It’s striking but sadly predictable the way almost every media commentator on the affair of the ‘prankster’ Australian DJs and the tragically dead nurse have missed the main point: namely that a hospital, any hospital, housing any patient, should be the very last target of choice for a hoax telephone call (‘hoax’ being a more accurate description than ‘prank’, with its implication of harmlessness). The DJs can’t reasonably be expected to have known that their hoax would end in tragedy, and their recent television interviews, tearful and obviously wracked with grief and remorse, evoke almost as much sympathy as the family of the deceased. The vitriolic reactions of sections of the UK press and the Twitterati do our country no credit at all, and the demand that “heads must roll” is sickeningly out of place. The DJs should be left alone to rebuild their lives — and their careers in radio.
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Each time this website and blog have celebrated the long overdue abolition, principally by a bravely liberal Ken Clarke, of IPPs (the truly vicious system of Indeterminate Sentences, imposed for less than the most serious offences, a toxic blend of preventive detention and undeserved life sentence), the celebration has turned out to be premature. The Act of Parliament providing for abolition hit the statute book on May Day, 2012, and we celebrated. The it transpired that the abolition clause of the Act didn’t come into force until a date to be set by the Justice Secretary. At last the date for that was set: 3 December, 2012. That day duly came, and we celebrated. Hang on, wrote a contributor to the blog: some judge has just handed down two more IPPs, on 5 December! Hasn’t anyone told him? Now it turns out that the 3 December cut-off date applies not to the date of sentencing but to the date of the offence! So there are still probably hundreds — perhaps thousands? — of people charged with a variety of offences allegedly committed before 3 December 2012, for example in connection with the widespread riots in England in August 2011, who have not yet been sentenced (although the reason for such delay is incomprehensible): so all of these, if convicted of offences for which IPPs were once prescribed by law, are liable to be given Indeterminate Sentences, not just now, a good eight months after IPPs were abolished, but way into the indefinite future. Clearly this is no time to celebrate after all. A heavy responsibility consequently rests on the Justice Secretary, now Chris Grayling, to clean up the nightmarish way in which existing IPP prisoners, all 6,000 plus of them, are currently grossly mismanaged and almost never approved for release. [PS: But now see up-date, below.]
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A warm welcome to this blog to any readers who have come here via that distinguished journal Password (only you will know what I’m talking about). If you, or anyone else, would care to use the ‘Subscribe’ facility somewhere up near the top left of your screen, you’ll get an automatic notification by email every time there’s a new post here (contrary to appearances it’s free, and you can subscribe under a nom de plume if you wish, so long as you provide a genuine email address — which won’t be made public). Those who have already subscribed can easily unsubscribe, too, if they wish, although I hope you won’t. It doesn’t take long to press Delete if the notification of a new post doesn’t look interesting. Meanwhile Zag (retired) sends his best wishes for a happy, er, holiday season.
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I have commented in another place (actually in the aforementioned Password) on the wretched, worn-out, threadbare cliché “fall on one’s sword”, meaning “resign” and adding absolutely nothing to that straightforward word. Now those misguided hysterics clamouring for the wrecking of the careers of the Australian hoax-calling DJs are demanding that they “walk the plank”. It’s just about understandable that there should be so many euphemisms for the d-word (“pass away”, “gone to meet his Maker”, “lost”, and so on), but who nowadays has a mental picture of anyone falling on his sword (not an easy thing to set up, one might think) or even walking the plank? Perhaps the series of films depicting Pirates of the Caribbean is to blame for the latter, and even, who knows?, for the former.
