Three broadsides for civil liberties and a key test for the LibDems

Three articles in today’s Observer newspaper fire welcome broadsides at the authoritarian crime and terrorism obsessives, in the cause of restoring some of our lost liberties.

Sophie Radice, journalist and commentator, launches a vigorous attack on Indeterminate Sentences for Public Protection (IPPs), basing her criticisms on a victim’s vividly related case history, and concluding:

Whether it is because of the savings that could be made (each prisoner costs £40,000 a year) or because of a serious desire to change the penal system or perhaps a bit of both, I don’t care, just as long as the idea of indeterminacy is thrown out. Our limited resources should be concentrated on those who have committed crimes which show that they really pose an actual, rather than a possible, threat to the safety of the public.

That’s a neat way to make the central point:  nearly half of the more than 6,000 IPP prisoners in our prisons have completed the punishment and deterrence element in their sentences: they continue to endure the harsh punishment of imprisonment, not for anything they have done — they have already been punished for that — but because our risk-terrified society is scared to release them for fear that they might one day, in some way, re-offend. They are being brutally punished for offences they haven’t committed and which they might well never commit if released. And it’s worse than an ordinary prison sentence because the IPP prisoner can have no idea when or even whether he will ever be released.  This is not imprisonment as punishment: it’s preventive detention, which has no place in a just and democratic society.    A report earlier this year revealed that only 94 of the 6,000 prisoners given an IPP sentence have been released.   This is not just insane: it’s downright wicked.  Full marks to Sophie Radice for exposing it so vividly in the mainstream media.

The second broadside is a report by Anushka Asthana in the same issue of the Observer of an equally withering attack on IPPs by the chairman-elect of the Bar Council, Peter Lodder QC.  Mr Lodder is reported as saying that —

there were fears prisoners could face a “Kafkaesque” situation where they had no idea when they would be released. He warned that the growing numbers placed on indeterminate sentences threatened the “contract” between prison staff and inmates that ensured the smooth running of jails.

“One can see how for prisoners in this situation, where there is no light at the end of the tunnel, there is little incentive and a great deal of frustration, and that is what leads to the harm to emotional and mental wellbeing,” Lodder said.

“If you have an ordinary sentence – a determinate sentence – then one-half of that sentence will not be served upon the basis that you are well behaved. That is an understanding – a contract – that makes sure prisons run smoothly. On these [indeterminate] sentences, there is no such provision.”

… “The government needs to accelerate the parole reviews for prisoners [who have served their tariffs but are still in prison. It] needs to consider whether once these prisoners have served the minimum term they can be released, and what appropriate and speedy mechanism there can be to facilitate that,” he said.

He appreciated there would be concern if those who were released reoffended, “but what should not happen is that there is a disproportionate fear of one of these prisoners reoffending or a disproportionate reaction when one of them does. In other words, [the government] need political nerve.”

One of the problems was a “risk-averse culture” on parole boards, Lodder said, because of the difficulty in proving that someone was no longer a danger.

Others warned that prisoners were suffering from mental health issues as a result of uncertainty over their sentences. A report by the Sainsbury Centre for Mental Health found that more than half of IPP prisoners have problems with “emotional wellbeing” and almost one in five receive psychiatric treatment. Many told researchers the lack of a release date to work towards had damaged relationships with family and friends.

Dominic Williamson, chief executive of the charity the Revolving Doors charity, which offers support to offenders, said many felt left in “limbo”.

Paul McDowell, the chief executive of Nacro, the crime-reduction charity, said of his time as governor of Brixton prison in south London: “I have a vivid memory that one of the most common things was people coming up to me and saying: ‘I am an IPP prisoner – there is nothing I can do, I feel trapped in this cycle and I can’t get out of it.’ Those sort of sentences were ill-thought-out, rushed through, a kneejerk reaction to a media storm. They are grossly unfair and not in the tradition of British justice with its fair-play approach.”

The Ministry of Justice said it was carrying out a full assessment of sentencing and rehabilitation policy, including IPPs. A spokeswoman said: “There is no question that we must protect the public from the most dangerous criminals in our society. However, we must also ensure the courts have the power to make the right response to stop people committing crime.”

