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.
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.