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One of the many tragic victims of the coalition’s illiterate “austerity” programme and its primary attack on the living standards of the poorest and most vulnerable in society seems likely to be the Beveridge principle of universality of benefits, which has hitherto been central to the whole idea of the welfare state. Beveridge stressed that if all those in society who could afford to do so paid their premiums in taxes and National Insurance contributions to a virtual state insurance scheme which spread the risks of unemployment, poverty, homelessness, ill-health and incapacity, across the entire population, those suffering any of those insured risks would be entitled as of right to the appropriate benefit, just as anyone making a valid insurance claim is entitled to have it settled. Thus we may all go to our GPs for our flu jabs or to be referred to a specialist, free of charge, whether we are paupers or millionaires; no-one suggests that those who can afford private medical care have a duty not to use the NHS. But the government’s increasing stress on need instead of entitlement as the criterion for benefits, and its callous claim to the right to reduce benefits in real terms, year by year, as well as capping some of them and abolishing others, corrupts the Beveridge principle of universality and so undermines the very foundations of the welfare state to which all major parties once subscribed — until Thatcher and Blair came along. The very idea that Labour might contemplate actually voting in favour of this outrageous programme of indiscriminate cuts to benefits (for which the vast majority of recipients have paid with their taxes and NI contributions), and demonisation of the poor, is beyond parody. Where is the dilemma?
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It’s not easy to explain the almost universal addiction to the two current television thriller series Homeland and The Killing. Both are almost incomprehensibly tortuous — even my wife has to turn to the online reviews next day to find out what has happened, and then to explain them to me — and both seem to take place almost entirely in the dark, with only torch beams waving up and down to show that the television set hasn’t broken down. Both involve wild improbabilities: in Homeland, the hero (or anti-hero) walks around the streets of Washington DC and other cities unrecognised and unapproached, without any kind of personal security, despite being a Congressman, a candidate for the Vice-Presidency and a supposed “national hero” widely celebrated on national television. Yet the programme is the very definition of compulsive viewing. Partly it’s because of the superb acting by everyone involved (in the case of Homeland, including by the large British contingent, all with apparently impeccable American accents); but perhaps more strikingly it’s because of the moral complexity and sophistication of both series, with deeply flawed principal characters, mixed motives everywhere, and no automatic distinction between right and wrong behaviour or between goodies and baddies. The repeated statements of motivation and almost of justification of terrorism in Homeland, with its savage denunciation of the murder of innocent civilians by bombing from an American drone, are truly astonishing for a popular American television programme. Full marks to both series for telling it pretty much the way it is in real life.
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Update and correction: I have just been authoritatively informed that the 3 December cut-off date for IPPs applies not to the date of the offence, as I was previously led to believe, but to the date of the conviction — which would normally, I suppose, be very near to the date of sentencing. If that’s correct, we should indeed be close to the last IPP to be handed down. A very tentative but heart-felt ‘hurrah!’, if so.
Please feel free to comment on this blog post, whether applauding, denouncing or correcting it — but please append your comments at the foot of the original article at http://www.barder.com/3871, not by private email. For example, please don’t send your comments as a reply to the email you may have received notifying you of a new blog post with the full text of it (but probably no illustrations or comments by others), unless what you want to say is purely personal. Thanks.
There are several possible explanations for David Cameron’s (and other Conservative ministers’) hardening objection to Lord Justice Leveson’s “essential” proposal that the new, press-initiated, independent and voluntary regulation of the press should be “underpinned” by a new law formally validating the new régime and guaranteeing press freedom from state control. The most obvious explanation, although not necessarily the right one, is that the prime minister lacks the backbone to stand up to the still-powerful newspaper proprietors and the right-wing press, or to his own Conservative libertarian right wing, nearly all of them noisily denouncing any idea of a law and insisting, against Leveson’s clear contradiction, that any law will amount to state regulation of the press – Stalinism without the charm. Another explanation is that Cameron genuinely believes that any law, even if it explicitly guarantees the press’s immunity from state control of content, will in practice turn out to be so complex and detailed that it will indeed amount to state control, as most of the press and some of his party colleagues claim to fear. Yet another, the one on which he seemed to lay most stress in the debate on Leveson in the house of commons, is that even the most innocuous under-pinning statute would be vulnerable to authoritarian amendment by some future illiberal government and parliament. This seemed, and seems, to me the most implausible of the lot:
The PM’s main “misgiving” about Leveson’s recommendation of a new law to underpin an independent press regulator reflects his fear that such a law could be amended or replaced by some future illiberal government in such a way as to infringe the principle of freedom of the press. But that danger must be much greater if there is no law already on the statute book that guarantees press freedom and the independence of the regulators than if there is. Leveson makes an irrefutable case for statutory backing for the new independent regulatory body he recommends, and which he stresses does not equate to statutory regulation. Parliament should clearly accept and act on it.
