Government must find solution for open-ended sentences

Change the release test and remove 'life licences' to remedy 'seriously flawed system', say prison reform charities

The government must end the 'toxic legacy' of open-ended sentences for current and former prisoners who are still being punished by the 'manifestly unfair' repealed law, leading prison law experts have said.

Introduced in 2005, indeterminate sentences of imprisonment for public protection (IPPs) were abolished in 2012 after being used more widely than intended. However, over 4,100 IPP prisoners remain in custody - about 5 per cent of the total prison population - unable to prove they are safe for release.

Professor Nick Hardwick, the chair of the Parole Board, recently suggested a revision of the risk test so that prisoners will only remain detained if the Parole Board can provide evidence they pose a danger to the public; a reversal of the burden of proof.

Juliet Lyon, the director of the Prison Reform Trust (PRT), told Solicitors Journal that 'changing the release test would be a welcome step towards ending [the IPP system's] toxic legacy'.

'The burden of proof needs to rest with the state, demonstrating that a person presents a real risk to the public if they are to be refused release. Proving a negative - that you won't reoffend if released - for many is an almost impossible task.'

Frances Crook, the chief executive of the Howard League for Penal Reform, said the proposal was a 'sensible, level-headed and just reform' in her blog for the charity.

'We cannot continue to incarcerate thousands of people because of something they might do. It is manifestly unfair and it is causing chaos inside prisons as people are caged for years past the date they expected to be released with no end in sight.'

Pete Weatherby QC of Garden Court North Chambers, who has been involved in IPP cases since the system's inception, said: 'Prisoners would be released much more effectively and swiftly and we would not be in the appalling position that we are in now where, in effect, prisoners are kept in administrative, arbitrary detention, arguably unlawfully.'

Professor Hardwick's comments came just months after the Lord Chief Justice, Lord Thomas, sitting in the Court of Appeal (Criminal Division), said it was up to parliament to correct the current system.

More pressure had been applied in December 2014, when the UK Supreme Court held that all indeterminate sentence prisoners must be given a reasonable opportunity to reform themselves and demonstrate their safety for release throughout their detention under article 5 of the European Convention on Human Rights.

Lord Mance and Lord Hughes denounced the 'seriously flawed system of IPP' that was introduced 'without sufficient funding to cope with it'.

According to Lyon, 'the effect of Parole Board delays, limited resources, poor procedures for managing risk, and a lack of available places on offending behaviour programmes' have left IPP prisoners being held for years beyond their original tariff without knowing when they will be released.

A recent PRT report revealed that people serving an IPP have one of the highest rates of self-harm in the prison system. Figures showed that for every 1,000 people serving an IPP, there were 550 incidents of self-harm. This compared with 324 incidents for people serving a determinate sentence, and is more than twice the rate for people serving life sentences.

Professor Hardwick also posited that executive action could be taken to release IPP prisoners who have now served longer than the maximum current sentence for their offence.

Lyon went further, saying that discredited sentences could be converted into an equivalent determinate sentence, with a clear release date, and full support provided to people returning to their communities.

'Doing so would reintroduce fairness and proportionality into sentencing and consign our most unjust and ill-conceived sentence to the history books, once and for all,' she said.

However, Weatherby QC warned that while virtually all of the IPP prisoners would be released, 'a small number of prisoners who remain a risk would be released contrary to the intention of the legislature at the time of their sentencing'.

The Howard League also called for the 'life licence' given to prisoners sentenced to an IPP upon release to be abolished. Although it can be lifted after ten years upon request, Crook said a fixed period of supervision of two years would suffice, with the possibility of a further year if the secretary of state deemed it was required for public safety.

Weatherby QC agreed and said that having IPP prisoners on life licences was a 'huge squandering of resources', but stressed that the focus should be on sorting out the detention issue before going on to deal with the licences.

Matthew Rogers is a legal reporter at Solicitors Journal @sportslawmatt matthew.rogers@solicitorsjournal.co.uk