Indeterminate sentences: the double scandal

The Court of Appeal has ruled that it’s unlawful for someone given an “indeterminate sentence for public protection” (IPP) to be kept in prison beyond his ‘tariff’ (the period set by the sentencing judge as the minimum required for punishment, release thereafter being permitted on condition that the offender satisfies the parole board that he won’t reoffend) if he hasn’t been able to take one of the prison courses whose completion is a condition of release.  It seems that a thousand or more prisoners serving IPPs are in this Kafkaesque, nightmare logical trap.  In the words of Juliet Lyon, director of the Prison reform Trust, –

the High Court has rightly held that it is illegal to detain people until they can prove that they are safe but yet deny them the means to do so. The only wonder is that it took a court judgment to demonstrate to ministers the fault in their Alice in Wonderland logic. It is a life sentence in all but name. The only real difference is that it can be given for far less serious offences. The Prison Reform Trust has come across people given tariffs for their sentence of just 18 weeks. The tariff, as in the life sentence, is the minimum time that must be served. It represents the retribution or punishment for the offence. But even after the tariff, the person remains in prison until they have done the courses necessary to demonstrate they are ready for release.

But because of grotesque prison over-crowding and the low priority given to ‘education’ (including the courses required to qualify for release from an IPP) by the prison authorities, it is often simply impossible for an IPP prisoner to undergo the course required.  Unless he has done the course, the parole board won’t consider him for release, even though he has served his tariff.  So he has undergone the punishment imposed by the judgeJuliet Lyon, but can’t be released because he can’t do the course that alone will satisfy the parole board that he is unlikely to commit a further offence.  The result, as Juliet Lyon [left] points out, is that a person whose offence was so trivial that his tariff was set by the judge at a mere 18 weeks finds himself in effect serving a life sentence, the mandatory sentence for murder.

This trap — tariff served, no course available, no release possible, indefinite incarceration even though offence committed may have been minor — has rightly been denounced by all the prison reform bodies as well as by the Appeal Court;  there are useful detailed analyses and briefs here (PDF) and here.   But what these show is that the failure to make available the necessary courses for prisoners who have served their tariffs is only one part of the scandal.  Indeterminate sentences are themselves a scandalous abuse of the system:  ministers should never have introduced them and parliament should never have approved them, regardless of the availability or otherwise of the courses demanded by parole boards as a condition of release.

The whole concept of an indeterminate sentence which takes no account of the gravity or triviality of the specific offence for which it’s imposed is fatally flawed.  Once the tariff set by the judge has been served, the offender has “paid his debt to society”, suffered his prescribed punishment, and ought to be entitled to be released.  Continued imprisonment after the expiry of his tariff is no longer ‘punishment’, nor society’s retribution:  it is indefinite preventive detention, based entirely on the farcical notion that some group of ‘experts’ can predict the future by making a judgement about the future behaviour of a person who may have committed a single offence in the past — and has been punished for it.   The fact that the experts have apparently convinced themselves that they can’t make such a judgement unless the prisoner has done a course in prison, and that once he has done the course, they can, merely adds another dimension of fantasy to the whole crazy system.

This is yet another example of the government’s compulsive itch to lock up — necessarily indefinitely — people who have committed no prosecutable offence (or who have completed their punishment for an offence committed) but who anonymous officials or the police or security services believe may commit an offence in the future.  Control orders are a particularly vicious example of this proclivity;  prolonged detention without either conviction or even charge pending police investigations is another (and one which the new government actually seeks to make even worse); yet another is the government’s prolonged attempt to take powers in a new Mental Health Act to detain indefinitely persons suffering from an indefinable and untreatable mental disorder; and there’s more than a trace of it in the ASBO system, which imposes on young people whose offences have been inherently trivial conditions which are often so arduous that sooner or later the young offender is more than likely to breach them, and will then be sent to prison for the breach, even though the original offence was not by any stretch of the imagination one for which imprisonment was an available or appropriate penalty.

The urge to lock up people for offences they have not yet committed is a symptom of the disease of politicians who are irrationally risk-averse.  There’s no possible logic in it.  They could lock up half the population as being likely to commit an offence sooner or later, and still a proportion of the other half would continue to steal, murder, shop-lift, exceed the speed limit and plot violent terrorist acts.  The justification advanced for this folly and injustice is that pre-emptive imprisonment is necessary for the protection of the public, which is the first duty of government: salus populi suprema lex.   But the real motive is much less high-minded.  Ministers responsible for this kind of gross abuse are principally concerned to mind their own backs.  They are terrified of laying themselves open to the accusation by the Tories or the Daily Mail, or both, of being “soft on crime” or “soft on terrorism”. They seek to protect themselves against the charge, when crime figures soar (which they haven’t done for years) or terrorist atrocities are committed (which sooner or later they will be), that they had done nothing to prevent them, or hadn’t done enough.  So they create a record of supposedly protective legislation to which they can point as evidence that they have not been ‘complacent’ (the gravest of political sins) or inactive in the face of danger — any danger.  In trying to protect themselves in this way, on the pretence of protecting us, they have been steadily eroding our most basic human right, the right not to be imprisoned except after conviction and sentencing by a properly established court for an offence defined by law.   Indeterminate sentences, with the surreal apparatus attached to them for permitting eventual release, are yet another example of rotten legislation, conceived by a panicky and unprincipled government and passed into law by a supine and negligent parliament.

If Gordon Brown really wants to make a radical change in the way the justice system has been perverted under Tony Blair, the early abolition of indeterminate sentences would make a welcome start.  Don’t, however, hold your breath.

PS:  According to the Prison Reform Trust, more than 3,000 indeterminate sentences have been passed over the past two years and that figure is expected to increase to more than 12,000 by 2012.  The Trust points out that  indeterminate sentences are in effect life jail terms that can be imposed for a list of 150 different offences. The sentences are being used for “relatively minor” offences rather than the hardened repeat offenders for whom they were designed.   This is not a small-scale problem.   We should be up in arms about it.

Brian

150 Responses

  1. Well written, Brian.  The Guardian (which seems to be a bit starry-eyed about the new government) should print more of your stuff.

    My only doubts are about the rights and wrongs of detaining people who have untreatable personality disorders.  It seems to me there will always be people who will have to be detained because their mental state poses a danger to themselves and the public.  The distinction between treatable disorders for which people can be detained, and untreatable ones for which they can’t, seems to me bogus. Either can lead to violent and dangerous behaviour.  I’m no expert but I have doubts about jumping up to attack this particular legislative plan on civil liberties grounds. 

  2. Brian says:

    Thanks, John.  I agree that an exceptional problem arises over the handling of people with untreatable personality disorders who are deemed to be a potential danger to others and themselves.  The government has tried, so far without success, to extend the scope of the Mental Health Act to cover such people and to allow them to be sectioned — i.e. detained, if necessary against their will, indefinitely, subject to periodic review by psychiatrists, social workers, etc.  This though raises a number of problems.  The phrase 'personality disorders' refers to people colloquially referred to as 'psychopaths', a category with no generally accepted scientific definition, means of reliable diagnosis, or known treatment (apart from sedation, which is not treatment in the relevant sense).  There is a danger of defining as a psychopath someone whose behaviour is regarded as anti-social, which overlaps dangerously with the criminal field rather than mental health:  we should never forget the way that Stalinist Russia sent political dissenters to "psychiatric institutes" where they were in some cases subjected to horrific abuse under cover of being treated for their alleged mental condition:  to be opposed to the philosophy of the communist state was deemed to be evidence of a personality disorder.   Another difficulty is that of assessing any person's future behaviour, especially when that person has no clearly defined medical condition.  All of us are capable of harming ourselves or others if circumstances in the future drive us to behave in that way:  who can predict whether such circumstances will arise in any particular case?  And, finally, where are such people, once sectioned, to be confined?  Not in prison, for they have committed no offence and can't deserve punishment.  Not in hospital, for they can't be treated (the condition being untreatable), and would be using scarce hospital resources that would be better used for those who can.  What is the justification for depriving such people of their ordinary rights, e.g. to family life, a job, visits to the cinema or the theatre, opportunities to learn an instrument or enjoy visits abroad? 

    My own conclusion is that the risk of injustice and abuse is simply too great to be acceptable, and that the drawbacks are disproportionate to the degree of risk that it is meant to address, especially when there can be no guarantee that the prediction of the future that's involved is likely to be well-founded, and when there's no way of verifying the accuracy or otherwise of the prediction.  Anyway, it's bound to be open to abuse:  and any arbitrary power like this, if capable of being abused, will sooner or later be abused.  It's not worth it.  Some risks simply have to be accepted.  Other means of monitoring and influencing the behaviour of people with personality disorders may be devised and put in place, but there's no compelling case for locking them up when they have committed no offence.

