Prisoners: Indeterminate Sentences

Lord Lloyd of Berwick Excerpts

Thursday 27th March 2014 Lords Chamber

[Lord Lloyd of Berwick (CB)]

My Lords, I do not intend to go into the background of the IPP sentence, which was so well described by the noble Lord, Lord Wigley, to whom we are all grateful for initiating this debate, but propose to concentrate instead on a particular group of prisoners who were given a tariff of less than two years before Section 225 of the 2003 Act was amended in 2007, of whom there are 773.

I start by giving the House a breakdown of that figure. These figures were given to me by the noble Lord, Lord McNally, in a letter he wrote to me on 24 August 2013. I suggest that they ought to be on the record. Thirty-seven offenders were given tariffs of six months or less. Of these, 11 are now more than four years over tariff. The remaining 26 of that group are five years over tariff—in other words, 10 times the tariff they were originally given. One hundred and eight were given tariffs of six to 12 months. Of these, 46 are four years over tariff and 59 are five years over tariff. Two hundred and eighty were given tariffs of between 12 and 18 months; 110 are four years over tariff and 98 are five years over tariff. Three hundred and forty-eight were given tariffs of between 18 and 24 months. Of these, 124 are four years over tariff and 92 are five years over tariff. I suggest that these figures speak for themselves—something very serious has gone wrong.

There are two reasons why there are so many IPP prisoners with short or very short tariffs. In the first place, there was no minimum tariff, as there should have been. That was a grievous mistake. Secondly, until 2008, the sentence was, in effect, compulsory. Provided certain conditions were fulfilled, the judge had no discretion. Therefore, an offender who would in the normal way have been given between two and four years for a robbery, burglary or simple arson, was given an IPP sentence not because he was particularly dangerous but because, until 2008, the sentence was mandatory, as I say.

When Section 225 was repealed by the LASPO Act in 2012, very few IPP prisoners had been released, partly, of course, because courses were not available for them but also because the release test which the Parole Board had to apply was exactly the same for them as for those serving life sentences for much more serious crimes. Therefore, it is not surprising that a large backlog of these short and very short tariff prisoners had built up. Parliament was well aware of this backlog, and of the reason for it. It was clear that something had to be done. By Section 128 of LASPO, Parliament provided the solution. It gave the Secretary of State the power to modify the existing release test, with a view, obviously, to speeding up the rate of release. Section 128 paved the way for the Secretary of State to take action. He could require the Parole Board to direct release if it was satisfied that certain conditions existed. It was, or would have been, as simple as that. There is nothing in Section 128, whether expressly or by implication, that requires the new release test to be based on an assessment of risk.

The first question is: should the Secretary of State exercise the power he has been given by Parliament? The second question is: if so, what should the new test be? As to the first question, the answer is very clear. Of course he should exercise the power he has been given. There are many reasons why he should do so, but the most convincing to me is the one given by the noble Lord, Lord Wigley. If these 773 prisoners, with whom alone I am concerned, had committed exactly the same offences but after 2008, instead of before, they could not have been given an IPP sentence; they could have been given only a determinate sentence. We know what that determinate sentence would have been—namely, twice the tariff they were given. They would all have been out by 2010 at the latest. Instead, they are all still in prison.

Prisoners, like everyone else, have a strong sense of just desserts. I know of no sentence that has created such a strong sense of injustice as the IPP sentence. I know that because of the many letters that I and others have received from prisoners and their families, and from a recent meeting that I had with their families, some of whom expressed the views that I have just tried to describe.

What reason, then, has the Secretary of State given for not exercising this power? Only that it would not be appropriate to alter sentences lawfully imposed by the court. The short answer to that is that if Parliament had not thought it appropriate, it would not have enacted Section 128.

I come to the second question. What should the new release test be? I wrote to the Secretary of State on 13 March, inviting him to consider converting the sentence of these 773 prisoners into determinate sentences equal to twice their tariffs. This would be fair because they would be the sentences that we know the prisoners would have received if the IPP sentence had not been available when they were sentenced. In his reply on 19 March, the Secretary of State said:

“It would be inconceivable and indeed irresponsible for the Government to release individuals that the independent Parole Board … assess as continuing to pose risks”.

What this seems to overlook is that these very same people, if sentenced after 2008 for exactly the same offences, would necessarily have been given a determinate sentence and would have posed exactly the same risk when released before 2010 as they would have done if released today.

Finally, I suggest that so far from it being irresponsible for the Secretary of State to exercise the power he has been given, it would be irresponsible of him not to do so. Indeed, it is his duty to do so in the interests of justice, for all the reasons I have given. In doing so, he would be righting a grievous wrong that these 773 prisoners have suffered—a wrong for which the Government ought to take responsibility.

--- Later in debate ---

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, I thank the noble Lord, Lord Wigley, for securing this debate. The issue of how to manage those prisoners who are still serving indeterminate sentences of imprisonment for public protection is important and one that has generated considerable interest, not least in this House.

