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.

Brian