Imprisonment for Public Protection Sentences

James Daly Excerpts

Thursday 27th April 2023 Westminster Hall

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

I beg to move,

That this House has considered the Third Report of the Justice Committee, IPP Sentences, HC 266, and the Government response, HC 933.

It is a pleasure to serve under your chairmanship, Mr Twigg. I am grateful to the Liaison Committee and the Backbench Business Committee for enabling us to have this debate. I am glad to see the Minister in his place. I know he will take seriously what are grave matters that need to be raised—both the issue itself, and the complete inadequacy of the Government’s response to a considered report by a Select Committee. I welcome my fellow members of the Select Committee. This report had support across parties in the Committee and was based on detailed evidence. I regret that none of that evidence seems to have penetrated into the reasoning of the response.

Let me set out the situation. I regret that we have to have this debate. We spent a great deal of time considering this issue and, as I said, we had a detailed evidence base and a comprehensive report. I hope that with changes in the Department and a new Secretary of State, there will be more scope for the Minister, whose personal qualities I entirely recognise and respect, to revisit the position on this matter.

Sentences of imprisonment for public protection, or IPP sentences, are indeterminate—that is, they have no fixed end date. They were originally designed to ensure that dangerous, violent and sexual offenders stayed in custody for as long as they presented a risk to the public. IPP sentences were introduced in the Criminal Justice Act 2003 and came into effect in 2005. Following criticisms of the sentence and its operation, it was reformed in 2008 but, frankly, those reforms did not work satisfactorily either and the sentence was abolished by 2012.

The sentence was abolished largely because—this was accepted by the originators of the scheme, not least the noble Lord Blunkett and others, as I will come to later—the way the scheme was drafted and the number of offences that brought people within its scope, together with the lack of understanding and, at the time, judicial training on the matter, meant that far more people fell within the scope of the scheme than had been the political intention. Rightly, in 2012, the coalition Government, of which I had the honour to be a member, rectified that and abolished the sentence. However, they did not deal with those who were already serving sentences. In other words, the abolition did not have effect retrospectively for those who were already subject to the sentences.

In total, some 8,711 people received an IPP sentence. The sentence works in three parts. First, there is a mandatory period in prison known as the tariff. That is broadly based on the nature of the offence for which the individual is convicted and sentenced—that is, the tariff for that offence or the index offence, as it is sometimes referred to. Secondly, that is followed by indefinite detention until such time as the Parole Board determines that the person concerned has reduced their risk enough to be safely released. Thirdly, following that release, they are subject to a life licence in the community, from which they may be recalled if they breach their licence or reoffend. Ten years after their initial release, IPP prisoners can apply to the Parole Board to have that licence terminated. There is, of course, no guarantee that it will be.

Our inquiry was prompted by the serious concern, which has been ventilated in the media and both Chambers of this Parliament over a period of time, about the number of IPP prisoners who have never been released, despite the fact that the vast majority have served their tariff. Some 97.5% of IPP prisoners currently in prison have already served their tariff, and in many cases they have served well beyond their tariff. The last figures that we had showed that at the end of December 2022, there were 2,892 IPP prisoners, of whom 1,394 are serving their original sentence and have never been released.

Some 621 of those prisoners are at least 10 years over their tariff, and 222 of those had received a tariff of less than two years. To put that in stark terms, they have been in prison for something like five times longer than the index sentence that the court that sentenced them and the judge who heard the facts thought was the appropriate tariff for the offence for which they were convicted. The tariff was set at, say, two years or less—the going rate for that offence—and some have been inside for five times that. That is a stark and shocking figure.

Some 1,498 IPP prisoners in custody at the end of December 2022 have been released but subsequently recalled to custody. When we were doing our inquiry, it was suggested to us that, at the current rates of recall, the proportion will change so that a majority of the IPP population will have been released and recalled. That point has now been reached. More than half of IPP prisoners have been released and recalled for one reason or other, and I will come to that later. There are a number of problems with IPP sentences.

