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The “injustice” of indeterminate sentences

Benjamin Burrows discusses the legacy of Indeterminate Sentences for Public Protection (IPPs).

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Benjamin Burrows is a solicitor in the Human Rights and Prison Law teams at Leigh Day, and specialises in cases relating to Article 5 Convention rights and the deprivation of liberty. 

The former Home Secretary, David Blunkett, has acknowledged in an interview with BBC Newsnight that the implementation of Indeterminate Sentences for Public Protection (“IPP”), which he was responsible for passing whilst in office, has caused an “injustice” to many prisoners. He stated:

“We certainly got the implementation wrong.  The consequence of bringing the Act in has led, in some cases, to an injustice and I regret that”.

IPP sentences were introduced by the Criminal Justice Act 2005, and were intended to be given to prisoners who had committed the most serious violent or sexual offences.

The thinking behind IPP sentences was that these prisoners would serve a minimum term of imprisonment (ie a ‘tariff’), and would then remain in prison until the Parole Board were satisfied that they had demonstrated a sufficient reduction in their risk of reoffending to justify their release.  A key part of demonstrating a reduction of risk was the completion of specialised offending behaviour courses.

However, there were two very significant, yet unforeseen problems, with the implementation of IPP sentences. First, the numbers of IPP sentences given by the Court were much higher than anticipated, and, second, the corresponding demands on prisons and Parole Boards were much greater than expected.

When they were introduced, it was estimated that IPP sentences would only result in 900 extra prisoners entering the prison system.  However, at its highest, the number of prisoners serving IPP sentences in the prison system was 6,000.  This meant that there was a greater demand for offending behaviour courses to demonstrate a reduction of risk, and for Parole Board hearings to determine whether or not that risk has been reduced.

Regrettably, this demand was not met and the waiting lists for both courses and hearings ballooned. As a result, many prisoners serving IPP sentences languished in prison beyond their minimum tariffs and without any prospect of release.  IPP sentences were eventually abolished by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.  However, the legacy of IPP sentences very much lingers on.

The Prison Reform Trust has recently estimated that there are still over 5,000 prisoners serving IPP sentences in the prison system, and, of these, over 3,500 are beyond their minimum tariff. Put more starkly, since their introduction in 2005, only 945 prisoners serving IPP sentences have been released from prison.

In some cases, the delays have been significant.  BBC Newsnight recently reported that a prisoner, Richard Huxley, was still serving an IPP sentence some 8 years after his 17 month tariff had expired. These sorts of delays have inevitably led to litigation.

Both the lack of courses and the delays in hearings have already been found by the European Court of Human Rights and the Supreme Court respectively to breach a prisoner’s Article 5 Convention right to liberty and security of the person.

Further, this is not an issue which is likely to go away anytime soon.  It is estimated that, at the current release rate of 400 a year, it will take a further 9 years for all prisoners serving IPP sentences to be released. Therefore, lamentably, the sort of delays being experienced by Mr Huxley are only likely to become more common place amongst other prisoners still serving IPP sentences.

Mr Blunkett’s admission of regret is likely to offer little succour to these prisoners. More likely, the injustice caused by IPP sentences will result in more and more of these prisoners seeking to assert their Article 5 Convention rights in Court.

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