Indeed, our IPP prisoners could hardly have more effective advocates than the noble and learned Lords who have spoken this evening. Nor has their interest and concern been recent; it has been sustained and tenacious. At a recent meeting convened by the Bingham Centre, where the noble and learned Lord, Lord Lloyd, spoke, those issues were thoroughly discussed. Although I was unable to attend myself because of parliamentary duties, he was good enough to send me a copy of his remarks there, so the Government do not pretend to be unaware of the full range of anxiety that has been expressed about the issue.

Much has been said about the history of IPP sentences. Briefly, to remind the House, the IPP sentence was first brought into effect in 2005, by the Criminal Justice Act 2003, to target those offenders likely to pose a risk of serious harm to the public. Imposition of the sentence was mandatory in certain circumstances. More IPP sentences were imposed than were originally anticipated—that is something of an understatement. The noble Lord, Lord Kennedy, said that there were problems with introduction. That, too, is something of an understatement. I understood him to be rather unrepentant about the sentence as a whole, but be that as it may. It was not until the reforms introduced by the Criminal Justice and Immigration Act 2008 that a minimum tariff of two years was imposed, barring exceptional circumstances. Further, the mandatory requirement for imposition of the sentence in certain circumstances was removed—a “may” for a “must”. On 3 December 2012, the sentence was abolished by the LASPO Act. However, abolition was not made retrospective, so those prisoners already serving IPP sentences continue to do so until the independent Parole Board finds their assessed risks to have been reduced enough to be manageable in the community.

Although this Government have abolished the IPP sentence, it would not be right or appropriate in our view retrospectively to alter sentences that had been lawfully imposed prior to their abolition. When the LASPO Bill was being debated, a number of amendments were proposed in this House that would have changed retrospectively the sentences imposed by courts. However, none of those resulted in a change to the legislation to the effect to which some arguments have been directed this evening. That is usual—it is generally the case that when changes are made to the sentencing framework, they do not impact on current prisoners, and changes will not be made to sentences that were lawfully passed at the time they were imposed. One reason for that is because a court will have had regard to the range of sentences then available when imposing a sentence, so it will not necessarily be clear what sentence would have been imposed under a different statutory regime. Indeed, it would be quite wrong to assume in any individual case what sentence a court would have imposed under such a different regime.

On IPPs, at the higher end there will be IPP sentences that have been imposed where a life sentence might otherwise be available. At the lower end, given that the courts had found risk, it is not clear whether an extended sentence or a standard determinate sentence would have been imposed. Versions of the extended sentence are available under more than one recent statutory framework, but other considerations then arise: would the various thresholds for these sentences have been reached under different statutory frameworks? What would the length of the extended licence have been?

I hope I have said enough to demonstrate the complexity of trying to translate sentences imposed under one regime to another. In this case, the courts were specifically enjoined by the law to give priority to the consideration of risk. It would make it a particularly sensitive exercise retrospectively to change these sentences, which is what the conversion process would involve.

The Government also do not believe that it would be responsible or sensible, given the high risk levels presented by many of the IPP prisoners who remain in prison post-tariff. We do well to remember that many offenders who received IPP sentences, including those who remain in custody today post-tariff expiry, did so for serious crimes—notwithstanding the observations of the noble and learned Lord, Lord Judge—including attempted murder, manslaughter, rape and sexual assault of children. Any move to release those prisoners without due consideration of the risk they pose to the public would be wrong.

I know that many noble Lords have particular concerns about those offenders with short tariffs of less than two years imposed before the 2008 Act abolished such short tariffs except where there was serious previous offending. However, internal management information suggests that the clear majority of IPP offenders currently remaining in custody with tariffs of less than two years are there because they are assessed as posing a high, or very high, risk of serious harm to the public. This means that a serious offence could take place at any time. It would not be safe or appropriate to release these offenders on licence without due consideration of the risk which they present at the current time.

No one would claim that there have not been significant problems with IPP sentences. That is why we abolished the sentence and replaced it with the extended determinate sentence. There were practical issues arising from the number of IPP sentences with short tariffs that were imposed. The sentence did not command public confidence and led to apparent inconsistencies of sentencing. It meant that victims, the public, and offenders and their families were unclear about when an offender might be released.

However, we also have a clear duty to the public not to release IPP prisoners who continue to pose an unacceptable risk. It was never the intention of the sentence that offenders past their tariff should all be released, but only those who can be effectively managed in the community. It is for the independent Parole Board to determine whether an IPP prisoner has reduced their risk sufficiently to achieve release. The board does not, of course, take these decisions lightly: it examines reports from prison and probation and from psychologists where appropriate—and of course the prison governor provides information in the dossier—and decides whether the risk to the public remains too high to release an offender. All IPP offenders who have completed their tariff have the right to attend the regular parole review oral hearings, where release is considered. The Government consider that this is the best system for balancing the rights of the offender with our duty to protect the public.

