Thursday 24 June 2010

Indeterminate sentences for Public Protection

Law and Lawyers has no hesitation in drawing to the readers attention an excellent post on the Brian Barder Blog which sets out the iniquities of the system of imprisonment known as Indeterminate Sentence for Public Protection (or IPP).

This form of "indeterminate sentence" was introduced by the Criminal Justice Act 2003 s.225 (Imprisonment for Public Protection - for adults) and s.226 (detention for Public Protection - for those under age 18).  The law has since been modified by the Criminal Justice and Immigration Act 2008 s.47.  The law is of labyrinthine complexity - see Wikicrimeline - and numerous (and expensive) appellate decisions have resulted and continue to do so.

The essential point is that the prisoner is not automatically released even when a public protection tariff period has been served.  It then becomes a matter for the Parole Board which must be satisfied that, if released, the prisoner would not pose an unacceptable risk to the public.  Due to underfunding of relevant rehabilitative courses, this can be impossible to assess and so the prisoner remains incarerated until his next review which might be months away.  This has, in turn, obviously swollen considerably the numbers in prison since people are being held long after they have actually served their tariff.  1 in 15 prisoners is now an an IPP prisoner with the consequential enormous costs.

The government is undertaking a review of sentencing.  Reform in this area is essential - see Prison Reform Trust March 2010

Addendum 30th June:  The Independent reported "Paedophile dubbed "every parent's nightmare" jailed indefinitely.


  1. Ed (not Bystander)24 June 2010 at 20:25

    An IPP is lawful only for people who've been found to represent a danger to the public. I'm trying hard to see the iniquity in them being imprisoned for longer than the bare minimum.

  2. What exactly is the difference between an IPP and a life sentence?

    IPPs only apply to serious offences carrying 10 years in prison, and are at the discretion of the Judge. Like Ed(nB), I don't see any reason why they would be any more iniquitous than any other discretionary sentencing scheme.

    Would you be happier if the maximum sentence for all crimes carrying over 10 years was simply increased to Life? What would be the difference?

    Cheers, Ben

  3. What exactly is the difference between an IPP and a life sentence?

    IPPs only apply to offences carrying 10 years. Those are serious offences, and the IPP is at the discretion of the Judge.

    Like Ed(nB), I don't see the big problem.

    Would you be happier if all offences carrying 10 years had the maximum increased to life? What's the difference?

  4. You would all see the differences if you did your research. Many IPPs were given when the Act first came in (2005) when judges gave tariffs of anything from days to 2 years for what would be considered to be offences at the lower end of offending. They were given for a second offence no matter how trivial the first offence was and how long ago it had taken place. Many of these people are still in prison many years after the end of their tariff. This is a waste of public money and destroys families and friends and is inhumane and barbaric for these lesser crimes. It is also confusing for the public because the media give the impression that all people with an IPP are dangerous and this is just not correct. Obviously some people do need to be kept in prison for lengthy periods and some are dangerous but the idiocy of IPPs is that they assume everyone falls in to these brackets.

    It should also be remembered that these people with the short tariff IPPs cannot prove they are safe to the parole board and the only way to test their safety and/or dangerousness is to put them in open prisons or release them into the community with appropriate support and monitoring. Perhaps someone can answer the question - how do you PROVE you are safe to the Parole Board?

  5. The issue is not the principle of the IPP, which is no different to a life sentence. The issue is whether the offences in question warrant what is, in effect, a life sentence.

    Many of the public think these offenders ought to be locked up for life, and are not unhappy to see it happening.

    @Mary, that's no longer the case. There is no longer any presumtion of dangerousness for a second offence, and IPP can only be given where the offence itself warrants at least two years, not "a few days".

    These are generally people who have been convicted of at least a second serious violent or sexual offence. A second one, or even more.

    Perhaps you could come up with some examples, since the 2008 changes, which illustrate the injustice of the IPP sentence?

  6. In my experience, when a parole application fails due to a lack of courses completed the prisoner is put over to a new review date, which is usually said to be 2-years away. however, the reality is that the parole board is so over worked with all the IPP prisoners that often the reviews can take 3 years to come around.

    As a defence lawyer, I don't object to IPPs. Often they are justified, although clients never see it that way. I have a client in prison for manslaughter and sexual offences (two aren't related). He can't accept that he is considered dangerous, although to me it's fairly obvious.

  7. Many thanks for the interesting comments. Nobody disagrees with the point that some offenders pose a serious risk to the public and they need to be held for considerable periods. The question is whether IPP is the best way of doing this. Mary has explained very well the injustices which have arisen.

    Since the changes made by the Criminal Justice and Immigration Act 2008 the IPP regime is less objectionable. The originally enacted scheme was particularly problematic.

    The 2008 Act changes were not applied retrospectively and they were considered in C and others [2008] EWCA Crim 2790. The original scheme was considered in (amongst many other cases) R v Lang [2005] EWCA Crim 2864.

    The major issue with all of this is quite definitely the fact that prisoners are held after they have served their tariff until the risk they might pose has been assessed and these assessments are (as Anonymous has mentioned) taking a very long time to complete. The Probation Service simply does not have the resources to do all of this.

    By December 2009, some 5788 prisoners were on either IPP (or DPP) and 2393 of them were being held post-tariff.

    It should be noted that a further issue is that, after release, the person is on licence for up to 10 years and that, in itself, requires considerable resources.

  8. The point is that it is extremely difficult for an IPP prisoner to prove he is no longer so dangerous as to warrant release. The courses aren't available and the system cannot cope. The expense is huge.
    The IPP prisoner has been given what is in effect a life sentence in circumstances where such a sentence is not justified.

