5. Memorandum submitted by
Simon Creighton
INTRODUCTION
1. I am a partner at Bhatt Murphy Solicitors
and I specialise in prison law and in particular, in working with
people serving life and indeterminate sentences. I am the co-author
of Parole Board Hearings: Law & Practice (LAG, 2006)
and Prisoners and the Law (Tottel 2005, 3rd ed).
2. I am sure that the Committee will receive
detailed information from the Home Office and the Parole Board
about the massive increase in the numbers of people serving indeterminate
sentences and the impact that IPP sentencing is having on the
prison population generally. I will therefore try to confine these
submissions to making a few brief points about IPP sentencing
in relation to:
(a) the structure of the life sentence;
(b) the impact on the Parole Board; and
(c) the severe problems it is creating in
relation to women "lifers".
THE STRUCTURE
OF THE
LIFE SENTENCE
3. The life sentence was originally reserved
for the most serious of offences (murder and discretionary life
sentences) and so the tariff period (or minimum term) which had
to be served before any consideration could be given to release
was, in the majority of cases, a significant period.
4. The length of the normal life sentence
gave rise to Home Office policies whereby lifers would follow
a standard "career path" towards release involving progression
through to open prison conditions prior to release.[31]
Although women's prisons are not so clearly structured as men's
prisons, the relatively small number of female lifers made it
possible for this "career" to be mirrored for women.
The first detailed review of progress after conviction for all
lifers was scheduled to take place three years into the sentence.
5. The introduction of the automatic life
sentence by the Crime (Sentences) Act 1997 resulted in an increase
in the numbers of prisoners serving short tariffs which made it
impossible for some to follow the "career" path towards
release within the tariff period. To deal with the problems this
created, the Home Office sought to agree new urgent review procedures
for lifers with short tariffs, clarifying that they did not necessarily
need to go to open conditions before release and allowing for
cases to be referred to the Parole Board more quickly. The position
for many main lifer centres was becoming chaotic when the Court
of Appeal decision in Offen[32]
reaffirmed that the sentence could only be imposed where there
was a serious risk to the public and this significantly reduced
the numbers of automatic lifers with short tariffs.
6. Regrettably, despite the previous warnings
following the implementation of the sentencing framework in the
Crime (Sentences) Act 1997, it appears that little thought was
given to the impact of the sentence of IPP on lifers serving very
short tariffs. The length of the minimum term must be fixed at
one half of the equivalent determinate sentence. As the sentence
of IPP can be imposed for such a wide range of relatively minor
offences, such as ABH or affray, it is perhaps unsurprising that
there has been an explosion in the numbers of lifers serving minimum
terms of between one to three years. The Court of Appeal attempted
to replicate the Offen checks on IPP sentencing in Lang,[33]
but this would appear not to have been successful, with floods
of short tariff lifers still entering the system. It is understood
that the shortest tariff handed down so far is just 28 days (in
March 2007).
7. The practice of trying to assimilate
IPP lifers into the existing life sentence system has been an
abject failure. Sentence planning for lifers, internal prison
reviews and attendance on courses designed to address offence
related problems are all time consuming. Formal parole reviews
require six months to complete. The result is that the sentences
imposed by the courts for IPP lifers are being rendered meaningless
as it is quite simply impossible for offending behaviour needs
to be identified and addressed and reported upon in the timescales
available.
8. Moreover in my experience there has been
a failure by the Prison Service in some cases to even recognise
that those serving sentences of IPP will require a review by the
Parole Board at the end of the minimum term. For example in one
case a review by the Board at the end of a minimum term of 12
months had to be deferred for a further six months as the prison
had not prepared any sentence planning documents or reports for
the review.
THE IMPACT
ON THE
PAROLE BOARD
9. Aside from the simple increase in the
numbers of cases, the length of time it takes to review a case
and the frequency of review required are also having an enormous
impact on the Board.
10. Very often, parole hearings have to
be deferred or adjourned as full sets of reports are not ready
in sufficient time. The fact that it may take a number of hearings
to conclude a parole review greatly increase the burden on the
Board and the cost to the public.
