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Select Committee on Justice Fifth Report


3  Imprisonment for Public Protection sentences and the pressure on the Parole Board

39.  The sentencing policy behind the Criminal Justice Act 2003 had two main elements-to imprison dangerous offenders, thereby protecting the public, and to move low-risk offenders into community based sentences that met rehabilitative as well as punishment aims. It introduced the indeterminate sentence of Imprisonment for Public Protection (IPP). These sentences are based on the future risk an offender might pose and are the Act's mechanism for achieving the first element.

40.  Imprisonment for Public Protection sentences came into effect on 4 April 2005 and have been widely used. In January 2007 there were more people serving indeterminate sentences (8,570), including life sentences, than there were serving sentences of less that 12 months (7,858)-"a historic shift in the make up of the prison population".[77]

41.  But Imprisonment for Public Protection sentences have been strongly criticised across the spectrum of individuals and organisations in the criminal justice system as a sentence which, in its detail and operation, was ill-conceived. The mechanics of Imprisonment for Public Protection sentences limited judicial discretion and were not effectively targeted at the most dangerous individuals. Prison and parole systems were not effectively supported to implement the new sentences-which have made a significant contribution to the current extreme prison overcrowding crisis. The imposition of short-tariff Imprisonment for Public Protection sentences has created a situation in which the prison system could not provide for the sentenced to meet conditions of release before the end of the tariff was reached. While the Government has acknowledged some of the problems-and the Criminal Justice and Immigration Act 2008 takes steps to correct aspects which many commentators predicted-we remain concerned that changes to this sentence could have significant consequences for which we are unprepared.

How Imprisonment for Public Protection sentences work

42.  Under section 225 of the Criminal Justice Act 2003, an offender who has committed one or more of a large number of "specified offences" carrying a maximum term of imprisonment of at least ten years has to be given a life sentence or, where the seriousness of the offence or offences does not merit such a sentence, an Imprisonment for Public Protection sentence, where the sentencing court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences. Where an offender already has a previous conviction for one of 153 "specified offences", he or she will be presumed to be a risk to the public under section 229 of the 2003 Act and is liable to an Imprisonment for Public Protection sentence "unless it would be unreasonable to conclude that there is such a risk".[78] When passing sentence, the judge will determine the 'tariff' or punitive element of the sentence the offender will have to serve in prison before he or she can be released on licence by the Secretary of State for Justice on the recommendation of the Parole Board. This tariff is determined by halving the notional determinate sentence the offender would have received had he or she not been considered dangerous and given an Imprisonment for Public Protection sentence. Unlike a normal life sentence, the licence under an Imprisonment for Public Protection sentence runs for ten years and can be both extended or cut short on application by the Crown or the offender. This is the only difference between an Imprisonment for Public Protection sentence and a life sentence. The Criminal Justice and Immigration Act 2008 makes amendments to certain of these provisions including judicial discretion and tariff length, discussed in more detail below.

43.  In order to address their 'dangerousness' to the public post-conviction, Imprisonment for Public Protection prisoners, just as life prisoners, are expected to follow a number of programmes in prison reducing their risk factor (through participation in 'Offender Behaviour Programmes', such as 'Sexual Offences Treatment Programmes' and 'Enhanced Thinking Skills'). However, not all prisons offer these courses and there are detailed rules in Prison Service Orders issued by the Home Secretary on the progress of Imprisonment for Public Protection and other life prisoners through the custodial estate which aim at allowing inmates to be placed in prisons offering the most appropriate programmes and interventions. It is against the participation in, and progress on the basis of, these courses that the Parole Board assesses Imprisonment for Public Protection prisoners and their suitability for release on licence after expiry of the tariff or punitive element of the sentence. Where the Parole Board is not satisfied that an Imprisonment for Public Protection prisoner no longer poses a risk to the public, it will not recommend that prisoner to the Secretary of State for Justice for release on licence. A very detailed description of the prison service regulations for Imprisonment for Public Protection prisoners can be found in Lord Justice Law's judgment in the Imprisonment for Public Protection case of Wells and Walker v Parole Board in the High Court.[79]

RISK BASED SENTENCING IN ENGLAND AND WALES

44.  The current Imprisonment for Public Protection sentencing regime raises the issue of the role of the criminal justice system in relation to offenders who continue to pose a risk to the public. David Faulkner, a retired senior civil servant in the Home Office and international specialist in sentencing policy, pointed out in his evidence to us that:

"Risk assessment and risk management have become a major industry in criminal justice […]. In criminal justice, there are two sources of particular difficulty. One is the lack of certainty in the 'science' itself, and the pressure on practitioners to apply an automatic technology when what is needed is a considered judgement based on the balance of probabilities. The other is the accelerating movement towards punishing people not so much for what they have done but for what it is thought they might do in the future. For the courts, the Parole Board or individual practitioners to be required to make that judgement that raises serious questions about the nature, purpose and legitimacy of punishment in a modern civilised society. […] A more wide ranging debate should now take place about the proper limits of punishment by the state, and about the scope for potentially troublesome or dangerous people to be effectively but legitimately restrained by means which are not necessarily punitive in their nature or intention".[80]

In the face of the current overcrowding of the custodial estate and the negative experiences with Imprisonment for Public Protection legislation so far, this debate should start sooner than later.

45.  The primary objective of Imprisonment for Public Protection (IPP) is the prevention of future harm and offending by incarceration, rather than punitive imprisonment triggered by an actual offence, or rehabilitation. We believe that such preventive detention has to be a rare exception. The use of other, less draconian, measures can be used to manage the risk of individuals to re-offend. Preventative civil orders such as ASBOs, Serious Crime Prevention Orders or Violent Offender Orders, are a complement to Imprisonment for Public Protection sentences where the latter would be disproportionate. Yet, neither the criminal justice system nor civil orders can eradicate the risk of serious offending or re-offending by dangerous individuals. The same problem arises with measures under mental health legislation. Our society will never be a risk-free one; it would be wrong to create the expectation that it can be.

46.  Some of our witnesses have emphasised that Imprisonment for Public Protection sentences, where sensibly used and policed, could be an important element in the armoury of the criminal justice system. Lord Woolf noted in his evidence to the Home Affairs Committee that "there has always been a very small number of cases that are very worrying to the courts where you just do not know how dangerous the individual is. In that case an indeterminate sentence if available could be useful; it could be a merciful sentence".[81] Where continued imprisonment for public protection in the form of an IPP sentence is narrowly targeted at those offenders who pose a very serious risk to the public, and is established on the basis of conclusive evidence before a court, we believe it can be a necessary, effective and proportionate penal intervention.

47.   There has been previous experience with risk-based sentencing in England and Wales in the form of automatic life sentences or indeterminate sentences. The Prevention of Crime Act 1908 allowed judges to pass dual-track sentences where the offender demonstrated "evidence of habituality" in his or her offending behaviour, which mandated "preventive detention". Despite the lack of practical success with this type of sentence and a damning Home Office review of the legislation, a similar preventive detention measure was re-enacted in the Criminal Justice Act 1948 but, following severe criticism, repealed in 1967.[82]

48.  The Crime (Sentences) Act 1997 introduced an automatic life sentence for serious repeat offenders. Under this Act, a person who had a previous conviction for one of eleven enumerated very serious violent or sexual offences, had to be given a life sentence for a second trigger offence, save in exceptional circumstances. The automatic life sentence was not available for first-time offenders even where the sentencing court considered them to pose a significant risk to the public of further serious offending and therefore differed quite markedly from the Imprisonment for Public Protection sentences by which they were replaced under the 2003 Act. Only about 200 offenders received discretionary or automatic life sentences per year prior to the coming into effect of the 2003 Act in 2005.[83]

Criticism of the Imprisonment for Public Protection sentence system

49.  Since the coming into effect of Imprisonment for Public Protection sentences in April 2005, the number of offenders receiving this form of sentence has been steadily increasing. At a rate of around 120 new Imprisonment for Public Protection prisoners per month,[84] the overall number of prisoners in the prisons of England and Wales serving indeterminate sentences (i.e. life and Imprisonment for Public Protection sentences) had reached 10,079 in October 2007.[85] It is the largest increasing category of prisoners in the prison system and set to increase under current projections to 12,500[86] or even 25,000[87] Imprisonment for Public Protection prisoners by 2012. The evidence is clear that this puts an enormous strain on the prison system and the Parole Board.

50.   There are two main criticisms of Imprisonment for Public Protection sentencing— firstly that the structure of the sentences is flawed and secondly that the systems surrounding their implementation and operation were not given enough thought or resources.