[James Daly (Bury North) (Con)]

It is actually starker than my hon. Friend sets out. One IPP sentence was given with a tariff of 28 days, so hypothetically somebody who received a 28-day tariff could spend 50 years in prison. Even in the worst banana republic, that would sound extraordinary, but that is actually what this sentence is about. We are going to keep people locked up indefinitely, even though in any other circumstances they would be released. Will my hon. Friend touch on that? I do not have the words to describe it, but I agree wholeheartedly with him.

[Sir Robert Neill]

My hon. Friend is absolutely right. Of course, he speaks with great experience as a long-standing solicitor specialising in criminal work. He and I have seen this in our professional experience. We have perhaps seen rather more of the prison system than many of those who pontificate in either House or the media about what it is like.

This is a scandal. That is why one of the great supporters of reform, the noble Lord Brown of Eaton-under-Heywood—one of the last Lord Justices of Appeal, one of the first members of the Supreme Court and one of the most distinguished lawyers of his generation—described it as a “stain” upon the reputation of the British legal system, and he is absolutely right. That is why, to his credit, the noble Lord Blunkett, when he gave evidence to us, said frankly, fairly and honestly, “This was not what we intended should happen with these sentences.” My hon. Friend is therefore entirely right to point out how stark that could be. We would be shocked if this were happening in some of the countries with which we do business, and we rightly criticise it elsewhere around the world.

One of the problems is that IPP prisoners face barriers to progression to prove they are no longer a risk within prison and, if they are released, within the community. The aim of our inquiry was to examine carefully and on the evidence the continued existence of IPP sentences and identify possible legislative and policy solutions to a situation that is, as my hon. Friend rightly says, really not acceptable.

The seriousness of those concerns and the strength of feeling about IPP sentences was reflected in the volume of evidence that the Justice Committee received. It was the largest number of submissions we have ever received for any inquiry that we have undertaken. Of course, I looked at all of them, and they included hundreds of handwritten letters, some going into considerable detail, from serving prisoners. They were moving, and articulate in many cases, but also frequently deeply distressing.

Beyond that, the Committee also proactively sought the perspective of all stakeholders affected by the sentence. That is why we took evidence from Lord Blunkett, who was the original architect of the scheme, and Lord Thomas of Cwmgiedd, the former Lord Chief Justice. We also held private meetings and roundtables with affected parties, including people serving IPP sentences in the community, family members, legal professionals who have supported IPP prisoners, Parole Board members, prison and probation staff—it should be said that it is not easy for prison and probation staff to deal with people in this situation, and I suspect that there is also an injustice to them—and victims of IPP prisoners. I do accept that the victim’s perspective also has to be considered, so we deliberately and specifically sought victims’ views.

I thank all who took the time and effort to engage with our inquiry and to provide the evidence that underpinned our recommendations and conclusions. In particular, I thank Donna Mooney and Shirley Debono, both of whom gave oral evidence to us on behalf of the United Group for Reform of IPP. I think that some of the group are in the Public Gallery.

Donna Mooney shared with us the experience of her brother Tommy Nicol, who took his own life in 2015 following a second refusal of parole by the Parole Board. His tariff was four years; by then, he had already served six. Donna told us of the difficulties her brother Tommy faced in enrolling on courses that he needed to complete to demonstrate progression, and in accessing mental health support. He often told her and his family that his sentence was “psychological torture”.

Shirley Debono, whose son is a released IPP prisoner, told us that even those who have been released and are serving an IPP sentence in the community are immensely fearful of being recalled to prison. She described the licence conditions as “draining” and difficult to cope with. She said that her son had been afraid of the telephone in case it was the probation service calling. That is not a happy situation to put probation officers in, never mind anything else, including the difficulty that it causes people who are genuinely trying to rehabilitate themselves.

The Committee’s report considers the difficulties faced by IPP prisoners in progressing through sentences, and the psychological harm that that causes. Our evidence focused on actions that the Government should take to address the problem, and we began by considering the prison-based barriers to progression.

