On 25 May 2023, the House of Lords is due to debate a question for short debate tabled by Lord Moylan (Conservative) about what additional resources will be made available to His Majesty’s Prison and Probation Service (HMPPS) to secure timely delivery of the imprisonment for public protection action plan, published on 26 April 2023.

1. What are IPP sentences?

Sentences of ‘imprisonment for public protection’ (IPP sentences) are a type of indeterminate sentence that courts could impose between 2005 and 2012. They were introduced by the Criminal Justice Act 2003. They could be given to an offender convicted of one or more specified serious violent or sexual offences (offences carrying a maximum sentence of 10 years or more) where the court considered the offence did not merit a life sentence, but the offender posed a significant risk of serious harm to the public in the future. An IPP sentence works as follows:

  • The offender must serve a minimum period in custody set by the court, known as a ‘tariff’, before they can become eligible for parole.
  • Once the offender has served their tariff, they remain in custody until the Parole Board decides they are no longer a risk to the public.
  • The offender is then released on licence, subject to licence conditions. While they are on licence, they could be recalled to prison if they breach their licence conditions, commit further offences or the probation service deems it appropriate for public protection. The licence remains in force indefinitely until it is terminated.
  • If the offender is recalled, they will remain in prison until the Parole Board decides again they are no longer a risk to the public.

2. How have IPP sentences changed over time?

2.1 Criminal Justice and Immigration Act 2008: New seriousness threshold

IPP sentences have been subject to several criticisms since they were first introduced. Some of the earliest issues identified were:

  • the provision was too broad and caught up less serious offenders
  • the number of prisoners on IPPs with short tariffs put a strain on the prison and parole systems because prisoners could not access the interventions they needed to demonstrate they were no longer a risk to society

The Labour government used the Criminal Justice and Immigration Act 2008 to introduce a new ‘seriousness’ threshold that would have to be met before the court could impose an IPP sentence. It was no longer mandatory for judges to impose an IPP sentence as an alternative to a life sentence. They could only impose an IPP sentence if:

  • the offender had previously been convicted of an offence listed in schedule 15A of the Criminal Justice Act 2003 before committing the latest offence, or
  • the notional minimum term (the term the offender would have served if they had received a determinate sentence) would have been two years or more

2.2 Legal Aid, Sentencing and Punishment of Offenders Act 2012: Abolition

The subsequent coalition government was critical of IPP sentences. David Cameron, the then prime minister, described them in 2011 as “unclear, inconsistent and uncertain”. He said this was because the public did not understand them, they resulted in people who had committed the same crime receiving different punishments and they meant nobody knew how long an offender would end up serving in prison.

A decision by the European Court of Human Rights in 2012 added to the case for reform. It found a failure to make appropriate provision for rehabilitation services for three prisoners serving IPP sentences. It ruled this meant their detention was “arbitrary” and breached their right to protection from unlawful deprivation of liberty.

The coalition government abolished IPP sentences in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO Act). They were replaced by provisions for life sentences to be imposed on conviction for a second serious offence and new provision for extended sentences.

Although new IPP sentences can no longer be imposed, the abolition did not apply retrospectively to people who had already received such a sentence.

2.3 Police, Crime, Sentencing and Courts Act 2022: Termination of licences

A further reform to IPP sentences was made in 2022, to change the way that an offender’s licence is terminated. When an IPP prisoner has served their tariff and is released on licence by the Parole Board, the licence remains in force indefinitely unless it is terminated. While they are on licence, they remain liable to being recalled to prison. People subject to an IPP sentence are eligible to have their licence terminated by the Parole Board 10 years after their first release.

Previously, it was up to the offender to make the application for termination, although government policy was for the secretary of state to seek permission from every eligible offender to refer them to the Parole Board. However, changes introduced in the Police, Crime, Sentencing and Courts Act 2022 mean there is now a requirement on the secretary of state to automatically refer eligible IPP offenders to the Parole Board without having to seek the offender’s permission. If the Parole Board decides not to terminate the licence, the secretary of state will automatically re-refer the offender every 12 months. If the offender is in prison at the time, either because they have been recalled under their IPP licence or because they are serving another determinate sentence, the Parole Board will decide if the offender should remain on licence when they are released.

The government added this provision to the 2022 act as an amendment at third reading in the House of Lords in response to concerns about IPP sentences raised by members including Lord Blunkett (Labour), who was home secretary when IPPs were introduced, Lord Brown of Eaton-under-Heywood, a former Supreme Court justice, and Lord Woolf, a former lord chief justice (both Crossbench).