11. In addition, if the Board does not direct
release the State's obligation under Article 5(4) of the European
Convention on Human Rights is to conduct further periodic reviews
of detention. The original rationale behind the application of
Article 5(4) was that after the punitive term has been served,
fresh issues as to the legality of the detention arise and as
these relate to the extent to which an individual has changed,
periodic reviews of the necessity for that detention are required.[34]
12. The statutory scheme requires that once
the minimum term has been served, further reviews are conducted
at intervals no greater than two years.[35]
The case law in this area has established that the timing of the
review is a matter for the Secretary of State[36]
and must be set with reference to the progress that needs to be
made by each individual lifer.[37]
In cases where very short punitive terms are set, there is inevitably
a greater likelihood that a short review period will be appropriate
and it would be unusual for a short tariff IPP lifer to have subsequent
reviews set at intervals of more than 12 months. Thus, not only
are there more prisoners to review but they will be reviewed with
greater frequency than the pre-existing lifer population.
WOMEN PRISONERS
& IPP
13. The prison estate has always been poorly
equipped to deal with women lifers. A report prepared by the Howard
League in 1999 found that despite there being only 140 women lifers
in the prison system, they usually served their sentences further
away from home and due to poor resources, spent an average of
two years longer than their male counterparts despite having a
far lower reconviction rate.[38]
By 2002 the number had remained fairly constant with approximately
167 women serving indeterminate sentences[39].
However, by January 2007, less than two years after IPP was introduced,
the number had risen to 268, the first substantial increase in
the overall female lifer population in a decade.[40]
14. The prison system has not been in a
position to invest in the specialist assessment, treatment and
support necessary for women serving life sentences. The direct
consequence is that women who receive IPP sentences with short
tariffs are the group least likely to be released on tariff expiry.
15. In order to illustrate the problems
faced by women in this group, the following case studies might
assist the Committee:
PRISONER Z
Ms Z is a 45 year old woman serving IPP for
the offence of arson with intent to endanger life. She has an
IQ in range of 60-70 and lived in very poor social housing. On
two occasions when she felt she could not cope, she attempted
to self harm by setting fire to her own flat. She has never been
convicted for any acts of violence directed to others. Her minimum
term was set at two years. 22 months into that sentence she has
been told that she still poses a risk of serious harm to the public
as she has not addressed her offending behaviour. She is not able
to take prison run courses because her IQ is too low. Her parole
papers are running four months late and only one parole report
has been disclosed to her. She has spent her entire prison sentence
in prisons over 200 miles from her home town.
PRISONER Y
Ms Y received a sentence of IPP for taking £10
from a younger woman after an argument. Her minimum term was set
at one year. She did not realise she was serving an indeterminate
sentence for several weeks after her conviction. The victim suffered
slight redness to her wrists and the pre-sentence probation report
recommended a non-custodial sentence. Ms Y had spent most of her
childhood in care and had longstanding drug and alcohol problems.
She was allocated to three prisons in her first year, the final
one being approximately 350 miles from her home and so she received
no visits. Her parole reports were late as none of the prisons
wanted to take responsibility for writing them. When the reports
were finally ready, Ms Y had not been able to complete any courses
in prison. The report writers did not know the appropriate legal
test they were required to apply to assess her suitability for
release. Her hearing was adjourned for further reports and the
attendance of her probation officer. Eventually, more than three
months after her minimum term expired she was released on licence.
A few days later the Court of Appeal quashed her sentence of IPP.
PRISONER X
Ms X spent her childhood in care following serious
sexual abuse from her mother and was separated from her siblings,
who were also placed into care. She developed drug and alcohol
problems whilst in care. Less than two years after leaving the
care of the local authority she received a sentence of IPP for
stabbing another young woman in the leg during a fight. Her minimum
term was set at 19 months. After serving 17 months of her sentence
the Home Office still had not referred her case to the Parole
Board as they had not received sufficient information about her
case to calculate her sentence. No date has been set for her parole
review. She has a history of self harm and describes how she struggles
to cope at the weekend when she is locked in her cell for 18 hours
at a stretch.
Simon Creighton
Bhatt Murphy Solicitors
6 March 2007
31 Statement of Leon Brittan, 30 November 1983. Back
32
[2001] 1 WLR 253. Back
33
[2005] 1 WLR 2509. Back
34
Thynne, Wilson & Gunnell v UK (1991) 13 EHRR 666. Back
35
Crime (Sentences) Act 1997, s 28(7)(b). Back
36
R(Day) v SSHD [2004] EWHC Admin 1742. Back
37
Eg: Oldham v UK (2001) 31 EHRR 813. Back
38
Life in the Shadows, Howard League, 1999 (ISBN 090368337-7). Back
39
Resettlement Issues Facing Female Lifers, Rachel Chapman (Griffin
Society Research Briefing 2002/1). Back
40
At the time of preparing these submissions, only informal figures
were available from the Home Office indicating that at the end
of February 2007 there were 268 female lifers in prison with a
least 40 of those serving IPP. Back
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