    PS  WordWeb defines 'psychopath' as follows: 
    "Someone with a sociopathic personality; a person with an antisocial personality disorder ('psychopath' was once widely used but has now been superseded by 'sociopath')." 
    I think this strongly reinforces my point about the condition having a strong 'anti-social' element which in turn has a distinct political flavour.  Taking powers to imprison — or at any rate detain — such people, perhaps indefinitely, without trial or even charge, not for what they have done but for what they might do in future, and not even to ensure that they receive treatment for their condition, is surely well over the brink of an extremely slippery slope.

  3. Dawn says:

    My husband is currently waiting for trial in september.To try to cut a long story short he has always had some kind of mentle heath issues going back to his child hood which have never been dealt with,as i am not a doctor i did not see the signs of my husbands "problems" rearing there ugly head again untill about 10 weeks ago we had an awful row over a terible thing i had said my sister was present and got involved the police came they sprayed his eyes and in the kerfuffle a pc ended up needing 3 steria strips the charges are a section 18 and 2 counts of affray we have been told he should expect an IPP my husband has always been a hard working good honest devoted farther our lifes are in pieces he had been on the waiting list to see a cpn nurse for months as he knew he needed help. He is suicidle with the thought of an IPP but who will listen to people like us ? As a last resort i decided to look up IPP on the net and came across your web page thanks for all you have wrote on the subject , although i still feel in the dark . Regards .Mrs.D.Smith

    Brian writes:  This is a very sad story.  I am making some enquiries and if I can get any suggestions or advice from any of my legal friends, I will pass them on to Mrs Smith in a private e-mail, although I doubt if there will be much that I can say that is likely to help.  If anyone reading this has any ideas that might be helpful to Mrs Smith and her husband in their plight, please send them to me by clicking "Contact" at the top of every page of this blog.  I shan't pass on your details to anyone else but I will pass to Mrs Smith any useful suggestions that I might receive. 

  4. wendy says:

    my son got a indeterminate sentence, he has been in prison for 2 years and has only just started his first course beginng this month august. god knows when he will get out of there .He feel trapped not knowing were he stand and when he is coming home. He is 21 and made a mistake which was alchol related.it is a living nightmare for him and his family. It is his first time in prison and the last.

    Brian writes:  This, another very sad case, again illustrates the wretched injustice of a hopelessly flawed system.  Even when a person is eventually able to take one of the prison courses which have been arbitrarily made a necessary (but not sufficient) condition for eventual release, even after the tariff set by the judge has been served, no-one can even begin to guess when or even if the prisoner will be released, and that deadly uncertainty is all too understandably described by Wendy in this Comment as "a living nightmare for him and his family".  We don't know (and it's none of our business to know) what offence Wendy's 21-year old son, already in prison for two years, committed, nor what tariff he was given by the sentencing judge, but the fact that he's on a probation course after two years and that he has never been in prison before suggests that it can't have been the kind of offence, and that he can't have been the kind of offender, for which indeterminate sentences were originally designed.  One lesson of this is that parliament and public opinion should never accept the assurances glibly given by ministers when some new draconian and oppressive proposal is being debated in parliament that it will be used only in exceptional and extreme cases.  Once it's available to judges, prison governors, parole boards, spooks, policemen and prosecutors, you can be sure that they will use it whenever it suits them.

  5. kaystella says:

    The man I love is serving an IPP and he is innocent. It is due to allegations of a sexual nature.

    He has been given a 4 year tariff so has to serve 4 years before he can even apply for parole, but he will most likely not be released then as they want him to do the  sex offender treatment programmes and since he has committed no crime how can he possibly be treated for sexual problems he does not have? He has to prove to the parole board that he is no longer a threat to the public – but he was no danger to begin with! Unless he pretends to be a sex offender and takes the courses he may never get out!  This is the crazy situation he is in because of this IPP. Please see details of my petition in support of the wrongly convicted as below:     

    PLEASE COULD YOU SIGN MY PETITION TO PARLIAMENT AND FORWARD TO OTHERS BY CLICKING THE LINK BELOW, IF YOU AGREE WITH THE CONTENT.   I FEEL THE LAW NEEDS TO BE CHANGED TO HELP THE FALSELY ACCUSED  AND WRONGFULLY CONVICTED WHO HAVE COMMITTED NO CRIMES BUT ARE SERVING LENGTHY SENTENCES IN PRISON NONETHELESS.   AT LEAST 200 SIGNATURES ARE REQUIRED  FOR THE GOVERNMENT TO TAKE NOTICE. THERE ARE 78 SIGNATURES TO DATE BUT THE MORE THE BETTER.

    http://petitions.pm.gov.uk/OUTRAGEOUS/

    MANY THANKS.

    Brian writes:  I have immediately signed this petition and urge everyone else who reads this to do so too.  It illustrates two shaming injustices in our current laws and practices:  first, the iniquitous requirement that a person convicted of an offence and sent to prison must "confess" his or her guilt as an absolute condition for being given parole, which puts a wrongly convicted prisoner in an appalling, heart-breaking dilemma;  and second, the disgraceful system of the indeterminate sentence, under which a person who has served the full 'punishment' period of his sentence still can't be released until he or she has 'proved' to the satisfaction of the authorities that he/she will not offend again: a logical and judicial impossibility, often a practical impossibility, a shocking breach of the elementary principle that no-one should be detained except after conviction for an offence after a fair trial, and a monstrous burden especially for anyone who was wrongly convicted in the first place.  Please sign this petition: 
         
    http://petitions.pm.gov.uk/OUTRAGEOUS/.    

  6. Brian says:

    In my response to Kaystella’s poignant message above, I urged readers of this to sign her petition, by visiting http://petitions.pm.gov.uk/OUTRAGEOUS/ and filling in the simple form there.  I should perhaps have pointed out that to support the petition and thereby call for a change in this unjust law and practice, it’s not necessary to take a position on the guilt or innocence of any specific person who is serving an indeterminate sentence.  Even those of us most deeply moved by Kaystella’s appeal on behalf of the man she loves have to acknowledge that we don’t know enough about his particular case to be able to form a definite opinion about the rights or wrongs of his conviction.  The point is that some of the people given these appalling sentences will inevitably have been wrongfully convicted, and such people are subjected to the awful dilemma of having to choose whether to continue to protest their innocence (in the hope of eventually being able to clear their names), or whether to make a false admission of guilt as the only way to qualify for eventual release.  Nobody should be placed in that dreadful dilemma.  Please sign the petition regardless of what you think about any specific case.

  7. confused mum says:

    Hi Brian,

    My son has been given a 13 year ipp sentance to serve 6-1/2 years before he could be paroled that is if he is able to do the courses and prove he is no longer a danger to anyone.  I have been trying to find information and I do not understand if the 6-1/2 years is the tariff or is it the 13 years?  I need to try to understand his sentencing, my son thinks he is serving a life sentence and may never get released.  From the information I have found it is very worrying that prisoners do not seem to be getting the opportunity to be placed in a prison that run the courses.

    Kind regards
    Confused

    Brian writesI am replying privately to this comment, which puzzles me a little:  if the sentence has a finite maximum length (i.e. 13 years), I don't see how it can be an 'indeterminate' sentence.  Perhaps others can explain this seeming anomaly?

  8. Bob says:

    The son (S) has obviously committed a serious offence for the judge to have handed down a tariff of 6.5 years. (It would have helped to know if S was under or over 18 at the time of sentencing, there being slight differences in outcomes.)

    It is perfectly consistent for him to have been given a tariff of 6.5 years (i.e. the minimum time he must spend in jail) , this marking the half-way point in a sentence of 13 years – and for the whole lot to have been bundled up as an IPP.   Before David Blunkett’s Criminal Justice Act of 2003 gave birth to IPPs in April 2005, S might have been given his 13-yr sentence, would have been eligible for parole after 6.5 years, and then released at the 3/4 point of his sentence ( at the latest ), or even before, if he satisfied the Parole Board. But he would have been under threat of re-arrest for any misdemeanour right up to the date on which his 13 -year sentence expired. But under David Blunkett’s bright scheme,  after April 2005 the judge was made to consider whether S would be a likely danger to the public if released, even though he might have served his sentence and ‘paid the price’ for his crime. If the judge decided S was a danger, he had a duty to award an IPP sentence, which means that S could no longer look forward to automatic release at the 2/3 point of his sentence or earlier. Instead he will have to convince the Parole Board that he would not be a threat to the public if released. Which leads to the problem of insufficient courses for too many IPP prisoners, etc, which we all know about.

    But there is a ray of hope. In December 2007 the directorate of the prison service issued instructions for IPP prisoners on short tariffs of 3 years or so to be treated henceforth like determinate-sentenced prisoners, not like lifers, as has been the case hitherto. This will mean more and quicker training, education and offending behaviour programmes to help them progress more quickly towards eventual release. This principle will ultimately be applied to all IPP prisoners, but is starting soon for those on shorter tariffs.

