Prisoners: Indeterminate Sentences

Lord Phillips of Worth Matravers Excerpts

Thursday 27th March 2014 Lords Chamber

[Lord Phillips of Worth Matravers (CB)]

My Lords, I am grateful to the noble Lord, Lord Wigley, for providing the opportunity to say a few words on this topic, which is close to my heart.

A little over six years ago, when delivering the judgment in the Court of Appeal in the appeals of Walker and James, I commented that the Secretary of State had not provided the resources needed to give IPP prisoners a fair chance to demonstrate to the Parole Board, once the time for review arrived, that they were no longer dangerous. I added that the consequence of that was that a proportion of IPP prisoners would, avoidably, be kept in prison for longer than necessary either for punishment or for the protection of the public. Since then, Parliament has repealed the provisions for the imposition of IPP sentences. However, as predicted, a significant body of prisoners remain incarcerated because they have been denied the opportunity to take the steps necessary to demonstrate that their release will not pose an unacceptable risk to the public.

There are at least three reasons why that state of affairs should not be tolerated. The first is that indefinite detention of that kind infringes Article 5.1 of the European Convention on Human Rights. That possibility was one to which we drew attention in Walker although we, and the Appellate Committee of this House, presided over by my noble and learned friend Lord Hope of Craighead, did not consider that that point had been reached in the instant case. However, as the noble Lord, Lord Wigley, pointed out, Strasbourg did not agree, holding in the case of James and two other applicants that their detention after the expiry of their tariff periods and until the provision of the appropriate rehabilitative courses was arbitrary and a breach of Article 5.1. Not all may be in sympathy with that decision, but indefinite detention for want of resources is manifestly objectionable.

The second reason why the current state of affairs should not be tolerated is that it is unjust. Defendants sentenced before the IPP regime was introduced or after its repeal, whose offending and past criminal records are not distinguishable from those sentenced to IPP, are being released from prison while the IPP prisoners remain detained. It is hard to understand why the change in penal policy that led to the abolition of the IPP sentence should not apply equally to those subjected to it.

The third reason why the current state of affairs should not be tolerated is that it is economically absurd. We pay some £40,000 per head to keep detained prisoners who will then become entitled to substantial compensation for their detention.

What, then, should be done? One can readily appreciate the objection to the wholesale release of all IPP prisoners who have served the tariff period. However, the noble and learned Lord, Lord Lloyd of Berwick, will make some balanced and principled proposals for the release of some of those prisoners, which have my support. I shall leave him to explain them to the House. There will, of course, be a risk that prisoners released will reoffend, but that is an inevitable consequence of release from custody, and one that has rightly concerned the Minister for Justice and his predecessors, not merely in the context of potentially dangerous offenders.

Three years ago Kenneth Clarke, when Justice Secretary, declared that prison was a waste of money and emphasised his intention to curb reoffending. Earlier this week Chris Grayling, the current Justice Secretary, was reported as saying that our rehabilitation system was flawed because of lack of support for those discharged from prison. That is the positive point that I wish to make.

Rehabilitation courses in prison are, of course, important. However, perhaps even more important are the steps that should be taken outside prison, in the community, to prevent young people who are at risk from entering the criminal justice system and to help those who have been discharged from prison from being sucked back into it. Rehabilitation can sometimes be provided more effectively in the community after discharge from prison than within the prison system. James was himself ultimately released on licence on the directions of the Parole Board in reliance of the fact that arrangements had been made for his accommodation in a hostel and for him to take part in rehabilitation courses in the community.

I should declare my involvement with three different organisations in the private sector whose work is relevant in this context: Endeavour Training, Youth at Risk, and the St Giles Trust. The first two aim to give young people who are vulnerable the self-respect that leads to respect for others and to integration within rather than outside society. The third, the St Giles Trust, trains ex-offenders to help others, both within and outside prison. I understand that it is government policy to rely heavily on the help of such organisations to prevent reoffending and that funding will be made available to those with a proven success rate. It is easier to demonstrate this for organisations that cater for those who have served prison sentences rather than those whose goal is to ensure that vulnerable young people do not enter the system in the first place, but I hope that the Government will bear it in mind that resources provided to both are likely to save money in the long term. I suggest that this is the lesson to be learnt from the IPP debacle.

The huge cost of keeping people in prison competes for resources with the cost of trying to keep them out of prison. The former always appears the more urgent. But whether offenders are potentially violent or not, society will be best served, and valuable resources will ultimately be saved, if we do not skimp in funding the steps that are needed to address the individual problems and inadequacies that are the root causes of the majority of offending and reoffending.