The psychological harm caused to individuals serving an IPP sentence was evidenced by a number of contributors to the inquiry, including those serving the sentence, family members and professionals who have experience of working with people who are serving the sentence. It was demonstrated clearly that rates of self-harm among IPP prisoners are high. Although it is good to see that the rate of self-harm thankfully reduced between the end of 2017 and the end of 2021, it is still almost double that for prisoners serving a determinate sentence. The Independent Advisory Panel on Deaths in Custody told us that as of May 2021, of the 250 IPP prisoners who had died in custody since the sentence came into effect, 65 had taken their own lives.

The Committee recently took evidence from the former chair of that panel, Juliet Lyon CBE. She told us that nine people serving an IPP sentence died last year. She said:

“It is something one cannot afford to forget. The utter hopelessness of their position means it is very difficult for them to maintain any sense of future; it seems just utterly sad and hopeless.”

Juliet Lyon has served in post for a considerable time and has decades of experience in the criminal justice system. Her wise words ought to weigh heavily. Sadly, I was notified that only two days ago another young man serving an IPP prison sentence took his own life in His Majesty’s Prison Manchester. This is still happening all the time.

Given the psychological harm that ensues as a result of the sentence and the conditions attached, many have argued that assessing risk is more complicated than it is for other prisoners. We heard that mental health need and risk are sometimes conflated and that poor mental health may therefore become a barrier to release—although, ironically, it is the serving of the indeterminate sentence that has triggered that poor mental health, and we have a vicious circle.

--- Later in debate ---

[James Daly (Bury North) (Con)]

It is a pleasure to serve under your chairmanship, Mr Twigg. I must refer to my entry in the Register of Members’ Financial Interests. As my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) said, I was a criminal defence solicitor for 17 years. I dealt with many IPP prisoners during that time, and I am a proud member of the Justice Committee. Rather than repeat his every word—I agree with every single word that he and the right hon. Member for Hayes and Harlington (John McDonnell) said about this—I will tell you about Thomas.

In 2012, Thomas received an IPP sentence for robbery of a mobile phone. He was ordered to serve a minimum tariff of two years, only a few months before IPPs were abolished. If Thomas had been sentenced four months later, he would not be in prison now. That in itself tells a tale.

Thomas is now aged 39. He has been in custody for more than 10 years. He should have been released after his tariff of two years, so why is he in prison 10 years later? It is because—as my hon. Friend the Member for Bromley and Chislehurst and the right hon. Member for Hayes and Harlington said—his mental health has taken a huge blow during that period. He has suffered with psychosis and various other mental health traumas.

Where has that left Thomas’s family? His 13-year-old son has been left without a father. He has been moved 16 times, and on many occasions, has not been given access to the appropriate recourses because of his mental health challenges. Certainly, on occasions, he has not been able to engage with what has been provided, but the provision has been sparse to say the least.

This man is in prison with mental health difficulties. He has served over a decade more than his tariff, yet he is viewed as somebody who cannot be released. How is that possible? That brings us to risk, which is what my hon. Friend the Member for Bromley and Chislehurst talked about. I do not have enough time to discuss how the Parole Board deals with this, but how on earth is a man who committed an offence more than a decade ago, who clearly should be in a mental health facility, viewed as a risk? The reason why is that risk, incredibly, has become related to mental health—I talk from personal experience, and we also took evidence in camera from people who were involved, who wanted to speak candidly but felt that it was difficult. If somebody has a mental health issue, that is viewed to be a risk factor to causing harm. We cannot treat people like that. That is not risk.

The figures bear this out. When the Secretary of State appeared before the Justice Committee, 66% of the people who had been recalled had not committed a further offence. Why were 66% of them still in prison if they had not committed an offence? The reason is that for many of those individuals, the Probation Service and the Parole Board take an overcautious, scattergun approach. IPP prisoners are treated differently from other prisoners—I do not know what the reason is, but they are.