    S sounds a bit confused about his sentence, i.e has he got an IPP sentence, of life ? If ‘confused’ will forgive my speculation, I suspect S might have been under 18 at the time of his conviction, since sentences imposed on under-18s who commit certain serious crimes ( e.g. murder, violent assault, rape, armed robbery) are more lenient than for over-18s, who would have got life for the same offences. (And life can mean life. Even thought the judge often recommends a minimum ‘life’ term of 10 years or more, no lifer is released until the Parole Board deems him safe for release – and this can be years beyond the term proposed by the judge.) But S can simply ask the prison authorities what his sentence is.

    One further point for S to consider. Prisoners with determinate life sentences can be and are, of course, released. And rightly so. Despite what the Daily Mail earnestly preaches, rates of recidivism among released lifers are minimal. But they are ‘on licence’ for life,  even when released, and can be recalled to prison at any time for breaking the terms of the licence, i.e for meeting certain people, visiting certain places, etc, which their licences forbid. IPP prisoners, however, when released can apply after 10 years – and every year thereafter – to have their licences revoked, wiped clean, abolished. But until that happens, they are on the same ‘licence recall terms’ as lifers.

    I hope this helps. It’s still a very confused area. I work on the IMB of a London prison. I am not a lawyer.

  9. confused mum says:

    Hi, thank you for your help in making it clearer to me, my son was just over 21 years of age, it was not for crimes mentioned but he did commit a crime and understandably he needs to be punished, it is the first time in prison . He is serving  an ipp sentence – and so is his family as we will not be able to look forward to a date of release.  Let's hope that the courses will be made available to whoever needs them.

    kind regards

  10. Suzie says:

    Things have moved on slightly – if only in time.  My friend is in a first stage – days before tariff expiry – dossier not complete – oral hearing date not given.  He has done everything possible yet it looks like he will be recommended for Cat C or D?  Why is this then?  He has done all the courses and extra – yet it looks like he will not be released.  He is gearing up for a 2 year knockback.  He’s had to tell his kids no chance of coming home yet – and he doesn’t know when.  Inhumane not being able to let your kids know.  Previous comments state courses can’t be done but the reality is when courses are done it makes no difference – you still haven’t reduced your risk – until someone trusts you enough to let you show it – outside.  

  11. mrs robinson says:

    hi brian

    in February this year my husband my husband was given an ipp with a tariff of 1 year 153 days.  He has now served 1 year of his sentence but as yet has not even started any of these courses.   He has been informed by the prison (garth) that the courses will take up to 3 years to complete which will obviously take him well over his tariff.  My husband is eligible to apply for parole in March 09 but will have not completed these said courses:  would that mean parole will be refused?

    Brian writes:  Hello, Mrs R.  I am asking for some expert advice on this and will come back to you when I have it.  My preliminary reaction is that IPPs were never intended to be imposed for offences attracting a sentence of imprisonment as short as just under three years (which would mean becoming eligible for parole at the half-way mark of around 17 months, which is roughly your husband's tariff) and that imposing an IPP in such cases is bound to cause problems.  My other preliminary thought is that as a first step your husband probably ought to talk to one of the prison officers, perhaps the Governor, about the problem, and ask whether he will have to attend these courses as a condition of parole even if that means having to stay stay well beyond his tariff.  If he (and you) are not satisfied by the answer, you or your husband (or if possible both together) might ask to see a member of the Independent Monitoring Board (IMB) at your husband's prison to discuss the problem (I suggest you look at the websites at http://www.imb.gov.uk/ and also http://www.ccjf.org/whatcanido/imb.html which has a good decription of what the IMB at each prison does).

    I also suggest that you might read the comments on another IPP case above by 'Bob', an IMB monitor, at —
                      http://www.barder.com/ephems/696#comment-57784
    — some of which may be relevant to your husband's case too.  In particular, Bob wrote that:

    there is a ray of hope. In December 2007 the directorate of the prison service issued instructions for IPP prisoners on short tariffs of 3 years or so to be treated henceforth like determinate-sentenced prisoners, not like lifers, as has been the case hitherto. This will mean more and quicker training, education and offending behaviour programmes to help them progress more quickly towards eventual release. This principle will ultimately be applied to all IPP prisoners, but is starting soon for those on shorter tariffs.

    You or he might be able to ask the prison authorities whether this policy, introduced in December last year, could be applied to him so that he could take the necessary courses before his tariff is up, putting him in a good position to apply for parole then and not having to wait until later.

    I will let you know if I get any further (or different) advice or information.

  12. Bob says:

    Hello Mrs Robinson, I'll try to expand and clarify what Brian has already told you. (A trivial matter to start with:  I don't se how our husband has alrady 'done a year' between February and October…?) Anyway, here are some up-to-date facts on IPP prisoners direct from the Ministry of Justice:

    1. It is NOT necessary for IPP prisoners to do approved courses to get parole,  but it is by far the surest way to get it. Observation of their (changing / improving) attitudes, of their relationships with officers and others, how they react to psychological counselling, and other forms of behavioural assessment can help their case with the parole board (PB). BUT the courses (e.g. ETS – Enhanced Thinking Skills; SOTP – Sex Offender Treatment Programme; anger management, etc,) are accredited therapies, with attitude tests before and after, and thus are regarded as good evidence for the PB – more reliable than general observation. But even then, a prisoner might do a course and be observed to drift through it without signs of any behavioural change sufficient to persuade the prison psychologists  – who write an end-of-course report on him – and thus the PB, that he (IPP are 98% male) represents a lesser risk to society than before. So he'll be refused parole despite having done a course. Nevertheless, courses are the best way forward.

    2. There is no factual basis to the assertion that courses take three years. Even SOTP takes 6 only months. It's the waiting-lists that are long. But, as I said earlier in this sequence (Jan 2008), and as I was assured yesterday, there is a definite drive to get those IPP prisoners who are over or near their tariff date priority on courses.  Garth is one of the prisons where this is supposed to be being done. So I think your husband should do some enquiring, as Brian suggests. I'm sure he will have already approached my own organisation, the IMB – as indeed he should. But please note – getting a PB hearing as the tariff expiry date is reached is a target for all concerned – prisoner, staff, MoJ. Try not to feel your husband is being denied a right. The Blunkett Criminal Justice Act of 2003 (which created IPPs as from May 2005) made life more difficult for everybody.

    3. Your husband's tariff seems painfully low for an IPP prisoner. But the average tariff for all the approx. 5000 IPPs (in Sept 2008) is only about 3.8 years (the average being a rather unreliable measure, as we know; the median would give us a better picture). But average or median, it means there are lots of tariffs less than 3.8 years, and your husband's is one of them. And this is where I think Brian goes a bit over the top in his condemnation of IPPs. He seems to suggest that IPPs were designed for those committing serious crimes – murder, rape, etc – attracting long tariffs. But this isn't the case. They were designed to reduce the risk to the public of offenders repeating their crimes, some of them not serious enough to attract long sentences per se, but a menace to individuals or society  if repeated, e.g. physical violence, frequent burglary, sexual exposure – and 150 other crimes capable of causing 'physical or psychological distress' to members of the public, but not comparable to murder, rape and so on. But it has got out of hand, with too many judges predicting unrealistic future dangers to the public. This has been realized, and money and effort are now being channelled into getting low-tariff IPP prisoners through their courses (preferably, as stated) and hopefully out of prison. There are recorded cases of IPP sentences being quashed on appeal because of a judge's misinterpretation of the IPP law.

    I've gone on long enough. I hope it helps.

    Brian writes:  I am extremely grateful for all these clarifications, as I'm sure Mrs Robinson and her husband will be too.  But without I hope being excessively touchy over relatively trivial matters, I can't accept Bob's dismissal of my comments on IPPs generally.  I'm fully aware of the intention behind IPPs, as you, Bob, set them out.  But my (and many others') criticism is that (like so many of New Labour's anti-terrorism and crime measures) the IPP punishes people, not for what they have done, but for what some group of men in suits think they might do in the future.  The tariff set for each IPP specifies the minimum period of imprisonment required for the punishment and rehabilitation of the offender, subject of course to good behaviour;  double the tariff by implication specifies the maximum time required for punishment and rehabilitation regardless of behaviour.  After that double tariff has expired (and in the case of the well behaved prisoner, after the tariff itself has expired), the prisoner has 'paid his debt to society' and is morally entitled to be unconditionally released.  If the IPP system keeps him in a day longer, he is being subjected to preventive detention, not for what he or she did, but because someone thinks he might do it again.  This is contrary to the most fundamental principles of natural justice.  The IPP is indefensible, and should go.  If in our pitifully risk-averse society we are too scared to scrap it altogether, then it should be reserved for only the most serious offences:  hence my proposal to reserve it for offences that would attract a fixed sentence of 15 years or more.  What Mr Blunkett originally intended in imposing this misbegotten measure on us is neither here nor there.  No doubt he's perfectly happy for it to be used against shop-lifters.

