On 13 October 2022, the House of Lords is due to debate a question for short debate tabled by Baroness Hamwee (Liberal Democrat) about what progress the government has made in producing a new action plan for offenders still serving indefinite sentences under the imprisonment for public protection scheme.

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.

2. How have they 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 that:

  • 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. 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 has said this change will “ensure that all eligible IPP offenders are referred to the Parole Board for consideration for licence termination and will therefore bring the IPP licence, and sentence as a whole, to a definitive end for more offenders”.

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).

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 nearly a decade since they were abolished, thousands of people are still in prison serving an IPP sentence. The most recent data shows that on 30 June 2022, there were 1,492 offenders serving an IPP sentence who had never been released from prison. This was 13% lower than the previous year. 97% of these prisoners had served their tariff. Of these, 608 people had been in prison for more than 10 years over their tariff, including 10 people whose tariff was less than one year. There were a further 1,434 offenders subject to IPP sentences who were in prison having been recalled to custody. This was 8% higher than the previous year. The Ministry of Justice estimates the number of people who have been recalled to prison on an IPP licence will soon overtake the number who have never been released.

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 prison and probation service 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:

I do not think any of us could have envisaged the impact—I certainly did not—of the recall provisions which were later strengthened and therefore made more draconian. This has led to a large number of prisoners finding themselves back in prison, sometimes for committing a crime that could be very minor and sometimes for a breach of their licence conditions […] If we are not careful, that trajectory will lead to more prisoners being in prison on IPP on recall than are actually in prison for the original IPP sentence applied, which is a farcical situation and a tragedy for them.

More than 60 clinical and forensic psychologists, psychiatrists and criminologists have written to me […] setting out the trajectory from those early days, where the lack of therapies and courses led to caution and to the inability of prisoners to demonstrate that they were safe to be released; in other words, the failure to put the other mechanisms in place led to prisoners not being able to demonstrate their safety for the community. By not being able to do so, they spent so much more time in prison that the impact of that lengthy sentence and the hopelessness of not having an end date made their emotional, mental and psychological situation worse. The original sentence was supported by those who believed that the right kind of psychological conditions and help were essential to make them safe and, having undermined those conditions, we now have a situation where they are seen as unsafe; in other words, we have gone full circle, undermining the original intentions and, by doing so, having people in prison far beyond what was originally envisaged.

Campaign organisations have highlighted similar issues and called for further reforms. For instance, the Prison Reform Trust 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 has highlighted “getting and 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 and IPP and their families.

5. What is the government’s action plan?

The House of Commons Justice Committee noted that since 2016, the government’s main approach to addressing the IPP issue has been through its IPP action plan. The action plan was jointly managed by the prison and probation service and the Parole Board. The committee assessed that the focus of the action plan has changed over time:

In 2016, the plan’s focus was on ensuring the parole system was more efficient; in 2019 its focus had shifted to improving progression and reducing waiting lists and times for accredited programmes.

The most recent published version of the action plan, dated December 2021, sets out actions under 15 different workstream headings. These include areas such as: 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; and IPP progression panels.

Speaking in February 2022, Tom Pursglove, who was then a minister of state at the Ministry of Justice, said the action plan was working:

The IPP action plan, produced and regularly refreshed by Her Majesty’s Prison and Probation Service, remains the best means of providing all those continuing to serve the IPP sentence with every opportunity to show they can be safely released by the Parole Board. The action plan sets out a series of measures designed to rehabilitate IPP prisoners, including through psychology-led reviews, and improved central and regional strategic oversight of IPP progression. There is clear evidence that these measures are working, and the number of IPP prisoners has decreased. IPP prisoners continue to be released in significant numbers and have a high chance of a positive outcome from Parole Board hearings.

In March 2022, the government said it would publish a new action plan once the Justice Committee had concluded its inquiry into IPP sentences.

6. What has the House of Commons Justice Committee recommended?

The Justice Committee expressed some criticisms of the action plan when it published its report on 28 September 2022. It 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 prison and probation service 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. During the passage of the Police, Crime, Sentencing and Courts Act, Lord Wolfson of Tredegar, parliamentary under secretary at the ministry of justice, had said the government could not accept such a reduction at the time, but would return to the issue once it had received the Justice Committee’s report.

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 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”. The committee did not set out the terms for the legislation that would be needed to enable this, but suggested it should be guided by three key principles:

  • balancing the protection of the public with justice for the individual offender
  • recognising and protecting the independence of the judiciary
  • ensuring that no harsher sentence is imposed retrospectively

However, the government explicitly opposed a resentencing exercise when it was discussed during the passage of the Police, Crime, Sentencing and Courts Act:

The Government’s long-held view is that legislating to resentence IPP offenders would cause an unacceptable risk to public safety. Any resentencing of IPP offenders would risk the immediate release of many prisoners who have committed serious sexual or violent offences without a risk assessment and, in many cases, with no licence period. It is therefore vital to public protection that they are released only when the independent Parole Board determines that they may be safely managed in the community. Our aim is therefore to provide all those who continue to serve IPP sentences with every opportunity to show that they can safely be released by the Parole Board.

The government has not yet responded to the committee report.

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