“Populist Politics and the IPP Problem”

Date of writing: 11/05/2016

It’s been a busy few weeks for me. I’ve sat down a few times now with the intention of starting to write this post, only to be interrupted by the continuous sine-wave tone of the cell bell (a very slightly flat F, I’ve established), which has of late mostly been the prelude to my receiving a guest in some degree of distress. I don’t know if the season has anything to do with the sharp increase in the frequency of my Listener calls – I had expected Christmas to be busy, but it turned out to be fairly quiet. Personally, I tend to find Spring somewhat wistful in the way some others seem to experience Autumn, while I am filled with a kind of sentimental joy as the mists of September set in. However, I suspect this is my own uncommon quirk, and the more usual statistical explanation of the clustering inherent in a Poisson distribution is more likely (see: buses all coming along at once).

A brace of attempted suicides on consecutive days within my own block has left me a little troubled. This prison has a comparatively excellent record on suicide prevention, though across the country there’s been an alarming overall increase in self-inflicted deaths in custody in the last few years. The root causes of this rise are hotly debated, but I note that it began suspiciously coincident with the tenure of Chris Grayling as Justice Secretary, and thus a number of highly unfortunate ‘reforms’ coupled with funding and staff cuts. It would, however be crass to simply blame one man – sociopathic as he may appear – for this unsettling situation.

Without breaking any confidences, my own recent experiences have given me an insight into why at least some prisoners might try to take their own lives. As I sat and listened, and watched over the course of hours a cherry stain from a thickly bandaged wrist grow and darken to plum, it came to me that it must be difficult for a person to hold on to hope when there is no end in sight for their incarceration. When someone has languished for a decade inside, with repeated anticipations and setbacks, but no real sign of getting any closer to release, I can see why he might consider reaching for the emergency exit.

While I’m fortunate enough to know exactly when I’ll be stepping through the gates, around 45% of people in this prison don’t have any date set for their release. The United Kingdom as a whole has something in the region of 14,000 indeterminately sentenced prisoners. To put this into perspective, that’s more than all the other 46 countries of the Council of Europe combined. Although this is an extremely troubling statistic in itself, within this number we also have a unique and fairly recent problem: while the majority of these people are ‘traditional’ life-sentenced prisoners, a little over 4,500 are serving sentences of Imprisonment for Public Protection, or IPP.

Introduced by David Blunkett in 2005, IPP was intended to be reserved for those who posed a “really serious risk” to the public. However, the concept appeared to be interpreted very broadly. In effect, IPP is a life sentence by another name, with a minimum term to be served (the ‘tariff’), and release only by approval of a parole board. However, in the first three years after its inception, many sentences were handed out that on the face of it were very un-life-sentence-like; tariffs as low as six months were not uncommon, indicating the (relatively speaking) minor nature of the offences. With such a tariff, you might expect release after maybe a year – or two at the most. This is where the system started to fall down: many of those sentenced with tariffs measured in months in the 2005-2008 period are still in prison today, some over a decade later.

The theory was that during their time in prison, IPP prisoners would undertake Offending Behaviour Programmes (OBPs) in order to reduce their (alleged) risk to the public, and be released once it was considered they no longer posed a threat. Herein lies a major difficulty: the need to prove a negative. In reality, it’s surely near impossible for a person to prove that they will not do something in the future. In an increasingly risk-averse society, the bar for release is set almost unreachably high. This, coupled with a scandalous lack of availability of places on the necessary OBPs, is what has led to the current situation. People who have long ago served what would be considered an appropriate sentence for their original offence are now effectively serving time for what they might do in the future, which sounds distressingly close to something form a dystopian sci-fi.

In July 2008, some of the madness of the situation was curtailed by the introduction of the requirement for the original offence to deserve a tariff of at least two years. In addition to reserving the sentence for more serious offences, in theory this should also have meant all people sentenced to IPP would spend enough time in custody to complete the prescribed OBPs within their tariff, ready for post-tariff release. However, the shortage of available places persisted, meaning that 1 in 3 have still not completed a single course, yet 77% are beyond their tariff expiry date.

IPP was finally abolished in 2012, after being ruled a violation of the right to liberty and security by the European Court of Human Rights, and was labelled as ‘arbitrary detention’ in the two cases it heard. None of the changes to IPP has however been retrospective, so thousands still suffer what could well one day be ruled wrongful imprisonment. And yet still the Lord Chief Justice continues to refuse IPPs leave to appeal their sentences.

While all these facts and statistics can tell you the bare history of IPP, the reality of it is brought home to me nearly every week. I hear the frustration, the anger, and the despair; I see the arms that bear fading parallel scars alongside fresh cuts, and I anticipate the day when I hear that for once, they got to someone just that little bit too late to cut him down.

Of course, day-to-day, most IPPs are just getting on with it, like the rest of us. But with each passing year, their continued imprisonment under such terms looks more and more unconscionable. I’m not suggesting we simply release all of these people; many have committed serious crimes, and many angry and damaged victims remain. I argue only that all prisoners should be treated fairly, and that in the wake of the ECHR ruling, each case of IPP should be re-examined on its own merits. David Blunkett himself recently expressed that the very strongly regrets the way in which the sentence ended up being applied, and that the resulting situation was never his intention. But politicians’ intentions rarely seem far-sighted when it comes to appearing to be ‘tough on crime’.

The very same bill that abolished IPP also included a section that imposes a mandatory life sentence if a person is convicted of any one of a set of specified offences for a second time: a so-called ‘two-strike’ system. This almost completely removes a judge’s freedom to use experience and discretion in their sentencing of such cases. Don’t misunderstand me – I’ve no illusions about the infallibility or dispassionate fairness of judges (partly from personal experience) – but at least they aren’t motivated by the need to be re-elected. Sentencing based (albeit indirectly) on outraged Daily Mail headlines is unlikely to be objective.

On Wednesday 25th May, the families, friends, and supporters of IPP prisoners will be meeting at 11 am in the Central Lobby of the Palace of Westminster, to demand a retrospective change in the law. They will then be marching on to the Ministry of Justice for 3pm. If you’re around, perhaps you might join them. But whatever the ultimate fate of those left with the legacy of IPP, the real problem as I see it is the continued interference of politics on the work of both the judiciary and the prison system. Though politicians make the law, that’s where their influence should end. Judges should be free to continue building on the long history of British case law, and the prison system should be managed through evidence-based policies that reduce re-offending and promote re-integration, without being forced to bend to the punitive demands of a fickle electorate. Until this happens, damaging mistakes such as IPP will continue to be made.