Ken Clarke’s proposals on IPPs deserve a heartfelt welcome

The Justice Secretary, Kenneth Clarke, introduced his proposals for reform of sentencing policy in the house of commons this afternoon (7 Dec 2010).  These concentrated on reducing re-offending by more effective rehabilitation of offenders in and outside prison, and ensuring that people who should not be in prison are no longer sent there.  His proposals for reform of ‘Indeterminate Sentences for Public Protection’ (IPPs)  include drastically reducing to the most serious violent or sexual offences the range of crimes for which IPPs are awarded , and giving more realistic guidance to parole boards to  “focus indefinite imprisonment on those who clearly pose a very serious risk of future harm” — by implication removing the onus on the IPP prisoner to satisfy the parole board that he will not reoffend if released, and instead setting demanding conditions for refusing to release post-tariff IPP prisoners.

In his parliamentary statement and in reply to numerous mostly positive questions, Mr Clarke placed heavy emphasis on the need to punish offenders and repeatedly ridiculed any suggestion that his proposals would entail the release of thousands of murderers and rapists onto the streets.  But the substance of his proposals, including those on IPPs, is strikingly liberal and enlightened.  They will clearly be ferociously resisted by the obscurantists on the right wing of the Tory party and by the most reactionary of the tabloids, so their publication in much the form that has been foreshadowed in the past few months is an act of considerable courage on the part of both Ken Clarke and the prime minister.   The proposals are now published in a government Green Paper for public consultation until 4 March 2011, and comments from interested persons and organisations as well as from private citizens are invited.  The Green Paper lists 59 specific questions to which replies and reactions are invited.  None of these relates specifically to IPPs.

The initial response of the Labour opposition to Ken Clarke’s statement was, in my view, disappointing.  Sadiq Khan, the shadow Justice Secretary, concentrated on accusing Clarke of abandoning all the pledges in the Conservatives’ election manifesto designed to demonstrate a commitment to being “tough on crime” (in reply Clarke pointed out that Sadiq Khan had not criticised or opposed a single one of his specific Green Paper proposals, which was true, later claiming equally credibly that there was widespread support for his new approach in all three major parties in the house of commons).  Sadiq Khan was of course in a difficulty:  to have given the unreserved welcome to the proposals that they manifestly deserve would have been taken as a repudiation of the record of a succession of Labour home secretaries and justice secretaries, some of whom are still members of parliament.  One of them — Jack Straw, predictably — claimed that the measures envisaged by Clarke would probably result in an increase in crime, a singularly ill-judged and unhelpful intervention in a situation where Ed Miliband’s new start requires a discreet abandonment and implicit repudiation of New Labour’s authoritarian and illiberal assaults on basic civil liberties when in office.  Clarke’s new approach very clearly deserves strong support and the Labour party’s willingness to give it will be a vital litmus test of whether it has learned any lessons from past betrayals.

The Green Paper, ‘Breaking the Cycle Effective Punishment, Rehabilitation and Sentencing of Offenders’, is online at  http://www.justice.gov.uk/consultations/docs/breaking-the-cycle.pdf (PDF).  It runs to 96 pages and it will take some time to absorb it in detail.  Its comments and proposals on IPPs are quoted in full below.  They demonstrate that Clarke and his colleagues and officials have taken careful note of the powerful case against IPPs and especially against the way they are currently used, involving real injustice, even cruelty, for many of those serving them.  The logical implication of the Green Paper’s own criticisms of IPPs is that the whole system should be abandoned.  This however is clearly politically impossible.  Given that IPPs are bound to continue in some form, Clarke’s proposals for reforming them are as good as we could possibly have expected, and far better than many of us feared.   Here are the passages on IPPs:

40. Chapter 4 sets out proposals to reform adult sentencing so that we: …

–  reserve Indeterminate Sentences for Public Protection (IPP) for the most serious offenders, and reform the release test applied by the Parole Board to strike a better balance. This will focus indefinite punishment on those who most clearly pose a very serious risk of future harm;

…

173. There has not been enough clarity in the way that prison sentences have been explained to victims and public. This has created confusion about how sentences work…  This confusion has been exacerbated by the … growth in the use of indeterminate sentences where release is at the discretion of the Parole Board and no-one is clear how long the offender will actually spend in custody.

…

183. Public safety remains our primary concern and indeterminate sentences will always be appropriate for the most serious crimes. The Government has no intention of changing life sentences. However, we believe that indeterminate sentences of Imprisonment for Public Protection (IPPs) should only be available for the most dangerous offenders. These sentences are imposed subject to an assessment of what offenders might do in the future rather than based simply on what they have actually done. Release is not automatic, but is at the discretion of the Parole Board.

184. The sentence of IPP was introduced in the Criminal Justice Act 2003 and has been used on a much wider basis than expected. IPP prisoners are required to serve a minimum term after which the Parole Board can decide whether or not they are suitable for release. It was only intended and expected to be used in a limited number of cases, but there are already around 6,000 prisoners on an IPP sentence.