IPPs have been condemned in equally forceful terms by the civil rights organisation Liberty, by the Prison Reform Trust, and even by the president of the Prison Governors Association, who according to a recent Guardian report ‘will describe the situation of inmates serving a sentence of imprisonment for public protection (IPP) as —

a blatant injustice”, and call for the “immediate release” of the 2,850 IPP prisoners ‘being held well beyond their “tariff point” – the minimum date after which the parole board can authorise their release.’ [Emphasis added]

Both the Justice minister and the responsible junior minister have acknowledged that IPPs are indefensible.  The full weight of informed and responsible opinion has come out loud and clear for their complete abolition.  We shall see whether those enlightened ministers are prepared to stake their political reputations and perhaps their careers on that urgently necessary reform when the review of sentencing policy is published in the next few weeks and ministers have to declare their intentions.  As the chair-elect of the Bar Council quoted above rightly said, all that will be needed is for the coalition government to show some “political nerve”.

The third Observer broadside in the cause of restoring our lost liberties is Andrew Rawnsley’s politics column, in which he discloses that there is a ferocious battle going on between the head of the Security Service and a group in the home office on the one side, and the LibDem members of the coalition plus Ken Clarke and other liberal Tories on the other, over the future of the deeply repugnant Control Orders régime and the obscenity of 28 days detention without charge. It has been a key feature of the coalition agreement between the Conservatives and the LibDems that under New Labour the balance between the need to counter crime and terrorism, and respect for our historic civil rights, has tipped too far in the direction of the former, and that the imbalance needs to be  corrected by radical reform or repeal of some of the more extreme anti-terrorism and anti-crime measures of the past 13 or 14 years.  Rawnsley explains:

When [the Conservatives and LibDems] reached government, they commissioned a review. To oversee this review, they appointed Ken Macdonald, the former director of public prosecutions, who is now a Liberal Democrat peer. That appointment was taken as a signal of intent to repeal or reform those laws that are most offensive to the principles of justice. The former DPP was a particularly potent critic of “control orders” and 28-day detention without charge.

Rawnsley quotes some of the unqualified commitments, given when they were in opposition, by both LibDem and Conservative spokespersons to the scrapping of control orders — indefinite virtual house arrest for terrost suspects without charge, trial or conviction, based on allegations often not disclosed to those subjected to them — and to the scrapping also of the rule that allows suspects to be detained for as long as 28 days without being charged with any offence.  He continues:

The assumption was that the coalition would do this after it appointed Lord Macdonald. But here’s the rub. The review may be associated with him, but it has actually been conducted by the Office for Security and Counter-Terrorism, a unit based in the Home Office staffed by active or former members of the security services. The head of MI5, Jonathan Evans, wants to keep control orders. He used a speech last month to lobby publicly for the governing parties to break their promises to the voters. One senior figure with a ringside seat for this battle remarks: ‘This is what they always do. When Jonathan Evans eyeballs the prime minister and says, ‘I can’t guarantee that the public will be safe from terrorism if you don’t give me this’, it is hard for the prime minister to stand up to that.”

When Theresa May, the home secretary, went to see the prime minister and Nick Clegg to warn them that a serious and difficult dilemma was looming, David Cameron (according to Rawnsley, who won’t have written this without an impeccable source) said:

“We are heading for a fucking car crash.”

It will indeed require a strong ‘political nerve’, as Peter Lodder called it, for Tory and LibDem ministers to do what they know to be right and what they have publicly promised to do, in the face of dire warnings from the head of the Security Service, the Daily Telegraph (house organ of the Conservative Party) and the Daily Mail, together with the reactionary Murdoch press and television and the cave-dwellers of the far right of the Conservative party, that the abolition of control orders and 28-day detention without charge will expose the country to undreamed-of danger from terrorism.  The same ignorant pressures will be brought to bear on ministers not to abolish IPPs for fear of a wave of violent crime if 6,000 or so ‘criminals’ are freed to ‘roam the streets’, reoffending at will.  But how can Nick Clegg and the other LibDem coalition ministers remain in a government that surrenders to such illiberal pressures after the clear and unambiguous promises they have given?  To quote Andrew Rawnsley again:

There is a route out of [ministers’] dilemma. That is to stick to their promises, scrap control orders, charge those suspected of terrorism in open court and lift the ban on the use of intercept evidence to give prosecutions a better chance of success. To resistant members of the security agencies, the prime minister should say, and will have the support of many professionals in saying it, that they ought to concentrate on the intelligence-led approach to countering terrorism which has proved to be the most effective method of stopping bombers.

