Prisoners: Indeterminate Sentences

Lord Dholakia Excerpts

Thursday 27th March 2014 Lords Chamber

[Lord Dholakia (LD)]

My Lords, I thank the noble Lord, Lord Wigley, for this debate. I also thank a number of noble Lords who have been drawing attention to the injustice suffered by IPP prisoners. These prisoners have passed their tariff expiry date but their release has been delayed, often for years after their tariff has expired, by a combination of delays. These delays include the time that prisoners spend on waiting lists before they can start offending behaviour programmes such as sex offender treatment programmes, healthy relationships programmes for domestic violence offenders, self-change and resolve programmes for violent offenders, thinking skills programmes for impulsive offenders, victim awareness programmes, and drug and alcohol rehabilitation programmes.

We welcome such programmes but the prisons’ capacity to deliver in time is questionable. The delays are unacceptable. These delays also include the time spent waiting for psychological and psychiatric assessments to assess what work or treatment prisoners need to undertake to address their mental health problems or cognitive deficits. Then there are delays in getting a transfer to another prison when a prisoner’s current establishment does not run a programme considered necessary to reduce his or her risk and waiting for parole hearings to be listed.

Until recently the Parole Board was making commendable progress in reducing the backlog of cases awaiting a parole hearing. However, the backlog is now rising again as a result of last year’s Supreme Court decision in the case of Osborn, Booth and Reilly—mentioned earlier—which has required more cases of recalled prisoners to be referred to oral hearings. The combination of all these delays means that prisoners who were given short tariffs by sentencing courts can end up spending many years in custody after the tariff period the sentencing judge considered appropriate to punish the offender for his or her crime.

There are four main reasons why the Government should take prompt action to end this indefensible state of affairs. First, the coalition Government have commendably acted to end this injustice for offenders being sentenced now and in the future. Noble Lords on all sides of the House welcome this initiative. They have done so by abolishing the IPP sentence, for which they deserve great credit.

However, it is surely illogical to recognise the need to avoid the injustice of IPP sentences for current and future offenders but to refuse to remedy the same injustice which is being suffered by IPP prisoners who are already in the system. What is the justification for this course? We have had a number of meetings with the Minister of Justice, but to date no acceptable reasons have been advanced.

The second reason is that the failure to release these prisoners on licence is storing up serious problems for the prison system. The IPP sentence has been the main contributory factor to the astonishing increase in the proportion of prisoners serving indeterminate sentences, which rose from 9% of the prison population in 1993 to 19% in 2012. This is simply unacceptable. The longer that existing IPP prisoners remain in prison, the greater the pressure of numbers in the prison system and the worse the delays in the system are likely to become.

The third reason is that there is no tenable principled objection, either legal or moral, to retrospective legislation in this situation. I am aware that the Government have argued that it is wrong to interfere with sentences which have been passed by the courts, but Governments of all persuasions have repeatedly done so over the years, for example, by altering the rules on eligibility for parole, by increasing or reducing remission, by introducing early release with electronic monitoring and in a range of other ways, so why not in the case of IPP prisoners? Retrospective legislation is objectionable when it interferes with existing sentences in a way which puts prisoners in a worse position than the sentencing court intended. However, I can see no objection to retrospective legislation which puts existing prisoners in a better position in order to avoid the anomaly of treating them worse than more recent offenders who have committed identical crimes but are now being given determinate sentences.

The fourth reason is that the necessary changes can be introduced in a way which does not unacceptably increase risk to the public, a point which is often stated by the Minister. Most offenders who would previously have received IPP sentences are now given extended sentences. These sentences include a determinate custodial term followed by an extended period of supervision. If the Government are not attracted by the idea of substituting simple determinate sentences for existing short-tariff IPP sentences, they could legislate to replace them with a form of extended sentence. This could provide for the prisoner to be released after a period equal to double the tariff followed by an extended licence period. This licence period could last for 10 years or even for an indefinite period. During the licence period, the offender could be recalled to prison if he or she breached licence conditions, reverted to drug or alcohol misuse, failed to engage with offending behaviour programmes or engaged in risky behaviour which indicated that his or her risk was increasing. If they wanted, the Government could provide for exceptions to be made. For example, IPP prisoners could be released on licence after double their tariff period, unless the Parole Board identified exceptional circumstances indicating that the offender presented a particularly high risk to the public.

For all these reasons, I hope that the Government, who have acted so courageously to prevent the injustice of IPP sentences being imposed on offenders sentenced in the future, will not close their mind to the need to end the identical injustice being undergone by IPP prisoners who are already in the system. It brings the criminal justice system into disrepute if different standards are adopted for those who can benefit now as against those who were previously sentenced and fell into the IPP category. I hope that the Minister will be more positive on this than the previous Minister.