After a wait of 18 months, the European Court of Human Rights in Strasbourg has decided that a major challenge to the IPP sentence will be allowed to proceed.
The case in question, R (James and others) v Secretary of State for Justice  UKHL 22;  2 WLR 1149, was first heard in the House of Lords before the inception of the UK Supreme Court. The Law Lords decided that although there were insufficient resources in place to allow IPP prisoners to address their offending behaviour and thus attain their freedom, their continued detention with little hope of release was not a violation of their human rights.
As a result, many prisoners serving IPP sentences still languish in jail long after the expiration of their minimum period of imprisonment existing in a legal ‘limbo’ not knowing when or even if they may one day rejoin the community.
The move by the ECtHR is very bad news indeed for the government which is still reeling from the sustained criticism heaped upon it by right wing MPs and the tabloid press for giving in to a judgment by the Strasbourg court over the voting rights of prisoners and from a ruling by the UK Supreme Court that those on the Sex Offenders Register must be allowed the chance to have their names removed from it.
The court will now examine the argument further and the British government will be asked to furnish a response, probably by April. If the case then proceeds further, it is possible that the court will decide that there has indeed been a breach of the human rights of those concerned.
From a political point of view, the government will be in the same position as it is currently regarding prisoners’ voting rights; it must obey the court ruling but faces committing political suicide if it does so in any meaningful way.
The government’s response so far to these matters is to do the ‘minimum necessary’ to comply but such a stance may only serve to put it back in court.
Although it was the previous Labour administration that introduced IPPs, it is the Coalition that has been left to clear up the mess.
This is no accident as Labour were fully aware of the politically dangerous consequences of compliance with the court ruling. The Daily Mail and the Murdoch press are spoiling for a fight over the various issues regarding prisoners and there are even calls for Britain to withdraw from the European Convention altogether.
For those inside though, this latest development means little, given that the European Court will take a long time to reach a final decision and even if it decides in favour of IPP prisoners, the government will want to put off taking any remedial action for as long as possible.
Meanwhile, the number of ‘lifers’ of one kind or another (now nearly 10,000) continues to rise as spending on prisons continues to be cut. The public too is in no mood to be generous and feels that if those who have not committed a crime are going to suffer, then so are those inside.
TheOpinionSite.org has on many occasions pointed out that prisoners are used as a political football by all governments who in Britain tend to follow America and are reluctant in the extreme to give up their love affair with custody. The result is slow, if any progress, with those who have committed sexual and violent offences being treated particularly harshly for purely political reasons.
These are also often the prisoners who make up the majority of those serving IPP sentences and for them, this judgement will only make that particular situation worse.
So what of the future?
It is always possible that the court will rule in the government’s favour and that will be an end to the matter. However, given that less than 37% of cases are allowed to proceed, there is obviously a strong case against the government and this fact will not be lost on either the Justice Secretary, Ken Clarke or his nemesis the Home Secretary, Theresa May who seems set against any reforms that could lead to accusations that the government are being ‘soft’ on crime.
David Blunkett, who was largely responsible for the IPP sentence, together with other right wingers will give the government a very hard time in the run up to any decision by the court. The media too will not be slow in coming forward with its objections to any reform and the Murdoch media in particular will use its not inconsiderable influence to try to prevent any progressive moves from taking place.
If the government loses, there will still be the usual minimalist approach to compliance with the court’s ruling and it will probably also take for ever before any real progress is seen.
The IPP sentence is widely seen as unjust and unfair as at present it is virtually impossible for a prisoner to prove that his risk has reduced to a point where he is safe to release into the community. The Probation Service and the police are also unlikely to be any less biased towards a cautious approach with regard to release in case something goes wrong and they get the blame.
Clarke is set to bring in a formalised ‘release test’ for use by the Parole Board who are the final arbiters when it comes to whether or not someone should be released. However, as TheOpinionSite.org and others have pointed out already, no one knows what form this test may take or how it is to be implemented.
The truth is that there is always some risk in everything and there is no way to completely eliminate it. That applies as much to the release of prisoners as it does to crossing the road and IPP prisoners will be living in fear of spending years more in prison whilst politicians on all sides try to get a few extra votes by making a lot of noise about ‘public protection’.