SHORT TARIFFS AND THE IMPACT ON PRISON SYSTEM

51.  One of the main criticisms of the Imprisonment for Public Protection sentence system under the 2003 Act was directed at the rather short tariffs or punitive terms received by a large number of Imprisonment for Public Protection prisoners. Jack Straw told us that tariffs as short as one month were not unheard of, [88] and that, in October 2007, the average tariff was 38 months.[89] The Parole Board told us in their memorandum that half of Imprisonment for Public Protection prisoners had received tariffs of 20 months or less and 20% of Imprisonment for Public Protection sentences came with a tariff of under 18 months.[90]

52.  Most of our witnesses were strongly opposed to Imprisonment for Public Protection sentences with short tariffs, as these would not allow for rehabilitative and resettlement programmes and interventions properly to take place inside prison so that prisoners could address their risk factors in time for their assessment for release on licence by the Parole Board. When we asked the Chief Executive of the Parole Board, Christine Glenn, about the current situation relating to Imprisonment for Public Protection prisoners, she told us that under the current regime there was absolutely no time for the Prison Service to do anything meaningful: "it is a six-month lead-in to write the various reports that go in the dossiers […] and if you have only got a sentence of six, 12 months, there is no time to do any work, any sentence planning. So, effectively, the judge at sentence says, 'You are too dangerous, therefore I give you this indeterminate sentence', and nothing can have changed in the meantime".[91] Simon Creighton, one of the leading prison litigation solicitors, echoed Ms Glenn's comments and pointed out that:

"The life sentence system was originally devised for people serving long sentences, ten, 15, 20 years, and so all the systems that are in place, the length of courses, the assessments, the yearly reviews, the categorisation, are based on a very long prison sentence. If you put a life sentence of six months or 18 months into that system, then it clearly is not going to work. You cannot adapt the system to meet these short tariffs; it is not designed to operate in that way".[92]

53.  A very striking example of the situation in which short tariff Imprisonment for Public Protection prisoners may find themselves was documented in the High Court judgment in the case of Wells and Walker v Parole Board.[93] In this decision, Lord Justice Laws quoted from a letter by the Parole Board to a 12 month-tariff Imprisonment for Public Protection prisoner notifying him of its decision not to recommend his release on licence for lack of participation in risk-reducing offender behaviour courses:

"You have not undertaken any offence-focused work. It is fair to say that that is not your fault. There are no appropriate offending behaviour courses at your current prison. The Panel accept that you would like to undertake such courses. However, this will require your move to another prison, which the prison authorities have failed to arrange […] Unfortunately it is not the remit of the Parole Board to make up for the deficiencies of the prison service. We are charged with a duty not to release life prisoners while their risk of further serious offending remains high. Because you have not been able to do any of the appropriate courses you are unable to demonstrate any reduction in risk from the time you are sentenced".[94]

54.  Simon Creighton thus judged the practice of trying to assimilate Imprisonment for Public Protection prisoners into the existing life sentence system as "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 6 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". [95]

55.  Situations like this have already led to high-profile judicial review litigation in the High Court and the Court of Appeal in the cases of Wells and Walker v Parole Board [96] and R (James) v Secretary of State for Justice.[97] We do not wish to comment on the merits of these decisions, however, we stress that, as a matter of policy and common sense rather than law, it is wholly indefensible to incarcerate prisoners of any category beyond the expiry of their tariff or their eligibility for release on licence simply because of a lack of resources on the part of HM Prison Service or the Parole Board.

56.  Imprisonment for Public Protection sentences should only be imposed with a tariff of a length giving the Prison Service a realistic chance to offer the necessary interventions and programmes to allow the Imprisonment for Public Protection prisoner to reduce his or her risk factors and which give the Parole Board the time to carry out the relevant assessments and hearing to determine whether IPP prisoners should be released on licence. Where IPP sentences with tariffs as short as 28 days have been imposed, it is disturbing but unsurprising that large numbers of IPP prisoners have to remain in prison beyond expiry of their tariffs as there is insufficient time for proper completion of rehabilitative courses and programmes and for the Parole Board to carry out the relevant assessments.