(Guardian, 1 December 2012)
Sir Brian Leveson envisages that the under-pinning law that he proposes would constitute a bulwark against state regulation of the press, not an instrument of it. Sir Harold Evans, perhaps the most distinguished British newspaper editor of our time, has remarked that the manifestly ‘free’ American press operates under the protection of just such a law – the highest form of law, namely the First Amendment to the United States constitution:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
On the other hand, some American commentators, including the sainted Bob Woodward, one of the two reporters mainly responsible for unmasking President Nixon over Watergate, have been expressing horror at the idea of any UK law affecting the press, claiming that under the First Amendment any such law would be unconstitutional.
The latest bizarre twist in the dispute is the Culture Secretary’s promise to draft and publish a Bill based on the Leveson proposals. The Bill’s declared purpose will be, not to present a government proposal for parliamentary legislation, the usual purpose of a government Bill, but the opposite: a document expressly designed to demonstrate by its reach and complexity that no such law could be made acceptable. If the government, or the Tory part of it, goes through with this weird exercise, it will be up to the Labour Opposition (which supports the Leveson proposal) and the LibDem members of the governing coalition who also support an under-pinning law, to amend the government’s deliberately flawed Bill so as to demonstrate that it can be made acceptable and effective without seguing into what could amount to state control.
The Secretary of State for Culture, Media and Sport, one Maria Miller MP, promoted a few weeks ago from her former invisible role as Minister for Disabled People at the Department for Work and Pensions, has made numerous universally unimpressive appearances on radio and television since the publication of Leveson, loyally denouncing any idea of an under-pinning law while constantly repeating in the same breath her mantra that the government fully accepts all the “principles” laid down by Leveson, apparently unaware that the two propositions are mutually incompatible.
Finally, today’s Financial Times reports that Ms Miller is convening a meeting of leading newspaper proprietors and editors next week at which she will urge them, not to draw up a plan along the lines proposed by Leveson for an independent press regulator, as they are invited to do by Leveson, but instead to devise an alternative to the Leveson blueprint! Apparently the prime minister’s and his Culture Secretary’s ‘acceptance of all the Levenson principles’ has some far-reaching limitations.
There are evidently some lacunae in the Levenson report: his unwillingness to condemn at all forthrightly either the suspicious failure of the police to investigate and prosecute the widespread criminal activities of British journalists, or the potentially corrupt relations between leading politicians of both main parties and some of the mightiest press magnates: the absence of clear guidance on how to regulate those press publishers who opt not to sign up to the new (voluntary) independent regulatory régime; and the failure to address the over-concentration of press ownership in too few, often non-British hands. Then there’s the thorny question of the impossibility (thank goodness) of regulating the internet with the wild excesses of the social media and the blogosphere. But Leveson has given the press and parliament more than enough demanding tasks to be getting on with. It’s sad that the coalition’s Tory members, whose leader once promised to accept and act on Leveson’s recommendations unless they turned out to be “bonkers”, are already rejecting key elements in them, inviting the press once again, for the seventh time in as many decades, to regulate themselves without having to answer to any form of external, independent but non-state supervision, in the pitiful hope that this time self-regulation will eliminate the gross excesses and misbehaviour which up to now have disgraced substantial sections of the fourth estate. Up with that we should not put.
