A scandalous injustice: 4,614 IPPs stranded indefinitely in our prisons, 77% of them for crimes they haven’t yet committed. Action this day!
IPPs – Indeterminate Sentences for Public Protection – were belatedly abolished in 2012 by the first liberal Justice Secretary or Home Secretary for years, Ken Clarke, a Tory. But the thousands of prisoners then already incarcerated and serving IPP sentences got no benefit from the abolition of the system, under which an IPP prisoner may not be released, even after completing his ‘tariff’ – the punishment element of his sentence – unless he can satisfy the parole board that if released he will not re-offend. Since it is inherently impossible to prove a future negative, few IPPs have managed to persuade parole boards that it’s safe to release them. As Ken Clarke pointed out recently on the BBC Today Programme, parole boards are scared to order the release of an IPP for fear that the board will be blamed if the IPP goes on to commit another offence after being released, so it is obviously safer for the parole board, always risk-averse, to reject most applications for release.
On 1 April this year, according to Inside Time, there were 4,614 IPP prisoners still incarcerated under a law that abolished IPPs in December 2012, nearly four years ago. Of these, 3,532, more than 75%, had served their full periods for punishment, or tariffs, and are now in preventive detention, in harsh punitive conditions, for crimes they haven’t yet had a chance to commit. (I am indebted to Bob Knowles for these figures.)
Following an article in the Guardian on 31 May 2016 about an IPP prisoner who has been in prison for 10 years after having been given a 10-month ‘punishment’ tariff when originally sentenced and who still has no prospect of release, I wrote the following letter to the Guardian, which carried it in full on its website on 2 June but published only the second half of the letter in the print edition of the same date:
“The Guardian, the BBC, the Prison Reform Trust and Ken Clarke have performed an invaluable service in again exposing the injustice and inhumanity still being visited on the thousands of prisoners in England and Wales who have served the ‘punishment’ period of their sentences, but are still being indefinitely punished for crimes they can’t prove they won’t commit in the future if released – a form of punitive, indefinite preventive detention surely unprecedented in a democracy in peacetime (Defunct law that keeps thousands in jail is branded absurd by Clarke, 31 May).
“Clarke as Justice Secretary abolished Indeterminate Sentences for Public Protection (IPPs) in 2012. Figures on the Ministry of Justice website are either hopelessly out of date, or fail to distinguish between IPPs and (quite different) life sentences, or both, but the BBC says there are still about 4,000 with little hope of ever being released, and that nearly 400 have served more than five times the period for punishment in their sentences. The simple solution proposed by Ken Clarke before he was spinelessly sacked by [David] Cameron is to abandon the Kafkaesque condition for release that the IPP prisoner must satisfy the Parole Board that he or she will not re-offend (an inherently impossible requirement), and substitute a Parole Board obligation to order release at the end of the punishment period unless it has specific, published reasons for believing that the prisoner will constitute a serious threat to the public if released.
“If enough MPs receive messages from constituents calling on parliament to make this simple and uncontroversial change forthwith, there’s an outside chance that a sickening injustice will at long last be ended. (Labour’s apparent silence on the issue is incomprehensible.)”
My Guardian letter, both online and in print, was preceded by a letter from the admirable Frances Crook, Chief Executive of the Howard League for Penal Reform, pointing out that even after contriving to secure his release, an IPP prisoner remains ‘on licence’ for the rest of his life, and so is liable to be recalled to prison to serve yet another indefinite sentence if he ever breaches even the most trivial of the conditions imposed for his release. Ms Crook cites the case of an IPP originally given a 1-year ‘tariff’ or punishment period but who is still behind bars 13 years later. Even if he’s released in a couple of years’ time, he may still be recalled to prison at any time – all for an original offence that was deemed by the judge to be adequately punished by just 12 months in prison. Ten years after his hypothetical release on licence he would be able to apply for cancellation of his licence, but there’s no knowing whether that application would succeed.
Such are the nightmarish and iniquitous situations into which we, through our MPs and governments, thrust thousands of our (mostly quite harmless) fellow-citizens. Even when the mindless cruelty of the system is publicly exposed, ministers of both the Labour and Conservative parties, with the sole and honourable exception of Ken Clarke, are still too scared of the savagery of the right-wing tabloids to take the simple necessary action to put it right. Such political cowardice by our elected representatives is, or should be, beyond contempt.
