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In a historic ruling today, the European Court of Human Rights (ECtHR) has ruled that it is a breach of IPP prisoners’ human rights to keep them in jail indefinitely because there are no available rehabilitation courses that they need to do to demonstrate that they can safely be released, or because of delays in providing them.  The court has awarded the three IPP prisoners who took their cases to the court substantial compensation of between 15,000 and 20,000 euros (between £12,000 and £16,000).  This will set a precedent for thousands of similar claims to the English courts by IPPs who have been delayed in or prevented from taking courses set as conditions for consideration for their release.  However the government has already announced its intention to appeal against the ECtHR’s ruling, so the rest of this post has to be read as provisional.  If the government wins on appeal, we’re back to square one.

There is a full account of the European Court’s ruling and its immediate implications on the BBC News website at http://www.bbc.co.uk/news/uk-19630617.  This however is slightly marred by a misunderstanding in its final paragraph:

IPPs have been replaced with a system of longer sentences for some offenders coupled with extensive supervision and monitoring after release.

As regular visitors to this blog will know, this is wrong.  Parliament has passed an Act containing a provision to abolish all IPPs for the future, but the Justice Secretary (formerly Kenneth Clarke, now the more hard-line Chris Grayling) has still not set a date for abolition of future IPPs to come into effect, so judges are still handing down IPP sentences. Even when a date is set for abolition, existing IPPs won’t be directly affected.

It’s also worth remembering that there is no legal requirement for any IPP prisoner to complete any particular course as a condition for his or her release.  But in practice parole boards tend to refuse to consider an IPP for release at the end of his tariff (the minimum sentence, representing the element of the sentence deemed appropriate for punishment and deterrence) unless they have evidence that the prisoner has completed at least one course — often more than one — to demonstrate that he’s unlikely to reoffend if released.  But many of these courses are simply not available, especially in smaller prisons, and even when they are available, there may be a wait of several years before the prisoner gets to the front of the queue for a place.  As a result, thousands of IPPs are kept behind bars many years after they have served the punishment part of their sentences.  It is this that the European court has ruled a breach of their human rights under the European Convention on Human Rights by which the UK is bound under international law.

The European court’s ruling attributes the breach in the IPPs’ Convention rights to lack of resources in many English prisons, leading to insufficient courses being available and IPPs consequently being unable to satisfy the de facto conditions for their release.  It is difficult to see how the government — even if eventually forced to accept the ECtHR’s ruling — can correct this breach.  Obviously it would take years and cost millions to provide all the different courses in every single prison with enough places provided on each to ensure that there are no long waiting lists.  The only other escape from the dilemma seems likely to be a drastic reform of the criteria to be used by the parole boards in deciding whether to release an IPP, not including having taken a course which was not immediately available.  Such a liberalising reform was promised by Mr Clarke as Justice Secretary but never introduced.  Mr Grayling may now be forced to introduce a reform on these lines, probably much against his will.

Conclusions

It’s too early to predict with confidence how the government, with its new hard-line Justice Secretary, will respond to this damning and potentially expensive ruling.  On the face of it, and if they lose their appeal against it, they will have to reform the release criteria urgently, and avoid the multiplication of further problems in the future by bringing the abolition of future IPPs into effect immediately.  Both moves, if they happen, will be both welcome and disgracefully overdue.

It’s also worth recalling that virtually all penal reform bodies, and a few media commentators and bloggers (including this one), have been pointing out for years the sheer nightmarish injustice of the system, one element in which which the European court has now at last condemned.  The failure for so long by this government and its Labour predecessors to correct this scandalous injustice seems likely now to cost the UK taxpayers many millions of pounds in compensation to its thousands of victims.  Those in all three main parties responsible for this costly, negligent and callous indifference to easily avoidable injustice should now be held to account, in the court of public opinion if not at the Old Bailey.

