The Indeterminate Sentence for Public Protection (IPP) was this week condemned by the European Court of Human Rights (ECtHR) as being ‘draconian’ in nature and totally inadequately resourced. The British government was also ordered to pay compensation to 3 IPP prisoners who are unable to progress towards release due to the government’s failure to provide sufficient offending behaviour courses; such courses must be completed if the prisoners are to stand any chance of being released.
Although the government has announced that it will take advantage of the mandatory 3 month period during which it can appeal the ruling – principally for political reasons and in order to save face – TheOpinionSite.org, many lawyers and others believe that such an appeal will fail. Indeed, in our view it is highly doubtful that there are any grounds on which to appeal in the first place given the clarity of the European Court’s ruling.
The defeat at the hands of the ECtHR over IPP sentences is a bitter blow to the Conservative led coalition government, especially as it comes on top of a defeat in the same court over the voting rights of prisoners and the embarrassment caused to the ambitious Home Secretary, Theresa May when she was forced by the UK’s own Supreme Court judgement allowing sex offenders to apply to come off the Sex Offenders Register.
The ECtHR ruled in the current case (James, Wells and Lee v. the United Kingdom) after the failure of an appeal to the predecessor of the UK Supreme Court, the House of Lords some 5 years ago. The Law Lords ruled that although the government had failed to provide sufficient courses, it had not broken the law as rehabilitation was an “aspiration”, not a legal requirement.
In the view of TheOpinionSite.org, that judgement was politically driven at a time when Tony Blair felt (correctly as it turned out that he could introduce any law, any sentence that he chose and that the public wouldn’t care as long as they were not affected.
In fact, Blair went on to introduce more than 3,000 new criminal offences during his time in office, one for each day he was in power.
Jack Straw revised the IPP sentencing policy so that the minimum period of time to be spent in jail or ‘tariff’ had to be at least 2 years before an IPP could be handed down but this made very little difference.
Instead of the intended “very few” IPPs that were expected to be given out, there were hundreds handed down every year, mainly for sexual or violent offences, many of them relatively minor.
This was due to the fact that in order to impress the tabloids, charities and the wider public, Blair and David Blunkett had effectively drawn up a list of new offences that had to be met with an IPP whether an indeterminate sentence was justified or not, thus tying the hands of judges.
The legacy of that policy is that there are currently about 6,500 prisoners serving an IPP and about half of those are “over tariff” and are very likely to claim compensation against the government, just one of the reasons the government is appealing the ruling.
Recently, the now missed Secretary of State for Justice, Ken Clarke managed to force the Commons to repeal the IPP sentence, replacing it with long determinate sentences for first time offenders and mandatory life sentences for repeat offenders.
However, this new system does not come into force until 2014 and following the new ruling from Europe, when the new sentencing policy does come into effect, thousands more course places must urgently be made available or the government will very quickly find itself back in court.
The wording of the ECtHR judgement was devastating:
“It is clear that the delays were the result of a lack of resources.”
While resource implications were relevant, the inadequate resources “appeared to be the consequence of the introduction of draconian measures for indeterminate detention without the necessary planning and without realistic consideration of the impact of the measures”, they added.
“Further, the length of the delays in the applicants’ cases was considerable: for around two and a half years, they were simply left in local prisons where there were few, if any, offending behaviour programmes.
“The stark consequence of the failure to make available the necessary resources was that the applicants had no realistic chance of making objective progress towards a real reduction or elimination of the risk they posed by the time their tariff periods expired.
“Further, once the applicants’ tariffs had expired, their detention was justified solely on the grounds of the risk they posed to the public and the need for access to rehabilitative treatment at that stage became all the more pressing.
“In these circumstances, the court considers that following the expiry of the applicants’ tariff periods and until steps were taken to progress them through the prison system with a view to providing them with access to appropriate rehabilitative courses, their detention was arbitrary and therefore unlawful within the meaning of Article 5:1 of the convention.”
Criticism has come from many other quarters as well.
Juliet Lyon, the Director of the Prison Reform Trust, said:
“This judgment should prompt the new Secretary of State to institute a review of the cases of over 3,500 people held beyond their indeterminate sentence tariff dates, use his discretion under the Legal Aid, Sentencing and Punishment of Offenders Act (2012) to change the release test and eradicate a stain on our justice system.
“It is shaming to have so many people locked up in our prisons, not for what they have done but for what they might do in the future.
“Many of these prisoners are condemned to years of uncertainty during which time they must somehow prove, from the confines of a bleak overcrowded jail, that they no longer present a risk to the public.
“The means to do this, attendance at scarce and not always reliable offending behaviour programmes is barred to people with a mental illness, learning disability, many on medication and anyone with a low IQ score, trapping these most vulnerable people in a maze with no exit.
“To put matters right, more trust could be placed in prison governors and staff, probation and the Parole Board to determine the risk to the public presented by a few dangerous people rather than relying on the current obstacle race facing so many prisoners and their families.
“The IPP has attracted near universal criticism from judges, Parole Board members, the prisons inspectorate, the prison governors’ association, staff and prisoners and families alike.
“Now Government has abolished the Kafkaesque indeterminate sentence for public protection, it’s time to return to a sensible system of fairness, proportionality and just desserts.”
