Imprisonment for Public Protection Scheme

Lord Anderson of Ipswich Excerpts

Thursday 13th October 2022 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, I signed up for this debate for two reasons: a nagging discomfort about the handful of IPP sentences that I felt myself obliged to impose—not on the most serious criminals—as a Recorder of the Crown Court, prior to 2012; and respect for and solidarity with those noble and learned Lords who have done battle on this subject for so many years.

I simply add two stray observations. First, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood has pointed out, the Justice Committee’s report noted that the IPP sentence is unusual in that it detains individuals in prison on the basis of what they might do, rather than on the basis of what they have done. It occurred to me that similar comments are often made about the sentencing of terrorists—the so-called precursor offences—and indeed about the effective house arrest of terrorist suspects by executive measures, such as TPIMs. The pre-emptive aspect of counterterrorism law rightly results in particularly anxious public and parliamentary scrutiny. The same uncertainty that contributes, according to this report, to the high levels of self-harm and suicide of IPP prisoners was something this House had well in mind when it refused to allow TPIMs to become indefinite—a position to which the Government eventually agreed in the Counter-Terrorism and Sentencing Act 2021.

While we can get it broadly right where terrorists are concerned, it is depressing that we still have not corrected a manifest injustice for those convicted of ordinary criminal offences; an injustice that was recognised as such not only by the noble Lord, Lord Blunkett, but by Michael Gove and Liz Truss when they were Lord Chancellors in the middle of the last decade. It is an injustice that, as the noble and learned Lord, Lord Thomas, said, may even make the subjects of that injustice more dangerous.

Secondly, the committee notes that it was the decision to curtail the usual discretion of judges to determine the most appropriate sentence for each offender that led to the initial proliferation of the IPP sentence. There is there, surely, a cautionary tale. We see in this place repeated proposals for remote control of judicial discretion, whether by minimum sentences in criminal cases or by seeking to influence the grant of remedies in civil cases—I think of the Environment Act 2021 and, rather more happily, of the Judicial Review and Courts Act 2022. Such attempts are liable to cause more problems than they solve because of that most foundational law of all, the law of unintended consequences. That is certainly what we have seen with IPPs.

I strongly support the Justice Committee’s recommendation of a comprehensive resentencing exercise for the reasons that it gives and look forward to finding out whether the Minister is able to do so as well.