Of those referred to the Parole Board between January and December 2022, 93 (47%) had their licence terminated and 103 (53%) were unsuccessful in having their licence terminated.

3. How many IPP prisoners are still in custody?

The courts imposed a total of 8,711 IPP sentences (some offenders received more than one). Although it is more than decade since they were abolished, thousands of people are still in prison serving an IPP sentence. The most recent prison population data shows that on 31 March 2023, there were 1,355 offenders serving an IPP sentence who had never been released from prison. This was 13% lower than the previous year. Ninety-eight percent of these prisoners had served their tariff. Of these, 641 people had been in prison for more than 10 years longer than their tariff, including 189 people whose original tariff was less than two years. There were a further 1,561 offenders subject to IPP sentences who were in prison having been recalled to custody. This was 12% higher than the previous year.

4. What are the ongoing issues with IPP sentences?

A report by the House of Commons Justice Committee on IPP sentences published in September 2022 found that “whilst there have been some efforts made in the last 10 years to reduce the IPP prison population […] not enough has been done”. It said “the problem is becoming more significant and pressing due to the increasing number of released IPP sentenced individuals being recalled back to prison, often not as a result of committing any further crimes”. It identified problems including:

  • psychological harm to prisoners caused by the indefinite nature of the sentence, leading to high levels of self-harm and some suicides within the IPP population and barriers to progressing to release
  • limited availability of appropriate courses for IPP prisoners
  • lack of transparency around the evaluation of programmes that the HMPPS and the Parole Board rely on to help determine risk
  • resource issues within the probation service and Parole Board, resulting in an “ineffective” parole process that poses “a significant barrier” to progression for IPP offenders
  • a “growing concern” about the population of recalled IPP prisoners, such as questions about what the threshold for recall should be and whether IPP prisoners receive enough support on release to help them reintegrate into the community

The committee also emphasised the “need to be mindful of the concerns of victims who must not be forgotten”. The committee noted that problems caused by the continued operation of IPP sentences had been highlighted by senior figures and experts within the criminal justice system, criminal justice organisations and parliamentarians.

For instance, Lord Brown of Eaton-under-Heywood has described the “continuing aftermath of the ill-starred IPP sentencing regime” as “the greatest single stain on our criminal justice system”. During debate on the Police, Crime, Sentencing and Courts Bill, Lord Blunkett said he had “got it wrong” on IPP sentences. He suggested it was “unequal”, “unjust” and “immoral” that many years after the abolition of IPPs people were serving longer in prison than they would have done under a traditional fixed-term sentence. More recently, Lord McNally (Liberal Democrat) said he believed he was abolishing IPPs when he was the minister who took the LASPO Bill through the House of Lords, and had thought that those on existing IPP sentences would be able to earn their release through training schemes and rehabilitation programmes. However, he now felt that this had been “foiled” by “various catch-22s”, including lack of resources and lack of provision of the required courses. He said the current situation was a “hangover” of the IPP sentence that “does not work as we thought it would and remains a stain on our justice system”. Former Prime Minister Sir John Major said in May 2023 that IPPs were “one area of the penal code that is overripe for action to correct legitimate grievance”.

Campaign organisations have highlighted similar issues over the years and called for further reform. For instance, the Prison Reform Trust  has argued “fundamental changes” were needed in support for people serving IPP sentences. It also called for the abolition of the IPP sentence to apply retrospectively, with a judge-led review of individual cases, a phased programme of releases and a fixed date for every IPP prisoner for the end of their liability to recall.

In addition, the Howard League for Penal Reform has highlighted “getting and keeping people on IPP sentences out of the system” as a priority “to prevent the ongoing injustice”. It also suggested licences should expire if someone is not recalled within two years of being released.

The United Group for Reform of IPP (UNGRIPP) is campaigning for three changes. First, it wants the resentencing of every person still serving an IPP sentence, with either a determinate or life sentence depending on what best reflects their crime under current sentencing conditions. Second, it advocates the reform of licence conditions for those serving an IPP to take account of “their unique circumstance of injustice, uncertainty and psychological damage caused by the sentence”. Third, it wants a full package of support for those who were given an IPP and their families.