On 10 February 2011, Jack Straw co-sponsored a resolution in the House of Commons condemning the European Court of Human Rights for declaring Britain in breach of the European Convention on Human Rights by depriving almost all prisoners of their right to vote. Recently, Yvette Cooper, Labour shadow Home Secretary, also committed the Labour opposition to support for the ban on prisoners voting. If, improbably, I had a chance to debate the issue with Jack Straw, our conversation might go something like this:
BLB: Mr Straw, in February 2011 when you spoke against restoring to any prisoners the right to vote, all you did was recall that whenever parliament discussed the issue, it always came down in favour of the ban. You didn’t attempt to justify it: why?
JS: It’s obvious. Anyone who commits a crime loses the moral authority to vote.
BLB: That was an argument used by the Labour government in 2005 in the European Court to justify preventing prisoners from voting. But the European Court found that a prison sentence couldn’t automatically remove a person’s other unconnected rights apart from the right to liberty. There are many who behave in an antisocial manner – tax evaders, for example – but who aren’t in jail: should they be disqualified from voting too? Once the right to vote is made conditional on a citizen’s morals, as defined by the state, you erode a basic foundation of democracy. Universal adult franchise should mean what it says: all adult citizens have the right to vote and the state has no right to remove it from any arbitrarily selected category of people, however obnoxious and unpopular they might be.
JS: Deprivation of the right to vote is part of the prisoner’s punishment, as enshrined in UK law.
BLB: But that just describes the present situation: it doesn’t justify it. Anyway, what kind of punishment is it? Are you seriously suggesting that the threat of losing one’s vote deters people from committing crimes? Or that losing one’s voting rights assists rehabilitation, or discourages re-offending?
JS: It’s clear from the opinion polls, and reflected in many votes in Parliament, that public opinion would be deeply offended if prisoners were allowed to vote.
BLB: Yes, I remember David Cameron saying that the thought of “giving” prisoners the vote made him physically sick. But the European court stressed in its judgement that there was no place under the Convention for automatic disfranchisement based purely on what might offend public opinion.
JS: Maybe so. My main argument in the 2011 debate was that this should be a matter for the British parliament, not for any international court. The judgment against us was purely a matter of interpretation of the Convention: there is nothing in the Convention explicitly giving prisoners the right to vote.
Please feel free to comment on this blog post, whether applauding, denouncing or correcting it — but please append your comments at the foot of the original article at http://www.barder.com/3849, not by private email. For example, please don’t send your comments as a reply to the email you may have received notifying you of a new blog post and giving the full text of it (but probably no illustrations or comments by others), unless what you want to say is purely personal. Thanks.
BLB: But when parliament voted to set up the European Court, it accepted an obligation to abide by its judgements, including interpretations of the Convention. We can’t pick and choose between the Court’s rulings, complying with some and ignoring others. We should champion the rule of law.
JS: Well, I suppose we shall eventually have to do something to comply with the judgment of the Court, such as giving the vote to prisoners serving very short sentences for minor offences. But for most of us even that will stick in the gullet.
BLB: You talk of “giving” the vote to some prisoners, but the right to vote is not yours to give. All prisoners have that right in a democracy: you are taking it away, and you still haven’t offered any justification for doing so, except that not doing so would stick in your and David Cameron’s gullet. Don’t you see that allowing, indeed encouraging, all prisoners to vote could be quite an important element in their rehabilitation and reform, by bringing it home to them that even in prison they are still citizens, with both important unconditional rights and equally important obligations?
JS: As I pointed out in the 2011 debate, I have never heard of any prisoner complaining about losing the right to vote. I doubt whether any but a tiny percentage of prisoners ever voted before going to jail, or are likely to vote after they come out.