But on a sadder note, it must also be recognised that by no means all IPPs will be eligible either for compensation or for accelerated release, even if the government loses its appeal.  Only those who can show that their release has been significantly delayed by an absence of specific available courses, specifically prescribed as conditions for consideration for release, are likely to have a case for compensation.  IPPs who have not yet completed their tariffs are unlikely to qualify for compensation.  And it may take a long time before the release criteria to be used by parole boards can be changed to make them more flexible in the way that Kenneth Clarke advocated long ago.  Moreover, all these changes will be opposed and obstructed by right-wing Tory MPs and tabloid media commentators who will call them “soft on crime” and another example of European interference in British affairs — even though the European Court of Human Rights has nothing whatever to do with the European Union.

Perhaps most regrettable of all, the European Court has not ruled that the whole concept of indefinite preventive detention after an offender has paid his debt to society by completing his tariff is in breach of the human rights convention, as many of us hoped it would eventually do.  The limited scope of the ruling will leave loopholes through which this most right-wing of governments will try to squeeze, even if it loses its appeal.  So there’s still much to be done.

Up-date (19 Sept. 2012):  Today’s Guardian carries a very useful report on the ECtHR ruling, the government’s lamentable reaction to it, and the justifiably excoriating comments by Frances Crook of the Howard League for Penal Reform  and Juliet Lyon of the Prison Reform Trust: the Guardian website version of the report is here, and well worth reading.  The new Justice Secretary, Chris Grayling, has confirmed that the government intends to appeal and is considering on what grounds it can do so.  Grayling has pointed out (correctly, I’m sorry to say) that the ruling of the European Court does not say that the IPP system as such is unlawful or in breach of the European Convention; nor does it mean that even post-tariff IPP prisoners must or will be released any earlier than would have been the case before the ruling.  The government has three months in which to lodge an appeal and has made it clear that it will not pay the compensation awarded by the Court to the three men until and unless all possibilities for appeal have been exhausted.

It’s worth highlighting the facts that all three men who have won their appeals in the European Court of Human Rights (ECtHR) were in privately run local prisons with few if any facilities for rehabilitation, such as the rehab courses often demanded by parole boards before they will consider applications for release;  and that the tariffs set by the judges in the three men’s IPP sentences were two years, 12 months and nine months respectively — indicating that their offences had in no case been judged to be extremely serious, and certainly nothing like serious enough to deserve a life sentence (which is what an IPP is liable to amount to).  The one of the three appellants who had served the longest time beyond the end of his tariff had served for two years and 10 months beyond his tariff.  There is of course ample evidence on this blog and elsewhere that many, many IPPs have served for much longer periods after their tariffs had expired, so if the ECtHR ruling is not overturned on appeal, some IPP prisoners may expect to receive even more handsome compensation than that awarded by the ECtHR.  The seven European judges, including the British judge, whose ruling was unanimous, summed up their finding in words that could almost have been copied out from any of the numerous posts on the subject on this blog, including the comments on them:

“The stark consequence of the failure to make available the necessary resources was that the applicants had no realistic chance of making objective progress towards a real reduction or elimination of the risk they posed by the time their tariff periods expired,” says the ruling.
“Moreover, once the applicants’ tariff had expired, their detention had been justified solely on the grounds of the risk they had posed to the public and the need for access to rehabilitative treatment at that stage became all the more pressing”.  The judges said that in those circumstances their detention had been “arbitrary and therefore unlawful“.

Any self-respecting British government would bow its head in shame at such a damning verdict on its own and previous governments’ failures.  Mr Grayling should abandon any thought of appealing against this patently justified ruling, and undertake radically to reform a fundamentally rotten system without delay, whatever the cost in compensation to its thousands of victims.  In slower time, there will need to be an inquiry into how such gross and callous negligence was allowed to persist over so many years, and why our domestic courts failed to denounce it in the definitive terms now adopted by the European Court.

Brian

11 comments on European Human Rights Court rules administration of IPPs in breach of Human Rights Convention

  • Brian says:

    I have today added the following update to this post:

    Up-date (19 Sept. 2012):  Today’s Guardian carries a very useful report on the ECtHR ruling, the government’s lamentable reaction to it, and the justifiably excoriating comments by Frances Crook of the Howard League for Penal Reform  and Juliet Lyon of the Prison Reform Trust: the Guardian website version of the report is here, and well worth reading.  The new Justice Secretary, Chris Grayling, has confirmed that the government intends to appeal and is considering on what grounds it can do so.  Grayling has pointed out (correctly, I’m sorry to say) that the ruling of the European Court does not say that the IPP system as such is unlawful or in breach of the European Convention; nor does it mean that even post-tariff IPP prisoners must or will be released any earlier than would have been the case before the ruling.  The government has three months in which to lodge an appeal and has made it clear that it will not pay the compensation awarded by the Court to the three men until and unless all possibilities for appeal have been exhausted.