To justify that and to ensure that backs are covered, we put in place lots of conditions, most of which have no relation to risk. Risk is the risk of harm to other members of the public. If someone breaches a curfew, why are they getting sent back to prison? That is not evidence of a risk of harm. It is an indictment of the Government’s response on this issue that there has been no evidence base to challenge any of the questions that were raised by experts, members of the Committee and others—none.

What could possibly be the reason for—as of 2022—2,892 people still being in prison on an IPP sentence? How can Parliament allow that, if Parliament views that sentencing exercise as unjust? More than 2,800 people are in prison serving a sentence that Members of this House think is unjust. Can somebody explain how we can look one another in the face and allow that situation to continue? It is quite extraordinary.

Looking at the Government response, this cuts to the heart of what the Government are saying:

“The risks to public protection from the immediate release of serving IPP prisoners continue to exist. Although the Government recognises the frustrations and concerns surrounding the IPP sentence, our view is that the IPP Action Plan remains the best way in which these offenders can progress towards safe release.”

Not a shred of evidence is provided to back up that statement—not one. There is nothing. We are left in the uneasy situation where what we are actually keeping people in for is a concern, and it may well be a non-existent concern, but people’s lives are being blighted by politicians deciding that they do not want the risk of somebody coming out and doing something and then it being a headline in the newspaper. That is not the way to make policy. The justice system that I served for 20 years did not recognise that as justice. That is what this has come down to.

The response to the various things that my hon. Friend set out is just words on a piece of paper. We all know it, and there is that acceptance. I could read out numerous statements about the Government being committed to improving mental health support and rehabilitation support. I could have stood here and said that 10 years ago. If a Government are committed to trying to doing something, it means that they are not actually doing it. It is an acceptance that the proper support—the rehabilitative support and the courses—that is needed for somebody to be released from prison does not actually exist. Not only is this sentence unjust, but we are not providing pathways out for people with mental health difficulties.

The Minister—I like him very much—is an honourable man and an excellent Minister. How on earth have we got into this situation? As I said, Thomas is 39 years of age. He has been in custody for 11 years. Let us say that Thomas lives to the age of 70. If the basis for which somebody stays in custody is their mental health condition, which is deteriorating by the day, that would be another 31 years. He would be in prison for 40 years, having received a two-year sentence. People think that that is okay, seemingly, without any evidence of risk or anything.

That situation is repeated throughout this cohort of people. It is genuinely appalling. As my hon. Friend said, the Justice Committee’s report is not some radical document saying, “Open the doors and off we go”. It is an expert-based resentencing exercise, where some people may not be released from custody immediately, but at least they would have a determinate sentence that they and their families could have some hope to work towards.

We talk about the effect of these sentences, and I hope the Minister will take that into account. I could read out many facts, but the rate of self-harm among IPP prisoners is twice that of those serving a life sentence. Do we think that that happens by accident? The causal link through all the evidence is clear: the sentence is creating this situation. The deterioration of people’s mental health is a result of the sentence, and it is just appalling.

I am saddened to say this, because I believe that the Government are a force for good, but on this occasion, their response has left me exasperated. All of us who have been involved in the process have seen the personal stories of individuals and their family members. During my career in criminal law, one thing that I sometimes noticed was that we tended to treat people who were in a custodial environment as non-human beings. These are human beings with the same feelings, aspirations and desires for a house, for love and to have a positive and good life. We have created a situation where that has been cut off from them.

I will finish with this point, because I am going to keep to my 10 minutes, although I am tempted to go on for longer. With the change of personnel and with the new Lord Chancellor—a criminal barrister for many years—I think we all know that we should look at this afresh. We all know that we cannot have this situation going on in perpetuity, because we may as well book this room every five years and come back and say the same thing. What will happen is that more and more people will commit suicide and self-harm, and more lives and families will be destroyed, and for what? For a sentence that Parliament accepts is unjust. What other situation do we do that in?

