Imprisonment for Public Protection Sentences

Derek Twigg Excerpts

Thursday 27th April 2023 Westminster Hall

[Sir Robert Neill]

I very much hope that it will, because it is certainly true that that was a problem. Delays in transfer to secure beds were demonstrated to us in the evidence. I hope the Government will move on that.

The other germane point is that because of the fear of the conflation of mental health need with risk, we found that many IPP prisoners were frightened to speak up about their poor mental health and get the help that they might need, because it might count against them in their risk assessment. Compounding that, even when there is mental health support, we found that IPP prisoners faced difficulty getting help, and that included transfer to secure hospitals.

We asked the Ministry of Justice and His Majesty’s Prison and Probation Service to acknowledge the harm caused by the sentence and the challenges it presents to progression. We asked them further to set out how they intend to improve access to mental health support for IPP prisoners. The Government’s response did not set out any plans to improve access to mental health support specifically for this cohort of prisoners. Instead, it told us that which we already knew, setting out the work that is being undertaken to improve mental health support for all prisoners. That is welcome in itself, of course, like the 28-day limit that we have just discussed, but it entirely misses the point of what we asked about. We asked the Government to look again at the specific needs of the IPP cohort, separate from the general pressure that already exists, and to see what improvements can be made.

As well as the problem with accessing mental health support, there are concerns about the adequacy of offender behaviour programs and the availability of courses. Offender behaviour programmes and interventions are central to the IPP sentence. They are the primary means by which an IPP prisoner can demonstrate rehabilitation and risk reduction. If they cannot get on the courses or the interventions, they are being set up to fail, and too often that is the case. We heard of one prisoner who had a parole hearing coming up very shortly. He was asked to complete a course, but the waiting list for the course was two years. A system in such a state of affairs is simply dysfunctional.

We asked the Government what they are doing to expand the availability of courses, to reduce waiting lists and to ensure that IPP prisoners are held in the appropriate category of prison. That was a problem we found, too. We also asked that the Government publish a report that they had commissioned on the offender personality disorder pathway, and that they set out more generally how they will ensure that programmes deliver adequate outcomes.

The Government only partially accepted those recommendations. Their response noted that places on programmes and other interventions were disrupted by the pandemic. Of course I accept that, and many of the submissions we received from prisoners expressed concern about that too. In our ongoing inquiry into the prison workforce, we have also heard concerns about staffing pressures affecting prisoners’ access to courses. I hope the Minister will come back to us now that the pandemic is out of the way and set out in more detail what work is under way to ensure that IPP prisoners’ progression is not hindered by such circumstances—lack of access to courses and so on—which, in fairness, are beyond their control. And why, oh why, is it not possible for the Government to respond specifically to our request for the publication of the report on the offender personality disorder pathway? What is there to hide about it? Why can we not have it published?

We heard that, as well as the prison-based barriers to progression, people serving an IPP sentence also face barriers in the community on release. We have particular concerns about what we termed in our report the “recall merry-go-round”, which sees released IPP prisoners returned to prison following their release, in some cases time and time again. That is why we heard clear evidence that reducing the qualifying period to have the licence removed from 10 years to five years would go some way to restoring proportionality. If someone has been on an indeterminate sentence, persuaded the Parole Board that they can be safely released and been able to show, for five years, that they can stay out of trouble and move on, what is the magic in making them wait another five years, with these things hanging over their head, to reach 10 years?

The decision to recall an IPP prisoner is made by the probation service, and the reasons for recall vary. The Government’s position seems to be that they do not accept that offenders serving the sentence in the community are being recalled unnecessarily. In November last year, the then Lord Chancellor, my right hon. Friend the Member for Esher and Walton (Dominic Raab), told us in oral evidence that, in the 12 months to the end of 2021, 34% of IPP recalls were the result of new offences, rather than—in his words, not mine—

“tripping up over onerous licence conditions.”

Well, first, he did not deal very much with the 66% for us. Secondly, even in relation to that 34%, when we asked how many of those charges resulted in further prosecution or conviction—some might have been dropped because there was never evidence to justify them, which happens in the system—the answer was that the Government do not know:

“the required data is not routinely collated”.

How can the Government insist that every recall of someone serving an IPP is necessary for public protection if they do not know the basic data? There is an underlying problem with the collection and use of data in the justice system anyway, and that is a particularly egregious example, if you will forgive my saying so, Mr Twigg. Perhaps the Minister could explain why that is the case, and what can be done to correct it?

I am glad the Government have asked the chief inspector of probation to conduct an independent thematic inspection on whether IPP recalls are necessary and proportionate. Certainly, we heard evidence all too often that there was something of a tick-box exercise in relation to some of the recalls, which really are not based on risk. Of course, where there is genuine risk, any person on licence—whether it is IPP or not—should be considered for recall, but the risk must be genuine; these things should not happen, as is the case sometimes, purely because of a failure in communications, or because of a failure to bear in mind that many people find it really difficult to get their lives back on track straightaway after such sentences. It will not be a straight, linear progression, and there does not seem to be enough recognition of that in the recall process. There are probably better ways in which we could keep a hold on people, technologically and otherwise, and track their movements and so on without the need for the nuclear option of recall, if I can put it that way.