    It’s worth highlighting the facts that all three men who have won their appeals in the European Court of Human Rights (ECtHR) were in privately run local prisons with few if any facilities for rehabilitation, such as the rehab courses often demanded by parole boards before they will consider applications for release;  and that the tariffs set by the judges in the three men’s IPP sentences were two years, 12 months and nine months respectively — indicating that their offences had in no case been judged to be extremely serious, and certainly nothing like serious enough to deserve a life sentence (which is what an IPP is liable to amount to).  The one of the three appellants who had served the longest time beyond the end of his tariff had served for two years and 10 months beyond his tariff.  There is of course ample evidence on this blog and elsewhere that many, many IPPs have served for much longer periods after their tariffs had expired, so if the ECtHR ruling is not overturned on appeal, some IPP prisoners may expect to receive even more handsome compensation than that awarded by the ECtHR.  The seven European judges, including the British judge, whose ruling was unanimous, summed up their finding in words that could almost have been copied out from any of the numerous posts on the subject on this blog, including the comments on them:

    “The stark consequence of the failure to make available the necessary resources was that the applicants had no realistic chance of making objective progress towards a real reduction or elimination of the risk they posed by the time their tariff periods expired,” says the ruling.
    “Moreover, once the applicants’ tariff had expired, their detention had been justified solely on the grounds of the risk they had posed to the public and the need for access to rehabilitative treatment at that stage became all the more pressing”.  The judges said that in those circumstances their detention had been “arbitrary and therefore unlawful“.

    Any self-respecting British government would bow its head in shame at such a damning verdict on its own and previous governments’ failures.  Mr Grayling should abandon any thought of appealing against this patently justified ruling, and undertake radically to reform a fundamentally rotten system without delay, whatever the cost in compensation to its thousands of victims.  In slower time, there will need to be an inquiry into how such gross and callous negligence was allowed to persist over so many years, and why our domestic courts failed to denounce it in the definitive terms now adopted by the European Court.

  • ObiterJ says:
  • Brian says:

    @ObiterJ:  Thank you for this highly relevant quotation.  It is indeed deplorable that the English courts failed to declare the IPP system, or at the very least the way it was (and still is) being administered, incompatible with the Human Rights Act (and thus with the Convention).  As I understand it, the English courts interpreted the requirement to provide facilities for rehabilitation of IPPs as an ‘aspiration’, whereas the European Court has declared it an obligation — a fantastically pedantic distinction when there is so much at stake in terms of human liberty, suffering and misery.
    I suppose the government will, as you say, now try to spend a huge amount of money trying to provide rehab courses for every one of the 6,000+ IPP prisoners.  But will this really be feasible?  6,000 places in prisons scattered throughout England and Wales, big and small, onaround a dozen different courses?  I suspect that this will prove totally impracticable and that they will content themselves with a big expansion in the courses, combined with a radical overhaul of the release criteria that will have the practical effect of accelerating the rate of IPP releases.  They will also need to set a much earlier date for abolition of future IPPs than they seem to have intended.  But none of this will happen until they have mounted an appeal and seen it rejected, which could take a considerable time, presumably.
    As a gloomy postscript, the virtual silence of the Labour opposition front bench on this issue has been and remains a dark blot on the record of the party which I support.  Its few utterances on the subject have been deeply shifty and ambiguous.  When he was elected Labour leader, Ed Miliband promised to restore the party’s standing as the champion of human rights and civil liberties.  Yet now, two years later, that promise has not been honoured and the Labour leadership remains to this day too cowardly to renounce the poisonous and illiberal legacy of such New Labour home secretaries as Blunkett (responsible for IPPs in the first place), Straw, Reid, Charles Clarke, Johnson, and Jacqui Smith, any one of which should have acknowledged the grotesque injustice of IPPs and swept them away, but lacked the guts to do so.  What an irony that it was a Tory Justice Secretary, Kenneth Clarke, who at last did what should have been done years ago!

