James - On 28 September 2005 Mr James pleaded guilty in the Crown Court to unlawful wounding with intent. He had previous convictions for, among other things, battery, common assault, affray, disorderly behaviour, racially abusive behaviour and assault occasioning actual bodily harm. A pre-sentencing report dated 27 September 2005 prepared by the Probation Service referred to the offence forming part of a pattern of violence and threatening behaviour largely linked to Mr James’ excessive drinking. It recommended counselling to address alcohol and substance abuse. The sentencing judge accepted that Mr James was dangerous, particularly when he drank alcohol. He was sentenced to an IPP sentence pursuant to section 225 of the 2003 Act, with a tariff of two years, less time spent on remand. His tariff therefore expired one year and 295 days after the date of sentencing.
Wells - Mr Wells was convicted of the attempted robbery of a taxi driver. He had previous convictions for both violent and acquisitive offences, linked to the misuse of drugs. On 14 November 2005 he was sentenced at Bolton Crown Court to an IPP sentence with a tariff of 12 months, less 58 days spent on remand. Pre-sentence reports assessed him at high risk of reconviction but as posing a low risk of causing serious harm save for a medium risk with regard to prison staff.
Lee - On 13 April 2005, while under the influence of alcohol, Mr Lee caused criminal damage to a flat in which his former wife and young children were present. He was arrested and remanded in custody the following day. He had a total of eight previous convictions, including offences of assault occasioning actual bodily harm and criminal damage. Following his conviction, on 2 September 2005 Mr Lee was sentenced at Bolton Crown Court to an IPP sentence with a tariff of nine months, less time spent on remand. His tariff period therefore expired 163 days after sentence.
On 4 April 2005, by virtue of section 225 of the Criminal Justice Act 2003 (“the 2003 Act”), indeterminate sentences for the public protection (“IPP sentences”) were introduced. These sentences are indeterminate sentences (i.e. sentences of no fixed length), and, like sentences of life imprisonment, require the direction of the Parole Board in order for the prisoner to be released. A minimum term which has to be served before a prisoner can be released, known as the “tariff”, is fixed by the sentencing judge.
The IPP system was "softened" by the Criminal Justice and Immigration Act 2008 (“the 2008 Act”) to deal with the problems encountered. In particular, the IPP sentence became no longer mandatory and it now only applies to cases where, if imposed, the tariff would be fixed at more than two years, subject to certain limited exceptions.
At the heart of the scheme is the system for eventual release of the prisoner. The responsibility for assessing the suitability of a prisoner for release rests with the Parole Board and is normally dependent on the prisoner having completed specified courses aimed at rehabilitation. (I do not propose to consider here the effectiveness of such courses).
The House of Lords:
In May 2009, the men's cases were considered in the House of Lords and they lost although the judges expressed very grave concerns about the implementation of the IPP scheme.
Lord Judge noted that the statutory regime for dealing with indeterminate sentences was predicated on the possibility that, in most cases, prisoners could be reformed or would reform themselves. A fair opportunity for their rehabilitation and the opportunity to demonstrate that the risk they presented at the date of sentence had diminished to levels consistent with release should therefore be available to them.
Having expressed such disquiet, their Lordships nevertheless did not rule that the IPP scheme breached the European Convention. Hence, the gate to the road leading to Strasbourg opened.
The reform of the law in this area under the Legal Aid, Sentencing and Rehabilitation of Offenders Act 2012 was considered here and in this post on LASPO Part 3.
Sadly, this anti-European Court rhetoric is all too predictable! IPP is not, in itself in breach of the convention and the fault lies plainly and squarely with the British politicians who failed to implement the regime properly by ensuring the provision of adequate resources which, on any view, were clearly required. The BRITISH judiciary warned them of this. The politicians ought to be man enough to admit they were responsible for this debacle. If I were a betting man, I would say that the Grand Chamber is unlikely to reverse the main thrust of this judgment and may decide not to even entertain the matter. We shall see.
Addendum 24th September:
Further analysis of the Strasbourg decision is at UK Human Rights blog - When indefinite becomes arbitrary