Opinion: The future of Indeterminate Sentences – and why liberals should support them

The number of prisoners serving indeterminate sentences has rocketed since the 2003 Criminal Justice Act introduced the IPP (Indeterminate Sentence for Public Protection). Within four years of its introduction, over 5,000 such sentences had been passed despite original government projections of just a few hundred.

To the horror of many liberals less than 2% of such prisoners have ever acheived parole and hardly any gained release at expiry of their sentence tariff. Most MPs will be familar with cases of constituents where IPP prisoners have served well in excess of their tariff and yet appear to have little prospect of release.

As a result many liberals will applaud the government announcement this week that the IPP sentence is to be replaced by a regime of Determinate Sentences and a “two strike” automatic life sentence reserved for the most serious offences.

At first sight this appears to be a victory for justice and a step towards reducing prison numbers. But the reality is less straightforward, and although the IPP has flaws these can be reformed — and if the sentence is made fit for purpose it has many advantages over the proposed reforms.

The implementation of the IPP sentence was undoubtedly flawed. Poorly worded legislation brought thousands of offenders needlessly into scope and denied judicial discretion; prisons were not equipped to manage the new sentence and provide sufficient access to courses and programmes; the parole process became overwhelmed and it took the government three years from the launch of the sentence to produce the framework for managing them. In addition disparities in sentencing soon emerged with different offenders getting Determinate or Indeterminate Sentences for very similar offences.

However, there was a broader issue of principle that would make liberals uncomfortable because decisions to pass an IPP sentence were often not merely based on the seriousness of the crime but also based on assessment of the risks the offender presented. This assessment could include information on alleged offences for which the individual was never convicted. Additionally such factors would be taken into account in deciding parole.

The key argument for IPP can be demonstrated in a hypothetical example:

    Mr A has a history of child sex offences but has never been convicted of an offence serious enough to get a life sentence. He has recently been convicted of an offence of sexual grooming of a child and possession of indecent photographs of children. Mr A is assessed as presenting high risks to children and is unmotivated to undertake any offending behaviour courses. As he has been convicted of offences with a low level of reportage it is suspected that he has committed other serious crimes and has many other victims. The argument follows that Mr A would merely serve any determinate sentence and on automatic release continue to be a considerable threat to children. However, with an IPP sentence Mr A would remain in custody for as long as he is assessed as presenting unacceptable risks.

The IPP can be seen as having significant value with offences where reportage and conviction rates are low. The two classic areas are sexual offending and domestic abuse. These are offences with high impact on victims and often the matters before a Court represent a fraction of the totality of an individuals’ offending. The argument would follow that the risk to potential victims is a greater threat to liberty than the issue of the rights of the offender. This approach is defensible provided there are sufficient opportunities available for the offender to undertake work, reduce their level of risk and secure their release.

The idea of a “two strike” life sentence is not new. This was the very sentence championed by Michael Howard in the 1990s, soon discredited, and replaced by the IPP in the 2003 Act. Under this system a life sentence would be passed when an offender gains a second serious conviction. This is regardless of whether the offences have any similarities or if they are many years apart.

In short an individual convicted of rape as a teenager would get an automatic life sentence for a serious count of arson or GBH — even if 30 offence-free years had passed since the first conviction. It can be contended that whereas the IPP sentence has evolved to develop judicial discretion the “two strikes” life sentence is a blunt instrument that could produce perverse results.

This article is designed to stimulate debate, as the the much-maligned IPP has few defenders. However, I would contend that key problems with the sentence have been in implementation and that the principles behind it are sound. A return to exclusively determinate sentences for repeat sexual and domestic abusers will be detrimental to wider liberty and the latest proposals for “two strike” life sentences not new and have proved in the past to be flawed.

* Dan Roper was Lib Dem candidate for the Broadland constituency in 2010. He is a Senior Probation Officer and Public Protection Manager in two prisons.