  • shirley mccarthy says:

    Thank you Brian for this information,my son recieved an ipp sentence in January 2012 at age 21yrs,it is the most unfair injust sentence ever,he was found guilty with no evidence of a charge he didnt commit,now they have told him he will have to do a course related to this charge,or they say he could be in years and years or never be released,because he has to show hes sorry,how can he show hes sorry for something he didnt do,we have got an ipp campaign at the moment and there is ladies on there whose sons or partners are 4,5yrs over tariff,something needs doing soon as to many ipps are also commiting suicide and it is destroying families Thank you for reading

    Brian writes: Thank you for this. Any prisoner, whether or not given an IPP, who continues to protest his innocence is certainly in a difficult position, because parole boards assessing whether a post-tariff IPP or any other prisoner who has served half his determinate sentence can safely be released will look for evidence that the prisoner has “come to terms with his offence” and expressed remorse for what he has done in deciding how likely he is to re-offend. Prison staff and parole boards can only work on the assumption that everyone convicted in a court of law of an offence is guilty, for obvious reasons. Your son was sentenced less than a year ago and the best advice you can give him is probably to enroll for all the courses he is asked to do and to show by his behaviour that he can safely be released at the end of his tariff, however long that might be. I understand that protesting one’s innocence can’t be a reason on its own for rejecting an application for release at the end of the tariff. Your son’s solicitor ought to be able to advise him on whether he has a case for an appeal against his conviction.

  • rita lister says:

    my son is not a danger to the public he has done two courses and has to do a third hes been suicidal through this shame on the government to keep this sentence and for chris grayling to even think about appealing when he says he all for reabilitation it is destroying families everywher i dont think the government cares they just think all ipps are scum  about time this was gone and something in place with a date for release
     
    Brian writes: Thank you for this. There’s no doubt that future IPPs are going to be abolished: the only question is when abolition is going to be brought into effect. Some members of the government undoubtedly care greatly about the injustice of IPPs — which is why they are being abolished — and about the need to reform the system for assessing existing IPPs for possible release. The ruling of the European Court will eventually have an impact on the procedures for existing IPPs to be assessed for possible release, but if the government does appeal against this week’s judgment, it will all take time and a lot of patience will still be required. However, it seems certain that improvements are on the way and that this is no time for any IPP to give up hope, still less even to think about suicide. You might consider asking your son to seek advice and support from his prison’s Independent Monitoring Board.

  • Shirley mccarthy says:

    Hi Brian Thank you for your reply,i am in a campaign called stricly ipp the fight continues,on facebook,it is mainly people with an ipp in the family,was i was wondering have you got any ideas,what else we could do,we are getting signatures on a petition writting to mps etc,one lady has suggested we write to ECHR and let them no how we as the public feel about ipp,i think this is a great idea,also another lady suggested we get all the ipps to also write a letter about there expeiriences as well,have you got anymore ideas Thank you

    Brian writes: Thank you for this, Shirley. I have responded in a separate comment: please see http://www.barder.com/3717/comment-page-1#comment-152816.

  • Brian says:

    @Shirley McCarthy:  Thank you for your further comment (at http://www.barder.com/3717/comment-page-1#comment-152812).  I welcome the news of your campaign: anything that raises public awareness of the defects of both IPPs and the incompetent, callous and unjust way they are administered can only be good, although arousing public sympathy for people who are inevitably — and correctly — labelled ‘criminals’ is never going to be easy.  I suggest that before you decide whom to write to — MPs, the ECtHR, or whoever — you need to define your campaign’s main objectives (prefereably one main objective and no more than two secondary ones, if any at all).  Once you know what you are campaigning for, it should be clear where to aim your artillery — namely the people or organisation with the power to make the changes you are demanding.  For example, it’s a waste of time campaigning for MPs and parliament to abolish IPPs because parliament has already passed a law abolishing them.  If your objective is to persuade the government to set a date very soon for bringing abolition of IPPs into effect, then your demands should obviously go to ministers and especially to the Justice Secretary and the prime minister.  (The best way to ensure that they see your arguments for setting a date may be to ask your own MP to find out from the Justice Secretary and the prime minister why they still haven’t set a date and when they are going to set one.)