BLB: All the more reason to include the duty to vote in the re-education of prisoners to be good citizens on release. Here is a classic example of the Labour Party in Parliament – One Nation Labour just like New Labour – failing to stand up for the rights of one of the most vulnerable, underprivileged and voiceless sections of society, obviously because it fears being labelled ‘soft on crime’ by the tabloids and the Tories. Isn’t it time that Labour gave a lead to public opinion, instead of pandering to the most primitive and reactionary elements in it?
JS: Look, you seem to forget that I am a qualified lawyer, and a former Foreign Secretary, Home Secretary, Justice Secretary and Lord Chancellor (among other high offices) in a Labour government that won three elections running. What are your qualifications for contradicting me on a legal and political issue like this?
BLB: Sir, indeed I’m not a lawyer, but I don’t regard this as primarily a legal question. I think all prisoners should have the vote, regardless of the European Court. Even if Parliament has to restore voting rights to a limited category of prisoners, and even if that satisfies the Court, I don’t think it would go far enough. I still haven’t heard a single argument for depriving any prisoners of their right to vote. As a lifelong Labour supporter, I am dismayed by Labour’s position on this.
JS: You’re entitled to your opinion. I have more important things to do than continuing this fruitless conversation. I have New Labour’s legacy to defend against the occasional assaults of my good friend David’s young brother. Goodbye!
Footnote: I have placed on my website a short paper providing a selection of references to documents and quotations from them relating to the issue of prisoners’ right to vote and the judgment against Britain of the European Court of Human Rights. This is at http://www.barder.com/notes-on-the-question-of-prisoners-right-to-vote.
The Ministry of Justice has at last set the date for the abolition of Indeterminate Sentences for Public Protection (IPPs), in accordance with the Legal Aid, Sentencing and Punishment of Offenders Act of 1 May 2012. From 3 December 2012, no more IPPs will be handed down. But abolition, however welcome, is not retrospective: it doesn’t affect those currently serving IPPs, nor those who may receive IPPs between now and the 3rd of next month, although there seem to be some signs that the processing of applications for release by IPP prisoners who are past their tariffs is being quietly speeded up and improved.
This is the most welcome culmination of years of campaigning against a huge injustice in our penal system, supported by every significant civil rights organisation and expert but passing almost unnoticed in parliament and the media. It has been the subject of numerous posts on this blog and elsewhere and of literally many hundreds of comments on them, mostly from the relatives and other loved ones of IPP prisoners suffering justified fears that they may never be released, despite never having committed any offence serious enough to warrant a sentence of life imprisonment.
The problems facing those now serving IPPs are not by any means resolved, but at least we know that the relevant ministers and their department are aware of them; and it’s probably unrealistic to suppose that there will be a single dramatic identifiable move to resolve them. It will now be for each individual IPP prisoner and his family and solicitors to do whatever they can to remedy specific shortcomings in the management of their cases, appealing to their MPs and the Justice Secretary and their prison authorities and the Independent Prison Monitors and the local newspapers as appropriate for support, and doing everything possible to satisfy their parole boards that they have reduced the risk of reoffending on release to acceptably low levels. It’s bleak and obvious advice but probably the most realistic that can be offered.
Meanwhile it will be of some comfort to know that a major blot on our system of justice is within sight of being removed. If there’s one thing about it that’s a matter for deep regret, it’s that this long overdue reform owes absolutely nothing to the Labour party in parliament, whose leaders have been consistently ambiguous or even openly hostile to the abolition of this evil and unjust régime. The LibDems have remained almost entirely silent, and the sole credit for a brave and necessary reform belongs to a handful of Conservative ministers, including notably Ken Clarke and now Chris Grayling, the present Justice Secretary and his immediate predecessor.
(Hat-tip: Lorna Elliott, once again.)