    Murder is of course irrelevant to IPPs as it attracts a mandatory life sentence to which different conditions are attached, although there are similarities.  Mandatory sentences generally entail another kind of injustice, but that's a different story.

    However, I hope that Bob's other extremely useful information and comments above will both reassure and help Mrs Robinson and her husband.

  13. Bob says:

    Brian, pax! No way did I intend my suggestion that you were ' going a bit over the top in your condemnation of IPPs'  to be a 'dismissal' of your comments about them. I agree fully with your views on this shameful, careless piece of legal innovation. I should have cited more precisely that I was just taking issue with your last sentence on August 3rd 2007, i.e. : "The sentences are being used for relatively minor offences rather than the repeat hardened offenders for whom they were designed."  I'm afraid this isn't strictly true. According to the (2003) act…" judges must impose an IPP on any person convicted of any one of 153 separate violent and sexual offences, if they believe, in the words of the act, that there is "a significant risk to members of the public of serious harm from the commission of further specified offences". This is the letter of this silly law – which replaced the 1998 ' Two strikes and you're out ' law ( hence the initial emphasis on repeat offending rather than on the most outrageous – but even that has gone by the board now, and first offenders are being subjected to IPP). But I agree wholeheartedly with your views on its disastrous, often inhumane consequences.

    Brian writes:  Bob, pax et vobiscum.  I (naturally, perhaps) assumed that your reproof referred to something in my response the other day to Mrs Robinson, not to my original post of over a year ago.  I accept that the words you quote were loosely drafted and potentially misleading:  I should have written: "for whom, if anyone, they should have been designed."  But since IPPs apply mainly,  or perhaps only?, to "violent and sexual offences" whose repetition would constitute a "significant" risk or "serious" harm to the public, and since I qualified my description by the word "repeat" — and you confirm that the initial emphasis was on repeat offending — I don't think my original wording was as far off the mark as you suggest.  We're down to pretty fine textual analysis now, though, and I'm glad that on the main issue we're in total agreement, as all right-minded people ought to be.

  14. Ginger says:

    I am writing this letter as I am totally lost for words and at times I feel as if I am about to lose my mind.  I need someone to vent off to!  My husband of 48 years is in prison for a crime he did not do and took a plea sentence as to get this behind us and the plea was for a seven month jail sentence recomended by the parole officier and by our attorney.  Our attorney told me not to worry as this crime absconding and (csc- touch) was not a prison sentence as to the way he scored out on the Michigan guideline and his past history at the worst would be a year jail time but was not a prison sentence.  My husband has always respected the law and we have five sons whom he has set very good example for.  The allegation made against my husband was made by my jealous sisters grand daugher as my husband had evicted her mother and brother and herself from a rental place we owned.  Its a very long story so I won't go into details. My husband is a non smoker and drinker and has always provided for his family and is a wonderful man and person and has been in business for himself for thirty years as a cement contractor.  When all this problems came our way it was almost too much to handle so we left for Kentucky to get away from my relatives.  We were in Kentucky for almost  a year when the US marshalls invated our home and arrested us.  The law did not have to send the marshalls after us as Michigan law knew where we were at as my husband tried to take his life over this as we had lost so much due to the false allegations and the stress was unbearable.  When he was released from the hospital we were told that Michigan was not going to bring him back so we stayed in Kentucky for about a year when the US marshalls arrested us.  We both thought that the relatives had dropped the charges.  I had a private eye who was also a x-cop check with the Allegan court house and he said he did not think anyone would ever bother us.  My husband was 68 at that time and I was 63 and we had never had any trouble with the law.  The marshalls came banging on the patio door when it was dark out side and they did not say who they were and I was talking on a cell phone to my son in Michigan and I had just turned away to lay the phone down and turned toward the patio door when all this glass came shattering in at me with voice yelling down on the floor we are the us marshalls.  They arrested my husband that night and all hell began for us.  They did not arrest me for harboring a fugitive but left me with a broken glass door and me with glass in my arm and top of my head.  My husband came back to Michigan and we got a attorney and tried to fight the charges but the judge went outside the guideline and gave my husband a miminum of 14 months to 4 years saying he was a menace to society and he thought he was above and beyond the law.  My husbands earliest release date was 5-2-08 and he was given a year flop.  Since than he has gone through a csc counceling class and almost was kicked out as he would not confess to some thing he did not do.  He was told by others if you are to get out of here you must do as they tell you to do rather it is true or not.  Well he did finish the class and about four weeks ago went before the parole board again but we have not heard any answer as to rather he is coming home or not as the group report has not made it to the parole board so they can make a deceison.  He definitely does not belong in prison and never did but we his family are all praying he will be released soon.  How come it takes the group teacher so long to get the report to the parole board and how come it take the parole board so long as to get the decision back to the prisoner??  This past month has been real torture for all of us waiting to hear a answer.  Is there not a law as to how long it should take the parole board to get a answer back to the family once there has been a hearing??  I no longer have any respect for the law or justice system and I know I am not alone on this.  It is just as important as gettling innocent people out of prison as it is putting the quilty ones in.  The prison systems are a real money making business or they could not keep operating this way.  Judges alone should not have as much power as they do!!!!  When I visit the prison now and it is not even winter yet they have the heaters running and the windows wide open and we have people in our state who will be cold this winter and the prisons are letting heat go out the windows, what is wrong with out system???  We have spent most of our retirement money fighting this nightmare in our lives and the court we paid a $15,000,00 cash bond so they also made money off us as they do everyone else.  We have paid out about $100,000.00 to attorneys for nothing all in the name of justice and we were denied a appeal for lack of merit and that was another $8,000.00 to do.  What in the name of God is becoming of our country when we have such a corrupt system in the justice system.  The same judge that sentenced my husband let a man running a meth lab off with community service.  This is happening every day to someone in our society does not anyone care enought to get something changed??  I am willing to support and sign any bills that might make a difference we need to make people more aware what is happening in our prison system that keeps more people in prison than what is necessary.  I am unable to even collect my husbands social security and he has always supported me and now no one cares if I eat or have a roof over my head.  If my husband or anyone elses should die while in prison we can not even collect on there life insurance policy so I was just told the other day.   If in prison and group classes are needed to get out than why not have these classes available before the prisoners early release date.? I was also wondering if the teachers of these classes are on a salary as half the time they don't show up to teach.  Why is the MDOC allowed to break the rules and the laws over and over again and make the rules up as they go, why should they not have to have guidelines to follow and it be enforced??  Thanks for letting me vent off and I will keep praying we soon get a answer from the parole board and there is no reason for my husband to be in prison costing the state money or is the state making money from the Federal government????  My husband just had his seventies birthday and I will soon have my 65th  the prison system has taken life from us, we are no threat to society not than not now or will ever be.  God will be all our judges one day and that is what will make things right again!!!!

    Brian writes:  This post started off, of course, as a commentary on one or two aspects of British rather than American (still less Michigan state) law, but from this comment it appears that some of the concerns discussed earlier have their equivalents in the US.  What is of course common to all prison systems everywhere is the hardship, often also suffering, inflicted on innocent families by the imprisonment of a breadwinner or carer or, often, both, even when the person sent to prison has been properly convicted and the sentence is clearly just.  But as long as we have prisons, that's going to be a side-effect of them, and it's very difficult to conceive of a prison-free society.  It's just another argument for reforming the systems on both sides of the Atlantic so as to reduce radically the number of people sent to and doing time in prison.  All the experts and researchers seem to agree that in both the UK and the US, both with enormous prison populations compared with the rest of the civilised world, there are many tens of thousands of people in jail who should not be there and who should never have been sent there in the first place.  Indeterminate sentences make that bad situation even worse.  It's a prime example of an obvious and almost universally recognised problem to which there's a straightforward solution (which would incidentally save public money) but which our political leaders of all political persuasions are too cowardly to tackle.  

  15. Mr Seymour says:

    I am a supporter of IPP’s – There has to be someone! My stepson is serving 5years and IPP for GBH with intent, under 21 when convicted, and I regret to say that the IPP is the best thing for him at the moment.  His mother and I will not defend his actions though we love him dearly ( but he hates me).  He does not yet regret what he has done, and has continued to be violent in prison and buck the system.  Until he accepts that he has to change, and learns to do so, then he is not safe in public.  After 3.5 years he has just been changed from Cat A to Cat B, and is telling his family that because of this he will have to do another 3-4 years before further Cat changes etc. until he reaches Cat D and can be released.  We don’t know if this is correct or whether he has received additional sentence(s) for attacks on prisoners.  Can anybody explain if this is correct and how the process works please?For your information we are now getting to his resistance breaking point, he is extremely stressed having passed his minimum sentence point (parole declined) and not understanding/accepting why he has not been released.  He is now focusing on the Enhanced Thinking Skills course as the Golden Key as he has been told, wrongly, that he cannot be released without “doing” this.  His stress is increased because he has again gone to the back of the queue upon another prison relocation.  (Part categorisation reduction, part violent incident risk reduction).  I can, and have, got him forward on the queue but what he really needs is to seek and accept counselling.  He is resistant to this idea,  to address his deep-seated insecurity fears and very limited relationship/communication/anger management skills, to build real self-confidence in his own personality, and not a false and often violent facade triggered by a fear of it being revealed.