That is why we particularly want to press the Government on why they have not taken on board our recommendation of going down to five years for the licence to be removed. It is worth saying that among those who said they would support a reduction from 10 years to five years was Martin Jones, the chief executive of the Parole Board. The people who deal with this themselves—the Government’s own experts—see the force in that, but the Government will not listen to them.

We were disappointed to see that the Government rejected that entirely, opting instead to review the policy and practice of suspending just the supervisory element after five years of good behaviour. It is a small step, but it really does not do justice to the evidence presented on that point. I hope we can have a fuller explanation of what their reasoning was, because it just is not apparent from their response. Let us also have the opportunity to think again about that. We presented the evidence base. Where is the Government’s?

Since June 2022, the Secretary of State has been required to automatically refer every eligible IPP prisoner to the Parole Board for licence termination at the 10-year point, and to do so in every subsequent year. I hope that that will help with the number of licences terminated, but I would be grateful if the Minister could update us on the number of referrals made since then and on how many licences have been terminated, because the intention may be good but we want to know whether it actually works in practice.

This is a long topic, and I want to make as much progress as I can to do it justice, so I will now turn to our main recommendation. When the IPP was abolished in 2012, that was because it was found to be unfair. In particular, it led to a lack of clarity and consistency in the way that two people who had committed the same crime might be sentenced, and to uncertainty for victims and families about when their assailants or family members might be released. In 2012, Parliament agreed that IPP sentences are fundamentally unjust, but there are still people serving them. Successive Governments acknowledged the problem, and there have been efforts by Members of both Houses to change the arrangements. Lord Blunkett was very frank with us when he expressed his profound regret at the setting up of the sentence. He said:

“I got it wrong. The Government now have the chance to get it right.”

I just hope the Government will.

On our key recommendation, although we can make various improvements to the process inside and outside prison, the real issue is that we have to bite the bullet and get rid of this irredeemably flawed system by enacting primary legislation, so that we can have a resentencing exercise for all prisoners still serving an IPP sentence on licence. That was clear from the evidence we had, and the recommendation was overwhelmingly supported. Lord Thomas of Cwmgiedd, a former Lord Chief Justice of England and Wales, called resentencing the only “inevitable” outcome. He said:

“It is the only fair and just thing to do.”

That is why we made that call, and it was not made lightly. We recognise that there are concerns about resentencing, particularly for victims of crime, who have perfectly valid concerns about making sure that there is no risk to them or their families. It should be said that we never envisaged that a resentencing exercise for determinate sentences would automatically mean that every IPP prisoner would be released. We have to be honest with IPP prisoners and their families and say that there will be some for whom a determinate sentence would necessarily be a long one, and that they would not necessarily be released immediately or in a short time. But many probably would be, and all of them, however long their determinate sentence, would have finality, some certainty and the prospect of some hope. In other words, they would have the basic fairness that everybody else gets in the prison system.

To deal with this difficult issue, we suggested having a small, expert and time-limited panel to advise on the shape that the primary legislation and the scheme might take. We did not try to draft it ourselves. All we were saying is that we need to balance protection of the public with justice for the individual offender—that is a basic principle of sentencing anyway—the need to preserve the independence of the judiciary and the need to ensure that we do not, even inadvertently, retrospectively increase a sentence. None of those, we believed, were impossible, and with expert support and political will all those things can be done.

Many people had great hope raised by that recommendation, and we had moving letters from prisoners about it. I am afraid that some of those hopes have been dashed by the nature of the Government’s report. They did not just reject our key recommendation on resentencing; they did so with such a scarcity of evidence to support their reasoning that, frankly, they demonstrated no engagement whatever with the evidence and reasoning behind our recommendation, and nor did they reflect on our efforts to explain the complexities of a resentencing exercise, including the risks to the public and how they could be overcome. The Government fell back on simplistic mantras, if I may say so. I am embarrassed to have to say that about a Government of my own party. It is not the way that I, as a Conservative, have normally treated these matters, and I do not believe that the Minister would either—he was not the person responsible for drafting the response. It is as shoddy a response as I have ever seen to a Select Committee report.

I am, however, pleased that the Government have followed through on their commitment to publish the IPP action plan, which came out two days ago. I welcome that, and I am grateful to the Minister for it. We look forward to engaging with him in taking it forward and seeing how it operates in practice.

I am sorry to have taken so much time to set out what I think is a compelling case. We are now in a position to move on. It is political will that is needed now. There is a new Lord Chancellor and Secretary of State for Justice, who is someone who has considerable experience of the criminal justice system, so they know what prisons are like not just as a politician—there is nothing wrong with that—but as a lawyer who has been in practice for many years and who has dealt with the complexities of sentencing for many years. There is a chance for a fresh start and for the Government to say, “We will think again about this. We need to revisit our response. We need to recognise that we did not do justice to all the evidence presented to us.”