To do otherwise would be to betray their promises and the belief in liberty which is supposed to be the animating and binding value of the coalition. If they cannot hold true to their pledges on such fundamentals as justice and human rights, it will be hard to resist the conclusion that they can’t be trusted with anything.

Amen to that.  If ever there is to be a test of LibDem willingness to uphold their liberal principles, quite possibly at the price of withdrawing from the coalition, this will be it.  Expect an attempt at fudge over control orders, 28-day detention and IPPs, and perhaps other blots on our system of justice.  Will the LibDems go along with a fudge?  We shall soon see.


7 Responses

  1. Phil says:

    I can’t think of a single thing this government would do which Clegg and those who think like him wouldn’t be prepared to swallow. It’s true that there is still a strand of know-nothing parochial Thatcherite authoritarianism in the Tory Party, but Cameron is hardly being held back from joining them – they’re his enemy as much as Clegg’s, if not more so. So the question isn’t so much whether the Liberal Democrat leadership is going to break away from its ever closer embrace by the Tories, as whether the Liberal Democrat party can be taken back from that leadership. (On past form the answer is “yes, but not any time soon”.)

    Brian writes: Thanks, Phil. Of course you may be right. The LibDem leadership will naturally, and in some ways rightly or at least understandably, be deeply reluctant to break up the coalition, not least because of the fear that a break-up could (but need not necessarily) result in an early general election at which the LibDems could expect to be wiped out and the Tories might well win an overall majority enabling them to govern alone — a potential disaster for Labour and the country as well as for the LibDems. Positive action to restore some at least of the civil liberties lost under New Labour looks very much like a key promise on which justification for the coalition largely depends. However, it will no doubt be possible for Clegg and Cameron between them to dream up some sort of compromise on control orders, 28 days, IPPs, prison numbers, etc., that will just about satisfy the LibDems liberals, keep Ken Clarke on board, and not upset the Tory Neanderthals too much. That would be the British way, wouldn’t it? — an outcome that doesn’t really satisfy anyone.

  2. kaylewis says:

    this ipp sentance is so awfull for the poor prisoners more so than there families , something desperatley needs doing about it , my son is 1 yr 3 months over his tariff it took 3 yrs to do 1 course , its diabolical, i hope some thing is done and soon

  3. john greenwell says:

    These UK developments are very interesting to an Australian. The entire Indeterminate Sentencing regime   in England is too deplorable for extended comment. As explained elsewhere, the principle of punishment out here is based on criminal or moral responsibility of the defendant. The sentencing Judge must first determine guilt and the punishment based on an assessment of that, forms the outer boundary of the sentence. Within that parameter, account may be taken of deterrence or other relevant factors. With certain limited exceptions — incorrigible paedephiles comes to mind — indeterminate sentencing is rejected, rightly in my view, out here.
    The outcome of the current debate on the control order legislation is also of interest as as our control order legislation was modelled, although with differences, on that of the UK.

    I am puzzled that in the description of the debate there appear to have been no references to the Human Rights Act or the European Human Rights Convention upon which it was based, which is the framework for the control order legislation.

    As I understand it, it was enacted in response to Belmarsh the House of Lords decision which invalidated the detention regime, but which has since upheld the control order legislation as falling within the “strictly required” criterion of the Human Rights Act. The Courts have since invalidated certain orders where the particular order was held to be too onerous.I do not suggest that the judicial view should be controlling but it seems odd, especially when the objection appears to go to the principle of the legislation, that no reference is made to the decisions or to the human rights framework within which the control order regime has been enacteted.