185. The current arrangements require offenders to satisfy the Parole Board that they do not present unmanageable risk in the community. Demonstrating this negative criterion can be extremely difficult which has led to a very low release rate of about 5%.

186. The limitations in our ability to predict future serious offending also calls into question the whole basis on which many offenders are sentenced to IPPs and, among those who are already serving these sentences, which of them are suitable for release.

187. The widespread use of IPPs has also further confused the sentencing framework, and can undermine public confidence since the court, the victim and the public have little or no means of knowing how long an individual spell in custody is likely to last or whether it will ever end.

188. It is also important that those who receive IPPs are able to reform themselves and that proper arrangements are in place for their rehabilitation. The larger the number of prisoners who are subject to the sentence, the more difficult this becomes.

189. For all these reasons, we believe that there is a strong case for ensuring IPPs are restricted to the exceptionally serious cases for which they were originally intended. We intend to bring forward reforms in order to achieve that. The previous Government took steps towards this in the Criminal Justice and Immigration Act 2008 by removing the option to impose the sentence on those who would not otherwise have merited a sentence of at least four years (two in custody with the remainder on licence) but they are still used too widely.

190. This Government intends to restrict the sentence to those who would otherwise have merited a determinate sentence of at least ten years (i.e. at least five years in prison and the remainder on licence). This change ensures that the sentence applies to serious rather than broad categories of crime and will capture very serious sexual and violent offenders. Offenders who no longer receive an IPP would instead receive a determinate custodial sentence for the crime for which they have been convicted …

191. When IPP prisoners are released they are managed in the community under robust licence arrangements. All IPP offenders are also subject to Multi-Agency Public Protection Arrangements. The Parole Board performs a vital public protection function, but we need to consider whether the release test it applies for IPP prisoners achieves the right balance. Currently, the Parole Board is only able to release a prisoner where it is satisfied that the risk of doing so is considered to be no more than minimal. For an offender who has already been convicted of a serious offence, it can be extremely difficult to demonstrate minimal risk of re-offending particularly whilst the offender is living in the closed prison environment.

192. At least 40% (over 2,400) of IPP prisoners have already completed the minimum punishment term of their sentence in custody, known as the tariff.

193. We are exploring whether a new test for those who have served their punishment would focus indefinite imprisonment on those who clearly pose a very serious risk of future harm. There is no question of releasing any IPP offender into the community without some clear assessment of risk. The Parole Board would still refuse to release offenders where it is clear that this was necessary to keep the public safe.

…

227. … We also plan to change the law to provide for foreign nationals who are IPP prisoners to be removed from the UK at tariff expiry.

…

250.Consistently with the proposals for adult sentencing set out in Chapter 4 we also propose to make the following further changes:
…reform Detention for Public Protection (the juvenile equivalent of IPP) in line with the reforms for adult Indeterminate Public Protection sentences; …

We may expect a blizzard of misrepresentation (and rather less misunderstanding) of these and the Green Paper’s other proposals, accompanied by the usual knee-jerk populist (and entirely false) accusations that any liberalisation of policy of the kind envisaged is “soft on crime”, neglects the rights of victims, and will unleash huge gangs of violent crooks and paedophiles into the community.  All the more reason for those of us who welcome the Green Paper (and wish it had been the product of a similarly enlightened Labour government) to respond positively to the invitation to contribute to the public debate on it, both by sending messages of strong but very specific support to the Ministry of Justice (see addresses below) but also by sending letters to the newspapers, especially in reply to ignorant attacks by others) and writing to one’s MP or to the shadow Justice Secretary to urge all-party endorsement of what, in the circumstances, is a brave and indeed revolutionary set of enlightened ideas for remedying many of the defects in the justice system bequeathed by New Labour.

Here is the Green Paper on responses to the consultation initiated by its publication today:

306. The consultation period will end on 4 March 2011, at which point all of the responses received will be analysed and considered.

307. Responses to the consultation can be submitted directly through the Ministry of Justice website at www.justice.gov.uk, via email to [email protected] or by post to Breaking the Cycle, Ministry of Justice, 10.08, 10th Floor, 102 Petty France, London, SW1H 9AJ.

Finally, I should stress that these can only be one person’s instant reaction, written within a couple of hours of listening to the mini-debate in parliament and skimming through the Green Paper’s 96 pages.  No doubt more careful study will reveal flaws and ambiguities that will need to be resolved or remedied.  Still, I have no doubt that the general thrust is to be welcomed and supported, and that the specific proposals on IPPs, if implemented, will eventually remove most, if not quite all, of that system’s worst and most repressive features.  But it will take time.

Footnote (9 December 2010):  For examples of the hardship and injustice that IPPs are liable to inflict (on the relatives of offenders as well as on the offenders themselves), please see the three case histories recorded by Charlotte Rowles on the Guardian website on 7 December.

Brian