TARGETING THE RIGHT OFFENDERS AND JUDICIAL DISCRETION

57.  The instance of relatively short tariffs under Imprisonment for Public Protection legislation has also been described as a symptom of the Imprisonment for Public Protection provisions of the 2003 Act being too broad and thus not targeting only those offenders who would actually pose a serious risk to the public meriting the imposition of an Imprisonment for Public Protection sentence. Lord Woolf, in his evidence to the Home Affairs Committee, said that it was not good sentencing policy to create a situation where a court imposes an indeterminate sentence and at the same time says that the tariff should be 18 months.[98] When we asked Jack Straw about this problem, he agreed that there was "an apparent paradox between a very short tariff, along with a declaration by virtue of the sentence, that these people represent a longer-term threat".[99] This paradox has been said to have led to considerable confusion and frustration of prisoners given Imprisonment for Public Protection sentences: some of these prisoners had little grasp of their position and did not fully understand why their were treated as life prisoners when they had committed relatively minor offences and received a short tariff.[100]

58.  The President of the Queen's Bench Division of the High Court and Head of Criminal Justice for England and Wales, Sir Igor Judge, also stressed that there were "a whole lot of other offences which probably you would not regard as sufficient to justify sending somebody to prison for the rest of his […] life"[101] for which Imprisonment for Public Protection sentences were imposed. Sir Igor was of the view that "before you qualify for an IPP, you really [should] have to have committed something rather serious; not something which receives 28 days but which merits at least a term of x years' imprisonment".[102]

59.  Our witnesses stressed that the combination of the very wide catalogue of trigger offences for Imprisonment for Public Protection sentences, the presumption of dangerousness for second-time offenders and the thus severely curtailed discretion of sentencing judges to pass a determinate sentence rather than an Imprisonment for Public Protection sentence, led to Imprisonment for Public Protection sentences not only being imposed on high-risk offenders but also on those offenders who would not merit such severe penal intervention. Moreover, the criminal courts were imposing Imprisonment for Public Protection sentences quasi-automatically;[103] initial attempts by the Court of Appeal (Criminal Division) to restrict Imprisonment for Public Protection sentences to offenders positively found to be dangerous on the basis of the evidence before the sentencing judge,[104] appeared not to have been particularly successful.[105]

60.  The adverse impact of short tariffs on prisoners and the prison system as a whole was dramatically described by Christine Glenn when she told us of an exchange she had with a judicial member of a Parole Board panel:

"If I can read you what he said, it just gives you another flavour from another prison: 'I spoke to the lifer manager of one prison. He has 200 indeterminate lifers in first stage prison, official capacity 140. Two-thirds are IPPs, few have been sentence-planned'-so that is the stages they need to follow—'and about 70 of them are coming up to tariff expiry over the next 12 months. About 30 are ready to move on to Cat C.' That is the training estate. 'So far no IPP has moved on. He cannot provide any training due to lack of resources. For example, he has 40 ETS places'-that is the Enhanced Thinking Skills course-'for 1200 prisoners in his prison, and that is his limit. He cannot take any more. IPPs are now being backed up into other prisons which have never before taken lifers and cannot sentence-plan at all.' So, that is just a flavour from one big prison and the desperation that that lifer manager is trying to do something to support them".[106]

Anne Owers added that the frustration of Imprisonment for Public Protection prisoners who were held at local prisons where they could not participate in relevant offender management programmes would increase the risk to prisoners and prison staff.[107]

61.   The removal of judicial discretion in relation to the imposition of Imprisonment for Public Protection sentences for certain second-time offenders was a retrograde step.

62.  The substantial number of Imprisonment for Public Protection sentences with short tariffs demonstrate that this type of sentence has not been targeted at those offenders who positively pose a grave risk to the public for fear of committing serious violent or sexual offences, but has been imposed on a much larger group of offenders whose offending behaviour does not merit a disposal as draconian as an Imprisonment for Public Protection sentence. It is difficult to understand why an offender who might only receive a short determinate sentence should be given an Imprisonment for Public Protection sentence for having a previous conviction for a comparatively minor offence and be considered as 'dangerous' and thus merit an indefinite custodial sentence.