    However, setting a date for abolition won’t affect existing IPPs or their families, so perhaps your main objective should be to reform the way IPPs are assessed by parole boards at the expiry of their tariffs to decide whether they can safely be released.  In that case you would need to decide what it is about the present system that you object to and want to see changed — the delays, the difficulty of getting places on courses, the constant demands for IPPs to take more and more courses before they can be assessed or even before they can apply to the parole board, whether the presumption should be for release unless there are specific grounds for refusing it or whether the prisoner should continue to have to demonstrate that he or she has taken specific action that demonstrates unlikelihood to reoffend, lack of guidance and support for those who want to reform but don’t know how to work the system, etc., etc.

    I don’t see much point in writing to the ECtHR, which can only make decisions on points of law and interpretation of the Human Rights Convention arising out of the appeals which reach them.  If you know of cases that are in the queue for decision by the Court, you could try to find out the grounds of those appeals and offer to provide examples of injustice connected with those grounds to the lawyers who will be arguing the cases of the appellants, but even that is not very likely to affect the Court’s eventual judgements, which will be made on a purely legal basis.  It would involve a lot of research, correspondence and requests for legal advice.  As for the three cases on which the Court delivered its judgements last week, the government says it will appeal against them, so your campaign could try to persuade ministers not to appeal but to accept the Court’s rulings and pay compensation to the three men.  But this would mean paying compensation also to all the IPPs in the same situation, which could cost the taxpayer millions of pounds, so the Treasury is most unlikely to agree that there should be no application to be allowed to appeal.  Your campaign is unlikely to influence those decisions.  It’s obviously futile to make demands for things that are extremely unlikely to happen, whatever you say.

    Finally, you may legitimately aim to influence public opinion so that there will be pressure from the newspapers, television and radio, and individuals such as bloggers, for the specific reforms that you are campaigning for.  Once again, to achieve anything in this way you’ll need to focus sharply on one or two specific injustices which are capable of being put right.  It’s no good just complaining that IPPs are unfair and that this or that IPP prisoner has been kept in prison long after the end of his tariff through no fault of his own, even if all these things are true.  Remember that many, many people can’t see anything wrong with the idea that if someone has committed a crime (especially a sex or violent crime), he shouldn’t be let out unless he can prove that he won’t do it again.  You have to be very persuasive, and have cast-iron arguments for the reforms you are demanding, if you are going to overcome that first automatic reaction.

    Good luck!

    Best wishes
    Brian

  • rita lister says:

    thanks brian for your reply i note what you say my son has had delays on top of delays hes waiting for transfer to do a course which is going to be 2014 whicjh is keeping him in longer and he will have been in another couple of years by time hes done this one providing theres no other they want him to do
     

  • shirley mccarthy says:

    Thank you so much for this information Brian,we are going to different cities in uk to get public awareness,and signatures,a cpl of the ladies have been on the radio and tv and there is more tv and radio interviews comming up.we want ipp prisoners released on tariff if they have done everything asked of them,all courses etc and they are no longer a risk to the public.If the gouverment have failed to provide courses before tariffs up,they should still be released,as its through no fault of there own,How can they prove they are not a danger to the public when they are in prison.A lot of ipps have never been a danger to the public,and recieved ipp for minor offences.Thank you was again for all your help and i fully understand what you say,we are all going to need a lot of luck

  • lesley vann says:

    It is hard for IPP prisoners to do courses that they are expected to do.  My Son God Bless Him has told me of only three prisons which he can do his next one from.  One of them is in Lancashire which means he will vary rarely see his family and even then there is a waiting list.  His probation officer does not get in touch with him very often for him to find out what is happening and lets him down when she is supposed to visit him to draw up his next plan.
    [....]
    All i can wait for is my son coming home to me as all the other parents are having to do  and OH BOY i can’t wait for the next general election when we can hopefully boot these people [current government ministers] out of Parliament as they are not worthy of their position.   

  • Martina says:

    Judges reject UK demand for new hearing on prisoners’ human rights case

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