Many commentators have apparently missed the point about Abu Qatada‘s successful appeal against deportation. The Special Immigration Appeals Commission (SIAC) accepted the Jordanian government’s assurances that Qatada, if returned to Jordan for trial on old terrorism charges, would not be tortured and that the government, from the King down, would do everything possible to ensure him a fair trial. The problem is over two statements, made years ago, which it’s generally agreed may well have been produced by torture. These were used in evidence against Qatada when he was tried in Jordan and convicted in absentia, and are now in a sealed file of evidence used at the earlier trials. If they had the power to prevent those tainted statements being used again when Qatada is re-tried after being deported to Jordan, the King and his government would clearly do so. The SIAC judgment of 12 November (pdf) accepts that assurance: “with the significant qualification that all members of the executive government have made it clear to their British interlocutors that they cannot interfere in judicial decision-making“. The SIAC judgement exhaustively analyses Jordanian law and judicial processes and comes to the definite conclusion that re-use of the two tainted statements at any future trial of Qatada is a real possibility. This would not only contravene Qatada’s human rights under the European Convention (as the European Court has confirmed, Britain being a signatory to the Convention and hence legally bound by it) and under the UK Human Rights Act (as SIAC, a British court, has confirmed): it would also be in flagrant contravention of the UN Convention Against Torture, to which Britain and Jordan are both signatories. It is up to those who shrilly denounce SIAC’s judgment to state the grounds on which they disagree with SIAC’s carefully argued conclusion that under current Jordanian law and practice there must be a real risk that the two statements will be used in evidence against Abu Qatada if and when he is re-tried in Jordan.
Most, if not all, of SIAC’s critics have also missed an important further point made almost at the outset of its judgment:
This is our open judgment on that appeal. There is a closed judgment, in which we have set out our closed reasons for reaching the same conclusions as those set out in this judgment.
In other words, SIAC’s judgment that Qatada could not lawfully be deported to Jordan, because of the risk just described, was also reinforced by additional classified evidence which is too sensitive to be revealed publicly. There has been much criticism of the provision whereby SIAC may hear secret (“closed”) evidence, not revealed to the appellant or his lawyers but heard in closed session at which the appellant’s interests are looked after by a special advocate, a barrister with the necessary security clearance. This is not the place to debate the rights and wrongs of that procedure: the point is that SIAC had other, undisclosed grounds for reaching the conclusion it did, in addition to those in its lengthy published judgment.
On the BBC’s besieged Newsnight programme last night (12 November), the Conservative MP Peter Bone said the government should have ignored the SIAC judgment and put Abu Qatada on a plane to Jordan forthwith. Mr Bone later told ITV’s Daybreak programme:
Enough is enough. Put this terrorist on a plane and send him home and worry about the European Court afterwards. There are times when we need to put the public interest in front of the European Court and this is one of them… We should not be kow-towing to this Mickey Mouse European court.
In vain Shami Chakrabarti of Liberty tried to explain to Mr Bone that he was calling on the government to disregard the finding of a British court, not just a European one. Mr Bone wouldn’t have it. A skim through Peter Bone’s voting record on civil rights issues in the house of commons shows that his public incitement to law-breaking last night and this morning was entirely in character.
Finally, where was the voice of Labour in defence of the European Court of Justice, the Human Rights Act and the Special Immigration Appeals Commission when the home secretary, Theresa May, performed her predictable whinge in parliament about the SIAC judgment yesterday? Her Labour Shadow, Yvette Cooper, far from robustly defending the rule of law and respect for the fundamental rights of even the most unsavoury of the inhabitants of our country, instead outdid Theresa May in denouncing SIAC, the European Court, the home secretary’s record of attempting to deport Qatada, and the government’s action in “watering down” New Labour’s infamous Control Orders. Ms Cooper demanded that Qatada be held in custody (contrary to SIAC’s decision) until he could be deported, if necessary under the government’s Control Orders Lite, despite the fact that he has never been charged with any offence in this country, still less convicted. She twice recited the tabloids’ cliché about Qatada being allowed “on our streets”, as if this alone represented a threat to national security. Once again Ed Miliband’s One Nation Labour follows Blair’s old, discredited New Labour, positioning a once great liberal party to the authoritarian populist right of one of the most reactionary Tory-led governments in modern British history. If this represents the convictions of Labour’s front bench, they are in the wrong party. The only other explanation is a tremulous fear that the tabloids and the Murdoch press (and their political adversaries) will accuse them of being ‘soft on crime’. But cowardice is no excuse. Time for some backbone, Ed, Yvette and Sadiq!