    Brian writes: Thanks very much for this thought-provoking and sobering comment, Mr Seymour. I hope someone with the necessary expertise will be able to answer your question. More generally, I suppose the response to your very sad contribution depends on whether you believe in preventive detention for people who have completed the term of imprisonment imposed as punishment and for rehabilitation, but who are still kept behind bars because they are thought likely to reoffend. Peronally I don’t, but you make a powerful case for the opposite view.

  16. S Corker says:

    My brother was sentanced to 14 weeks in april last year. he is still held in Pendlebury and will remain there until he can be moved to a prison  that has provides the course he has to go on. This is never going to happen. Our parents are in despair. This has come only a couple of years after our  other brother died. I can not imagine what goes through a persons mind when they are locked up and given no release date they do not even know what year never mind what month they will be finally be free. When his sentance was only 14 weeks doesn’t that show you severity of his crime. My brother tells me there are many more held like this, this cannot be just. In todays society of justice and honour I cannot believe that people are being treat like this . 

    Brian writes: I sympathise. This is another example, on the face of it, of the gross abuse of an anyway flawed system. If a sentence of 14 weeks imprisonment is deemed by the trial judge or magistrate (the same thing now?) enough for ‘punishment and rehabilitation’ in relation to the gravity of the offence committed, there can surely be no possible justification for an IPP, or for keeping the person concerned in prison for such an enormously long time beyond the original 14 weeks. This is preventive detention, not the kind of imprisonment envisaged by our legal system and tradition. Once again a man is being severely punished, not for anything he has done (he has paid his debt for that several times over) but for what some group of people think he might do in the future. It’s outrageous.

    I was under the impression that the courts had forbidden the prisons to keep offenders locked up beyond their tariffs because of the unavailability in a particular prison of a course regarded as a necessary condition of release. It would seem sensible to seek legal advice on this point, or to put the problem urgently to the Independent Prison Monitors in Pendlebury if the prison governor can’t do anything about it.

  17. ann says:

    My son was sentenced to 4 years IPP for GBH . It is a complicated mess but my son was not involved in the attack but had a panic reaction to the situation and told the police. They accepted that he was not involved in the so called pack as did the prosecution but he was sentenced anyway by the judge. The problem at the moment is that he has been classed as too low risk to do the offender behaviour courses. The was by the PSR and the OASys score and probation. You hear of people not being able to do the courses because of demand and there are not enough spaces but you don’t hear about lads that are classed as dangerous by the so called judge and then classed as too low risk to do the courses. how on earth can he expect to get parole? I have been told to get a prison law solictor but even they are saying there is nothng that can be done to challenge to IPP.
    What do you think?

    Brian writes: ‘Bob’, who has much experience of these problems as an Independent Prison Monitor, has repeated his response to an earlier and similar message:

    It is NOT necessary for IPP prisoners to do approved courses to get parole, but it is by far the surest way to get it. Observation of their (changing / improving) attitudes, of their relationships with officers and others, how they react to psychological counselling, and other forms of behavioural assessment can help their case with the parole board (PB). BUT the courses (e.g. ETS – Enhanced Thinking Skills; SOTP – Sex Offender Treatment Programme; anger management, etc,) are accredited therapies, with attitude tests before and after, and thus are regarded as good evidence for the PB – more reliable than general observation. But even then, a prisoner might do a course and be observed to drift through it without signs of any behavioural change sufficient to persuade the prison psychologists – who write an end-of-course report on him – and thus the PB, that he (IPP are 98% male) represents a lesser risk to society than before. So he’ll be refused parole despite having done a course. Nevertheless, courses are the best way forward.

    This comes from a telephone conversation with a top Department of Justice official, not from some printed DoJ source.

    I suggest that you might look also at Bob’s and other responses to some of the messages (“comments”) above, i.e. at
    http://www.barder.com/ephems/696, and that you also follow up the links in them to other websites that may be helpful to you. Please especially read
    http://www.barder.com/ephems/696#comment-79088
    in full.

  18. Brian says:

    The following report by Duncan Campbell appeared in the Guardian of 26 January 2009.  The last paragraph is of special interest:  see in particular earlier comments above by a member of the Independent Prison Monitoring Board, writing as ‘Bob’,  here.  Here’s the Guardian story:

    Campaigners yesterday urged ministers to act over the holding of prisoners in jail beyond their minimum sentences because they do not have access to the courses they are required to take to demonstrate they no longer present a risk.

    “Approaching 1,000 IPP (indeterminate sentence for public protection) prisoners are now being held beyond the tariff set by the courts,” said Juliet Lyon, director of the Prison Reform Trust. “It is likely that many of these prisoners who have served their minimum tariff but remain in prison do so because they have had no opportunity to demonstrate they pose no risk if released.”

    Lyon added that the IPP was “unnecessary, indiscriminate and has proved to be unworkable, overfilling prisons and leaving prison staff to try to make sense of the mess … ministers cannot abandon these people in a maze with no exit or think the problem will go away if they ignore it.”

    A typical case is that of Basim Nabulsi, a 20-year-old Palestinian, who is serving an indeterminate jail sentence in Swinfen Hall prison in Staffordshire. He has served more than twice the tariff imposed by his trial judge but the course which he needs to complete to qualify for parole has not been available in the jail. Due for deportation and anxious to leave the country as soon as he has finished his sentence, he fears he may now spend years inside before this can happen.

    Nabulsi was convicted in May 2006 of sexual assault. The judge told him that he should serve a minimum 18 months and be deported at the end of his sentence. In January last year, the parole board turned down his application for release.

    A spokesperson for the justice ministry said that the government was aware of the issues raised and was addressing them. “We have made clear on a number of occasions that the IPP sentence was never intended to be used generally for short tariff prisoners,” said the spokesperson. “We now have legislation in place to ensure the sentence is used as intended following the Criminal Justice and Immigration Act 2008, which set a seriousness threshold for indeterminate and extended sentences.”

    [Emphasis added — BLB]

    This seems to me to confirm the overwhelming objections of principle to IPPs:  1.  They involve keeping offenders in prison after they have served the ‘tariff’ set by the judge at their trial which represents the period of imprisonment required for punishment and rehabilitation;  (2) The person on an IPP after his tariff has been served has no way of knowing when, if ever, he will be released — which is inhuman, cruel and indefensible, as well as having the practical effect of providing no incentive for good behaviour;  (3)  Imprisonment after the tariff has been served is purely preventive detention:  the person is being punished not for what he has done but for what some faceless authority thinks he might do in the future;  and (4), perhaps the worst of all, the onus is on the prisoner, not on the authorities, to demonstrate that he will not offend again if released.  This reverses the proper onus on the justice system of proving that the accused has committed an offence, where the accused is under no obligation at all to prove his innocence.  It also in practice requires the prisoner to do the impossible as a condition of release:  to demonstrate that he will behave in a specified way in the future.

    The apparent additional difficulty of satisfying the Parole Board that the prisoner will not offend again on release unless he has completed while in prison a relevant course (e.g. in anger management) is compounded in many cases by the fact that such courses aren’t available in all prisons, and even when they are, the IPP prisoner may have to wait for an interminable time for a place on the course in question.  This is pure Kafka.  Instead of quoting guidelines in last year’s legislation on the circumstances in which these pernicious indeterminate sentences should and should not be imposed, the Justice Secretary should abolish the whole thing.  But the Justice Secretary is Jack Straw, the most improbable appointment since Caligula appointed his horse a consul (or perhaps since David Blunkett was appointed Home Secretary), so don’t hold your breath.

    Things have come to a pretty pass when the best hope for a remedy of such manifest injustices as the IPP — and the building of mammoth new prisons to hold ever more prisoners, and such perverse policies as the third Heathrow runway and ID cards, now lies in the election of a Tory government.  Enough to make you weep.

  19. wendy says:

    My son is a IPP he has completed all courses and have gone 19 months over his tariff. He is now  been waiting 4 months for his dossier for his parole. But still no date.

    Brian writes: Thanks, Wendy. Yet another example of the injustice and hardship inflicted by this deeply flawed system.

  20. Stella Kaye says:

    I thought I’d post the following links as I’m trying to get as much traffic to these articles as possible in order to raise funds for an appeal against conviction for an innocent man serving an indeterminate sentence. (Legal aid will not pay even though he is penniless!)