  9. I appreciate what Ben says and that he presumtion of dangerousness changed in 2008 - but this does not take away from the fact that there are MANY people still in prison with a short tariff IPP that was given to them prior to the changes in the law. Two people I know were given IPPs prior to the change in the law in 2008 - they received 18 month tariffs and one has been in for 4 years and one for 3 years. They have been told that the parole board will not consider them again one till January 2011 and one till October 2011. By then they will have done 5 years and 4 years and still have no certainty that they will be released. Surely that is not justice and of course there are many many more in similar situations. It is time that all the people sentenced before the changes in 2008 to a less than 2 year tariff were released.

  10. Ed (not Bystander)25 June 2010 at 23:52

    For an IPP sentence to be imposed, s224(1)(b) provides that "the court [must be] of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences".

    Mary, I'm terribly sorry to hear that two people you know who were judged to present a significant risk of committing serious offences are still imprisoned.

  11. Mary, of course injustices can occur under any sentencing regime. I can accept that IPP sentencing, particularly under the former rules, make unjustly harsh sentences more likely.

    But to me it seems the main problem we have in this country is unjustly lenient sentences.

    To be persuaded I would need an example, with at the very least an outline of the offending history of the prisoner.

    Are you willing to tell us more about the two you know?

    If not, perhaps you could tell us if you believe the public would think 5 years was too long? Or will we be happy to know they are still behind bars and likely to be for another year at least?

  12. Sorry, but we must not get into discussion of the cases of any individual prisoners. We'll have to stick to the generality of the issue.

  13. Understood. I withdraw the question, and apologise for any offence caused.

  14. Ben - no offence was caused whatsoever. Your comments are always welcome and appreciated. It is just that it is legally unwise to stray into details of cases which may yet have to be adjudicated upon in court or before some body such as the Parole Board. I am sure you will understand.

    Under the IPP regime from the date of implementation of the Criminal Justice and Immigration Act 2008, the IPP regime is less objectionable and judges have a discretion whether to impose IPP.

    Here is one recent example of a judge using IPP - R v Cusack

  15. I wasn't going to contribute. You said you didn't want to discuss individual cases. Being the mother of someone caught in the IPP net, it is hard not to be subjective. However, I feel people ought to know the truth about IPPs. 'Someone' admits guilt, it is a 2nd offence, and he is rightly sentenced. He is given a Sexual Offences Prevention Order, and an 18 months minimum tariff IPP. (This was obviously before the amendment to the Criminal Justice Act). He successfully completes the recommended offender behavioural course, and waits 5 months for a SARN. This is done by a female trainee psychologist, half his age. He is asked to discuss his 'sexual fantasies' with her. He finds this difficult. Purely on this alone, she recommends another course, only done in 4 prisons, with lengthy waiting lists, and anyhow, he doesn't meet the eligibility criterion - must be having offence related thoughts. (He has successfully completed the SOTP course after all. He is 'managing' his thoughts. One would have thought this to be a desirable outcome). The female probation officer fails to complete a release plan, in spite of everything else - no adjudications, excellent attitude, 'model prisoner' status, and outside support, (and a home to go to). (Sorry, I am getting personal). She says there is no evidence of him having 'inappropriate sexual thoughts'. She is a mind-reader? The prisoner is knocked back, and told it could be 2 years before a further review. He has now served twice his original IPP tariff. THIS IS THE REALITY OF IPPs. Men are rotting in jail because (mainly) women, trainee, young, probably with issues of their own, deem them a risk. Parole members agree with these women - 'no evidence a person has reduced his risk'. How can he prove he will not re-offend, if he isn't released to live a 'normal' life? Anyhow, with a SOPO, if he re-offends, he will be returned to prison immediately. Are you solicitors out there really happy with the situation regarding IPPs? In the end, release depends on these untrained, unqualified people, who are overworked, underpaid, and resentful of the burden placed on them by the IPP system. Can you please try to imagine the disastrous effect of all this on the prisoner and his family? Having done this, please try to defend IPPs. I shall be interested to read your comments. Sorry again, for being emotional. I am only human, after all.

  16. @Anonymous - I am very pleased that you did your post. You have set out, very eloquently, many reasons why the IPP sentence is iniquitous.

    The pre-2008 regime was particularly draconian. In 2008, Parliament must have recognised that there were serious problems since the 2003 Act was amended. Despite this, Parliament did nothing to address the issues relating to those who had already been sentenced.

    The process by which any risk is supposedly assessed is poor and clearly under-resourced. My post and the post on the Brian Barder Blog are seeking to draw some attention to this on-going problem which, to be frank, shames our criminal justice system.

    Once again, thanks for your post.

  17. Re: IPP Licences
    Ben, the IPP prisoner is released on a life licence. The offender will remain on licence for the rest of his or her life unless the licence
    ceases to have effect. The licence will not cease to have effect unless the Parole Board is satisfied that the licence is no longer necessary for the protection of the public (Crime (Sentences) Act 1997, s. 31A).

  18. If and when released, the person will be on licence but may apply to the Parole Board after 10 years for the licence to be cancelled.

  19. My son is an ipp prisoner his tariff was two and a half years and he has so far served five years and four months.He recently had a parole hearing and was refused release because he has a home to go to and a job waiting for him with his father, the parole board said he is a grown man and should stand on his own two feet and if relations broke down between him and his parents he would then become a risk to the public, i cannot believe that because he has the support of his family the parole board see this as a bad thing. I would love to here your comments on this and any legal advice out there!

  20. what about someone who still maintains their innocence even after they have been found guilty by a jury and the only evidence against them is word of mouth. surely they will have to say they are guilty just to get on the courses ?

  21. @Anonymous: It has to be a second serious offence.

    The protection in those rare cases of false convictions, is not to commit the first one.