Imprisonment for Public Protection Sentences

Kerry McCarthy Excerpts

Thursday 27th April 2023 Westminster Hall

[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.

[Kerry McCarthy (Bristol East) (Lab)]

The hon. Gentleman is giving a very powerful account, and I am very glad that the Select Committee mounted the inquiry. Figures released last year showed that an increasing number of prisoners assessed as needing to be in secure mental health units because they had chronic personality disorders, psychotic illness and so on were not being transferred because the beds were not available. The figure was up 81% in the last five-year period, compared with the previous five years.

Does the hon. Gentleman think that this is also a factor in trying to get the right support for people on IPP sentences, so that they get treatment and can make progress? The Government are now committing to a time limit of 28 days for transfer to hospitals for people who need it. Does he have confidence that that is going to happen?

[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.