    I wondered if you could help by posting these links on your site. The articles concern the indeterminate sentence and the implications it has for innocent prisoners. 

    The articles will hopefully be of some use to other falsely accused people undergoing the same trauma. They are intended to highlight the injustice in the criminal justice system. One cent will be raised everytime someone reads an article…. not much but if enough people read these articles it might add up to something.

    Also if enough people read the articles and object to the inadequate justice system we all put our ultimate trust in this may bring about eventual changes in the law so that misscarriages of justice will seldom occur. 
     
     http://www.helium.com/items/1066333-should-anyone-be-guilty-by-accusation
    >
    [remaining links deleted — see below. BLB]

    Brian writes: As I can’t vouch for the security of the list of links to websites appended to Ms Kaye’s comment, above, and also since the comment facility of this blog is not available for fund-raising (on however small a scale), I have deleted all but the first, which itself contains links to many other websites and also a facility for sending a message to Ms Kaye. This could be used to ask Ms Kaye to send anyone who wants it the list of links that she originally included at the end of her comment above. But if you click on that link, obviously you do so at your own risk: I have not checked it for viruses or malware.

  21. sean.g says:

    my son has served 2 years of his I.P.P the judge recommended he serve a minimum of 1 year 144 days.he`s just this week been in front of the parole board,probation said they dont consider him fit for release yet.altho he`s done course after course after course.it`s very hard to tell them to keep there chin up as they have nothing to strive for.my son said his life is ruined now.and with this stupid sentence i must agree with him.he wants to appeal his.I.P.P sentence but doe`snt know how.i really feel for these people on I.P.P`s

  22. steve.a says:

    I have just had my conviction quashed, and my sentence [4years and 275 days i.p.p] was unlawful. As I maintained my innocence, I fully  expected to spend 15-20 years if not longer behind bars. Now I am waiting on a retrial. I have the knowledge, whatever the outcome, I cannot receive an I.P.P. I.P.P.s are for crimes on or after 4.4.05. I can’t be the only person given an unlawful I.P.P.?  Check dates etc: even the single judge failed to notice this error. I found out via S.G.C. flow charts!                 

  23. kaystella says:

    The whole thing with this INDETERMINATE SENTENCE FOR PUBLIC PROTECTION sentence is crazy. My innocent friend got an IPP and the crown prosecution servcice and police miraculously shifted the dates of the alleged crimes to fit in!  The supossed crimes were supposed to have happened the very day after this sentence came into force! All highly suspicious that!

    My friend has currently served just over 2 years of his IPP and has no hope of ever clearing his name.  See link to my article as in my previous comment above.

  24. steve.a says:

    let me tell you people a thing or two about I.I.Ps. if you cant read or write.you aint getting out.maintain your innocence.you aint getting out… perhaps you only got 18 month I.P.P? lucky you recat to cat c. done all the courses yippee. where are you now 4 and a half years later.  i predict a riot

  25. kaystella says:

    He has a tariff of four and a half years. He is highly intelligent so reading and writing is not a problem for him – but maintaining innocence is, as you correctly say. It’s a hindrance and a stumbling block to parole as he is treated as being “in denial and “Not addressing his offending behaviour”.

    Read my article in the SAFARI newsletter which is a publication for the falsely accused. link here: http://home.vicnet.net.au/~safari/newsletters/No64.pdf

    He must prove he is not a danger to the public in order to be realeased but being innocent how can he ever do this!

  26. steve.a says:

    you must read HOW TO MAINTAIN YOUR INNOCENCE AND GET PAROLE i got my copy from SAFARI when i was in jail. Ive got to tell you it should read DONT BOTHER. it advises you to meet the parole board half way …how you can achieve this if you are innocent? do you accept some responsibility for something that never happened? by doing so you will compromise any chance of appeal ,damned if you do damned if you dont. i applied to do lie detector tests p.p.g tests.I offered to do them without prejudice,just so i could prove i am no danger and progress through my sentence[ipp 4yrs275days] not available if you maintain innocence! we have heard rumours of courses for “deniers”    but until they materialise you are just stagnating in jail with no hope of release. even people who have jumped through all the hoops are still i nside 4 and a half years later[tariff 18 months] no-one seems to be accountable for this barbaric abuse of human rights.I hope the media will at some point shoulder its responsibility,and expose this unworkable sentence.   more I.P.Ps= less resourses=more time in jail for I.P.P prisoners through no fault of thier own! how can this be right?  

  27. mary says:

    I have created a petition about the short tariff indeterminate sentences and this can be found at

    http://petitions.number10.gov.uk/Indeterminate/

    If you are interested and would like to sign it please go to the above address.

    Brian writes: Many thanks. I have signed the petition, which is carefully drafted, moderate and reasonable. I can’t imagine any argument against acting as the petition requests. I hope everyone reading this will also sign. It’s quite painless! Just click on http://petitions.number10.gov.uk/Indeterminate/, fill in the few details required, and ‘Sign’. You immediately receive an email with another link: click on that and bingo! your name is added to the list of signatories.

  28. mary says:

    Thank you Brian for signing the petition and for the kind words you have written.   Have you any other suggestions as to how I can get people to sign and advertise the petition – I am not particularly good on the internet so would really appreciate some help.   I would expect all of the above people might be interested in signing but I do not know how to inform them of the petition.

    Thanks
    Mary

    Brian writes: Mary, all I can suggest is Googling “IPPs”, “indeterminate sentences” etc and also doing a search for the same words in Technorati (http://www.technorati.com/) to see if you can find any more blog posts on the subject, like this one, so that you can write another comment at the bottom about your petition, urging everyone who agrees with it to sign it, just as you have done here. Also obviously e-mail all your friends asking them not only to sign the petition themselves, but also to ask their friends to sign it, too. You can’t contact the other people who have commented here because their e-mail addresses, like yours, are protected, to save you and them from tidal waves of spam. Some of them may check here from time to time to read any new comments and if so they’ll read your comment about the petition, but there’s nothing you can do to make them do so!

  29. kaystella says:

    For Mary,

    you can ask Phil Faber from SAFARI to put the petition on their website… they usually manage to get the 200 signatures needed for a reply from the government. The safari website details are in my comment of 23rd April.

  30. john greenwell says:

    An  Australian lawyer comments: I hope the Petition seeking  justice for the 971 ‘less-than-two years tariff’ prisoners, is successful. In addition, I hope there will be a fundamental re-think of the IPP scheme – a bad law, unjustly administered –sooner, rather than later.

    You may be interested in the Australian approach. We have of course the same common law tradition but, in the field of criminal punishments, we have diverged on basic principle. This difference is reflected in the 2003 UK Legislation introducing the IPP scheme.

    I can best explain this by quoting from the Australian High Court judgements in the case which authoritatively stated the Australian position – Veen (1988.). The Court specifically drew a distinction from English law, as judicially expressed at that time:

    “The principle of proportionality is now firmly established in this country … a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from risk of recidivism on the part of the offender … There is no occasion now to contemplate the adoption by judicial decision of the English development.”

    The English development (my italics) was one which “permitted a sentence greater than the principle of proportionality would allow” on the ground that a “longer sentence is required for the protection of the community.”

    The High Court judgement  continued:

    “It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing the appropriate sentence. The distinction in principle is clear between an extension merely by way of preventative detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other matters, which is permissible.”

    The distinction between what is impermissible and what is permissible is at the heart of an illuminating controversy  between C.S Lewis and (others) which appeared over a number of issues in a law journal and concluded with a plea by Lewis that ‘deserts’ must be the first consideration of punishment. To this the High Court said:

    “The plea has been heard by the courts of this country, by adopting the principle of proportionality …It must be acknowledged however that the practical observance of a distinction between extending a sentence merely to protect society and properly looking to the protection of society in determining the sentence, calls for judgement of experience and discernment.”

    The principle of proportionality is reflected in the parole system in Australia. Thus, the Head sentence will be fixed in accordance with that principle, but a minimum term is fixed to enable rehabilitation and reform of the offender. These though cannot extend the fixed term or allow for it to become indeterminate.
    There is nothing like the UK Indeterminate Protection Programme which, as I understand it, provides (in the case of sexual and violent offenders) that if, at the expiration of the tariff, the Court or Parole Board is not satisfied that the offender’s release can be made without danger to society, he or she will be indefinitely detained until they are so satisfied. IPP does not purport to be some irregularly imposed punishment for incorrigible offenders. It is a regular part of the criminal punishment system involving, as I understand it, thousands of inmates whose offences must vary in gravity. It is thus a kind of sub-system of preventative detention for crimes of violence.

    Australia does have specific provision for indefinite detention of a limited class of sexual offender. Thus, to take the example of one Act, ‘indefinite detention’ is allowed following a court order for (a) a ‘serious sexual offence’; (b) A ‘serious sexual offence’ is an offence of a sexual nature involving violence or against a child; (c) the court must find, on application by the Attorney General, that such an offender represents a ‘serious danger’ to the community; (d) that it involves satisfaction that “there is an unacceptable risk that if released, the offender would commit ‘a serious sexual offence’.