Please email or write to your MP, of whatever party, demanding immediate redress for the more than four thousand IPP prisoners still languishing in our grotesquely overcrowded prisons. They are the victims of an unjust and barbarous system introduced and sustained by a succession of Labour Home Secretaries, a system whose abolition by their Conservative successor is still incomplete. And send a copy of your message, please, to the current Conservative Justice Secretary, Michael Gove, who has reportedly ordered “a review” of the situation – what is there to review? — but who may be too busy campaigning for Brexit to find time to do his day job by making this long overdue reform, not later, but now.
Well done Brian, for raising yet again, this terrible Kafkaesque issue of IPPs. If you remember, I used to contribute to your excellent blog years ago about this issue. Our son was finally released 2 years ago, having been in prison for 7 years, when his original tariff was 18 months. He is still under licence for the rest of his life with the risk of being recalled to prison at anytime for the most trivial of reasons, so cannot be said to be ‘free’. I cannot overstate how awful this situation is for people like him, and families and friends who are trying their hardest to maintain support, and keep up morale. Something must be done. The IPP Families Campaign is marvellous, and held a successful demonstration recently. Please look at their website for inspiration. Many thanks again, Brian. Warmest wishes, Helen. (Just bought your book, ‘What Diplomats Do’. It looks great!)
Brian writes: Thank you, Pat, for your generous comment. Of course I remember well your informative and moving contributions on this blog over a long period. How sad that after all this time, and years after the enlightened action by Ken Clarke in abolishing the wicked system of IPPs, there are still thousands of victims of it all round the country, especially those who have completed the ‘punishment’ part of their sentences but who still can’t satisfy the Kafkaesque conditions for their release — but also the former IPPs like your son who have been released but who remain liable for the rest of their lives to be dragged back to prison for the slightest infraction of their release conditions. Unbelievable!
Thank you too for mentioning the very useful IPP Families Campaign. Its website, at http://ippfanilycampaign.blogspot.co.uk/, is well worth a visit. I am very happy to see my recent letter to the Guardian quoted there, as well as the preceding Guardian letter from Frances Crook, head of the Howard League, about the evil implications for released IPPs of the licence system. And another veteran anti-IPPs campaigner, Bob Knowles, is also quoted there.
Finally, I’m greatly tickled that you have bought my book, What Diplomats Do, and I hope you will enjoy reading it. It’s a combination of novel, memoirs and textbook and it’s just been re-published in paperback, which you can buy with a sizeable discount by following the links at https://barder.com/wdd/. Pardon the commercial, but I couldn’t pass up the opportunity that you gave me!
Well done, Brian. I have written to my MP.
I have a feeling that Gove might well be emotionally and intellectually sympathetic. He ought to be in utilitarian terms too, given his ambition to reduce prisoner numbers.
Brian writes: Thanks for this, David. I agree that Michael Gove may well be instinctively receptive to the argument for releasing the thousands of post-tariff IPPs unless in a few cases there are specific reasons for believing that release would pose “a serious threat” to public safety. In his first weeks as Justice Secretary, Gove reversed some of the most retrograde measures that he had inherited from his reactionary predecessor, Chris Grayling, which aroused hopes for further reforms. But he is currently obviously preoccupied with the EU referendum and with (regrettably) sharing the leadership of the Brexit campaign with Mr B Johnson. After the referendum on 23 June, whatever the outcome, it seems likely that there will be a ministerial reshuffle — possibly even a general election — which inevitably puts a question-mark over Gove’s continued tenure of the Justice portfolio. So if there’s to be a rescue of the stranded IPPs, t’were best t’were done quickly (to misquote the Scottish play).
Unfortunately I don’t have an MP to write to: my former MP is now the Mayor of London and the by-election to elect his successor has not yet taken place. And it would be unrealistic to expect her (I hope it will be her) to take up this slightly exotic cause in her first few weeks as an MP, especially in the turmoil that’s bound to follow the referendum. Unfortunately it seems equally unlikely that HM Loyal Opposition will suddenly start to campaign on behalf of the stranded IPPs, since the few remaining Labour MPs who were Ministers in the Blair and Brown governments that were responsible for inventing and then perpetuating the misbegotten IPP system appear to resist any policy commitment by Labour now that could be interpreted as an admission that the whole thing was a disastrous injustice from the beginning. It’s difficult to find a word adequately to describe a politician who puts his or her amour propre before the liberation of several thousands of prisoners unjustly and unnecessarily incarcerated long after they have paid their debt to society for whatever offences they might have committed, and who now, along with their families, face the psychological torture — and the word is correct — of not knowing when, if ever, they are going to regain the freedom to which they are absolutely entitled.
