Caught in the system: the effect of abolishing IPP

The notorious indeterminate sentence of imprisonment for public protection (IPP) has been abolished. The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 received Royal Assent on 1 May 2012, and on

3 December 2012 the provisions of the Act that abolish the IPP were brought into force. The new regime instead creates a mandatory life sentence for a second listed offence where the previous sentence was sufficiently severe, and the new sentence would otherwise exceed a ten-year determinate sentence of imprisonment, and a separate determinate sentence called the extended determinate sentence that in effect replaces the IPP.

The new extended determinate sentence (EDS) will be available for any offender who is convicted after commencement of the new provisions, regardless of the date of the offence. However, the IPP and extended sentence for public protection (EPP) sentences will remain available on and after 3 December 2012 for offenders who were convicted before 3 December 2012 but have not been sentenced.

‘Dangerous’ offenders who meet the statutory criteria may be given the new EDS, which consists of a custodial term and an extended licence period. The risk threshold to be applied remains the same as under the Criminal Justice Act (CJA) 2003 (as amended in section 124 of LASPO). Schedule 15 of the CJA 2003 still governs the range of eligible offences (specified offences). The definition of dangerousness remains the same.

For adults, one of two further conditions must also apply: either the court must consider that the current offence is serious enough to merit a determinate sentence of at least four years (section 226A(3)); or if not, at the time the present offence was committed the offender must have previously been convicted of an offence listed in the new schedule 15B (section 226A(2)), no longer schedule 15A, as the old CJA 2003 (as amended) qualification required. Where these conditions are made out, the court has a discretion that it may (section 226A(4)) impose an extended period for which the offender is to be subject to a licence (an extension period) of up to five years for a violent offence and up to eight years for a sexual offence, or up to the maximum available for the offence (section 226A(8) and (9)).

Therefore the EDS comprises an appropriate custodial term, and an extension period of licence (section 226A(5)). Section 125 LASPO 2012 (and schedule 20) makes provision for the release on licence of persons serving sentences under the new EDS (inserting section 246A to the CJA 2003).

Unless the appropriate custodial term is ten years or more, or the offence is listed in the new schedule 15B CJA 2003 parts 1 to 3, the Secretary of State will have a duty to release a person from an EDS at the conclusion of the requisite custodial term, that is after two-thirds of the appropriate custodial term has been completed, without any reference to the parole board. In other cases the parole board will be able to direct release before the conclusion of the appropriate custodial term. Any prisoner who has not been released by the end of the appropriate custodial term will be released then (section 246A(7) CJA 2003).

There is accordingly no power to imprison and detain indefinitely those offenders who satisfy the ‘dangerousness’ provisions set in the CJA 2003 that are retained in substance in LASPO 2012. This marks a very substantial difference from the previous IPP regime, which requires such prisoners to satisfy the parole board that their detention is no longer necessary and have no guarantee of release at any date.

However, these changes have not been given retrospective effect. This raises the question as to how the courts will approach offenders who would no longer qualify for an indeterminate sentence of imprisonment, but who have not succeeded in securing release through the parole board process.
The number of such prisoners is not ?likely to be small, given the release rate from the IPP sentence for those individuals granted an oral hearing remains low, at 14 per cent for the year 2011/2012, albeit an increase on the 6 per cent release rate from the previous year.

Qualifying for release

The signs are that the Court of Appeal (Criminal Division) is already alive to the unfairness that may arise for some prisoners who find themselves detained indefinitely. First, the court is prepared to grant considerable extensions of time for ?appeals to be heard. This is due to the significant changes made in the statutory provisions themselves for those sentenced since 14 July 2008, when the Criminal Justice and Immigration Act 2008 made fundamental amendments to the ?IPP. These changes rendered it discretionary rather than mandatory, limiting its availability to those receiving more serious sentences in terms of length, or with more serious antecedent history.Second, the court may approach the question of ‘dangerousness’ with the modern approach or understanding as to when an indeterminate term is appropriate.

While these approaches alone will ?not be a remedy to potential unfairness ?or stagnation in custody for every IPP prisoner, it may be that some will ?benefit from the appeal process as ?a result.

In Bayliss [2012] EWCA Crim 2720 permission to appeal and the necessary extension of time was granted to enable an appeal against the sentence imposed in 2006. The Court of Appeal allowed an appeal against an IPP sentence where the minimum term to serve had been two years. The court accepted that the evidence did not support the sentencing judge’s finding that the prisoner posed a “significant risk of serious harm by the commission of further specified offences”.

The prisoner had failed to gain parole given other issues he had, but the court accepted he was not a risk that justified the IPP being imposed in 2006, when the sentencing for IPPs was still relatively new to the criminal courts. His offence had been causing death by dangerous driving and while he had a record of driving convictions, there was not a real case he would go on to commit the same offence again. The court replaced the sentence with a determinate sentence of four years.

That prisoner had been unable to obtain parole given the stricter test being applied to release by the parole board (see ‘No end in sight’ Solicitors Journal, 27 April 2010). The concession previously made that the test of risk ought to be equivalent on both imposition of the IPP and on considering release from the IPP was not accepted by the Court of Appeal (Civil Division) in R (Sturnham) v Parole Board and SSJ [2012] 3 WLR 476, although the Supreme Court will consider the issue in May 2013.

Another appeal succeeded in Ariss [2012] EWCA Crim 1858. In that case an IPP imposed on 17 June 2005 was quashed. The index offences were robbery and ABH. The minimum term was two-and-a-half years. The court allowed the appeal and substituted a determinate sentence of

five years. The finding of dangerousness in section 225 CJA 2003 was not upheld despite previous convictions that included robbery, possession of an offensive weapon and common assault. That appellant “clearly did present a significant risk of harm to the public” but not significant risk of serious harm within the meaning of the statutory definition.

Managing risk

One further example of the application of the more modern approach to the criteria to be met for an IPP can be seen in Khan [2012] EWCA Crim 2361. n imam was convicted of sexual abuse of two young boys who attended the mosque. The sentence was imposed, in fact, by a High Court judge in March 2011. The Court of Appeal rejected the challenge to the test being met for an IPP, and found there was ample evidence upon which the judge could arrive at a conclusion that the appellant was dangerous in the sense that there was a significant risk that he would commit specified offences, particularly of a sexual nature and that this presented a significant risk of serious harm to a section of the public, i.e. pubescent boys.

However, the Court of Appeal allowed the appeal, explaining that it found great force in the submission made that if Khan continued to deny responsibility for his offences, and if imprisonment for public protection is imposed, he will either not be eligible to take part in courses or he will never be regarded as having addressed his problems. He would then never be regarded by the parole board as being eligible for release on licence and he will be “stuck in the system”. While in some cases that may well be an inevitable conclusion and the dangerousness of the offender and the need to safeguard the public will be such that it will be proper to impose the IPP sentence of “last resort”, each case has to be considered on its merits and its facts.

Khan was 43 years old when sentenced. If a determinate sentence of 16 years had been imposed, he would be released on licence at the age of 51, and the licence period would continue for the remaining eight years of his sentence of 16 years. He would then be 59. If an extended sentence was to be imposed, with a custodial element of 16 years and an extended licence period of five years, together with a strict Sexual Offences Prevention Order the risk posed would be satisfactorily managed. The court concluded that there was no requirement to impose the sentence of “last resort”, quashing the IPP.

While the statutory amendments have failed to expressly provide for those prisoners already subject to the IPP sentence, for some, and particularly those whose minimum terms were served and completed many years ago, the Court of Appeal may in appropriate cases be willing to allow meritorious appeals.