There are currently 2,884 people in England and Wales who did the crime, have done their time − but are still in prison. In fact 278 of these people were given a prison sentence of less than two years but have served more than ten.
Welcome to the Kafkaesque world inhabited by IPP prisoners and their families.
Imprisonment for public protection (IPP) was introduced in 2005 and was designed for those who had committed specified ‘serious violent or sexual offences’ and who were deemed to pose a ‘significant risk of serious harm’ in the future. Under the sentence, high-risk individuals would serve a minimum term in prison (their tariff), during which time they would undertake work to reduce the risk they posed. When sufficient risk reduction had been achieved, they would be released by the Parole Board.
If, at the end of their tariff, their risk had not been reduced sufficiently, they would continue to be detained until they had satisfied the Parole Board that they could be safely managed in the community. Most tariffs were relatively short, with an average of three years and five months. The sentence was abolished in 2012 because it was acknowledged to be fundamentally unjust. Between 2005 and 2012, a total of 8,711 IPP sentences were issued by the courts.
The parole board has been prioritising the release of IPP prisoners and has been releasing more of them every year since 2014. However, the number of IPP people in prison who have been released into the community but recalled to prison has also been rising. To give you an idea of the figures, in 2016 the Parole Board ordered the release of 905 IPPs (including the re-release of 249 recalled IPPs) but in the same period 481 IPPs were recalled.
Why aren’t IPP prisoners released?
The IPP system flips the burden of proof onto the sentenced prisoner who must be able to demonstrate a reduction in their risk sufficient for the Parole Board to direct their release. For a variety of reasons, many IPP sentence prisoners have been deemed unable to do this. A 2016 report by the prison inspectorate identified a number of reasons including: prisoners not being given sufficient opportunity pre-tariff to access the relevant reducing reoffending courses; delays in them being transferred to other prisons to access programmes; and inadequate support being provided to help them progress through the prison system in order to demonstrate a reduction in risk. You can only imagine how these problems have intensified over the last two years as the prisons crisis has intensified.
The prison system has proved cumbersome and obstructive. For instance, prison inspectors found that open conditions and release on temporary licence (ROTL) are key ways in which IPP sentence prisoners can demonstrate a reduction in their risk prior to release, but ROTL policy prevented most IPP prisoners from getting temporary release while they were still in closed category C training prisons. They would of course be assessed as too risky to be moved to category D open prisons where they would be allowed ROTL and could demonstrate that they had reduced their risk – as neat a Catch 22 situation as any that Joseph Heller dreamt up.
One final reason that many IPP prisoners are not deemed to have reduced their risk is that they often had complex mental health problems in the first place and the experience of being in prison actually exacerbated their conditions. It’s not hard to imagine how someone who is feeling profoundly depressed, paranoid or schizophrenic might deteriorate over many years in prison with variable quality of mental health care.
This leaves IPP prisoners, their families and the Parole Board in an invidious position. On the one hand, the Board is not legally permitted – and would certainly face enormous media and political criticism – if it released an IPP prisoner whose risk of harming others had remained the same or even increased. On the other, how can it be just for someone who committed a crime judged to merit, say, a two year prison sentence, to have served ten years and to have no realistic prospect of being released?
Interestingly, Michael Gove, after he had been removed from the post of Justice Secretary when he, briefly, ran against Theresa May to be come Prime Minister, gave a Longford Lecture in which he said that he would “recommend using the power of executive clemency for those 500 or so IPP prisoners who have been in jail for far longer than the tariff for their offence and have now – after multiple parole reviews – served even longer than the maximum determinate sentence for that index offence.”
It's hard to imagine a justice secretary of any political persuasion being bold enough to take that sort of decision while actually in office, particularly after the furore which accompanied the decision to release John Worboys on parole earlier this year, subsequently over-turned following a public outcry.
So, in the meantime nearly 3,000 prisoners are stuck in a judicial limbo. While some will continue to be released, many of these will be recalled to prison, often without committing a further offence.
And one final point. It is true that IPPs were abolished in 2012, but they were replaced by a new provision: Extended Determinate Sentences.
The government did not make the same mistake of creating an indeterminate sentence which might never end, but nevertheless made life pretty hard for those on EDS. People on extended sentences, designed for criminals convicted of serious sexual or violent offences, cannot be released from prison until they have served at least two-thirds of their sentence (by comparison to the normal halfway point) and for the most serious offenders only then if the Parole Board agrees it. Violent offenders will also have a licence period of five years (almost inevitably resulting in a high proportion being frequently recalled to prison) and sexual offenders an even longer licence period of eight years.
IPP and EDS contribute significantly to keeping our prison population so high.
The only way to resolve this unjust situation is for a Justice Secretary to pass new legislation. IPP prisoners and their families won’t be holding their breath.