Looks like a strong case in broad terms. Spoiled only by this odd generalisation:
“Thousands of our (mostly quite harmless) fellow-citizens”.
Also: “… substitute a Parole Board obligation to order release at the end of the punishment period unless it has specific, published reasons for believing that the prisoner will constitute a serious threat to the public if released.”
The whole problem is assessing how harmless or otherwise convicted serious criminals might be when they’re released? What if the Parole Board think that a killer with a record of extreme violence poses only a ‘moderate’ risk to the public?
Brian writes: Charles, I’m sorry to see the apparent implication of your comments that you favour a system of preventive detention, in punitive conditions, for former offenders who have served the sentences of punishment handed down to them and who are kept in prison solely because they can’t find any way to prove that if released they won’t reoffend. Most, though not all, received IPP sentences for relatively minor offences (as the relative brevity of their tariffs and the fact that they didn’t receive long determinate sentences or life sentences all tend to demonstrate). Since nearly half of all prisoners who have been released after serving determinate sentences reoffend, often soon after being released, there is plainly a statistical risk in releasing almost any prisoner at the end of his or her sentence, and society accepts that risk because the obvious injustice of keeping a human being in captivity, in the punitive conditions of an overcrowded prison, purely for fear that he might reoffend if released, manifestly outweighs that risk. What in that reasoning doesn’t apply to IPPs who have completed the punishment part of their sentences? Anyone in our society might commit an offence at any time: it’s a risk we just have to learn to live with. Where there’s a demonstrable risk that a specific individual is likely to pose a serious threat to public safety, there’s obviously a need to remove him from society, just as there’s a case for sectioning and detaining a person suffering from a psychological impairment that entails a serious risk to his own and other people’s safety. But there’s no case whatever for detaining such people, who are not being detained as a punishment but purely to prevent them from harming others or themselves if left at liberty in society, in prisons that are in practice used to punish.
The phrase “serious risk” to which you object is taken from the revised criterion for IPP release recommended in a green paper by the Ministry of Justice when Ken Clarke was its minister. The answer to your question — what to do about a post-tariff IPP who presents only a moderate risk of reoffending if released — is obviously to release him. We release people who have served their determinate sentences, often for serious crimes, as a matter of course, even though statistically nearly half present a more than moderate risk of reoffending, and regard it as their right to be released despite the risk. It’s all very well to be risk-averse, but to advocate keeping indefinitely behind bars everyone who presents even a moderate risk of offending if given his liberty is seriously paranoid, not just risk-averse.
Of course all this raises the broader question of how to bring down the rate of reoffending by rehabilitating convicted prisoners instead of just warehousing them in horribly overcrowded conditions and leaving them to rot in a closed society ridden with violence and drugs until it’s time to let them out. If we insist on treating as wild animals people for whose safety and welfare we have assumed responsibility, we shouldn’t be surprised if some of them behave like wild animals when they get the chance. Craven fear of the tabloids on the part of our politicians has a lot to do with it. But that’s a different (though related) issue.
Ah! By “mostly quite harmless” you mean “No-one including me knows whether they’re harmless or not, but if there’s only a moderate risk we should release them”. Got it!
Brian writes: You choose to ignore the evidence of relatively short tariffs reflecting the judge’s assessment of the need for a punishment term “for retribution and deterrence” reflecting the gravity of the offence (or relative lack of it), and the difference between an IPP sentence for a relatively minor offence and a long determinate or life sentence for a really serious one. Radically re-phrasing your interlocutor’s argument in order to discredit it is a familiar and tedious gambit. But you are right to repeat what I wrote about a moderate risk not justifying further preventive detention — obviously.
Thanks Brian. I agree completely with your denunciation. I can hardly believe this is happening and still tolerated in the UK. I hope to keep in touch as to how this develops.
Brian writes: I’m most grateful for this authoritative legal endorsement from Australia. John, I doubt whether anything is going to happen on this front before our damnable referendum on 23 June, or indeed for some time after it, especially if Brexit wins. Even then I suspect that the reform which we all want to see, a reform which could mean the reasonably early release of the thousands of stranded IPPs (even though each would have to be processed separately under the new criteria, which would take time), probably depends on Michael Gove keeping his job as Justice Secretary, and that must be in doubt now that Mr Gove is virtually at war with the prime minister over Brexit. So we are in the paradoxical position of wanting Gove to pay the price for his shameful behaviour as the most rational of the leading Brexiteers, while wanting him to be left in his job as Justice Secretary as probably the most socially liberal holder of that post since Ken Clarke, and extremely unlikely to be succeeded by anyone half as liberal as himself.