Imprisonment for Public Protection ~ R v Roberts and others

As at 4 March 2016, there are over 4,000 still in custody under a sentence of IPP (about 5% of the total prison population) and a significant further number who are subject to the licence terms of their IPP and therefore still subject to recall to continue to serve their sentence of IPP  

Imprisonment for Public Protection (IPP) continues to bedevil the legal system.  In R v Roberts and others [2016] EWCA Crim 71, the Court of Appeal (Criminal Division) - considered applications for an extension of time in which to apply for leave to appeal against sentences of imprisonment or detention for public protection imposed between 2005 and 2008 under the Criminal Justice Act 2003 (CJA 2003).  All of the applications were dismissed.

It was recognised that prisoners remained in custody long after the minimum term had expired but, as far as the court was concerned, it was for Parliament to remedy the situation.

"It will not be easy to find a ready solution, for simply to release those who have completed their tariff periods would have the consequence that many would be put into the community without any supervision and they might well pose a risk of danger. It would appear that there is no likely solution other than (1) significant resources be provided to enable those detained to meet the current test for release which the Parole Board must apply or (2) for Parliament to use the power contained in s.128 of LASPO 2012 to alter the test for release which the Parole Board must apply or (3) for those in custody to be re-sentenced on defined principles specially enacted by Parliament.

This is not a case where the common law took a wrong turning as it did in the case of joint enterprise as recently set out in the judgment of the Supreme Court in Jogee [2016] UKSC 8 in which the courts corrected the common law. It was Parliament which legislated to establish a regime of sentences of IPP in terms which the courts have faithfully and properly applied. It must, in our democracy and in accordance with the rule of law, be for Parliament to provide a correction for the outcome if it so wishes. Such a correction will in the circumstances not in any way interfere with the fundamental constitutional principle that the independent decision of the court must be respected, because the sentences were premised on the condition that it would be for the Parole Board to determine the terms of release." [My emphasis].

This is a far from satisfactory state of affairs.  The lack of resources available to assess whether prisoners were suitable for release was itself the subject of challenges in the courts including the European Court of Human Rights - see Law and Lawyers 20th September 2012 James, Wells and Lee v UK.

This blog first looked at IPP in June 2010.

In brief, the history is:

1.  Sentences of imprisonment for public protection and for offenders under 18, detention for public protection, (IPP) were brought into effect on 4 April 2005 under the dangerous offender provisions contained in Chapter 5 of Part 12 of the CJA 2003.

2.  In 2008 Parliament by the Criminal Justice and Immigration Act 2008 modified the sentence of IPP. The amended provisions removed the statutory assumption of dangerousness, removed the mandatory imposition of IPP where the offender was found to be dangerous and removed some offenders from the scope of the sentence by reducing the list of specified offences and by stipulating that the minimum term had to be at least 2 years save where the offender has committed an offence listed in yet another schedule. The amendments did not affect the position of those who had been sentenced between April 2005 and July 2008.

3.  In 2012 Parliament abolished the sentence of IPP by the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO 2012) for all offenders convicted after 3 December 2012. The abolition did not affect those who had been sentenced to IPP in the period between 2005 and 2012, but s.128 enabled the Secretary of State to modify the threshold for release. No modification has so far been made .......

As at 4 March 2016, there are over 4,000 still in custody under a sentence of IPP (about 5% of the total prison population) and a significant further number who are subject to the licence terms of their IPP and therefore still subject to recall to continue to serve their sentence of IPP