The IPP sentence allows dangerous people to be imprisoned indefinitely on the basis that the need of the public to be protected from them can in some circumstances trump the general principle that the severity of the sentence should match the seriousness of the offence that has been committed. This poses the question: how dangerous does someone need to be to warrant indeterminate imprisonment for the purpose of public protection?
There was no clear rationale for the threshold of dangerousness originally established by the IPP sentence. As we have seen above, there were two main parts to the definition of
dangerousness as it applied to the IPP. First, the person had to be convicted of any one or more of 96 violent or sexual offences, all of which had a maximum sentence of at least 10 years’ imprisonment; secondly, the person had to pose ‘a significant risk ... of serious harm’ to the public. Additionally, a previous conviction for any ‘specified’ offence (generally) denoted significant risk of serious harm. The direct consequence of this conceptualisation of dangerousness was that a great many more people were defined as dangerous and thus drawn into the net of the new indeterminate sentence than legislators had anticipated. Hebenton and Seddon describe this as a ‘classic instance’ of the ‘net-widening’ that is
inevitably associated with the ‘precautionary logic’ currently propelling governments, on both sides of the Atlantic, to deploy ‘law against law to ensure that institutional confinement is available for all those individuals who pose a serious threat to public safety’ (2009: 347-8).
A particularly absurd aspect of the very broad definition of dangerousness was that some of individuals were given IPP tariffs of no more than a few months or even weeks. The absurdity lay in the fact that, first, such short tariffs suggested that the index offences were relatively minor and thus did not warrant indeterminate sentences on grounds of the perpetrators’ supposed dangerousness; and, secondly, the prisoners’ prospects of release on tariff
completion were negligible, given the limited time available for addressing offending behaviour and thereby demonstrating reduced dangerousness.
The government response to the evident problem of an overly broad definition of
dangerousness was to shift the threshold upwards – by introducing the two-year minimum tariff for most cases and by abolishing the presumption of dangerousness where there was a previous conviction for a specified offence. However, there is little evidence that this shift reflected a clear-sighted approach to developing meaningful criteria of dangerousness; rather, it appears to have been essentially an attempt to devise a formula that would produce manageable numbers of IPP prisoners (without incurring the significant political cost that would follow from an obvious ‘softening’ of policy on violent and sexual offences).
Of course, any criteria of dangerousness in sentencing legislation will be arbitrary to some extent, given that ‘beyond a very narrow core of hard cases, the boundaries of
what constitutes the kind of behaviour that can be considered dangerous is open to dispute and contention’ (Bennett, 2008: 4). And the development of sentencing policy is necessarily driven by practical considerations - such as the limited resources of the Prison Service – as well as principle. Nevertheless, the replacement of one highly arbitrary threshold of
dangerousness with another is a cause of concern. Moreover the new threshold can still be criticised for being set too low: both in the practical sense that the large numbers of people who are continuing to receive the sentence of IPP are imposing a heavy burden on the Prison Service; and in the more substantive sense that many of those deemed dangerous, even under the revised definition, arguably have not been convicted of offences that are serious enough to warrant indeterminate sentences.
A great many of our respondents – particularly the criminal and prison lawyers, but also a substantial number among our samples of judges, Parole Board members and prison
governors/senior officials - expressed this latter view that the dangerousness criteria remain so broad that people are being inappropriately defined as dangerous. These respondents tended to question the rationale for the IPP sentence: they were of the view that the pre- existing discretionary life sentence provisions had been adequate for containing the risks to the public posed by the small number of genuinely dangerous offenders, or that rather than introducing an entirely new indeterminate sentence, government should have reviewed the sentence of discretionary life with a view to expanding its scope to a limited extent. Other respondents, in contrast, were confident that a new sentence had been needed as a ‘half-way house’ to capture those whose offending was not serious enough to merit a life sentence, but posed enough of a risk to the public that indeterminate sentences were justified. Identifying those who fall into this category is another problem, however; and this is the issue to which we now turn.