GOVERNMENT PROPOSALS TO ADDRESS STRUCTURAL PROBLEMS WITH IMPRISONMENT FOR PUBLIC PROTECTION SENTENCES

63.  Lord Carter's prisons review Securing the future: Proposals for the efficient and sustainable use of custody in England and Wales recommended that where the notional determinate sentence for the trigger offence would be four years and under, (thus being equivalent to a two year tariff under an Imprisonment for Public Protection sentence), an Imprisonment for Public Protection sentence should not be passed save for exceptional circumstances. When we asked him about his recommendation in relation to Imprisonment for Public Protection sentences, he told us that "the judiciary can still give an Imprisonment for Public Protection if they wish, but we believe that under four years it has not worked as I think it was intended to work and therefore it is something which should be discontinued".[108] He accepted that: "there was a pressure to use [IPP sentences] where the judiciary did not want to. What this is seeking to do is to reverse that pressure but still leave the option there if they wish to use it".[109]

64.  The Criminal Justice and Immigration Act 2008 therefore contains provisions to amend the Criminal Justice Act 2003 structure of Imprisonment for Public Protection sentences. Under these amendments, the presumption of dangerousness is removed,[110] and judicial discretion considerably bolstered with the substitution of 'the court may' for 'the court must'.[111] Furthermore, Imprisonment for Public Protection sentences would only be available for first-time offenders or repeat offenders who do not have previous convictions for very serious violent and sexual offences where the tariff or punitive term would be at least two years (and thus the equivalent of a notional determinate sentence of at least four years). However, where an offender has a previous conviction for one of 22 very serious violent or sexual offences (such as murder, manslaughter, wounding with intent to cause grievous bodily harm, rape or sexual abuse of minors), an Imprisonment for Public Protection sentence can be passed without a minimum tariff.[112] We are unclear as to the rationale for this particular distinction.

65.  We generally welcome these changes, in particular the abrogation of the presumption of dangerousness for large categories of second-time offenders will be a crucial-and overdue-step towards targeting Imprisonment for Public Protection sentences at a much smaller group of offenders posing a very serious threat to the public. We welcome the fact that it will again be incumbent upon the Crown to adduce evidence to the effect of an offender's risk to the public and make the case for an Imprisonment for Public Protection sentence before the sentencing judge.

66.  However, some concerns remain. Because of the current severe lack of prison capacity and resources, we think that the minimum tariff of two years for first-time offenders and those with non-serious previous convictions may eventually prove too short for effective and sustainable rehabilitative programmes to be carried out in prison. A longer minimum term would be appropriate. We note with interest that under the dangerous offender provisions of the Criminal Code of Canada indeterminate sentences carry a minimum tariff of seven years.[113]

67.  While we are in favour of an appropriate minimum term for Imprisonment for Public Protection sentences, we were warned by Paul Tidball, the President of the Prison Governors' Association, that the fixing of a minimum tariff for such sentences could lead to an increase in sentence levels for certain offenders. This might happen where the sentencing judges would like to pass an Imprisonment for Public Protection sentence but the offence as such would not merit the minimum tariff.[114] Where a judge might normally impose a 40 months notional determinate sentence (equivalent to a 20 months tariff), he or she might pass a sentence of four years (i.e. a tariff of 2 years), just so that he would be put in a position to impose an Imprisonment for Public Protection sentence. We hope that judges will resist the temptation of 'uptariffing' in order to pass Imprisonment for Public Protection sentences where the presenting offence does not merit the imposition of the minimum custodial term for an Imprisonment for Public Protection sentence to become available.

68.  We welcome the changes made to the Imprisonment for Public Protection sentence provisions in the Criminal Justice Act 2003. Judges will now regain unfettered discretion in relation to the imposition of Imprisonment for Public Protection sentences so that this type of sentence can be targeted at those offenders posing a very real and serious risk to the public. However, we will be keeping a close eye on the impact of the changes to Imprisonment for Public Protection sentences as they by no means guarantee an effective and appropriate structure for risk based sentencing.

IMPROVING RISK ASSESSMENT AND SENTENCING INFORMATION

69.  Using Imprisonment for Public Protection sentences proportionately and adequately depends to a very large extent on the quality of information and evidence about an offender (and his or her previous and predicted offending behaviour) available to the sentencing judge. It appears that currently sentencers do not necessarily always have available an appropriate degree of information to form a reliable view as to an offender's potential risk and continuing dangerousness when asked to pass sentence.

