law allowing the release of prisoners deemed “dangerous”.

No alternative strategy has been pressed for by the Labour Party, who have remained deafeningly silent on the issue.

What is clear is that repeated empty promises of allocating more resources to rehabilitative courses and to the Parole Board to process applications is an inadequate response. There is no convincing moral, economic, rehabilitative or punitive justification for keeping the majority of post-tariff prisoners in custody when they can successfully be managed in the community. As Ken Clarke stated, IPP sentences were “unjust to the people in question and inconsistent with the policy of punishment, reform and rehabilitation”. Put simply, the punishment does not ‘fit’ the crime.