5. House of Commons Justice Committee recommendations on IPP sentences

5.1 Justice Committee report (September 2022)

The House of Commons Justice Committee report aimed to examine the issues around IPP sentences and to identify possible legislative and policy solutions. The committee noted that since 2016, the government’s main approach to addressing the IPP issue has been through its IPP action plan. At the time of the committee’s report in September 2022, the version of the action plan in use was produced in December 2021. This set out actions under 15 different workstream headings, including:

  • centrally monitoring the progression of the IPP population
  • working with particular groups such as women, men convicted of sexual offences or those with significant mental health issues
  • building greater understanding of where there are specialist units within the prison estate
  • developing a central approach to reviewing the progression of recalled IPP prisoners
  • IPP progression panels

The committee found a “surprising” absence of detail in the plan, which it said lacked “a clear strategic priority and ownership, as well as operational detail, timeframes and performance measures”. It recommended the Ministry of Justice and the HMPPS draw up a new plan, including clear performance measures, an accountable owner and deadlines for each workstream, by the end of the first quarter of 2023. It said there should be an annual report thereafter on how the plan was operating.

The committee made some other key recommendations about what it believed the government should be doing on IPP sentences. It said the government should “devote far greater energy to tackling the ‘recall merry-go-round’, with efforts to successfully integrating IPP prison leavers into society matching the effort made in helping them achieve release”. It also set out its support for reducing the qualifying period for terminating a licence from 10 years to five. It said this would “go some way to restoring proportionality to the IPP sentence” and called on the government to legislate as soon as possible.

However, the committee said these recommendations would not be sufficient on their own to deal with the problems identified with the IPP sentence. Its primary recommendation, therefore, was for the government to legislate to conduct a resentencing exercise for all IPP-sentenced individuals whose licence had not yet been terminated. It said the way the sentence was continuing to operate was “irredeemably flawed” and this was “the only way to address the unique injustice caused”.

5.2 Government response to the Justice Committee report (February 2023)

The government responded to the committee report in February 2023. It accepted the committee’s recommendation that it should publish a new action plan by the end of March 2023. It said the Ministry of Justice and HMPPS had already commenced work on this.

The government rejected the committee’s primary recommendation of conducting a resentencing exercise. Dominic Raab, the then secretary of state for justice, explained in the government response:

Retrospective resentencing of IPP offenders could lead to the immediate release of many offenders who have been assessed as unsafe for release by the Parole Board, many with no period of supervision in the community.

The government’s long-held view is that this would give rise to an unacceptable risk to public protection and that the IPP action plan, suitably updated, remains the best option by which these offenders can progress towards safe release. As such, the government has no plans to conduct a resentencing exercise.

The government did not accept any suggestion that offenders serving the IPP sentence on licence were being recalled to prison unnecessarily. It said the current recall process was robust and had been subject to extensive scrutiny. However, the government said it had asked the chief inspector of probation to conduct an independent thematic inspection in 2023/24 on whether IPP recalls are “necessary and proportionate to the offender’s increased risk in connection with his breaching of licence conditions”.

The government also rejected the committee’s recommendation to reduce the qualifying period for terminating a licence from 10 years to five. It said the licence period following custody is an “important tool” in both protecting the public from the risk posed by offenders and ensuring that offenders are properly supported while reintegrating into the community. The government said it would review the policy and practice for suspending the supervisory element of licences after five years of continuous good behaviour with a view to ensuring the policy considers all eligible cases at the appropriate time. It also said the change in the referral process brought in by the Police, Crime, Sentencing and Courts Act 2022 would “give eligible offenders every opportunity to have their licence terminated and enable the IPP sentence to be brought to an end in more cases”.

6. Updated IPP action plan (April 2023)

The government shared its updated IPP action plan with the Justice Committee on 26 April 2023. Alex Chalk, the new secretary of state for justice, said he would ensure the plan “delivers real change by reducing the IPP population both in custody and in the community whilst prioritising public protection”.

The refreshed action plan is focused on “ensuring that HMPPS systems and processes effectively support those serving an IPP sentence towards a safe and sustainable release”. The objective is underpinned by four principles:

  • Principle 1: HMPPS monitors and publishes data on how those serving the IPP sentence are progressing through their sentences, whether in custody or the community.
  • Principle 2: HMPPS ensures that those serving an IPP sentence have a sentence plan specifying the required interventions to reduce risk and have access to them.
  • Principle 3: Community provision for and management of those on an IPP licence gives people the best prospect of a future safe and sustainable life outside of the justice system.
  • Principle 4: HMPPS communicates effectively with all stakeholders, including engaging on current plans, activity and outcomes.