The government meanwhile has attempted to downplay the ruling with a mealy-mouthed statement from the Ministry of Justice:
“We are disappointed by this judgment and are currently considering our grounds to appeal.
“Public protection will not be put at risk – the judgment does not find that indeterminate sentences are unlawful, and will not mean prisoners currently serving IPP sentences will have to be released.
“The Government has already announced that the complex IPP system will be replaced by a new regime of tough, determinate sentences.
“This will see more dangerous criminals given life sentences, and others spending longer periods in prison, with tough licence conditions on release.”
TheOpinionSite.org can confidently predict that the government’s distress over the IPP will increase further, not least because even were it able to provide the necessary offending behaviour programmes, which it cannot, other problems would still remain.
There are for example only 100 probation hostels in Britain, housing about 2,400 newly released prisoners and individuals on bail awaiting trial.
There are simply not enough places for all the IPP prisoners that may be released into the community and it would be catastrophic for the authorities if hundreds of them were released simultaneously.
The Probation Service cannot even cope now with the number of offenders under its supervision, even by recalling some of those to prison for alleged breaches of their parole licence. It would certainly be unable to deal with hundreds or thousands of newly released IPP prisoners, many of which have falsely – and rather stupidly – been labelled as “dangerous”, even though they may be nothing of the sort.
Numerous other problems involving the flawed MAPPA system, police community supervision, housing and accommodation, lack of employment and so on simply add to the government’s problems when considering how to solve the IPP problem
This huge mess has come about as a result of the desire of Tony Blair, David Blunkett, Jacqui Smith and now, Theresa may and David Cameron, to appear to be “tough on crime” by locking people up on the basis of what they “might” do rather than solely on what they have done, whilst giving absolutely no thought to the long-term effects of such a policy either socially or financially.
This “what if” doctrine was, like so much other bad law, imported from the United States of America.
British and American politicians mainly have only three things in common but the similarities are easily spotted:
- they care only about themselves
- they will do anything for cheap votes
- they are cowards and will not stand up to groups with vested interests in persecuting offenders
There is also the fact that prison, prisoners and public protection is big business.
In Britain we now have have pointless and largely useless devices like the Sex Offenders Register, the Domestic Violence Register, “easy to get with no evidence” civil orders such as SOPOs, VOPOs, that carry a prison sentence if breached, a huge child protection industry that makes millions and employs 2 million people, the largest prison population in the EU and a political class that is increasingly populated by ambitious young men and women straight out of university, have no knowledge of real life and who would like to make a name for themselves in Parliament.
On top of that lot, there is also the abhorrent, secret, ‘untestable-evidence’ based MAPPA system and the ‘heresay’ based Independent Safeguarding Authority (ISA) that are both largely unaccountable to anyone.
All of these factors, devices and organisations use out of date evidence and subjective risk assessments based on what someone has done in the past and what they “might” do in the future, rather than on current, objective evidence, much of which may very well show that the individual is unlikely to reoffend but which would render much of today’s supposedly necessary child and public protection redundant.
Prisoner governors too are frantic with worry about a worsening situation inside Britain’s prisons due to overcrowding and the frustration of IPP and life-sentences prisoners that cannot progress towards parole because of the government’s desire to keep people locked up for as long as possible.
For example, although it is a pity that he was to cowardly to say so at the time when he was still in office, John Podmore, former governor of HMP Brixton, now says that the situation horrifies him:
“We’re locking them up not for what they’ve done, but for what they might do in the future”.
TheOpinionSite.org is fairly certain that the government will lose any appeal that it is stupid enough to make to the ECtHR in this case.
Unlike British courts, the ECtHR is based on fairness; something which Conservative and Labour MPs hate as such fairness gives support to minority, unpopular groups including those most important to politicians whenever an MP is in trouble: socially-hated prisoners like sex offenders, terrorist suspects and drug takers that be kicked around like a political football whenever the need for cheap votes or political misdirection comes around.
The government has few options, given the serious mess that it and its predecessors have created:
- It costs about £45,000 a year to keep an IPP or life-sentenced prisoners in jail. The compensation that the government will have to pay following the latest ECtHR ruling if, as is likely, more claims are made will run into millions of tax-payer pounds
- The government cannot afford to provide more programmes, cannot expand the capacity of probation hostels and is cutting the number of probation officers
- MAPPA, the ISA and the other “might reoffend” devices and agencies cost millions every year and their methods are questionable at best
- The Home Office and Ministry of Justice lose about £500 million pounds a year on court cases
- There are further sex offender and IPP cases on their way to the ECtHR
- Prison numbers doubled under Tony Blair and are still rising further under this government with more people locked up indefinitely in the UK than in the whole of the rest of Europe put together
- The Conservatives and Labour say they want to “toughen-up” on sentencing. Powerful child and vulnerable people protection charities want more prison, more restrictions and more draconian orders to be issued but do not want to pay for them or go to court to defend them
- Ministers want more power themselves and more power to be given to the police and other associated agencies even though they keep losing in court, which costs money
- Most significantly, they all want to lock up even more people for longer even though the policy has been shown to fail at best and to be unlawful at worst
Given the mess the government and the law-enforcement agencies are now in and the millions of pounds that these failed policies are costing the rest of us, TheOpinionSite.org would suggest that they all think again and do so quickly.
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