70.  We were surprised to hear from Paul Tidball that "at least half of those that end up in prison on IPP sentences have not had, in our view, the sort of pre-sentence assessment which determines that they are actually in need of an IPP sentence".[115] He concluded that if judges were given more discretion in the decision whether or not to impose an Imprisonment for Public Protection sentence, they should be required to obtain adequate pre-sentence reports.[116] Mr Tidball's assessment was confirmed by Simon Creighton, who told us that "pre-sentence inquiries simply are not done".[117] He therefore advocated the abrogation of the presumption of dangerousness for second-time serious offenders: "if it was for the prosecution to establish that the prisoner posed the risk and had to establish that against the prisoner, it would give the judges the discretion, it would give greater emphasis on the pre-sentence inquiries".[118] In a similar vein, the Howard League for Penal Reform stressed that "investment in pre-sentence reports and those charged with preparing them should be a priority".[119]

71.  In Canada, indeterminate preventive detention of dangerous offenders under s. 753 of the Criminal Code of Canada can only be imposed on the basis of a 60 day psychiatric assessment which the sentencing court has to order. Similarly, in Scotland, the new 'order for lifelong restriction' under the Criminal Justice (Scotland) Act 2003 is only available following a thorough risk assessment in a 'risk assessment report' carried out by a trained risk assessor who is accredited by the new Risk Management Authority. The sentencing court can adjourn proceedings for up to 90 days for this report to be prepared.

72.  The system of Imprisonment for Public Protection sentences presupposes a rigorous risk assessment prior to sentencing so as to put the sentencing judge in a position to be make an informed and reliable decision on the risk to the public an offender poses. Robust pre-sentence assessment procedures need to be put in place to allow the reformed system of Imprisonment for Public Protection sentences to work in the way Parliament intends. We believe that, in order to be effective, Imprisonment for Public Protection sentences require the judge to be provided with a pre-sentence report including a comprehensive risk assessment. We believe that the Government needs to make adequate resource provision for these purposes.

LACK OF ADEQUATE FORECASTING, PLANNING AND RESOURCING

73.  The most damning point of criticism of the Imprisonment for Public Protection system concerns the coming into force of the IPP provisions of the Criminal Justice Act 2003 in April 2005. Anne Owers, considered it "reprehensible that there was no advance planning for this group of prisoners, in spite of the fact that their numbers have grown slightly less than was projected".[120] Christine Glenn, of the Parole Board told us that the initial Government planning "said that the effect [of the new IPP provisions] would saturate to around 3,500 extra people in prison in this category. We know that is woefully out. The sentence planning […] was done on the basis that most IPPs would succeed in reducing their risk because they would get fairly lengthy tariffs, and that has not happened either".[121] Simon Creighton echoed this and pointed out that while the number of people serving life sentences massively increased following the coming into force of the Imprisonment for Public Protection legislation in 2005, there had been "no commensurate increase in the number of staff working for the Ministry of Justice who identify who these people are and tell the prisons, so their case loads have gone up two, three-fold, and so you get many people halfway through their sentence and no-one actually knows they are serving a life sentence and no-one can tell the prison".[122]

74.  Indeterminate sentences have no predictable endpoint and thus any structured sentencing framework developed while Imprisonment for Public Protection sentences were being used would have to allow a margin for the impact of prisoners sentenced to indeterminate lengths in prison.

75.  The Government failed to engage in adequate resource and capacity planning for the coming into effect of the Imprisonment for Public Protection sentence provisions in April 2005. Imprisonment for Public Protection sentences were the 'flagship' in the Government's crime reduction and public safety agenda in the Criminal Justice Act 2003, but this policy was not accompanied by the level of custodial resources required to make IPP sentences work.

Lack of Parole Board resources

76.  The lack of adequate resource and capacity planning appears to us to have been particularly striking in relation to the Parole Board: the rapid increase in the number of Imprisonment for Public Protection prisoners with short tariffs has led to enormous pressure on the Parole Board, which is tasked with assessing Imprisonment for Public Protection and life sentenced prisoners in a quasi-judicial manner and making binding recommendations as to their release to the Secretary of State for Justice. The Chief Executive of the Parole Board told us of IPP prisoners who could not get a Parole Board hearing "because we could not find a judge". She noted that this "is an increasing problem now and, up until April this year [2007], I could fairly confidently say that we would list almost all of our cases in time before tariff expiry. I cannot say that now because of the workload having gone up".[123] On the basis of Home Office projections to the effect that under the current legislation there might be 25,000 IPP prisoners by 2012 Sir Igor Judge estimated that the Parole Board would need "some extra 100 judges" and was wondering where they would come from.[124]

77.  Although the Government has increased the financial resources of the Parole Board we doubt whether this investment will significantly and sustainably reduce the pressure on the Board caused by Imprisonment for Public Protection sentences. The availability of judicial members of Parole Board panels will remain an issue unresolved by an increase in the Board's budget. It needs to be solved as a matter of the greatest urgency as capacity shortages of Parole Board panels directly affect the liberty of the subject where decisions relating to release on licence are concerned.

