Prisoners: Indeterminate Sentences

Lord Marks of Henley-on-Thames Excerpts

Thursday 27th March 2014 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, in 2008 the previous Administration recognised the difficulties that the mandatory imposition of IPPs had caused when they made the changes to increase judicial discretion and remove short-tariff sentences for sentences passed after July 2008. Yet there remain in prison many who were sentenced to IPPs before that date and whose short-tariff sentences were completed long ago, as the noble and learned Lord, Lord Lloyd, has just pointed out. He gave us the numbers and they are truly shocking. I pay tribute to the noble and learned Lord for his sustained and impressive campaigning on this issue over a long time.

In 2010, through the then Prisons Minister, my honourable friend Crispin Blunt, the Government publicly recognised that the present position was indefensible because it was clear that many IPP prisoners were being held well beyond their tariff dates for no better reason than that the Prison Service was unable to provide the courses necessary for them to satisfy the Parole Board of their suitability for release. Then, in 2012 this Government, to their credit, recognised the injustice of IPP sentences when they abolished them in the LASPO Act. Also in 2012, as has been pointed out by the noble and learned Lord, Lord Phillips, the European Court of Human Rights recognised the injustice when it decided the case of James, Wells and Lee v the United Kingdom, broadly on the ground that, given the lack of the rehabilitation courses necessary to establish suitability for release, the continued detention of the applicants in that case amounted to the arbitrary deprivation of their liberty, contrary to Article 5.1.

Neither the changes introduced by the Criminal Justice and Immigration Act 2008 nor the abolition of IPP sentences by the LASPO Act had any retrospective effect. The result is that we are now left, as the noble Lord, Lord Wigley, pointed out in his extremely helpful and informative introduction to this debate, with an impossible and indefensible injustice.

The current position is that on the one hand there are in prison many who are serving indeterminate terms well after their tariff sentences have been fully served, often with short-tariff sentences imposed before the two-year restriction was introduced. Many of those prisoners see, and have, no hope of early release because the necessary resources to secure their release are still not being provided in sufficient quantity or at sufficient speed. The system is still overwhelmed by its inability to cope with the stresses placed upon it. On the other hand, many of those sentenced to similar tariff terms more recently—after abolition—who would have received an IPP sentence before abolition have now been, and are being, released after serving their determinate sentences in full, well before those who are still held on IPPs, having been sentenced earlier.

What should the Government do? As the noble and learned Lord, Lord Lloyd, pointed out, the LASPO Act, by Section 128, specifically gives the Secretary of State wide powers to deal with the injustice of existing IPPs. The first power is to provide by order that, following a referral, the Parole Board must direct release if certain conditions are met; the second is the converse—that he may provide that the Parole Board must direct release unless certain conditions are met. The careful use of either power would enable the Secretary of State to put an end to the injustice highlighted in this debate that now disgraces our criminal justice system, while ensuring that prisoners whose release would genuinely present a serious danger to the public are kept in prison until their release is judged safe. Yet, despite the power contained in and legislated for in Section 128, the Government have so far resisted retrospectively altering sentences on the basis that those were sentences passed by judges acting in accordance with the law as it was at the date of sentencing.

Your Lordships’ House is very familiar with the arguments against retrospective legislation but, as my noble friend Lord Dholakia pointed out, they are generally deployed to avoid doing injustice to persons who were unaffected by restrictions before the passage of legislation. I have never heard them deployed in favour of continuing an injustice to those currently affected by unfair and oppressive legislation.

There is a further answer to the argument that bringing forward release dates now would overturn decisions of judges made according to the law in force at the time of passing the sentences. Many of the IPPs imposed were imposed because the judge’s hands were tied, often by judges acting through gritted teeth in compliance with what they regarded as, and what was, a bad law. That is no ground for demanding respect for those sentences now.

Whether the best solution is to treat all existing prisoners on the basis on which they would have been treated had they been sentenced after 2012, or to give them the option to be so treated, as the noble and learned Lord, Lord Lloyd of Berwick, suggests, or whether it would be best simply to introduce a presumption in favour of release unless continuing incarceration can be clearly justified, under the second limb of Section 128, the present injustice cannot in conscience be permitted to continue. If my noble friend’s response to this debate goes no further than saying that the Government will simply try a little harder to speed up the rate of release of prisoners caught by IPPs, that will not, I suggest, be a response that goes anywhere near meeting the need for a genuine solution. Tinkering around the edges of the old system will not be a solution.

It is important to remember that there is a special feature of IPPs. They were sentences imposed not for crimes that had been committed but for fear of crimes that might be committed in the future. It is clear that your Lordships recognise, as we all must, that public protection is an important function of punishment. However, it is also important that those involved with the criminal justice system and the public at large have the confidence that our system of justice is indeed fair and just. Where that system perpetrates and then maintains an obvious injustice, long after it has become recognisable and has in fact been recognised as such, our system cannot and does not deserve to command that confidence. We who support this Government have been proud of the rehabilitation revolution that we have introduced. The continued detention on IPPs of prisoners long beyond their tariff dates is the antithesis of that rehabilitation revolution, and we should end it.