IPP prisoners need resentencing

Imprisonment for Public Protection (IPP) was (and for those still affected is) like life imprisonment. It has three parts: a minimum prison term; a further custodial period before release (if the Parole Board recommends it); and an unlimited period on licence, subject to possible recall to prison. 

The imposition of this sentence was precipitated by a trigger system linked to a wide range of previous convictions and the exclusion of judicial discretion, subject to exceptional circumstances, a phrase construed strictly.

From IPP’s introduction in 2005 until 2008, there was no lower limit for the minimum term, prompting IPP sentences where the index offence was fairly minor. Even after the introduction of a two-year threshold in 2008, the minimum term and the term served, or still being served, has often turned out to be staggeringly disproportionate. IPP was abolished in 2012, but not retrospectively.

Why is the legacy of IPP shocking? Because on 31 March 2023, 2,916 people were still in prison serving this sentence of whom 1,355 had never been released; 98% of them are over tariff and 48% 10 years over tariff; 182 people have died serving this sentence and another 81 have killed themselves, the highest annual total, 9 in 2022.

What is needed is resentencing. The release, immediately, of everyone serving IPP is not a sensible solution. A small cohort may be dangerous in the proper sense of the word, presenting a substantial risk of causing serious harm. They may have to remain in prison or be transferred to a secure mental health unit. Sadly, some of that group will have deteriorated psychologically as a result of excessive time in custody. Those with experience of the use of prison will recognise that effect.

The arguments raised against resentencing are flawed. There is no restriction on revisiting sentencing. It was done when the minimum terms set by the home secretary in murder cases were reconsidered after that power was declared unlawful. The prohibition is against increasing sentences retrospectively – not a difficulty with a sentence which was potentially lifelong.

Other arguments against resentencing have included that it involves an attack on judicial discretion as exercised originally. Given the statutory limit on judicial discretion in relation to imposing IPP, this argument lacks force. As for the argument that resentencing would involve ignoring past and potential future victims, this is fallacious. Respecting past victims, resentencing would be focused on potential release after the retributive minimum term has expired. For future public protection, that would be addressed by the possibility of resentencing postponing release, even in some cases, where life imprisonment was justifiable, indefinitely. Remember, IPP was abolished in 2012. There is no call for its reintroduction because the public has been inadequately protected since then.

A claim that resentencing ignores risk to future victims prompts interest in the Tariff Expired Release Scheme, introduced in 2012. That provides that, after their minimum custodial term, foreign IPP prisoners, with limited exceptions, are deported, despite the risk they present unsupervised. This was challenged by an Irish IPP prisoner seeking the benefit of that scheme, from which he was excluded. The government’s justification of its approach though found rational, lacked moral authority: ‘Where a person holding Irish citizenship is deported, it may be possible for that person effectively to bypass border controls by re-entering the UK illegally from Ireland… In such circumstances, the UK may be faced with the clandestine return, in breach of a deportation order, of an individual who would have been subject to in-country offender management measures, had deportation not been pursued. Thus, there is a risk that deportation of Irish citizens will simply result in the individual concerned returning to the UK without the benefit of the in-country rehabilitation or offender management measures. This will entail enhanced risk to the public safety of the UK and Ireland.’ R v Foley [2019] EWHC 488 (Admin), paragraph 49.

Risk to foreign victims and relatively more severe punishment of British and Irish prisoners was unimportant; there was money to be saved. As for concern about judicial discretion at the time of sentence, was it simply presumed that the judges would have thought the same?

The Commons Justice Committee concluded: ‘Our Report has set out various steps the government needs to take to help address the IPP problem. But it is clear to us that, while these measures are necessary, they will not be sufficient… The sentence is irredeemably flawed.

‘As Lord Thomas noted in R v Roberts [2016] EWCA Crim 71: “It was parliament which legislated to establish a regime of sentences of IPP in terms which the courts have faithfully and properly applied. It must, in our democracy and in accordance with the rule of law, be for parliament to provide a correction for the outcome if it so wishes.” We agree. In our view, a comprehensive and adequate solution to the IPP problem can only be achieved by primary legislation that deals retrospectively with the continued operation of the sentence and that allows a resentencing exercise to be undertaken…

‘We do not underestimate the complexity of undertaking a large-scale resentencing exercise for IPP prisoners. It would require careful thought, significant planning, and sufficient resource. However, the potential difficulties do not justify failing to grasp the nettle. All three branches of the state – the government, parliament, and the judiciary – must now rise to the challenge.’

The government rejected the option of resentencing, producing another ‘action plan’ hoping to mitigate the worst consequences of this legislative failure. It was wrong to do so. It is a mistake to treat the symptoms and not the cause. It is an error, which the profession should condemn, not to end completely a sentence which offends against a basic principle of sentencing, that punishment must be proportionate to the offence.

Nicholas Cooke KC is a former recorder of Cardiff and judge at the Central Criminal Court; he is researching sentencing for murder at Worcester College, Oxford