I know that the Minister, who is a fair man in all our dealings—I genuinely mean that—and a humane man, as is the Secretary of State, will want to go by the evidence, and there is now no obstacle to prevent them from doing that. I hope we will hear answers from the Minister to the specific concerns we have raised and also a sense that the Government are prepared to revisit something. There is no shame in saying, “We got this wrong.” There is no shame in Lord Blunkett saying, “I got it wrong. It was for the best of reasons, but I got it wrong.” There is massive credit in that. There would be no shame in the Government saying, “The response we gave was not up to scratch. We will go back and look again.” I hope they will reconsider, reflect and do that following this debate, and I hope the Minister will be able to signal to us that they are open-minded on that.

[Derek Twigg (in the Chair)]

If Members take no more than nine or 10 minutes for their speeches, I will not have to impose a time limit. I will call the Opposition spokesperson no later than 2.40 pm. Members should bob if they wish to speak. I call John McDonnell.

--- Later in debate ---

[Damian Hinds]

We will continue to engage with my hon. Friend’s Committee in the normal way. It is perfectly reasonable of him to challenge us. I was coming on to say something about the licence periods.

Although we will not be reducing the eligibility period for licence termination at this time, we have committed in the action plan to review the current policy and practice for suspending the supervisory elements of IPP licences to ensure that all cases are considered at the point when they are eligible, which, for the supervisory element, is after five continuous successful years on licence in the community. My hon. Friend will be aware of the changes that we made in the Police, Crime, Sentencing and Courts Act 2022 in regard to making sure that eligible cases are brought forward.

Colleagues have expressed legitimate concern about the high number of IPP offenders recalled to custody, and asked about the proportionality of that. I assure colleagues that in 2020 His Majesty’s inspectorate of probation did a thematic report on recall in terms of its proportionality, and it found that decisions to recall were proportionate. As part of our action plan, we will be internally reviewing our recall processes. We are also asking His Majesty’s inspector of probation—the chief inspector—to undertake a thematic inspection of recalls specifically for IPP and for that to happen in this calendar year. He will also look at the weeks leading up to recall—I know that this is a significant point that matters to colleagues, and rightly so— and consider whether, had the support on offer been different, recall could have been avoided. I thank the chief inspector for stepping up to undertake that piece of work.

I will move on to the IPP action plan, but first may I ask what time I must finish by, Mr Twigg?

[Derek Twigg (in the Chair)]

I would usually allow a minute for the Chair of the Select Committee.

[Damian Hinds]

Then I will turn to the IPP action plan, which sets out the range of work that His Majesty’s Prison and Probation Service does to support the progress of IPP offenders towards a prospective safe and sustainable release.

The Committee’s report criticised the then IPP action plan for lacking clear performance measures, an accountable owner and a timeframe for completion of workstream actions. We accept those points made by my hon. Friend the Member for Bromley and Chislehurst and his colleagues. It had actually long been the intention of the Government to refresh the IPP action plan, once his Committee’s report had been published.

Having taken that evidence into account, I am pleased to be able to share some of the details of the refreshed plan, building on the previous one. I am confident that it will deliver tangible change by safely reducing over time the IPP population in custody and in the community, while still prioritising public protection. Our key priority is managing the sentences of those serving an IPP to a consistently high quality, ensuring that the delivery of systems and processes in every prison and probation region facilitates risk reduction and the prospect of progress towards a safe and sustainable release. That will include the delivery of specific interventions and services to enable sentence progression, rehabilitation and effective resettlement for those who continue to serve the IPP sentence. To respond to a point brought up by my hon. Friend, it is true that covid restricted access to some of those programmes. The plan has now set out—and itself includes—actions to ensure that IPP prisoners get access in a timely way to the programmes they need to be able to reduce their risk.

I will say a little about the governance of the plan—that comes to the accountable owner and ensuring that it has sufficient heft. There will be a new senior IPP progression board, chaired by the executive director with responsibility for public protection, who my hon. Friend the Member for Bromley and Chislehurst and some of the campaign groups met and heard from recently. The board will drive the completion of actions, reviewing the impact and progress of the action plan every six months. Each workstream will be formally owned by a senior leader in HMPPS and held accountable for delivery through the new board. We will also set up a new external reference group for open engagement with external stakeholders, which is very important. That will give them a chance to engage directly with and provide input to the action plan and its delivery.

I accept the points made by my hon. Friend about transparency and reporting, and we are committed to reporting more and in a timely way. The Government’s priority continues to be the protection of the public, but we remain fully committed to doing all we can to support the safe progression of those serving IPP sentences. I look forward to continued dialogue on this matter with the Committee, colleagues here and others beyond this debate. I repeat my gratitude to my hon. Friend the Member for Bromley and Chislehurst for securing the debate and to all who contributed to it.