I wrote the following letter to the Guardian minutes before leaving London for a river cruise up the Elbe from Berlin to Prague. The letter was published in the Guardian of 9 October, along with several others on the subject of abortion following the proposal by the Health Secretary, of all people, that the period in a pregnancy during which an abortion is permissible (on rigorous conditions) should be drastically shortened:
• The health secretary’s reactionary call for halving the period in pregnancy when abortion may be permissible (Report, 6 October) lacks logical as well as scientific justification.
Defenders of women’s right to choose whether and when to have an abortion should beware of accepting the anti-abortionists’ implicit claim that abortion should be banned from the point when the foetus, if removed from the womb, could theoretically survive.
There is no logic to this claim, and the test is purely hypothetical: some foetuses could be helped to survive outside the mother at almost any stage, others couldn’t. So long as it is a foetus and not a baby, it’s part of and dependent on the mother, who should have unfettered rights to decide its future.
Once born, it is a baby and a human, and quite different considerations apply, but not until then.
The alleged link between potential hypothetical viability and the ban on abortion is based purely on religious superstition about “the beginning of life” and should be firmly resisted.
Otherwise, scientific advances will eventually make foetuses potentially viable from the moment of conception – and we shall be back to the cruel days when all abortions were banned and back-street abortionists flourished.
If the space allocated by the Guardian for letters had been bigger, I would have added an acknowledgement of Owen Barder‘s blinding aperçu that there’s no necessary basis in logic or morals for the assertion that an abortion becomes unacceptable at the point where the foetus might hypothetically survive if removed from the womb, one of those Eureka! observations (except that I didn’t discover it, he did). It’s obvious when you think about it, yet even the most radical of the pro-choice campaigners never seem to challenge the underlying premiss of the anti-abortionists that once the foetus is theoretically “viable” on its own, aborting it must be wrong. Once you point out that there is no basis for this assertion, the whole case for repeatedly reducing the period in which abortions are permitted falls apart. Throughout her pregnancy, every woman should have the unfettered right to decide what happens to every part of her body and its contents, and it’s utterly unacceptable that anyone else should attempt to limit or deny that right.
(This post is being published, all being well, from aboard a river cruise ship moored on the Elbe in the heart of beautiful, beautifully restored Dresden, of whose virtual destruction by giant fire-storm, set off by the bombers of the Royal Air Force only a few weeks before the end of the second world war, we Britons ought to be suitably ashamed. But that’s a different point of controversy: this post is about abortion and women’s rights, once again under threat from religious bigots and other misogynistic obscurantists.)
The following very informative letter was published in the Guardian on Tuesday, 25 September:
Criminal justice and human rights
Indeterminate sentences for public protection were introduced by David Blunkett in 2005 for 153 specific violent or sex crimes of varying seriousnesss (Strasbourg judges attack ‘open-ended’ prison terms, 19 September). Judges set a minimum prison term (tariff) for each crime, but could not set a release date. This was the Parole Board‘s job after viewing how well the prisoner had “addressed his/her offending behaviour” – usually by means of cognitive behaviour therapy courses intended to “cure” anti-social or criminal behaviour. But Blunkett forgot to finance or staff these courses adequately and the Parole Board was notoriously risk averse, releasing only 4% of all IPPs awarded each year.
So queues swelled of prisoners going past their tariff dates. Numbers grew from 434 in 2005 to 4,461 in 2008 – when the law was changed to ensure fewer IPPs. But by June 2012 there were 6,078, with 3,531 beyond tariff – with no clue when they might be released. This causes extreme worry and anguish to both prisoners and their loved ones; children suffer, families disintegrate. IPPs were finally scrapped by Ken Clarke in May this year, but are now defended by his replacement, Chris Grayling – and judges are still awarding them. Shame on this country that it has taken the European court of human rights to condemn this legal lottery.