     It is unnecessary to labour the differences between this and the English legislation. It is confined to a serious sexual offender who is known, from repeated sexual behaviour, following prior convictions, that he will or is likely to re-offend. In Victoria, for example, its application is confined to 3 or 4 male offenders, housed (under security) outside the prison at Ararat. The rationale for indefinite detention in these circumstances is that it is non-punitive and, although not identical, is rather  to be aligned to the involuntary detention of inmates in mental hospitals.

    I cannot imagine the English scheme or anything like it, being adopted in this country.

    Brian writes: John, many thanks for this illuminating comment. Not for the first time, I am struck by how often we could benefit from studying the Australian example of how to do things better — not only on the cricket field.

  31. S Corker says:

    My brother was sentenced to 14 WEEKS in April 2008 and was placed in Pendlebury which had no IPP course. He was transfered to Watton at the beginning of this year and has not even started the course yet, he is still waiting for some sort of assesment from his probation officer i think. My brother was sentenced to 14 WEEKS and is classed as a LIFER. Baby P’s father and murderer will probably be released before my brother. How can it be right that a murderer recieves less prison time than someone given 14 weeks.

  32. Mary says:

    Can I urge S. Corker to sign the petition, and get everyone they know to sign it – there is not much we can do except keep voicing our views and this petition will help.

    http://petitions.number10.gov.uk/Indeterminate/

    Please keep signing.

    Thanks

    Mary

    Brian writes: I strongly support Mary’s appeal to sign this petition. It only takes a minute or two and every additional signature helps.

  33. Mary says:

    Thanks to S. Corker and any others who have signed. Only 8 days to go – can anyone else sign please.

    http://petitions.number10.gov.uk/Indeterminate/

    It’s really easy – just click on the web site, open the email they send you and click where indicated.

    Thanks.

  34. Jo says:

    My two brothers are serving IPP sentences. One has 2 yrs tarrif left, the other 3yrs..
    My two  brother’s  have  done ETS, Victim Awarness. My older brother has been told by his probation officer he needs to get acessed for  cscp . I have enquired and there is a 3yr waiting list for it and still no guarantee he will have to do it after being assesed. It is just so worrying as my brothers have no release date and they are being sent to these prisons that are so far away to just get put on a list .
    What makes me mad is that people that are seriously violent dont get these sentences ..
    Are these IPP sentences ever goin to get replaced. Its just so unfair on the familes….

    Brian writes: The whole system is clearly indefensible and should be abandoned. But I see little prospect of this whether or not there is a change of government next year. The Conservatives’ prison policy appears to be little more than a proposal to build yet more prisons to house yet more prisoners. I see little mileage in complaining, however much the justification, about the hardship it inflicts on prisoners’ families. But I think it’s generally accepted that it’s important for the rehabilitation of offenders that they should be able to maintain their bonds with their families, and since rehabilitation is obviously in society’s interests too, imprisoning offenders far from their families is manifestly counter-productive as well as being inhumane.

  35. Jo says:

    Thanks…
    But these probation officers that come into prisons and assess prisoners for the pre sentence report, only see them for half an hour and make a judgement whether they should be recommended IPP.
    Some Probation Officers do it Video Link…
    How can they assess someone when they only spend half an hour with them…
    My Older brothers probation told him he would not recommend it then went to police searching more info. He then recommended it on Intelligence , and because my brother still says he aint done what prosecution are saying..
    Sorry really frustrated..
    There must be some door can knock at.. esp when these courses are being set and the goal is unrealsitic.
    My two brothers have to do CSCP only three prisons do this course. Waiting list 3yrs so how can they do this within there tarriff.
    Also for this course your score has to be over 100. My older brother score was 101, and the younger one’s was 56…
    HELP!!!!!!

    Brian writes: I can well understand your frustration at the harsh and seemingly irrational effects of this system. Some earlier comments on this thread by ‘Bob’, who has extensive experience of this and other prison problems as an Independent Prison Monitor, may be helpful to you. In particular it would seem sensible for your brothers to ask for advice and help, or anyway for advice, from the Independent Prison Monitoring Board (there’s one in every prison).

  36. Mary says:

    I would like to thank Brian and everyone else who signed my petition. We have not yet received a reply – but wait in anticipation of the usual ‘blurb’ that the government will send us. All who signed should get a copy of the response at the same time as me.

    I will keep you updated on my next move to get some action on this injustice. The Lord Chief Justice has commented, in Law in Action on Radio 4, that these short tariff IPPs are a ‘travesty of justice’. He said people with these short tariffs should be identified and released. How do we get the government to respond to the Lord Chief Justice?

    Jo – keep strong.

    Brian writes: Mary, thank you. The intervention by the Lord Chief Justice himself on this issue certainly ought to be helpful to the cause, if only to advance the limited objective of getting short-tariff IPP prisoners released at once. When the prisons are so monstrously over-crowded, here’s one part-solution which everyone who knows anything about it agrees would help, and which could be implemented almost immediately. Yet nothing ever seems to be done. I’m afraid it’s another example of ministerial cowardice in the face of the Sun’s and the Daily Mail’s likely reactions — “Straw releases thousands of violent convicts to free up prison spaces”, and the like. Please let us know what further steps you’re planning and whether there’s anything more we can do to support them.

    As for the longer-term objective of getting the whole misbegotten IPP system of preventive detention without due process abolished, it begins to look as if that will have to wait for the election of a new, younger, braver Labour government in about 12 years’ time. God help us!

  37. Bob says:

    Looking for some signs of progress in the battle against the now universally disliked IPPs:
    1. There was an amendment passed in 2008 to the Criminal Justice Act 2003 ( which created IPPs ), whereby crimes carrying a tariff of less than two years were taken out of the IPP net. Could this help Mr Coker, who says his brother was given an IPP with the unbelievably short tariff of 14 weeks in April that year? It would seem so, on the face of it.
    2. I note Steve a’s comment about the mistake made in his case. As a member of the Independent Monitoring Board (IMB) in a large prison I regularly see evidence of the pressure people in the prison and probation systems are under to cope with the ever-increasing numbers of performance criteria and PSOs (Prison Service Orders) imposed by the government/ Ministry of Justice. This causes both frustration and mistakes. So I strongly advocate getting a good solicitor to examine any IPP which isn’t a clear-cut case (like proven rape or GBH are). The IPP system is very wobbly, and loathed by all who have to deal with it – and Jack Straw knows it.
    3. In fact the House of Lords has just debated (on 28/10/09) an amendment aimed at abolishing IPPs. It was moved passionately and convincingly by Lord Goodhart (Lib Dem) and strongly supported by, among others, the former chief inspector of prisons, Lord Ramsbotham, and the president of the Howard League of Penal Reform, Lord Carlisle.
    Lord Goodhart put all the powerful arguments against IPPs which have featured regularly in this blog, condemning them as effectively an accidental life sentence for many prisoners, under present circumstances, and leaving hundreds of others in a Kafkaesque and demoralising situation.
    Lord Ramsbotham said IPPs were ” Improperly proposed, improperly conducted, improperly impact-assessed and improperly introduced”. The ‘improper impact assessment’ refers to the failure to forsee the outrageous waste of scarce resources which would result from keeping men in prison to no evident purpose at a cost of £38,000 a year, thereby stealing from purposeful activity elsewhere. David Blunkett apparently forgot about this – as he forgot about just about every other practicality of implementing IPPs.
    (Lord R’s book ‘Prisongate'[2003] is essential reading for anyone who wants a no-nonsense, honest and damning account of prison life in the UK. He was an outstanding Chief Inspector of Prisons. A former army General, Lord R was appointed CIP by Tony Blair, who felt the previous CIP, a retired judge, had been too much of a reformer, always taking the prisoners’ side and wanting money spent…. Little did he know that the General would cause him even more problems, defending prisoners in the way he would have his men! So he too had to go….But you can take as gospel everything Lord Ramsbotham says about the prison system.)
    Lord Carlisle said nobody likes IPPs:” The Prison Service doesn’t like them because of the problems they cause. Judges don’t like them because what they have to say in sentencing is at best misleading and at worst fictitious. Defence lawyers don’t like them because they cannot give realistic advice on pleas to their clients. Defendants…..”

    Sadly Lord Goodhart withdrew the amendment (No.90) later that night. But clearly this discredited system is now widely under attack, and only cowardice in the face of the inevitable taunts of being soft on crime from the Daily Mail, etc, stops Jack Straw tactfully squashing Blunkett’s bullying blunder.