Lack of centrally-held sentence management information

78.  We were also amazed at the lack of centrally-held sentence management information. When, in the course of our inquiry, we asked the Secretary of State for Justice in writing whether NOMS or HM Prison Service would centrally hold the dates of tariff expiry of life and Imprisonment for Public Protection prisoners and eligibility dates for release on licence of prisoners serving determinate sentences, we were told that:

"Information on the total numbers of prisoners who have passed the date on which they are eligible for parole but have not yet been assessed; and by how many days they are overdue on average, is not held centrally and could be collated only by manual checking of individual case details […]".[125]

79.  Simon Creighton told us, on the basis of his experience as a solicitor dealing with a large number of Parole Board cases, there had been a failure by the Prison Service in some cases to even recognise that those serving sentences of Imprisonment for Public Protection required a review by the Parole Board at the end of the minimum term. In one case, a review by the Board at the end of a minimum term of 12 months even had to be deferred for a further 6 months as the prison had not prepared any sentence planning documents or reports for the review.[126]

80.  When we asked Jack Straw on 17 December 2007 about the lack of centrally-held tariff expiry and release eligibility information he expressed surprise at this situation.[127] We share this sentiment. Realistic resource planning, both for the Prison Service and the Parole Board, cannot be done in the absence of centrally-held comprehensive tariff expiry and release eligibility data. Collating such data is not a matter of large and complicated databases and programmes like the ill-fated C-NOMIS. Collating these data has to be seen as a core management task for NOMS and the Prison Service. We recommend that such a database be created immediately and expect to be informed of the progress of the central collection of tariff and release eligibility data of all categories of prisoners.

The role and powers of the Parole Board

TRANSFER OF JUDICIAL FUNCTIONS FROM THE ORIGINAL SENTENCER TO THE BOARD

81.  It has become obvious that the Parole Board, over the last decade, has moved from being primarily an executive body making administrative decisions on paper and providing non-binding recommendations to the Home Secretary and now the Secretary of State for Justice, to being, to all intents and purposes, a court, making decisions in the cases of the most dangerous offenders at an oral hearing.[128] For a wide range of offenders, such as life and Imprisonment for Public Protection prisoners, the Parole Board has now taken over the function of determining the effective sentence length.[129]

Adequate resourcing and procedures for the Parole Board

82.  There is some doubt over the capacity of the Board to deal adequately and timely with an ever increasing workload. We have already noted that Sir Igor Judge told us that at the current rate of Imprisonment for Public Protection sentences being passed, the Parole Board will need an extra 100 judges to sit on lifer and other panels. We have heard of cases where Parole Board hearings for IPP prisoners and other lifers had to be deferred for lack of judicial panel members.

83.  The Parole Board is charged with making judicial decisions about the sentence length for life and Imprisonment for Public Protection prisoners. It is absolutely vital for the Board to be able to draw on the resources and personnel (including, crucially, members of the judiciary to sit on lifer or IPP panels) to carry out its judicial work. The Ministry of Justice should ensure the adequate functioning of the Parole Board as a court. We recommend that it take urgent action to discharge this duty.

84.  It is not only the resource and personnel aspect of the Parole Board which has bearing on the adequate functioning of the Board as a court. In its written submission to the Home Affairs Committee, JUSTICE noted that the Board currently had "insufficient powers to fulfil its functions as well as possible-in particular, it lacks the power to compel witnesses".[130] Simon Creighton was adamant that:

"One of the key problems we have as lawyers representing prisoners at parole hearings is that there is nobody with any power to make things happen, and all the Parole Board can do is ask the Prison Service or ask the prisoner's lawyers to do things, but there is nobody to enforce these timetables or require people to take action and so things can drag on forever while people argue about who will do it".[131]

85.  Christine Glenn echoed this criticism and suggested giving the Board statutory powers, which courts already possessed, such as the power to make wasted costs orders and the power to call witnesses and enforce witnesses attendance. While "that would not be the complete answer" she stressed that such new powers "ought to improve things".[132] Where the Parole Board operates as a court effectively determining the length of custodial sentences for a large number of prisoners it will need the requisite powers to discharge its functions appropriately and in a timely fashion. We recommend that the Parole Board be provided with powers to compel the attendance of witnesses and to make wasted costs orders.


