Once someone has been defined as ‘dangerous’ by the sentencing court and has been given an IPP sentence on this basis, the onus is on him, once he has completed his minimum term, to demonstrate to the Parole Board that he longer poses a risk to the public. This is made clear by the House of Lords judgment in the cases of James, Lee and Wells. Here it was asserted that although there should not be a presumption of continued dangerousness after tariff expiry, the ‘default position ... is that the prisoner is to remain detained unless the Board are satisfied he can be safely released’. (How exactly this ‘default position’ differs from a presumption of continued dangerousness is not clarified.) This is because the sentence of IPP will only be passed where the sentencing judge decides that ‘the prisoner would continue to be dangerous at the expiry of the punitive element [i.e. tariff] of the sentence; the necessary predictive judgment will have been made’.52 But, given the uncertainties and subjectivity of the risk assessment process, how exactly can the prisoner convincingly demonstrate to the Parole Board that he is no longer dangerous? One of our lawyer respondents observed (in an email) that the IPP prisoner is placed:
in the unenviable position of having first been sentenced on the intuitive possibility that a risk might exist and then having to demonstrate that those risks have reduced. If a risk cannot be properly quantified (or even identified), the presumption is continued detention and this can nearly always be justified on the basis of the actuarial tools assessing static risk factors.
As was noted by many of the prison-based psychologists, prison governors and senior Prison Service officials whom we interviewed, it is particularly difficult for a prisoner to
demonstrate that he is no longer dangerous when his risks have only been addressed in a custodial setting – since this is a highly artificial environment in which individuals do not have opportunities to face and learn to deal with many of the triggers of their dangerous
behaviour. For this reason, open prisons potentially have a very important role to play in preparing IPP prisoners for possible release, although to date the movement of IPP prisoners into open conditions has been slow. As of 5 February 2010, just under 200 IPP prisoners (197 to be specific), out of the total population of almost 6,000, were in open conditions (Hansard, 9.2.10: column 944W). Limited use of release on temporary licence (ROTL) for IPP prisoners also has implications for their capacity to demonstrate reduced risk.
If it is difficult to establish how exactly IPP prisoners can demonstrate their reduced
dangerousness, it is also difficult to know by how much the level of dangerousness needs to be reduced. In other words, how ‘safe’ does an IPP prisoner have to be in order to be
released? The vagueness of the ‘life and limb’ test for release has already been noted; but this is evidently a test under which the demands made of prisoners can be very stringent. Since IPP prisoners must positively demonstrate reduced risk before they can be released, the converse of the relatively low threshold of dangerousness for an IPP sentence is a relatively high threshold of ‘safety’ for release.
44
Extracts from letter to Prison Reform Trust from mother of IPP prisoner, November 2009
Initially, we naively expected that our son would be released on or about the expiry of his 18 months’ minimum tariff, i.e. in December 2008. After all, by then, we
understood that he would have served the ‘punitive’ part of his sentence, having been incarcerated for 11 months of that time in a Cat B prison, on a Vulnerable Person’s Wing, so locked in his cell for 22 out of 24 hours each day, without access to work or offender-related courses
…As it turns out, J- was transferred in May 2008 to a Cat C prison, where he remains to this day … J’s father was very upset by the Parole Hearing [held in November 2009]. He feels that the decision not to release J- had already been made prior to the Hearing, which turned out to be a ‘cat and mouse game’ to wear J- down, belittle him, and reduce him to tears. (The Hearing had to be interrupted twice, to allow J- to compose himself.)
… If he is ‘lucky’, he will have another parole in a year’s time (it could be in 2 years’ time), but if he hasn’t done the [specified] course, will probably fail to secure his release. This cannot be right, as J- is going round in circles, with the goal-posts being continually shifted, so there is little chance of him being released.
We, his parents, are extremely distressed by this situation. We are elderly, and trying our best as J-‘s only next-of-kin, to keep his affairs in order, but this is getting
increasingly difficult, owing to not knowing when he will be released. Other people have been supportive to us, but are now perplexed as to why he isn’t being released, and may be assuming that his original offence must be more serious than it was. Our health is starting to deteriorate, and we worry that we will not be able to maintain this level of support, which after all is important for everyone as it will enable J- to more successfully re-integrate into society, when he is finally released.
… We feel that the situation created by the imposition of an IPP on our son, for what is not now classified as a serious offence, is cruel and inhumane. We should be able to plan for his release, having a date to work towards. All we have is this Kafkaesque nightmare, to which there seems no end.
6. Conclusions
This report has charted the use of the sentence of imprisonment for public protection since its introduction in 2005. The main points to emerge are:
• Initial use of the sentence was much higher than anticipated by the Home Office when the legislation was planned.
• Reductions in the use of IPP prisoners following the 2008 amendments to the legislation were smaller than expected by the Ministry of Justice.
• There was inadequate provision of courses to reduce the risks presented by IPP prisoners, making it impossible for them to demonstrate suitability for release. • There was insufficient capacity for the Parole Board to review cases in a timely way
shortly after prisoners had completed their tariff period in custody.
• By the end of 2009 around 6,000 prisoners had been sentenced to an IPP, of whom 94 had been released.
• Around one in ten of the sentenced prison population is serving an IPP.
To some, this might seem a positive outcome: it means that a large proportion of people convicted of violent and sexual offences are serving much longer prison sentences than they would have faced before the introduction of IPP. There are undoubtedly some benefits that may have accrued in terms of crimes prevented. However this report has also pointed to some of the considerable costs. These are not simply financial. They relate to:
• limited ability to predict risk accurately • limited ability to reduce risk
• limited resources to achieve those reductions in risk that are possible • limited Parole Board capacity and risk averse decision-making
• the IPP prisoners who are no longer eligible for this sentence.
The first two points are questions about the principle of indeterminate preventative detention, and we shall discuss these first. We shall then consider the problems created by the fact that the amendments to the legislation were not retroactive. Next, we will examine the problems created by shortages of courses and parole delays - these are simpler – but no less serious – questions about the current operation of the IPP sentence judged in its own terms. We shall end by drawing out the lessons to be learnt from the mismanagement of the sentence as a policy reform, and considering the policy options that are available to the government.