  4. Phil says:

    John – the question isn’t so much whether the legislation itself is HRA-compliant (it is, or at least it has been declared to be) as whether its applications are. In a number of different cases the courts have whittled away at the control order regime, bringing specific provisions of specific control orders into line with the HRA and thereby setting ever more restricted terms for future control orders.
    I think the reason why Brian’s discussion focuses on the politics is that what remains is a political decision: whether or not to abandon a power which is clearly out of tune with the spirit of the HRA, and whose applications have been heavily restricted on HRA grounds (and may yet be restricted further). The MI5 position seems to be that the government should hang on to the power and use it to the full extent legally possible – and, if national security demands it, go a bit further and take the hit of a future court case.

    Brian writes: Thank you for this, Phil. You have said it for me. I apologise for not having responded to my old friend John’s post myself: I felt the need to do a little research into the legal history and haven’t had time to do it. I have the impression that various SIAC and higher court judgments about the HRA-compatibility (or lack of it) of various aspects of the operation of control orders have left the legal position in a right old muddle. The options are certainly being presented in the media as only two: abolish control orders, or leave them much as they are. Since the views of the two coalition partners on this, and between different wings of the Tory party, are largely irreconcilable, my uninformed guess is that the result will be a fudge whereby control orders will remain nominally on the statute book but so hedged around with stricter conditions that in practice no new orders will be imposed. Existing orders will then gradually and surreptitiously be lifted. I would prefer outright abolition but something like the fudge I envisage would be the next best thing.

  5. Sima Khan says:

    Hi everyone. My partner is due for a parole hearing in April and as i mentioned before he is serving an ipp 18 months tariff where he has done 5 years and two months. He was given  some reports to read which were written by his probation officer and these reports are at least two years old with all old information. I have tried to contact his probation officer who never gets back to me and he is not getting any further information form his offender manager no matter how many questions he is asking. Would anybody be abel to tell me where i can go to get help about these out dated reports and how we can find out if he has even been listed for his parole. Any advice would be valuable.  This is all getting too stressful and frustrating. Thank you.

    Brian writes: Thank you for this. I suggest that you get in touch with the Independent Monitoring Board (IMB) at your partner’s prison to see if they can help. The IMB has a good website at and you can find out more about the IMB at your partner’s prison by writing in the name of the prison at

    Other readers of this might have other suggestions as well?

    Good luck!

  6. Sima Khan says:

    I was wondering if anybody would be able to advise me. My partner was sentenced to an IPP in september 2005, before the 2008 changes. He recieved a 18 months tariff and he is completing his 6th year now. I was wondering if anybody could tell me whether we could appeal against the IPP due to the fact that if he was sentenced after the 2008 changes then he would not have been given an IPP in the first place. Is there any graounds on which we could appeal. Also i have been informed if he ver comes out on licence he can NEVER go on holidays or out of the country with me. Is this true. Also is it true that if you have criminal convictions any insurance you apply for hits the roof. I am so worried about all this because everything seems so difficult. How is he suppose to start a fresh and do new things with his life if he is not allowed to do a lot of things due to his licence. How are we suppose to live a normal life in any way with all a licenec on our heads forever.It will be a life in prison but you just cant see the bars around you. Please please does anyone have any advice on any of this please.  

    Brian writes: Thank you, Sima. You will have seen Jo D’s sympathetic response, below (at I am also passing on your comment by email to one or two other people with greater knowledge of the system than me, in case any of them can offer you advice. But at the moment it’s exceptionally difficult to predict what possible changes might be made. In the present harsh and punitive climate there may be no changes at all. Fingers crossed.

  1. 11 June, 2012

    […] According to Brian Barder’s website, “Nearly half of the more than 6,000 IPP prisoners in our prisons have completed the punishment and deterrence element in their sentences: they continue to endure the harsh punishment of imprisonment, not for anything they have done — they have already been punished for that — but because our risk-terrified society is scared to release them for fear that they might one day, in some way, re-offend. They are being brutally punished for offences they haven’t committed and which they might well never commit if released. And it’s worse than an ordinary prison sentence because the IPP prisoner can have no idea when or even whether he will ever be released.” […]

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