Sometimes in Parliament, we talk about a lot of things and throw words around, but everyone accepts that this is unjust and yet we continue with it. I genuinely believe that this is a national scandal. It is a disgrace and a stain on the justice system in which I and my hon. Friend served. In the Justice Committee—with the hon. Member for Lewisham East (Janet Daby) as well—we have tried to come up with a responsible way of answering those concerns and of reflecting the personal and bespoke circumstances of each individual, and the views of victims, to ensure that public safety is part of the resentencing exercise that clearly needs to take place. Please, Minister, please, let us bring this farce to an end, accept the recommendations and give these people some hope.

--- Later in debate ---

[The Minister of State, Ministry of Justice (Damian Hinds)]

It is very good to see you in the Chair, as always, Mr Twigg. I thank my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) for his opening remarks and for securing this debate on behalf of the Justice Committee following the publication last year of its report on imprisonment for public protection sentences. I also thank all colleagues in the Chamber for what they have brought to this important debate and to our discussion of these incredibly serious matters.

The Government welcomed the report by my hon. Friend and his Committee as a real opportunity to take stock of the debate on the IPP sentence, which rightly continues to generate enormous interest, attention and challenge across both Houses of Parliament. Having discussed this matter with IPP campaign groups and colleagues of different parties last month, I am even more acutely aware of the depth and strength of the feeling evoked.

Today’s debate is timely, because the updated IPP action plan from HM Prison and Probation Service was shared with my hon. Friend’s Committee yesterday. One of the Committee’s key recommendations was to refresh the agency’s action plan, and this debate provides an opportunity to share some details of the refreshed plan with the House. I am confident that it will make a genuine difference to the way that IPP offenders are rehabilitated and supported through to safe release, consistent with public protection.

I will provide a brief overview of the IPP sentence, before turning to the Justice Committee’s report and the Government response. As a number of colleagues have mentioned, the IPP sentence was introduced by the Criminal Justice Act 2003 for offences committed on or after 4 April 2005, and it was abolished from December 2012. As has been noted, abolition was not applied retrospectively, as the Government assessed that it would not be right to alter a sentence that had been lawfully imposed by a court prior to its abolition. This means that the Parole Board grants release to those serving an IPP sentence once they have demonstrated that they are safe to be released.

At the time of abolition, more than 6,000 offenders were serving an IPP sentence in prison. Since then a substantial number have been released on licence, so that at the end of March this year there were 2,916 offenders on an IPP sentence in custody. Although that is a significant decrease from the peak in 2012, I recognise that there is more to be done. I reaffirm the Government’s commitment to support those serving an IPP sentence, both in prison and on licence in the community, to work towards a safe and sustainable future release. We will continue this work through the updated IPP action plan.

I thank all members of the Justice Committee for their thorough work in examining the issues surrounding IPP sentences. The Government gave careful consideration to all the report’s findings and each of the Committee’s recommendations. We carefully considered the recommendations to undertake a full resentencing exercise of all remaining offenders serving an IPP sentence and to establish a time-limited expert committee to advise on the practical implementation of such an exercise, as the hon. Member for Lewisham East (Janet Daby) and others outlined. However, the Government’s priority remains the protection of the public, and any resentencing exercise that aims to provide each IPP prisoner with a definite release date would inevitably result in the immediate release of a considerable number of offenders who committed serious sexual or violent offences and whom the Parole Board has previously deemed unsafe to be released.

[James Daly]

What evidence basis does the Minister have to make that statement?

[Damian Hinds]

I make it on the basis of the profile of the prison population and the fact that prisoners have had parole hearings where determinations have been made not to release. That is based on the release test, with which I know my hon. Friend is extremely familiar.

It is vital for public protection that those serving the IPP sentence in prison, whether not yet released or recalled following release, are released only following a thorough risk assessment that finds that their risk has now reduced to the point where they can be safely managed in the community. That is a judgment for the parole board. It is for that reason we rejected the Committee’s recommendation of a full resentencing exercise for such offenders.