The principles are intended to underpin the six workstreams set out in the action plan. Each workstream is owned by a senior leader within HMPPS. The workstreams are:

  1. delivery of a core minimum service of IPP support in prison and probation regions
  2. progression through the HMPPS system
  3. effectively supporting the parole process
  4. progression initiatives, innovation and resettlement
  5. population, performance monitoring and data publication
  6. accountability for delivery

Each of the six workstreams will report quarterly to a new IPP Progression Board, chaired at executive director level within HMPPS. The government said this new structure would ensure “responsibility for improving the progression prospects of those serving an IPP sentence is shared across the whole agency”.

The action plan also commits to HMPPS publishing an annual report on progress, with the first one set to be published in March 2024.

In terms of resources, the action plan did not specify whether there was a budget allocated to the plan as a whole or specific workstreams within it. Some actions under workstream 1 referred to ensuring that key workers, prison offender managers and community offender managers have the right resources to deliver their roles in the IPP sentence management model. The action plan set a deadline of September 2023 for developing implementation plans for this. It also set a deadline of June 2023 for identifying funding streams for expanded psychology services provision in the community.

7. Reaction to the government’s position

To date, much of the reaction to the government’s position has focused on its responses to the Justice Committee’s recommendations rather than the contents of the refreshed IPP action plan and the government’s plans for implementing it.

Sir Robert Neill (Conservative MP for Bromley and Chislehurst), chair of the Justice Committee, said the “complete inadequacy” of the government’s response to the committee report was a “grave” matter. Sir Robert suggested that the government had not engaged with the evidence that informed the committee’s recommendations and had not provided evidence to support its own positions, particularly in rejecting undertaking a resentencing exercise. However, he welcomed the publication of the new action plan and the commitment to ask the chief inspector of probation to conduct an independent thematic review of IPP recalls.

Sir Robert also raised IPPs during the House of Commons second reading of the government’s Victims and Prisoners Bill on 15 May 2023. He suggested there had been a “misunderstanding” about the committee’s recommendation on resentencing. He emphasised the committee was not calling for everyone serving an IPP sentence to be released immediately. He acknowledged that some people would “always remain very dangerous” and they would therefore remain in prison for a long time if resentenced to a determinate sentence. He explained that resentencing was intended to “give certainty to everybody and to give hope”, not to “[open] the doors”. He said he had drafted a clause to give effect to the committee’s recommendation to establish an expert panel to advise the government on the practical implementation of resentencing. He implied he would table this as an amendment to the bill if the government did not bring forward its own proposals to establish an expert panel.

During the same debate, Alex Chalk said the IPP system was “a stain on our justice system” that left the government with a difficult issue. Mr Chalk said he was “considering carefully” what the Justice Committee had said about the issue and would say more about this “in due course”.

Peter Dawson, director of the Prison Reform Trust, criticised the government for its “inadequate response to a serious cross-party attempt to right a terrible historic wrong”. Mr Dawson said resentencing “could have addressed the many practical complexities” the committee had identified in its report. However, he welcomed the announcement of a thematic review of IPP recalls by the chief inspector of probation. The Howard League said the government had “stripped hope from thousands of people” by rejecting the committee’s recommendations on resentencing and halving the length of time before licences could be terminated. UNGRIPP said the government’s response to the committee report had “abjectly failed to deliver justice”. It argued that “almost everything about IPP is moving in the wrong direction”, with an increasing prison population, rising numbers of recalls, fewer releases, people in prison further over their tariff and people “languishing in prison for longer on recall”.

In May 2023, the Independent Monitoring Boards (IMB) published a report examining the impact on IPP prisoners of their sentences and of the government’s decision not to conduct a resentencing exercise. IMBs have a statutory role in monitoring the conditions and treatment of people detained in prisons in England and Wales. The report found that three apparently self-inflicted deaths of people serving IPP sentences were reported in the four weeks following the announcement of the government’s decision. It also found that:

  • Many IPP prisoners were questioning whether they would ever be released now and were fearful that they would die in prison.
  • Progression pathways were poor and unclear, with many being held in inappropriate prisons where they could not access the courses they needed for parole and release.
  • There was inadequate preparation for release, which could lead to recall to prison: for example, because of issues arising from the loss of accommodation.

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