77   Ev 17 Back

78   This presumption of dangerousness has changed under the 2008 Act, as will be discussed in detail later Back

79   [2007] EWHC 1835 (Admin), 31 July 2007,www.bailii.org/ew/cases/EWHC/Admin/2007/1835.html Back

80   Ev 43 Back

81   Lord Woolf, Q 23 (HAC) Back

82   David Rose, Locked up to make us feel better, New Statesman 19 March 2007, p .22  Back

83   Ibid Back

84   Howard League for Penal Reform, Prison Information Bulletin 3, Indeterminate Sentences for Public Protection,(2007), p. 8 Back

85   Ministry of Justice/NOMS, Population in custody: Monthly tables, October 2007, England and Wales, Table 1. Out of those prisoners serving indeterminate sentences, which include mandatory and discretionary life sentences, 2,900 were serving Imprisonment for Public Protection sentences in June 2007. See also HC Deb 16 January 2008, col. 1336W Back

86   Ev99 Back

87   Q 196, See also Howard League for Penal Reform, Prison Information Bulletin 3, Indeterminate Sentences for Public Protection, (2007), p. 9 Back

88   Uncorrected transcript of oral evidence on the work of the Ministry of Justice, taken before the Constitutional Affairs Committee, on 9 October 2007, HC (2006-07) 987-ii,Q 67 Back

89   Uncorrected transcript of oral evidence on the work of the Ministry of Justice, taken before the Constitutional Affairs Committee, on 9 October 2007, HC (2006-07) 987-ii,Q 64 Back

90   Ev 99 Back

91   Q 162 Back

92   Q 164 Back

93   [2007] EWHC 1835 (Admin), www.bailii.org/ew/cases/EWHC/Admin/2007/1835.html Back

94   Ibid Back

95   Ev 28 Back

96   [2007] EWHC 1835 (Admin), www.bailii.org/ew/cases/EWHC/Admin/2007/1835.html Back

97   [2007] EWHC 2027 (Admin), www.bailii.org/ew/cases/EWHC/Admin/2007/2027.html Back

98   Lord Woolf, Q 23 (HAC) Back

99   Uncorrected transcript of oral evidence on the work of the Ministry of Justice, taken before the Constitutional Affairs Committee, on 9 October 2007, HC (2006-07) 987-ii,Q 64 Jack Straw, The work of the Ministry of Justice, transcript 09.10.07, Q 64 Back

100   Howard League for Penal Reform, Prison Information Bulletin 3 Indeterminate Sentences for Public Protection, (2007), p. 20 Back

101   Q 196 Back

102   Q 197 Back

103   Ev 17, Ev 88 Back

104   Especially R v Lang [2005] EWCA 2864, 3 November 2005, at para 17, www.bailii.org/ew/cases/EWCA/Crim/2005/2864.html; R v Johnson [2006] EWCA Crim 2486, 20 October 2006, www.bailii.org/ew/cases/EWCA/Crim/2006/2486.html; most recently also: R v Terrell [2007] EWCA Crim 3079, 21 December 2007, www.bailii.org/ew/cases/EWCA/Crim/2007/3079.html Back

105   Ev 28 Back

106   Q 161 Back

107   Ev 52 Back

108   Q 299 Back

109   Q 310 Back

110   Section 17, instead, previous convictions are included as factors for the court to consider when determining whether the offender presents a significant risk to members of the public of serious harm occasioned by the commission by him of further such offences.  Back

111   Section 13, new sub-section 225(3) Back

112   Section 13 Back

113   Criminal Code of Canada, Section 176 Back

114   Q 181 Back

115   Q 181 Back

116   Q 181 Back

117   Q 182 Back

118   Q 182 Back

119   Ev 65 Back

120   Ev 51 Back

121   Q 161 Back

122   Q 175 Back

123   Q 165 Back

124   Q 196 Back

125   Ev 103 (JSC) Back

126   Ev 28 Back

127   Q 474- 475 Back

128   Parole Board, Annual Report 2006-07, October 2007, p. 7 Back

129   Ev 75 Back

130   Ev 75 Back

131   Q 174  Back

132   Q 174 Back


 
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