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7 Comments

  • Sadie Smith 1st Nov '11 - 5:11pm

    IANAL, but would be a bit surprised if there was no way of idicating the need to address offending behaviour in setting of sentence.
    Release ought to be followed by some supervision. If prisoners have an early release, I thought that they could be recalled during the rest of the tariff.
    The two strikes seems not necessary, as the Judge will know of previous. Only difference is that it envisages up to a life sentence(I assume with a Judge set tariff) . Good Judges would probably set the equivalent anyway.
    We just need drugfree prisons with rehab regimes. And effective supervision.

  • Andrew Suffield 1st Nov '11 - 6:58pm

    IANAL, but would be a bit surprised if there was no way of idicating the need to address offending behaviour in setting of sentence.

    The main problem here is an institutional lack of the ability to address offending behaviour. Making the decision about when to apply it isn’t the hard part.

  • allyce swift 1st Nov '11 - 7:32pm

    in orincipal yes the ipp sentence does seem good, but it was dished out willy nilly by ill informed judges and now has completely spiralled out of control, some people have served more than four times their original tariff and are still awaiting programmes, offender managers have pressure placed on them to deliver this and deliver that yet how can they when the resources are so lacking, the end to this was a complete necessity, yet more still needs to be done for those serving at present.

    offender managers cannot possibly magic course places out of thin air, as prisoners cannot do courses with which they cannot ascertain a place. surely look at the bigger picture, look at the character of the prisoner and look at the whole picture.

  • lynne simpson 1st Nov '11 - 9:45pm

    unfortunately my son was one of the early offenders to receive an IPP sentence and despite doing all of the courses and more he still has no idea if or when he will ever be released on a life licence, it is so sad to see the waste of a young life more so when were he to be arrested today he would have received an 18month determinate sentence and could have got on with his life, as opposed to the 18month IPP to which he was sentenced 6 1/2 years ago. what is to happen to the 6000 prisoners that are in the same position as my son, costing a fortune just to keep in jail and then to have on licence when they come out. undoubtably there are some that really need to be imprisoned but surely we cannot keep people in jail for something that someone thinks they may do in the future even murderers know that they have a release date.

  • lynne is right – same thing happened to my relative – he spent 4 years inside prison on an 18 month tariff. He finally got out through the Appeal Court who substituted a 3 year determinate sentence, which of course, meant he would only have done 18 months in prison! If you can possibly manage to try the Appeal Courts as they seemed to use much common sense as well as legal knowlege. Nothing changes the distress caused to all our family in connection with the indeterminate sentence and we feel as if we will never recover from the trauma of not knowing if our relative would EVER be released. Indeterminate is barbaric and inhumane – determinate is fairer and more humane, even if if is a life sentence, at least one knows what is to happen. Keeping 1000s of people in prison in case they might commit another offence is improper and if it was known to be happening elsewhere the human rights people would be ‘up in arms’ – why do we do it?

  • Andrew hits on a key point – is it acceptable for people to be sentenced on the basis of crimes they have not been convicted of or the likelihood of what they might do in the future? The default position is that only the offence before the Court (in the context of previous convictions) should be considered. However, can there be a liberal case for a more punitive approach to protect potential victims of serious crime?

    Mary, Lynne and Allyce all correctly highlight the over-use of IPP which stemmed from badly framed legislation. At the advent, guidelines stated that anyone convicted of a “serious specified offence” who had a previous conviction from a much longer list of “specified offences” (included nearly all sexual offences, ABH, Affray) should be considered “dangerous” and sentenced to IPP unless there were exceptional circumstances. This put a considerable number of offenders into scope for IPP with limited Judicial descretion.

    Anyone serving IPP who is released is subject to a minimum period of 10 years supervision by Probation staff with possibility of recall in the event of re-offendng or breaching the terms of release. This provides a lot of scope to safely manage individuals in the community subject to restrictions e.g on residence, employment, not having unsupervised contact with children. At present Parole processes treat IPP cases in a similar way to Lifers ignoring the fact that by definition Lifers will have often committed more serious offences. A change in thresholds for release could be effected without having to abandon the IPP sentence.

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