BK (name and address supplied)
The following letter was submitted to the Guardian on the same day and not published:
It’s a national scandal that it has taken seven years for the maladministration of Indeterminate Sentences for Public Protection (IPPs) to be declared in breach of the human rights convention (Strasbourg judges attack ‘open-ended’ prison terms, 19 September): that our English courts have failed to make such a declaration despite condemnation of this vicious system by every penal reform organisation and expert in the land, even including the prison governors’ association; that IPPs are still being handed down despite parliament’s decision to abolish them; that even now it’s only the way the system has been negligently and callously run that has been pronounced unlawful, not the inherently oppressive system itself; that Labour, which introduced the system in 2005, still lacks the courage to denounce it; that it took a Tory Justice Secretary, Ken Clarke, to abolish it and to promise to reform the way applications for release by existing IPPs are assessed; and, perhaps worst of all, that Clarke’s successor, Chris Grayling, plans to appeal against the European Court’s unanimous judgment, thereby heaping further international obloquy on our failed justice system, instead of getting down to the urgent task of reforming it to meet our international and national, legal and moral obligations.
Brian Barder, London
25 September 2012
I have put on this website a list of documents on the Web referring to Indeterminate Sentences for Public Protection (IPPs). The list is of course by no means comprehensive. Some of them refer to IPPs among many other subjects (if you don’t see IPPs immediately, use the Find facility — ctrl+F). It is a web page, not a blog post, so it does not accept comments. Comments on any of the documents may however be made at the end of this blog post.
The list of documents, including links to the full texts of each, is at
I have not tested each link, and some of them may not work.
My most recent blog post about IPPs (and the recent judgment of the European Court of Human Rights) is at http://www.barder.com/3717 and is open for comments.
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.
An excellent article about the scandalous continuation of Indeterminate Sentences for Public Protection (IPPs) despite their apparent abolition by Act of Parliament (see my most recent blog post on the subject here, including comments on it) has appeared in the blog The Justice Gap, at http://thejusticegap.com/News/the-disappeared-the-ipp-prisoners-trapped-in-the-system/. (Hat-tip: Lorna Elliott on Facebook.) This should be compulsory reading for everyone interested in removing a vicious injustice from our penal system.
I have submitted the following comment on Sophie Barnes’s Justice Gap article:
An excellent article. The only missing pieces of the jigsaw are:
(1) an explanation of how IPPs are still being handed down even after parliament has passed a law (given royal assent on 1 May 2012) which includes abolition of future IPPs — it’s because that part of the Act comes into effect only on a date to be fixed by the Justice Secretary, and no such date has been fixed so far;
(2) that even when the date is fixed (if ever), it won’t apply retrospectively, so existing IPP prisoners won’t be affected;
(3) that the outgoing Justice Secretary, Ken Clarke, was committed to reforming the system for assessing IPPs for release after they had served their tariffs, but that reform had not been introduced when Clarke was sacked by the prime minister last week; and
(4) that Clarke has been replaced as Justice Secretary by Chris Grayling, reputedly a hard-liner on penal policy who may be reluctant either to fix a date for abolition of IPPs or to reform the system of assessing existing IPPs for release in the ways Ken Clarke had promised to do. Of course refusing to fix a date for abolition is tantamount to frustrating the will of parliament, but it will please the right-wing hangers and floggers on the Tory back benches.
So the outlook for reform and abolition of this wicked blot on our justice system has become bleak with the deeply regrettable removal of Ken Clarke, who was far more liberal and enlightened on the issue than most of his fellow-Tories, than his successor as Justice Secretary, and than the Labour opposition front bench. The LibDems are strangely quiet. It’s a mess.