I want to mention the NOMS work to improve the position of IPP prisoners, because this is clearly an important consideration. No prisoner should be left without opportunities to demonstrate to the Parole Board that their risk has reduced. I would also like to speak about the important work that has been undertaken to improve the prospects of progression for those IPP offenders who choose to engage with the opportunities presented to them. Examples of this work include: the streamlining of assessment, targeting and management processes, to ensure that IPP prisoners’ risks and objectives are identified as early as possible; reducing waiting times for transferring IPP offenders to open prisons, from over eight months to an average of two months; the refining of our commissioning strategies to maximise resources and focus investment on those interventions proven to be effective; and publication of guidance for those managing the sentences of IPP prisoners to ensure that the focus of sentence planning is on reducing risk in a planned and sequenced manner, and not solely on completing specific offending behaviour programmes.

The indeterminate sentence prisoners co-ordination group was established in 2010 to oversee the strategic management of all offenders serving indeterminate sentences, including both those serving IPP and life sentences. The group is led at director level within NOMS, with membership from senior representatives across NOMS. The group’s work has a particular focus on improving, wherever possible, the progression of these offenders through custody and then, should the Parole Board so direct, into the community. It achieves this by developing and promoting the most effective means of managing those serving indeterminate sentences and ensuring that resources are directed appropriately. This includes informing the development and co-ordination of strategies relating to offender assessment, sentence planning and delivery, access to interventions, parole processes, prison capacity issues and offender management in the community following release. I could give a number of examples of work that the group has delivered, but time does not permit me to do so.

As to interventions, it is a common misconception that IPP offenders must complete offending behaviour programmes in order to achieve release. Equally, it is a misconception that the completion of courses is a sufficient condition to secure release. Neither of these is the case. The Parole Board is under a general obligation to consider the offender’s risk level, which can be demonstrated in a variety of ways. In so doing, the board will take an holistic view and consider all available evidence. The completion of a number of courses is just one of a range of factors that the Parole Board will take into account.

In 2011, the Ministry of Justice carried out a research study into Parole Board decision-making in IPP cases. A summary of that research was published in 2012 and can be found on the Government’s website. There are points arising from that research that it is important to make. It suggests that programmes are far from the only relevant factor in release decisions. Release is to some extent related to the completion of programmes, but this is not a simple relationship. The research shows that the parole process is targeted on the individual and that only programmes specified to the individual’s needs, successfully completed and showing some impact on the prisoner, are likely to be taken as evidence of sentence progression. A number of other factors were important. The Parole Board members interviewed for this study thought that indeterminately sentenced prisoners benefit greatly from spending time in an open prison, for example.

[Lord Lloyd of Berwick]

My Lords, I can see that the Minister’s time is nearly up. I wonder whether he could deal with one or two of the arguments which have actually been advanced in the House this afternoon, in particular regarding Section 128. What did Parliament have in mind when that power was conferred on the Secretary of State?

[Lord Faulks]

It is of course a matter of statutory instruction what it had in mind. The Secretary of State is aware of the obligation placed on him to consider the matter. The noble and learned Lord has recently been in correspondence with the Secretary of State and I have endeavoured to give the Secretary of State’s reasons for the position that he has so far adopted in that respect. The question is whether the Secretary of State should exercise that power in the way that the noble and learned Lord and other noble Lords think appropriate and, if not, what steps are being taken to ensure that IPP prisoners are having the opportunity to obtain release via hearings from the Parole Board. On that and other matters, I will write to noble Lords because I have not sufficient time to deal with all the questions raised.

Reference was made to the European Court of Human Rights and the case of James, Wells and Lee and others. That is a decision which is not without difficulty and which has been considered by the Supreme Court in a number of contexts. I should declare an interest as an advocate in one of those cases. The decision by the European Court of Human Rights was indeed that there was an arbitrary detention because of the lack of provision of courses, and therefore a violation of Article 5(1), but it did not decide that the sentence was per se unlawful. There are of course further cases going through the courts and sometimes the facts do not quite fit the allegations. However, the Government are well aware of the consequences of that.

The noble Lord, Lord Ramsbotham, as ever made some useful observations about offender management. We do not deny that offender management problems exist in custody and we accept the recommendations of the latest inspectorate report on the improvements that need to be made. Some improvements have been made but more needs to be done, including a full review of offender management in custody which will commence next year. As the noble Lord and other noble Lords will know, an inquiry has been set up into deaths in custody. That was announced recently in answer to a Question asked by the noble Lord, Lord Ramsbotham, himself. I hope that that matter will inform decision-making in that respect.

Finally, regarding the Parole Board, there is liaison with it as a result of the Osborn decision. Increased resources have been made available to the Parole Board and there is regular communication between it and the Ministry of Justice to ensure that its resources are appropriately deployed to increase the possibility of hearings taking place.

The sentence itself was clearly ill conceived and its impact was wholly underestimated. The Government recognised that by abolishing it in the Act. The Secretary of State has not considered it so far appropriate to exercise the power given to him by the LASPO Act, on which there have been a number of arguments. However, the Government are extremely aware of the importance of IPP-sentenced prisoners having the opportunity for their release to be considered and to have the opportunity of proving whether they are no longer a danger. That is a matter of which the Government are painfully aware.

All the observations made by noble Lords this evening in this valuable and helpful debate will be taken back to the Secretary of State and if there are any matters that I have not fully dealt with in the course of it, I will endeavour to deal with them in writing.