    I have steered clear of figures in general, but will just add that although the number of IPP prisoners still in prison past their minimum sentences was 1,711 in April this year, the following figures show there was a substantial reduction in 2008 as a result of the change in the law in 2008, which I mentioned:
    2005 – 445: 2006 – 1610: 2007 – 1770: 2008 – 1342: (2009 – 1711)

    It isn’t clear why the number shot up again this year. But the reasons will doubtless lie somewhere in what the noble lords above have said….

    Brian writes: I’m extremely grateful to Bob for this comprehensive and modestly encouraging review, which will be helpful to the many people who have contributed desperate comments here. But it is so depressing that once again a measure enacted by a Labour government and extensively exposed by every expert and expert body as unjust, counter-productive, costly in human and financial terms, and fundamentally contrary to the most elementary principles and traditions of justice, continues in force with no obvious sign of willingness on the part of ministers or even MPs to abolish it. What’s even worse is that an incoming Conservative government, if that’s what’s in store for us, is even less likely than the cowardly Labour “Justice” Minister, Jack Straw, to risk the wrath of the Sun newspaper and the Murdoch press by abolishing it.

  38. Suzie says:

    My friend given 2.5 years IPP, tariff expired June 08 got a paper knockback in Oct 08 dispite doing all courses and being a enhanced prisoner throughout, excellent prison refs and education manager refs. He’s still a risk to the public!! How do they know this? What’s the point in saying you want to change – they don’t believe you! My frind is dyslexic (as are 80% of prison population) and had difficulty writing up CALMS and ETS homework – sorry no help given and then PB say his homework’s not good enough. Eventually in July 09 (13 months over tariff) the oral hearing takes place – only thing most reports are out of date due to delay. Outside probation who’s seen him one in 2 years (as he’s out of area – not his fault) says 2 days before PB she doesn’t want him released!! Guess what another knockback. Letter says PB will look again at his case after Jan 2011. He’s devastated – staff say he’s done everything – he’s a CatC in a CatB establishment – he stayed as he wanted staff who knew him at PB but this has been held against him by saying he resisted moving – A LIE. The B have said he will have to do CatC and CatD to prove he’s not a risk to public!! I’ve written to my friends MP and hope it will be agin brought before Jack Straw as my previous letter was. Risk has to be given – my friend needs to prove himself – outside – there is nothing more to do. Anyone else in this position??

    Brian writes: Suzie, you might like to consider the suggestions in Bob’s comment (and my response to it) at http://www.barder.com/696#comment-90385.

  39. Jo says:

    Brian my brothers have asked for help… They have knocked at every door but if outside probation officer says you have to be assessed then there is nothing anyone can do.
    I have sent them info about channing s wood having a long list for CSCP and they have shown it to inside probation but no one is listening. I sometimes feel that the people working in the probation service/Prison  have not got a clue about the courses and how to deal with IPP Sentences and what the waiting lists are like.
    I feel my brothers will have to go there and will be put on this long waiting list and just get stuck in the system.
    I have rang prisoners advice service/Solictors etc but seems like no one can help.
    My brothers have also just had a knock back for there appeals on the grounds of the offence, pre-sentence report and previous..
    I just dont understand this Justice System!!! Yet two other cases  similar to my brothers but much worse  have gone passed first judge.
    Seems like there is no hope  with this IPP Sentence…
    Seems like this whole Justice system stinks… These judges are not consistent in passing sentences for crimes.. One minute its 5yrs,10yrs, IPP, No IPP for the same offence…

    Brian writes: Jo, you might like to consider the suggestions in Bob’s comment (and my response to it) at http://www.barder.com/696#comment-90385.

  40. steve.a says:

    Dear Brian
                         after getting found not guilty at my retrial [the jury were out all of 22 minutes]   I found myself homeless with my life in bits, Dont get me wrong this time last year i was inside maintaining my innocence with a 5 year I.P.P wrapped round my neck, But where is the support for people in my position,I commited no crime spent a year of my life in jail ,For what?

  41. Mary says:

    Poor Steve A. – glad to hear you are out but you are right – you should be given help and support to get your life together. I am sure you will be able to move on – you survived in prison and you can survive better outside.

    I am going to write letters to the prime minister, minister of justice and all the Lords mentioned above by Bob and it would be a good idea if everyone involved in the IPPs could do the same – 277 people signed my petition and if all of those could write a letter it may begin to get home to the Ministry of Justice. I am going to write about the injustice and inhumanity of the short term tariffs that were created before the change in the law last year and also about the inhumanity of any IPP sentence. I believe people should be punished for their crimes, rehabilitated if possible and then be able to contribute to the society they live in – an indeterminate sentence punishes those who commit the crimes and all their families and friends who have not committed crimes!

    I would welcome any other ideas about what to say in my letters and any suggestions as to what other action I can take.

    Brian writes: Mary, please see Bob’s very helpful suggestion below.

  42. Bob says:

    Mary and others, you could do worse than write to:
    Dr Peter Selby, President of the IMB National Council,
    IMB Secretariat,
    2nd Floor, Ashley House,
    Monck St
    SW1P2BQ

    The Independent Monitoring Board, as you know, is the organisation I belong to, and though I don’t know Dr Selby ( a former bishop) personally, I have every reason for thinking he won’t just wring his hands. Mind you, we are only supposed to do just what it says on our tin, i.e MONITOR what goes on in prisons. We are not inspectors with the power to change things. It is our job to spot where we think there are problems, and tell / nudge the relevant people into awareness and, hopefully, action. But I don’t see why Dr Selby wouldn’t take up this most deserving of causes.
    For information: IMB members are unpaid volunteers, appointed after being interviewed at the prison of their choice and then vetted (at length) by the Home Office. So we are appointed by the HO, but independent of the prison system whilst working within it. There is, very roughly, one IMB member per hundred prisoners in a prison.

    Brian writes: Bob, thank you very much for yet another helpful and practical suggestion. A written letter addressed and posted to Dr Selby (using the address given in Bob’s comment above) would probably be likeliest to reach him and to have an effect. It might also be useful to send a copy of the letter to the Head of the IMB Secretariat by email to Mr Norman McLean at norman.mclean@justice.gsi.gov.uk, with a polite request to Mr McLean to please ensure that Dr Selby himself sees your message to him. Of course writing to Dr Selby need not prevent anyone from writing also to his or her MP and/or to the Justice Secretary, the Rt Hon Jack Straw MP, at either the Ministry of Justice or the House of Commons. A Minister is generally more likely to pay personal attention to an appeal or complaint that reaches him or her through an MP than to a letter sent direct to the Minister, which is liable to be sent to a civil servant to answer on the Minister’s behalf, often without the Minister even seeing it.

  43. Jo says:

    Thankyou for that..

  44. ann says:

    Thanks for the info.
    I know what you mean about writing directly to a minister, you get fobbed off with an answer from a clerk and not even the answer to the question you have asked.

  45. Mary says:

    Thanks to Bob and Brian for their help – nice to be given some assistance – it sometimes feels like one is banging one’s head against the wall – but as Brian says – one day we WILL get there.

    I have already written to Dr. Selby by post and will let you know when I get a response. I have also written to the prime minister and Jack Straw talking about the injustice of these sentences and the distress and damage they are doing so am also expecting a reply – will keep you informed.

    For your information the IMB were very helpful at the prison we visit when some prisoners could not get response from the parole clerk – it happened really quickly when the IMB intervened – thank goodness for them.

  46. Suzie says:

    Thanks everyone for their info. I certainly agree if you write to the MP for the inmate’s area prior to sentence (or for area of prison if they’ve been in there for a while) you will get a response. Nothing directly to Jack Straw did any good but the MP brought it up with jack Straw and I got a copy of the letter Jack Straw sent to my friend’s MP. That was then though — 2.5 years ago when he first got to the 1st stafe prisons as they had to before it was changed. Things don’t get any better – you wait for months after tariff expiry and then be told you have to do CatC and CatD before release?? He was only sentenced to 2.5 years and it was said about 3 years ago that progression would not always be necessary for such short IPP sentences but PB are still insisting on it.

    Brian writes: I sympathise (for what that’s worth!). This seems to be a prime example of someone who has served the “punishment/deterrent” part of his sentence, a relatively short one, who is apparently still in prison for purely “preventive” reasons (to prevent him committing another offence, whether this is likely or not), and whose release is being indefinitely delayed while he grinds through a series of prisons in varying categories of security under a procedure over which he has apparently no control. Suzie’s message confirms that the best, probably the only, way to get the attention of the minister (the Justice Secretary, Jack Straw) is through your constituency MP. It might well also be helpful to seek the advice of the Independent Prison Monitoring Board (IMB) — see http://www.imb.gov.uk/ and advice in an earlier ‘comment’ by Bob, above, as well as Mary’s tribute to the IMB’s effectiveness at http://www.barder.com/696#comment-90402. The more the IMB hears of specific individual cases such as this, the better the prospect that they will insist on action by the Justice Department to end this gross, Kafka-esque injustice. Good luck, Suzie.

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