Picking up the IPP pieces

Sentences of indeterminate imprisonment for public protection have been in the spotlight since their controversial introduction in 2005. Introduced by virtue of section 225 of the Criminal Justice Act 2003, the sentences are imposed upon offenders deemed to be 'dangerous' according to statutory criteria. A minimum sentence '“ or 'tariff' '“ is set by the sentencing judge. After expiry of ?the tariff, the inmate is eligible for release but only once the Parole Board has found that he or she no longer poses a danger to the public.

The prison system was quickly swamped with IPP prisoners and, even after the statutory criteria were narrowed in 2008, a huge number of indeterminate sentences continued to be imposed. Judges retained a small degree of discretion as to the imposition of an IPP and the reality is that indeterminate sentences were an attractive option for judges who '“ perhaps understandably '“ did not wish to shoulder the blame for the potential future offending of violent criminals.

Unable to meet criteria

It rapidly became obvious that the availability of courses and training, completion of which were required to satisfy the Parole Board of a prisoner's rehabilitation, was completely inadequate. The result was a large number of prisoners languishing in prison well beyond their tariff date with no means of demonstrating that they meet the criteria for release. Anecdotally, it is reported that newly-sentenced IPP prisoners are categorised as '99s' on their booking-in at prison '“ a clear indication of the reality of the sentence.

Three individuals, who had or were still serving IPPs beyond their tariff dates, challenged the lawfulness of their detention beyond this minimum term. This culminated in the recent ruling of the European Court of Human Rights in the case of James, Wells and Lee v the United Kingdom (Applications nos. 25119/09, 57715/09 and 57877/09) that the applicants' right to liberty and security under article 5(1) had indeed been breached.

While the court did not find IPPs to be unlawful per se, it found that the state's failure to provide sufficient rehabilitative courses led to what amounted to arbitrary detention after the minimum tariff had ?been served.

In a particularly damning judgment, the court found that the considerable delays in the applicants making any progress in their sentences had been the result of lack of resources, planning and realistic consideration of the impact of the IPP sentencing regime, where the introduction of the sentence had been premised on ?the understanding that rehabilitative treatment would be made available to the prisoners concerned.

In the UK, the ruling was predictably greeted by howls of outrage from the tabloid press but was warmly welcomed by prisoners' rights groups and human rights organisations. The government immediately vowed to appeal and it has ?a three month period in which to do so. ?If the court's decision is upheld, what are the ramifications for those prisoners who have or are still serving IPPs in English ?and Welsh prisons?

The first point to make is that IPPs are already on their way out: the Legal Aid, Sentencing and Punishment of Offenders Act 2012 abolishes the IPP, although the relevant section has not yet been brought into force and judges can continue to impose the sentence until it is.

However, there remains a vast army of inmates serving IPPs '“ some 6,000 at the last count, of which 3,500 have passed their tariff date. The 2012 Act has no retrospective application, and these inmates will remain incarcerated until they have established, to the satisfaction of a Parole Board, that they no longer pose a risk to society. It is these inmates who stand to benefit from the ruling.

Reviewing the rehabilitation mechanism

If the ruling is upheld, the coalition government will be obliged to take steps to ensure that detention of these inmates complies with article 5(1). The most obvious remedy would be to inject sufficient funding into the prison system to provide suitable courses and assessment processes for those serving IPPs. The other solution would be to review more generally the mechanism for demonstrating rehabilitation in order to expedite this process. Neither is likely to be at all attractive to either Tory backbenchers or the cash-strapped Ministry of Justice.

The other difficulty for the government is that these 3,500 inmates may now be in line for compensation, should they be able to prove that they too have been denied access to appropriate rehabilitative courses. And it does not stop there. Those prisoners who have served IPPs and have since been released may also have a claim in respect of time they spent in custody beyond the tariff date without access to courses. The final compensation bill could run into millions of pounds.

All in all, it adds up to a very considerable headache which the new justice secretary, Chris Grayling, could undoubtedly have done without. The lesson for lawmakers is, again, that hastily-made and reactionary legislation is dangerous in any field but none more so than in the arena of criminal justice.